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E.m. Melahn Constr. v. Vil. of Carpentersville

ORIGINAL OPINION FILED MAY 28, 1981.

E.M. MELAHN CONSTRUCTION COMPANY ET AL., PLAINTIFFS,

v.

THE VILLAGE OF CARPENTERSVILLE, DEFENDANT-APPELLANT. — (E.M. MELAHN CONSTRUCTION COMPANY, PLAINTIFF-APPELLEE.)



APPEAL from the Circuit Court of Kane County; the Hon. JAMES F. QUETSCH, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Rehearing allowed July 27, 1981.

Defendant, Village of Carpentersville, seeks to appeal from judgments entered following directed verdicts and jury verdicts in favor of plaintiff, E.M. Melahn Construction Co., on both plaintiff's complaint and defendant's counterclaim. Defendant has also appealed from an order awarding prejudgment interest to plaintiff. Plaintiff cross-appeals from an order denying it attorney's fees and other relief sought pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41).

This action was commenced by plaintiff to recover for services performed under a roadway and sewer installation contract it had entered into with defendant. The primary controversy between the parties centered upon plaintiff's claims for extra work it alleged it was required to perform and its claim for prejudgment interest pursuant to section 2 of the Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 2). In its counterclaim defendant sought damages from plaintiff for alleged negligent construction by plaintiff and the recovery of overpayments claimed to have been made to plaintiff. The trial court directed a verdict in favor of plaintiff for a portion of the extra work claimed and, on December 7, 1979, entered judgment against defendant for $43,850.36. It also entered judgment on that date in favor of plaintiff and against defendant on portions of the counterclaim. The remaining issues relating to plaintiff's claim for payment for additional work performed and the balance of defendant's counterclaim were submitted to the jury, which returned verdicts in favor of plaintiff for $6,907.66 on its complaint and found for plaintiff on defendant's counterclaim. Judgments were also entered on the verdicts of the jury on December 7, 1979.

On December 19, 1979, defendant filed a notice of appeal "from the order of December 7, 1979, * * * directing a verdict for plaintiffs and against defendant and the judgment order of December 7, 1979 entered pursuant thereto, in the amount of $43,850.36, and further appeals from the judgment on the jury verdict of December 7, 1979, in the amount of $6,907.66," praying that both judgments be reversed. On December 19 plaintiff also filed a motion that prejudgment interest, which it had sought in its complaint, be granted on the sums assessed against defendant by these judgments and for taxing its attorney's fees against defendant pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41). Defendant answered plaintiff's motion and, after a hearing on January 25, 1980, the trial court entered an order allowing prejudgment interest to plaintiff of $5,075.80 and denied plaintiff's request for attorney's fees. Thereafter, on January 25, defendant filed a notice of appeal "from that portion of the final order entered January 25, 1980 * * * which allowed prejudgment interest to the plaintiff in the amount of $5,075.80," which prayed that "said portion of the final order of January 25, 1980, be reversed." On February 22, 1980, plaintiff filed a notice of cross-appeal from that portion of the order entered January 25, which denied plaintiff's motion for attorney's fees under section 41 of the Civil Practice Act.

Plaintiff has filed a motion in this court to dismiss defendant's appeal from the jury verdicts for its failure to file a post-trial motion, asserting that defendant may not seek review of issues not specified in such a motion. (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(2) and (5); Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(2)(iii).) We have heretofore ordered that plaintiff's motion, together with defendant's objections thereto, be taken with the case. A threshold question is presented requiring us to determine what issues have been preserved for review. It is also the duty of this court to consider our jurisdiction to hear an appeal whether or not the issue has been raised by the parties. Johnson v. Northwestern Memorial Hospital (1979), 74 Ill. App.3d 695, 697, 393 N.E.2d 712, 713.

We note first that plaintiff filed a timely notice of cross-appeal from the order denying its claim for attorney's fees under section 41 of the Civil Practice Act but, as it has not argued that issue in its brief, we will not consider it further. See Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(7).

• 1 Defendant failed to file any post-trial motion following the judgments entered December 7, 1979, which directed verdicts as to certain issues and entered judgment on the verdicts of the jury, nor did it file a post-trial motion following entry of the final judgment in this case on January 25, 1980. Claimed error generally will not be preserved for review unless it has been specifically raised in a post-trial motion pursuant to section 68.1(2) of the Civil Practice Act. (Wilson v. Clark (1981), 84 Ill.2d 186, 189, 417 N.E.2d 1322, 1324.) In Brown v. Decatur Memorial Hospital (1980), 83 Ill.2d 344, 349, 415 N.E.2d 337, 339, the court reviewed the reasons for the rule pointing out that it was necessary for a party to apprise the trial court of claimed errors in a post-trial motion (1) to give it an opportunity to reconsider the correctness of its earlier rulings in the case; (2) to permit the reviewing court to determine from the record whether the trial court had an adequate opportunity to reassess alleged erroneous rulings; and (3) to prevent litigants from raising on appeal arguments the trial judge had no opportunity to consider. (See also Williamson v. Opsahl (1981), 92 Ill. App.3d 1087, 416 N.E.2d 783.) We conclude defendant has not preserved for review those claims of error for which it seeks reversal of the judgments entered upon the verdicts of the jury, and we will not consider them further.

