Tyler v. J.C. Penney Co., Inc.

• Decision Date: 28 July 1986
• Docket Number: No. 4-85-0851,4-85-0851
• Parties: , 99 Ill.Dec. 748 Erma TYLER and Joseph Tyler, Plaintiffs-Appellants, v. J.C. PENNEY COMPANY, INC., Defendant-Appellee, and The Lasalle National Bank, as Trustee under Trust Number 45013, and Landau-Heyman, Inc., Defendants, and MARKET PLACE SHOPPING CENTER, Defendant-Third Party Plaintiff-Appellee, v. J.C. PENNEY COMPANY, INC., the Lasalle National Bank, as Trustee under Trust Number 45013, and Landau-Heyman, Inc., Third Party Defendants.
• Court: United States Appellate Court of Illinois

Page 323

496 N.E.2d 323

145 Ill.App.3d 967, 99 Ill.Dec. 748

Erma TYLER and Joseph Tyler, Plaintiffs-Appellants, v. J.C. PENNEY COMPANY, INC., Defendant-Appellee, and The Lasalle National Bank, as Trustee under Trust Number

45013, and Landau-Heyman, Inc., Defendants, and MARKET PLACE SHOPPING CENTER, Defendant-Third Party Plaintiff-Appellee, v. J.C. PENNEY COMPANY, INC., the Lasalle National Bank, as

Trustee under Trust Number 45013, and

Landau-Heyman, Inc., Third Party Defendants.

No. 4-85-0851.

Appellate Court of Illinois,

Fourth District.

July 28, 1986.

Rehearing Denied Aug. 28, 1986.

Summers, Watson & Kimpel, P.C., Champaign, for plaintiffs-appellants.

D. Cameron Dobbins, Dobbins, Fraker, Tennant, Joy & Perlstein, Champaign, for Market Place Shopping Center.

Heyl, Royster, Voelker & Allen, Urbana (Michael E. Raub, Bruce L. Bonds, of counsel), for J.C. Penney Co.

Justice MORTHLAND delivered the opinion of the court:

Plaintiffs, husband and wife, filed an eight-count complaint on January 21, 1983, seeking damages for injuries allegedly sustained when Erma Tyler slipped and fell outside a J.C. Penney store in the Market Place Shopping Center in Champaign, Illinois.

Plaintiffs' complaint named four defendants: J.C. Penney Company, Inc.; the LaSalle National Bank as trustee under a certain trust and identified as the legal owner of the premises; the development firm of Landau-Heyman, Inc.; and the "Market Place Shopping Center" (Market Place). Service of summons, however, was only effectuated on the general manager of Market Place. The record indicates no attempt to serve any of the other three named defendants, and in fact no service was had upon them.

On February 14, 1983, defendant Market Place filed its answer to the complaint, which generally denied the plaintiffs' allegations. Later, on February 22, 1984, Market Place filed a motion to dismiss the complaint pursuant to Supreme Court Rule 219(c) (103 Ill.2d R. 219(c)) based upon the plaintiffs' purported failure to respond to interrogatories.

Then, on March 2, 1984, Market Place filed a third-party complaint for contribution against J.C. Penney, Landau-Heyman, and the LaSalle National Bank. That third-party complaint, however, was subsequently dismissed as to the LaSalle National Bank and Landau-Heyman upon motion of Market Place. On April 21, 1985, J.C. Penney appeared and moved to dismiss the plaintiffs' complaint pursuant to Supreme Court Rule 103(b) (87 Ill.2d R. 103(b)) for lack of diligence in obtaining service on that defendant. J.C. Penney also at that time answered the third-party complaint.

Discovery continued in this matter. Finally, on May 29, 1985, Market Place filed a motion to dismiss under section 2-619(a)(2) of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-619(a)(2)) alleging that it did not have legal capacity to be sued. In support thereof, Market Place attached the affidavit of Eugene Warner, vice president and corporate counsel for Landau-Heyman. That affidavit stated that Market Place Shopping Center is not a legal entity, and therefore is not subject to suit in Illinois. Instead, that denotation represents the "common description of the diverse, independent, [sic ] businesses which comprise the entire Shopping Mall * * *." The affidavit further recounted that "Market Place" is not a corporation, partnership, sole proprietorship, joint venture, or other such entity recognized in law.

Upon a hearing, the circuit court of Champaign County on June 18, 1985, granted the motion of Market Place and dismissed the action against it with prejudice on the basis that it did not have legal status to be sued. Furthermore, the court dismissed with prejudice the action against J.C. Penney for lack of diligence by the plaintiffs in obtaining service. The third-party action was also dismissed.

For reasons unknown to us, defendant Market Place on July 15, 1985, moved for leave to file an amended answer, and on July 22, 1985, moved for leave to substitute a new affidavit of Eugene Warner. These motions were granted, and Market Place filed an amended answer accompanied by affidavit reflecting the fact that it was not a legal entity with capacity to be sued.

Plaintiffs now appeal the dismissal of their cause of action. Initially, though, we must deal with a threshold issue, raised by the defendants, concerning whether we have jurisdiction to hear this appeal.

