Loyola Academy v. S & S Roof Maintenance, Inc.

• Decision Date: 23 January 1992
• Docket Number: No. 70601,70601
• Parties: , 166 Ill.Dec. 882 LOYOLA ACADEMY, Appellant, v. S & S ROOF MAINTENANCE, INC., et al., Appellees.
• Court: Illinois Supreme Court

Page 1211

586 N.E.2d 1211

146 Ill.2d 263, 166 Ill.Dec. 882

LOYOLA ACADEMY, Appellant, v. S & S ROOF MAINTENANCE, INC., et al., Appellees.

No. 70601.

Supreme Court of Illinois.

Jan. 23, 1992.

Galliani and Doell, Ltd., Chicago (William R. Galliani and Patrick F. Healy, of counsel), for appellant.

Raymond A. Boldt, Mundelein, for appellee S & S Roof Maintenance, Inc.

Peterson, Ross, Schloerb & Seidel, Chicago (Terry M. Cosgrove and Stephen M. Hoke, of counsel), for appellee Kelly Energy Systems, Inc.

Justice CUNNINGHAM delivered the opinion of the court:

Plaintiff, Loyola Academy, appeals from a modified opinion on a denial of a rehearing from the appellate court affirming, with one justice dissenting, the order of the circuit court. (198 Ill.App.3d 799, 144 Ill.Dec. 908, 556 N.E.2d 586.) The circuit court had denied plaintiff leave to amend its complaint after it granted the separate motions of the defendants, S & S Roof Maintenance, Inc. (S & S), and Kelly Energy Systems, Inc. (Kelly), for summary judgment on two of the three counts of plaintiff's complaint. We granted the petition for leave to appeal pursuant to Supreme Court Rule 315(a) (134 Ill.2d R. 315(a)). The only issue before this court is whether the trial court abused its discretion when it denied plaintiff leave to amend its complaint. We reverse the judgments of the appellate and circuit courts and remand this cause to allow plaintiff to amend its complaint. The facts are as follows.

1985. On May 5, 1985, plaintiff filed a three-count complaint against defendants, S & S and Kelly. Counts I and II alleged negligence and breach of warranty, respectively, against S & S. Count III alleged breach of express warranty against Kelly. Each defendant filed answers to the complaint denying specifically any liability.

1986. Kelly filed a motion for summary judgment regarding count III on July 1, 1986, and S & S filed its motion for summary judgment regarding count II only on August 21, 1986. Prior to S & S's filing its motion for summary judgment, the circuit court granted it leave to file instanter its second affirmative defense. The first hearing on Kelly's motion for summary judgment was set for August 29, 1986; however, on August 28, the circuit court ordered:

"that such motion is entered, and plaintiff is granted 28 days, until September 25, 1986 to file its response. It is further ordered that defendant Kelly by [sic ] granted 14 days thereafter, until October 9, 1986 to respond and hearing on the motion is continued to November 17, 1986 * * *."

On October 22, 1986, plaintiff filed its response to S & S's motion. On November 5, 1986, the circuit court entered an order granting S & S leave to file its response to plaintiff's answer to its motion for summary judgment. On the following date plaintiff filed its response to Kelly's motion. Eventually, each defendant filed a response.

After the November 17, 1986, hearing, the circuit court entered an order which stated in part:

"1) Co-defendant S & S Roof Maintenance, Inc.'s motion for summary judgment on Count II is granted.

2) Co-defendant Kelly Energy Systems' motion for summary judgment on Count III is granted."

The order did not state whether it was final and appealable.

On December 4, 1986, S & S filed a motion for leave to file a third-party complaint against Kelly and sent notice to the attorneys of record that it would make the motion before the circuit court on February 20, 1987. However, on December 17, 1986, plaintiff filed its motion to reconsider the court's order granting both S & S's and Kelly's motions for summary judgment on counts II and III.

1987. Approximately 17 months after the lawsuit was initiated, and two months after the circuit court granted defendants summary judgment on two of the three counts, plaintiff sent notice to the attorneys of record that it would move for leave to file instanter its first amended complaint on February 20, 1987. At the February 20 hearing, the circuit court continued the matter to March 9, 1987, with the agreement of the parties, in order to dispose of the motion for leave to amend in conjunction with S & S's motion for leave to file a third-party complaint against Kelly and plaintiff's motion to reconsider the November 17, 1986, order because the latter motions were already set for that date. We note that the notice regarding the motion for leave to file instanter an amended complaint was not found in the main court record but within the exhibits attached to Kelly's response as third party to plaintiff's motion for leave to file an amended complaint.

