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Midwest Bk & T. Co. v. Vil. of Lakewood

OPINION FILED APRIL 8, 1983.

MIDWEST BANK AND TRUST COMPANY, TRUSTEE, ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF LAKEWOOD ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County; the Hon. Roland A. Herrmann, Judge, presiding. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Landowners' complaint against the village of Lakewood and its president and trustees was dismissed by the trial court upon defendants' oral motion at the commencement of the trial. Because the motion was improperly considered, we reverse the dismissal of the complaint as against the village and remand. We affirm, however, the dismissal of the complaint as against the other defendants on the basis that it failed to state a cause of action.

Plaintiffs are owners of real property in the village of Lakewood (village). Plaintiffs' complaint alleges that the village, through its agent, had filed a notice of claim of lien with the recorder of deeds of McHenry County against their property. The complaint, alleging that no right to the lien exists, prays for a declaratory judgment to that effect, a mandatory injunction requiring removal of the lien, and compensatory and exemplary damages for the tort of slander of title. Named as defendants are the village and the following individuals (hereinafter called the trustees): Harry D. Benoy, village board president; and Jamie P. Alexander, Edward Dvorak, Fredrick Ohlrich, T. Keith Davis, Stanley Kopala, and Conrad Byrd, all village trustees.

Defendants' answer denied liability, but did not raise any affirmative matters. On December 30, 1981, the trial court denied plaintiffs' motion for summary judgment on the grounds that issues of fact existed as to certain allegations of the complaint, including validity of the lien in question.

On May 21, 1982, the day set for trial, defendants made an oral motion to strike and dismiss during their opening argument. Defendants contended that immunities established by the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 1-101 et seq.) precluded money damages liability against them and that the equitable relief was barred by plaintiffs' failure to join all necessary parties. The trial court on that date entered an order dismissing the entire complaint without granting leave to amend.

On June 23, 1982, the trial court denied plaintiffs' motion for reconsideration while including the specific findings upon which it based its dismissal. On July 7, 1982, the court denied plaintiffs' second motion for reconsideration because it was filed more than 30 days after the dismissal order. However, the court in its July 7 order did amend nunc pro tunc its May 21 dismissal order to grant leave to plaintiffs to amend their complaint. The court also found that there was no just reason for delaying the appeal of its decision dismissing the request for money damages and permitting amendment to the complaint.

On July 23, 1982, plaintiffs filed their second amended complaint, seeking only declaratory and injunctive relief, and a notice of appeal seeking reversal of the orders of May 21, 1982, and June 23, 1982.

On appeal, plaintiffs maintain that this is an interlocutory appeal taken only from that part of the order of dismissal pertaining to plaintiffs' action for damages. They contend first that the trial court erred in entertaining defendants' motion to dismiss and second, that the Local Governmental and Governmental Employees Tort Immunity Act protects neither the village nor the trustees from liability in this case. Plaintiffs do concede however, that their complaint fails to state a cause of action against the trustees and indicate their intention of amending their complaint to cure that defect upon remand.

The first issue to which we must address ourselves is the confusion concerning the scope of this appeal. Defendants' original contention that this court should affirm the trial court's dismissal of the portion of the complaint seeking declaratory and equitable (hereinafter called equitable) relief as well as that portion seeking money damages, presupposes that the dismissal of the equitable relief portion of the complaint has been appealed to this court. Plaintiffs, on the other hand, argue that their appeal was taken only from the dismissal of the money damages portion of their complaint. They assign error in their brief only as to the money damages part of the dismissal. Although the May 21 and June 23 orders from which this appeal is taken and plaintiffs' June 23 notice of appeal all deal with the dismissal of the whole complaint, plaintiffs point to the following: (1) the July 7 order amending the dismissal order to grant them leave to amend their complaint and finding no just reason for delaying appeal on the damages dismissal; and (2) the July 23 filing of their amended complaint addressed only to equitable relief. Thus, plaintiffs argue, the equitable portion of their action, in the form of their second amended complaint, is still pending before the trial court and was not transferred to this court by the July 23 filing of their notice of appeal.

• 1 At oral argument, defendants indicated their desire no longer to press their position that the appeal encompasses the entire dismissal order. However, questions of jurisdiction must be raised by the reviewing court sua sponte even where the parties make no reference to its presence or absence. (In re Application of County Collector (1981), 95 Ill. App.3d 1118, 420 N.E.2d 1055.) Of necessity, this court is obligated to consider matters which affect its right and duty to proceed in its exercise of appealable jurisdiction. (See Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App.3d 524, 430 N.E.2d 139.) Accordingly, we cannot ignore the invalidity of the July 7 order granting leave to amend the complaint upon which plaintiffs rely to limit the scope of this appeal.

• 2-4 A trial court is without jurisdiction to amend its own final order more than 30 days after the entry of that order, except by way of a nunc pro tunc order. (Bradley v. Burrell (1981), 97 Ill. App.3d 979, 424 N.E.2d 15.) Plaintiffs' motion requesting the amendment, as a second post-judgment motion filed more than 30 days after judgment, could not serve to extend the trial court's jurisdiction beyond that 30-day period. (See Sears v. Sears (1981), 85 Ill.2d 253.) The purpose of a nunc pro tunc order is to correct a prior order which incorrectly reflects the trial court's ruling; it may not be used to supply omitted judicial action, correct judicial errors or correct prior orders. (Bradley v. Burrell.) The record clearly indicates in this case that the trial court had no intention of granting plaintiffs leave to amend until after the entry of its final dismissal order. Thus, the trial court's July 7 amendment to the dismissal order was void.

We also note that the July 7 amendment order could not have been authorized by section 2-616 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-616), which section limits amendments to pleadings, except to conform the pleadings to the proofs, to "anytime before final judgment," nor by section 2-1203 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 2-1203), which, while authorizing a motion for certain kinds of relief within 30 days after judgment, does not encompass a leave to file an amended complaint. Fultz v. Haugan (1971), 49 Ill.2d 131; First National Bank v. City of Aurora (1978), 71 Ill.2d 1.

• 5, 6 Since the trial court's leave to amend the complaint was invalid, the July 23 filing of the amended complaint was invalid as done without proper leave. An amendment to a pleading which is filed without leave of court to do so may be stricken and must be disregarded on review. (In re Marriage of Peoples (1981), 96 Ill. App.3d 94, 420 N.E.2d 1072.) Thus, at the time of the filing of the notice of appeal, the entire complaint remained dismissed and subject to appeal.

• 7, 8 Supreme Court Rule 303 (87 Ill.2d R. 303) provides that the notice of appeal shall specify the judgment or part thereof from which the appeal is taken. When an order is severable an appeal can be taken from the severable portion or from a part dealing with a particular subject. (Layfer v. Tucker (1979), 71 Ill. App.3d 333, 389 N.E.2d 252.) Here, the notice of appeal, while specifying particular relief, does not specify any part of the orders of May 21 and June 23 as the subject of the appeal. Without that specification and with the entirety of the complaint subject to appeal, we hold that the dismissal of the entire complaint, including that portion seeking equitable relief, is now before this court on appeal. On that basis, we proceed to the other issues.

Plaintiffs first contend that the trial court improperly considered defendants' oral "motion to strike and dismiss." Defendants' motion sought dismissal of plaintiffs' cause because plaintiffs were not entitled to relief as a matter of law. With regard to the damages portion of the complaint, defendants' motion was based upon the statutory immunities established in the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter cited as the Act) (Ill. Rev. Stat. 1981, ch. 85, par. 1-101 et ...


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