The order dismissing the plaintiffs' complaint with prejudice was entered on June 18, 1985. Subsequently, on July 12, 1985, plaintiffs filed a "Post-Trial Motion for Reconsideration." On August 6, 1985, two days before a scheduled hearing on that motion, plaintiffs filed a motion for a continuance and for leave to conduct further discovery. The court on August 8 granted the plaintiffs' motion for a continuance "providing that [the] motion of plaintiff [sic ] for reconsideration shall be heard no later than 90 days from this date * * *." Should the plaintiffs fail to move for such a hearing within 90 days, however, the court also provided that "the motion for reconsideration shall stand as denied unless good cause is shown otherwise."

On November 12, 1985, once 90 days had expired and the plaintiffs had not yet set a hearing for their motion, the court denied the motion for reconsideration "[p]ursuant to the terms" of its August 8 order. Plaintiffs thereafter filed their notice of appeal on December 9, 1985.

The filing of a timely notice of appeal is jurisdictional. (English v. English (1979), 72 Ill.App.3d 736, 30 Ill.Dec. 363, 393 N.E.2d 18; 87 Ill.2d R. 301.) Under Supreme Court Rule 303 (103 Ill.2d R. 303), notice of appeal must be filed within 30 days after the entry of a final judgment or within 30 days after the entry of an order disposing of a timely filed post-trial motion directed against the judgment. Certainly, the June 18, 1985, order dismissing the entire complaint with prejudice constituted a final judgment for purposes of this rule. Still, a party is permitted to file one post-judgment motion attacking the validity of that judgment within 30 days of its entry (Ill.Rev.Stat.1983, ch. 110, par. 2-1203), and the plaintiffs' "post-trial" motion of July 12, 1985, was timely filed.

Defendants point to the language of the August 8, 1985, order allowing the plaintiffs' motion for a continuance, which states that the motion for reconsideration "shall stand as denied" should the plaintiffs fail to obtain a hearing on that motion within 90 days. Defendants urge that the failure of the plaintiffs to in any way present this motion for a determination on the merits within the 90-day deadline constituted an abandonment of that motion. Thus, defendants continue, the judgment became final as of the June 18, 1985, order, and the time for filing a notice of appeal began to run as of that date. (See English v. English (1979), 72 Ill.App.3d 736, 30 Ill.Dec. 363, 393 N.E.2d 18; Page v. Estate of Page (1978), 66 Ill.App.3d 214, 22 Ill.Dec. 807, 383 N.E.2d 615; Richey Manufacturing Co. v. Merchantile National Bank (1976), 40 Ill.App.3d 923, 353 N.E.2d 123.) As the argument goes, plaintiffs' failure to file their notice of appeal within 30 days of the June 18, 1985, order requires that we dismiss this appeal.

Granted, a party should ordinarily do more than merely file a motion. To avoid circuity and delay, a party should affirmatively bring that motion to the attention of the court by requesting a hearing and obtaining a ruling on that motion. Nevertheless, we do not view the running of the 90-day court-imposed deadline as an abandonment of the plaintiffs' post-judgment motion such that the time for filing a notice of appeal effectively began as of the June 18 order. The requirement that plaintiffs call up their motion for a hearing within 90 days was presumably imposed according to a local circuit court rule. The fact that the plaintiffs could not argue the merits of their motion for reconsideration due to their own failure to comply with a circuit rule is irrelevant. (Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill.App.3d 161, 47 Ill.Dec. 747, 415 N.E.2d 1060.) We find that the November 12 order was the final and appealable order, and thus the plaintiffs' notice of appeal on December 9, 1985, was timely filed. Thus, we have jurisdiction to hear this case.

With that point resolved, we next turn to the merits of the parties' respective arguments. The plaintiffs essentially contend that the conduct of "Market Place" in this matter estops them from denying that they have legal capacity to be sued, and that Market Place somehow waived its argument that it cannot be a proper party defendant. Plaintiffs point to the appearance entered by "Market Place Shopping Center" as well as an answer and a third-party complaint filed by that party. Plaintiffs further point to "extensive discovery" conducted in this lawsuit by a defendant purporting to act as the "Market Place Shopping Center." Finally, plaintiffs call this court's attention to settlement negotiations entered into with an insurance carrier claiming to act on behalf of "Market Place" as depicted by copies of releases and settlement drafts purportedly submitted by the insurance company and rejected by the defendants. They conclude that to affirm the dismissal of their complaint based upon lack of legal capacity, after "Market Place" had engaged in litigation over a two-year period, would allow the defendant "to perpetrate a fraud on the court * * *."

Before we answer the plaintiffs' contentions here, we feel compelled to comment on the procedure employed below based upon our own observations of the record. We note, from the record, that Market Place originally answered the plaintiffs' complaint. Later, Market Place filed a motion to dismiss without asking leave of the court to withdraw its answer. Normally, a motion to dismiss under section 2-619 will be filed in lieu of any other responsive...