At the March 9, 1987, hearing, the circuit court denied plaintiff's motion to reconsider the order of November 17, 1986, and granted defendant S & S's motion for leave to file its third-party complaint against defendant Kelly. The attorneys and the circuit court did not address plaintiff's motion for leave to file an amended complaint. Defendant S & S subsequently filed its third-party complaint against Kelly on March 31, 1987.

On April 27, 1987, Kelly, as third-party defendant, filed its motion to dismiss S & S's third-party complaint. On the following date, April 28, 1987, Kelly sent notice to all attorneys of record that the circuit court would hear its motion on July 15, 1987. Again, we note that this court found the notice in the exhibits attached to Kelly's response as third party to plaintiff's motion for leave to file an amended complaint rather than in the court file. On May 13, 1987, S & S filed a motion to dismiss count I of plaintiff's complaint. S & S sent notice on May 28 that the hearing regarding its motion to dismiss was set on July 28. At the July 15 motion docket call, the circuit court ordered:

"Kelly Energy's Motion for Summary Judgment as to 3rd Party Plaintiff S & S's Roofing Third Party Complaint is hereby continued until July 28, 1987, 11:00 am, to be argued in conjunction with defendant S & S Roofing's Motion for Summary Judgment against Plaintiff, Loyola Academy."

However, we find that the circuit court may have been referring to S & S's motion to dismiss count I of plaintiff's complaint because it had disposed of the motion for summary judgment on November 17. Furthermore, the circuit court did not refer to any motion for summary judgment at the July 28, 1987, hearing.

On July 28, the circuit court granted Loyola 28 days to respond to S & S's motion to dismiss count I and granted S & S 14 days to file a reply. The circuit court, however, continued the hearing on S & S's motions to dismiss count I of plaintiff's complaint and to dismiss Kelly's third-party complaint to October 22, 1987. However, before the next scheduled hearing, plaintiff sent notice to all attorneys of record that a hearing was set for October 20, 1987, regarding its motion for leave to file instanter its first amended complaint. Plaintiff set the motion on the noncontested motion call docket. We again note that this court did not find the notice in the court file but in the exhibits to Kelly's response as third-party defendant to plaintiff's motion for leave to file an amended complaint. At the October 20, 1987, motion call, however, the court denied Loyola's motion for leave because it was contested by Kelly and S & S and, as such, should have been brought on the circuit court's regular contested motion docket call.

At the October 22, 1987, contested motion docket call hearing, Loyola made an oral motion to file instanter its first amended complaint. At the conclusion of the hearing the circuit court ordered:

"1) that Defendant, S & S Roof Maintenance, Inc.'s motion to dismiss Count I of Plaintiff's complaint is granted 2) that Defendant Kelly Energy System's motion to dismiss third-party complaint is granted;

3) that oral motion of Plaintiff to file amended complaint instanter is denied without prejudice to file a written motion."

The circuit court denied Loyola's motion because of insufficient notice.

On October 28, 1987, Loyola again gave notice that it would move for leave to file an amended complaint before the circuit court on the routine, noncontested motion docket call of November 5, 1987. In light of the scanty record, this court can only discern that at that motion call, the circuit court denied the motion and reset it on the regular contested motion docket call. There is nothing in the record to show otherwise.

1988. On January 29, 1988, at the regular motion docket call, the circuit court granted Loyola 28 days to file its brief in support of its motion to file an amended complaint. Defendants were granted until March 25 to file a response. The circuit court continued the motion hearing to April 21, 1988.

On February 11, 1988, Kelly filed a motion to correct the order of October 22, 1987. Kelly requested that the circuit court provide that its dismissal of S & S's third-party complaint was with prejudice and that the order of the circuit court was final and appealable.

On February 16, 1988, the circuit court ordered:

"1) that Defendant, S & S Roof Maintenance, Inc.'s motion to correct order of October 22, 1987 is granted as to dismissing Count I with prejudice and said order is final and appealable.

2) that Defendant and Third Party Defendant, Kelly Energy System, Inc.'s motion to correct order of October 22, 1987 in regards to third party complaint is entered and continued to April 21, 1988 and Defendant, S & S Roof Maintenance, Inc. is given 28 days to respond to Kelly Energy Systems, Inc.'s motion to correct order of October 22, 1987."

On February 26, Loyola filed its motion for leave to file an amended complaint as well as its argument in support and attached its amended complaint. The amended complaint alleged four new counts, i.e., (1) breach of implied warranty for a particular purpose, (2) breach of implied warranty of merchantability, (3) breach of contractual sales agreement, and (4) violation of the Consumer Fraud and Deceptive Business...