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Rotogravure Service v. R.w. Borrowdale Co.

OPINION FILED SEPTEMBER 23, 1975.

ROTOGRAVURE SERVICE, INC., PLAINTIFF-APPELLEE,

v.

R.W. BORROWDALE COMPANY ET AL., DEFENDANTS-APPELLANTS. — (R.W. BORROWDALE COMPANY, PLAINTIFF-APPELLANT,

v.

INROL, INC., ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. F. EMMETT MORRISSEY, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 22, 1976.

R.W. Borrowdale Company (hereinafter Borrowdale) appeals an order of the circuit court vacating a portion of a judgment on an oral contract. The vacated judgment denied damages to Rotogravure Service, Inc. (hereinafter Rotogravure), after granting it specific performance of the alleged oral contract. The order appealed from (1) held the specific performance originally granted was no longer economically practical, (2) vacated the original denial of damages, and (3) ordered a hearing be held to determine the amount of damages to be awarded to Rotogravure. Borrowdale appeals the vacating of the judgment denying damages, and Rotogravure moves to dismiss that appeal because the order from which Borrowdale appeals is not final.

The issues raised by the appeal and motion to dismiss are: (1) whether the order appealed from is a final and appealable order; and (2) whether the trial judge had jurisdiction to vacate the judgment denying damages when there was no section 72 motion before the court and more than 30 days had lapsed since the judgment was entered. *fn1

This case stems from two actions resulting from an oral agreement whereby Borrowdale allegedly agreed to arrange for and finance Rotogravure's purchase of an Acigraf printing system to be imported from Milan, Italy. The Acigraf system was delivered to Rotogravure, but difficulties arose in the performance of the agreement, and on November 13, 1967, Borrowdale filed a replevin suit against Rotogravure in the law division of the circuit court of Cook County.

On December 1, 1967, Rotogravure initiated a suit in the chancery division of the circuit court of Cook County alleging Borrowdale's breach of an oral agreement between the parties concerning the Acigraf system. In Count I of this complaint Rotogravure prayed for specific performance of the agreement, and in Count II Rotogravure prayed for damages resulting from the alleged breach. *fn2 Counts III and IV of this complaint are not involved in this appeal.

On December 4, 1967, the replevin action and the chancery suit were consolidated for trial. On that same date, the sheriff served a writ of replevin on Rotogravure and removed the Acigraf system from Rotogravure's place of business and delivered it to Borrowdale.

After hearing evidence and arguments presented by counsel, the court entered its judgment on December 5, 1972. The judgment order of the consolidated cases made separate findings of fact for the chancery and replevin suits and divided its ruling accordingly. Part A of the order dealt with the chancery suit and entered judgment for Rotogravure as to specific performance, but ruled for Borrowdale as to damages and Counts III and IV, holding Rotogravure had "not sustained the allegations contained in Counts II, III and IV of its complaint." Part B of the order dealt with the replevin suit and ruled for Rotogravure, ordering Borrowdale to return the equipment to Rotogravure's place of business.

Paragraph 7 of Part B (replevin suit) stated the court "reserves and retains jurisdiction of this cause and all of the parties hereto for the purpose of entering such other and further orders not inconsistent with the provisions of this Judgment and Decree, and as may be necessary to implement or effectuate the provisions hereof." Paragraph 8 of this section ruled there was no just reason for delaying the enforcement or appeal of this judgment. Part A (chancery suit) had no similar language, but paragraphs 7 and 8 of Part B were the concluding words of the entire order of December 5, 1972.

Borrowdale filed a notice of appeal from the December 5, 1972 judgment, but this appeal was dismissed by the appellate court. *fn3 Rotogravure did not appeal from the trial court's decision, nor did it ever file any motion to vacate the portion of the order denying its prayer for damages.

On March 22, 1973, Rotogravure filed a motion in the trial court for a rule to show cause against Borrowdale for its failure to comply with the judgment and decree by refusing to return and repair the Acigraf printing equipment. While Rotogravure's petition for rule to show cause was still pending, Rotogravure filed a new action at law in the circuit court to recover for damages resulting from Borrowdale's wrongful replevin. That action was still pending at the time of oral argument before this court, as is a motion to consolidate it with the damage hearing ordered by the trial court on August 29, 1974.

Borrowdale answered the rule to show cause alleging it was not receiving the needed cooperation of Rotogravure to comply with the decree; that the decree was too vague and uncertain; and that Borrowdale was awaiting advice from Acigraf as to the possibility of repairing and making the equipment operable. An engineer from Acigraf visited Borrowdale's premises and inspected the equipment. He reported that the cost of making the Acigraf system operable would be prohibitively expensive.

At the conclusion of the hearings on the petition for rule to show cause, the trial court entered an order allowing Rotogravure to withdraw its amended petition for rule to show cause, and ruled Rotogravure was still entitled to specific performance, but since specific performance was economically impractical, the December 5, 1972, judgment denying damages was vacated and a hearing was set to determine what damages should be paid to Rotogravure as a result of Borrowdale's breach of the alleged oral agreement.

This order entered August 29, 1974, vacating the damage portion of the December 5, 1972, judgment was divided into two parts similar to the December 5, 1972, judgment. Part A vacated the portion of the December 5, 1972, chancery judgment denying damages and set a date for a new hearing to determine what those damages should be; and Part B stayed the replevin action and the issuance of the writ of retorno habendo pending further order of the court. The order specifically ...


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