Lang v. Consumers Ins. Service, Inc.

• Decision Date: 06 December 1991
• Docket Number: No. 2-90-0848,2-90-0848
• Citation: 164 Ill.Dec. 825,222 Ill.App.3d 226,583 N.E.2d 1147
• Parties: , 164 Ill.Dec. 825 Kory A. LANG, Plaintiff-Appellant, v. CONSUMERS INSURANCE SERVICE, INC., et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1147

583 N.E.2d 1147

222 Ill.App.3d 226, 164 Ill.Dec. 825

Kory A. LANG, Plaintiff-Appellant, v. CONSUMERS INSURANCE SERVICE, INC., et al., Defendants-Appellees.

No. 2-90-0848.

Appellate Court of Illinois Second District.

Dec. 6, 1991.

McCuaig, Haeger, Bolz, McCarty & Baudin (W. Randal Baudin, of counsel), West Dundee, for Kory A. Lang.

Richard A. Del Giudice, Patrick K. Nails, Gozdecki & Zido, Chicago, for Consumers Ins. Service, Inc., and Interstate Bankers Mut. Cas. Co.

Steven C. Lindberg, Kamerman, Freedman, Anselmo & Lindberg, Naperville, for Interstate Bankers Mut. Cas. Co.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, Kory A. Lang, appeals from two orders of the circuit court of Kane County. One order dismissed counts I and II of Lang's first amended complaint against defendants, Consumers Insurance Service, Inc. (Consumers), and Interstate Bankers Mutual Casualty Company (Interstate), for failure to state a cause of action. The other order granted summary judgment in favor of Interstate as to count III. Plaintiff asserts that the dismissal of counts I and II was unfounded and that summary judgment for Interstate was improper because material factual issues remained unresolved.

Lang alleged the following facts as a basis for all three counts of the complaint. Prior to the incidents involved here, Consumers had been plaintiff's insurance agent, and Interstate had carried the insurance on his 1986 Toyota. At the end of April 1988 Lang purchased a 1988 Toyota 4-Runner vehicle from the Nugent Toyota Dealership. In the course of the purchase, and before plaintiff was allowed to remove the vehicle from the premises, Nugent's credit manager, Allen Goldberg, telephoned Consumers, spoke with a Consumers' employee, and requested verification that the 1988 Toyota would be covered by auto insurance. The employee verified coverage and indicated that it would be carried through Interstate. In reliance on Consumers' representation, plaintiff took delivery of the Toyota, started using it, and paid the premiums for insurance coverage when they became due. On September 24, 1988, Lang was involved in an auto collision which wrecked the 1988 Toyota. He filed a claim with Consumers and Interstate but was denied coverage.

Count I of the amended complaint alleged negligent misrepresentation by both defendants, Consumers because it had misrepresented to plaintiff that he had insurance coverage on the 1988 Toyota, and Interstate on the theory that Consumers was acting as its agent. In count II plaintiff alleged violations of the Consumer Fraud and Deceptive Business Practices Act (Ill.Rev.Stat.1987, ch. 121 1/2, par. 261 et seq.) by both defendants. Again, plaintiff pursued Interstate on an agency theory. Both counts I and II sought relief in the form of damages. Count III sought a declaratory judgment that there was an auto insurance contract between Lang and Interstate for the 1988 Toyota and that Interstate must provide coverage for Lang's loss.

Both Consumers and Interstate filed motions to dismiss the amended complaint. By an order entered November 2, 1989, both motions were granted, with prejudice, as to counts I and II of the complaint. Lang's subsequent motion to file a second amended complaint was denied, and Consumers' motion to dismiss the entire cause of action against it was granted. In an order of June 28, 1990, Interstate's motion for summary judgment on count III was also granted, and the case against Interstate was dismissed. This timely appeal followed.

As a preliminary matter, Consumers correctly points out that there are inaccuracies in the notice of appeal filed by plaintiff. Specifically, the notice states that appeal is taken from a November 2, 1989, order granting Interstate's motion to dismiss counts I and II of the complaint. This is an incomplete statement of the contents of that order, which granted not only Interstate's motion to dismiss but also Consumers' motion to dismiss. Also, according to the notice, appeal is taken from a June 28, 1990, order granting Consumers' motion to dismiss. That order actually granted Interstate's motion for summary judgment.