• 2 A different question is presented where defendant seeks to appeal from the verdicts which were directed by the trial court and its award of prejudgment interest. A narrow exception excusing the failure to present a post-trial motion in a case tried before a jury is recognized where a verdict has been directed by a trial court and, also, where the order for which review is sought was entered following discharge of the jury. (See Robbins v. Professional Construction Co. (1978), 72 Ill.2d 215, 223-25, 380 N.E.2d 786, 789-90; Keen v. Davis (1967), 38 Ill.2d 280, 282, 230 N.E.2d 859, 861.) As to these issues we conclude defendant's failure to file a post-trial motion does not bar review.

Although not raised by plaintiff we must also consider the sufficiency of defendant's two notices of appeal to confer jurisdiction on this court to review the judgments for directed verdicts and the judgment entered on the verdict of the jury on December 7, 1979. Defendant filed a notice of appeal from these judgments on December 19; however, it was premature as the judgments were not final. Supreme Court Rule 304(a) provides that judgments determining fewer than all of the rights and claims in issue are not appealable unless the trial court finds "there is no just reason for delaying enforcement or appeal." (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) The trial court did not do so here, and the appellate court thus lacks jurisdiction to review those judgments insofar as they depend upon the December 19 notice of appeal to invest jurisdiction. (Ariola v. Nigro (1958), 13 Ill.2d 200, 207, 148 N.E.2d 787, 791; Bissett v. Gooch (1980), 87 Ill. App.3d 1132, 1135-36, 409 N.E.2d 515, 517; Blanchette v. Martell (1977), 52 Ill. App.3d 1029, 1031, 368 N.E.2d 458, 459; cf. Davis v. Childers (1965), 33 Ill.2d 297, 211 N.E.2d 364; Farmar v. Crane (1975), 32 Ill. App.3d 383, 391, 336 N.E.2d 607, 613-14.) At the time defendant filed its first notice of appeal there remained in issue between the parties plaintiff's claim made in his complaint for prejudgment interest. The judgments entered December 7, 1979, were not appealable until the further order for interest was entered on January 25, 1980. (See In re Marriage of Lentz (1980), 79 Ill.2d 400, 408, 403 N.E.2d 1036, 1039.) Clearly, all issues in the case were then resolved and defendant could have properly appealed from all judgments theretofore entered in the case.

We must then consider whether defendant's January 25 notice of appeal was sufficient to permit this court to review the judgments entered on December 7. Supreme Court Rule 303(c)(2) provides that a notice of appeal "shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court." (Ill. Rev. Stat. 1979, ch. 110A, par. 303(c)(2).) In its second notice of appeal defendant specified only the issue relating to prejudgment interest and sought its reversal. We think it is clear defendant intended to and did rely upon its first notice of appeal to preserve for review the earlier judgments; it is also apparent plaintiff mistakenly believed defendant had thus done so as both parties have briefed and argued those issues without objection by plaintiff on these grounds.

• 3 Generally, when an appeal is taken from a specified judgment only, a reviewing court does not acquire jurisdiction to review other judgments which have not been specified in the notice of appeal. (Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill.2d 56, 61, 398 N.E.2d 3, 5; see also Mooring v. Village of Glen Ellyn (1978), 57 Ill. App.3d 329, 331, 373 N.E.2d 35, 36.) In Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 394 N.E.2d 380, our supreme court noted that a notice of appeal is to be liberally construed and that appellate jurisdiction will be conferred,

"* * * if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal. [Citations.] Unless the appellee is prejudiced thereby, the absence of strict technical compliance with the form of the notice is not fatal, and where the deficiency in the notice is one of form only, and not of substance, the appellate court is not deprived of jurisdiction. [Citations.]" (76 Ill.2d 427, 433-34, 394 N.E.2d 380, 383.)

In Burtell appellant's notice of appeal stated it "`appeals from the decree and judgment entered against it on June 1, 1976 in the sum of $89,998.22'" and asked it be reversed. (76 Ill.2d 427, 431.) It failed, however, to include mention of an earlier decree entered December 19, 1975, in the same cause which had found that a joint venture existed between the parties and ordered an accounting. The judgment finally entered and described in the notice of appeal was for the sums found due under the accounting. The supreme court held that the notice of appeal was sufficient to confer jurisdiction to also review the decree of December 19, 1975, as the trial court's finding of a joint venture was a preliminary ...


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