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Bissett v. Gooch

OPINION FILED AUGUST 29, 1980.

ALEXANDER F. BISSETT ET AL., PLAINTIFFS-APPELLANTS,

v.

THOMAS W. GOOCH ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. ROBERT K. McQUEEN, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Alexander F. Bissett and Gayle K. Bissett, appeal from judgments of the trial court directing verdicts in favor of defendants, Thomas W. Gooch, Eloise L. Gooch and the Wheeling Trust and Savings Bank, as trustee, and also denying plaintiffs' prayer for specific performance.

This action was brought by plaintiffs seeking specific performance and damages for breach of contract against both Thomas Gooch and his mother Eloise Gooch and also damages allegedly caused by his fraudulent representations against Thomas Gooch alone. The bank was joined as legal title holder of the premises, which are the subject of the dispute between the parties. At the close of all the evidence the trial court directed verdicts in favor of defendants Eloise Gooch and the trustee bank on all counts of the complaint and in favor of Thomas Gooch as to the count for fraud, and it also denied specific performance. The issues as they relate to breach of contract by defendant Thomas Gooch were then submitted to the jury which found in favor of plaintiffs and fixed their damages at $61,300.

The trial court subsequently granted Thomas Gooch a new trial of the breach of contract issues because of error in the instructions to the jury. Plaintiffs thereafter sought leave to appeal to this court from that order, and it was denied. Plaintiffs now seek to appeal solely from the judgments denying specific performance against all three defendants and the recovery of damages for fraud against defendant Thomas Gooch.

We consider first defendants' motion to dismiss this appeal for failure of plaintiffs to file a timely notice of appeal. The chronology of events relevant to this issue are as follows:

December 7 and 8, 1978 — The trial court directed verdicts in favor of defendants at the close of all the evidence as to the fraud counts of the complaint, denied specific performance and entered judgments to that effect. The remaining issue of damages for breach of contract was submitted to the jury.

December 13, 1978 — Judgment was entered in favor of plaintiffs on the verdict of the jury against defendant Thomas Gooch for breach of contract.

December 19, 1978 — Thomas Gooch filed a post-trial motion for a new trial as to the breach of contract judgment entered against him and on,

January 25, 1979 — Thomas Gooch's motion for a new trial was granted and in its order doing so the trial court found there was no just reason for delaying enforcement or appeal of its orders vacating the judgment in favor of plaintiff for breach of contract and the judgments earlier entered in favor of defendant under the fraud and specific performance counts. See Ill. Rev. Stat. 1977, ch. 110A, par. 304(a).

February 20, 1979 — Plaintiffs filed a petition for reconsideration and modification of the order entered January 25, 1979, which had granted defendants a new trial of the breach of contract issue, and requested that the court "modify the order of January 25, 1979, granting a new trial on all issues presented at the original trial."

April 26, 1979 — The trial court entered an order granting plaintiffs' February 20, 1979, petition.

May 8, 1979 — On defendants' petition to clarify or vacate the April 26 order the trial court entered a further order that (1) "* * * plaintiffs' petition for a new trial on the directed verdicts on the fraud count and specific performance count be and the same is hereby denied"; (2) "* * * that plaintiff has leave to appeal all issues in this case, regarding fraud and specific performance" and, (3) "there is no just cause or reason to delay the enforcement or appeal of this order."

June 6, 1979 — Plaintiffs filed their notice of appeal from the judgments entered December 7 and 8, 1978, in favor of defendants on the fraud count and which denied specific performance to plaintiffs.

Supreme Court Rule 303(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 303(a)) requires that a notice of appeal be filed within 30 days of the entry of the final judgment from which an appeal is sought to be taken or, if a timely post-motion is filed, within 30 days after the order disposing of the motion. (See also Ill. Rev. Stat. 1977, ch. 110, pars. 68.1(3) and 68.3(1).) Supreme Court Rule 304(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)) defines ...


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