While the filing of a notice of appeal is jurisdictional (134 Ill.2d R. 301; Bell Federal Savings & Loan Association v. Bank of Ravenswood (1990), 203 Ill.App.3d 219, 223, 148 Ill.Dec. 559, 560 N.E.2d 1156), as has been established by the court in Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 433, 31 Ill.Dec. 178, 394 N.E.2d 380, such a notice is to be construed liberally. The purpose of a notice of appeal is to inform the prevailing party in the trial court that his opponent seeks review by a higher court. (Burtell, 76 Ill.2d at 433, 31 Ill.Dec. 178, 394 N.E.2d 380; In re Marriage of Click (1988), 169 Ill.App.3d 48, 54, 119 Ill.Dec. 701, 523 N.E.2d 169.) Accordingly, notice should be considered as a whole and will be deemed sufficient to confer jurisdiction on an appellate court when it fairly and adequately sets out the judgment complained of and the relief sought, thus advising the successful litigant of the nature of the appeal. (Burtell, 76 Ill.2d at 433-34, 31 Ill.Dec. 178, 394 N.E.2d 380; March v. Miller-Jesser, Inc. (1990), 202 Ill.App.3d 148, 157, 147 Ill.Dec. 504, 559 N.E.2d 844; Hamer v. Board of Education of Township High School District No. 113 (1978), 66 Ill.App.3d 7, 8-9, 22 Ill.Dec. 755, 383 N.E.2d 231.) Where the deficiency in notice is one of form, rather than substance, and the appellee is not prejudiced, the failure to comply strictly with the form of notice is not fatal. (Burtell, 76 Ill.2d at 434, 31 Ill.Dec. 178, 394 N.E.2d 380; In re Marriage of Betts (1987), 159 Ill.App.3d 327, 330, 110 Ill.Dec. 555, 511 N.E.2d 732.) We think Lang's notice of appeal is sufficient to withstand scrutiny under these principles.

While the notice does not completely or accurately set forth the content of the orders appealed from, it does correctly relate the dates the orders were entered. Too, it refers to motions to dismiss by both Interstate and Consumers; as we have mentioned, the earlier order granted motions to dismiss both defendants. In a separate paragraph the notice states that the cause was not ripe for appeal until entry of the June 28, 1990, order which "disposed of the cause and the parties in their entirety." Finally, the notice requests reversal of "both Orders" and reinstatement of the cause of action.

Although plaintiff's notice of appeal is confusing as to which order dismissed which party, and how they were dismissed, it leaves little doubt that plaintiff sought review by a higher court of the orders which resulted in the complete dismissal of his cause against both defendants. Those orders were the orders of November 2, 1989, and June 28, 1990. In addition, we note that defendants do not claim to have been prejudiced by the errors in the notice of appeal. On the contrary, both defendants have timely and fully responded to the arguments proffered by plaintiff in challenge to both orders cited by date in the notice. Considered in its entirety, the notice was adequate to advise the defendants of the judgments challenged and the relief sought by plaintiff and, thus, to apprise them of the nature of the appeal. Absent prejudice to defendants, the notice of appeal is sufficient to confer jurisdiction on this court. Burtell, 76 Ill.2d at 433, 31 Ill.Dec. 178, 394 N.E.2d 380.

In another preliminary argument Consumers claims that plaintiff did not properly preserve for appellate review the issues he raises relevant to the order of November 2, 1989, which granted the defendants' motions to dismiss as to counts I and II of the complaint. Specifically, Consumers points out that plaintiff did not object or file "any memorandum" in opposition to the motion to dismiss and neither requested leave to amend his complaint nor objected to dismissal of the motion with prejudice. There is no merit to defendant's claim.

Plaintiff was not required to object formally or file a memorandum in opposition to defendant's motion. We are confident, however, that the motion did not pass unnoticed by plaintiff. The order entered on November 2, 1989, indicates that the matter was coming on to be heard on the motion to dismiss and that both plaintiff's and defendants' attorneys were present. After "the court hearing all arguments" it was ordered that both defendants' motions were granted as to counts I and II of the complaint. Although the record does not contain a report of proceedings of the hearing on the motions, since plaintiff's counsel was present we think it reasonable to conclude that "all" the "arguments" heard by the court included an oral argument by plaintiff's counsel in opposition to Consumers' motion. Consumers does not claim otherwise. Such an argument would fulfill the same purpose as either a memorandum of law or an objection relative to the motion. Plaintiff was not obligated, either, to request further leave to amend his complaint or to object to dismissal with prejudice. He may have simply decided that an appeal of the trial court's disposition was the prudent direction to take. In sum, plaintiff's amended complaint was before the trial court. The motion to dismiss was addressed to the complaint. Argument was heard on the motion. On this record we cannot say the issues raised by plaintiff as to Consumers were not sufficiently preserved for review.

We turn now to the substantive issues raised on appeal. Plaintiff asserts that the trial court erred in granting the defendants' motions to dismiss as to counts I and II of the complaint. Both defendants' motions were brought pursuant to section 2-615(b) of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-615(b)) for failure to state a cause of action. The trial court's order, however, reflects only a bare grant of the two motions. The court did not make any findings or set forth any basis for dismissing the...