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Reeder v. Old Oak Town Center





Appeal from the Circuit Court of Will County; the Hon. Charles P. Connor, Judge, presiding.


The plaintiffs, Jerry and Carol Reeder, operators of a Maryland Fried Chicken restaurant in Homer Township of Will County, Illinois, brought suit in the circuit court of Will County seeking to recover from numerous defendants for economic damages to their restaurant business. The circuit court of Will County, in reliance on Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69, 435 N.E.2d 443, dismissed all but one of the actions filed by the plaintiffs. The final action, one in constructive eviction, was tried in the Will County court and resulted in a directed verdict being entered for the defendant Old Oak General Partnership. The plaintiffs, Jerry and Carol Reeder, appeal the orders of the circuit court of Will County, urging that the circuit court's decisions were contrary to law.

The Maryland Fried Chicken restaurant operated by the plaintiffs was located in a detached part of the Old Oak Town Center, a new shopping center located at 143rd Street and Golden Oak Drive. The plaintiffs leased the restaurant space for an initial period of five years followed by successive options to renew for five years per option. The lease was dated March 7, 1981, and the plaintiffs took possession of the premises and began operating their business in June of 1981.

The leased building was constructed with the use of fir and pine posts which were treated with a preservative containing 5% pentachlorephenol. These posts were used in construction so that they were visible and exposed on the interior of the restaurant. According to the testimony submitted as a part of plaintiffs' case, the treated beams gave off an offensive odor smelling like insecticide. Further, the pentachlorephenol leaked out of the wood, discolored the beams, and dripped onto the floor and tables. Attempts were made to correct this problem by washing the beams with a high pressure pump and bleach and by sealing the beams with polyurethane paint, but to no avail. Again, according to plaintiffs' evidence, many complaints were received concerning the offensive odor which permeated the restaurant. This led to the plaintiffs' decision to close the restaurant in January of 1982, just six months after opening.

The plaintiffs responded two months later with a lawsuit filed in the circuit court of Will County, in which they alleged that the chemical treatment of the beams caused the emission of an obnoxious odor which rendered the rented space totally unsuitable for use as a restaurant. The complaint named as defendants Old Oak Town Center, the landlord; James B. Clarage & Associates, the architect; Pasch & Sons Construction Company, the builder; and Alexander Lumber Company, the material supplier. The damages for which the plaintiffs sought recovery were economic damages, that is, lost profits.

The actions against the architect and the builder were based upon a negligence theory. Both of these actions were dismissed in reliance on Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69, 435 N.E.2d 443, a case which denies recovery for economic loss in certain actions sounding in tort. Negligence theories against the landlord and the material supplier were similarly dismissed. Two additional actions against the material supplier, one based on a theory of strict liability and the other on the theory of warranty of fitness for a particular purpose, were also dismissed, the first mentioned because of the rule in the Moorman case and the second mentioned because the circuit court found a lack of privity between the plaintiffs and the material supplier. In each case, where the plaintiffs' action was dismissed, the circuit court granted leave to amend the pleadings, an option the plaintiffs failed to exercise. The court denied the defendants' request to make the orders of dismissal final and appealable. Subsequently, at the close of plaintiffs' case, the circuit court directed verdicts for the builder and the material supplier based on the dismissal order previously entered.

One action, a single count against the landlord based on the theory of constructive eviction, was tried before a Will County jury. At the same time, the defendant landlord presented a counterclaim for unpaid rent. At the conclusion of the case, the circuit court directed a verdict for the landlord on the constructive eviction issue, holding that the damages proved by the plaintiffs were too speculative. The counterclaim for unpaid rent was submitted to the jury, which rendered a verdict for the plaintiffs, based on their affirmative defense of constructive eviction to the counterclaim for rent.

A post-trial motion filed by the plaintiffs was denied on July 8, 1983. A timely notice of appeal was filed on August 4, 1983. This notice of appeal expressly specified that relief was sought from an order of the trial court entered on February 25, 1983, dismissing certain defendants, from certain orders entered during the trial of the case against the remaining defendant, and from the denial of the post-trial motion entered by the court on July 8, 1983. No relief was sought from an order of the trial court dated April 13, 1983, which dismissed the action against the defendant architect.

Leave to file an amended notice of appeal was sought in this court by the plaintiffs. That leave was granted over the objections of the defendant architect, and an amended notice of appeal was filed November 2, 1983, specifically requesting relief from the April 13, 1983, order. The defendant architect renewed his objection to our granting of leave with a motion filed November 29, 1983. That motion was taken with the case for determination.

The timely filing of a notice to appeal is jurisdictional. (Hale v. Ault (1974), 24 Ill. App.3d 10, 321 N.E.2d 151.) Where an appellant has failed to confer jurisdiction on this court by properly filing a notice of appeal, we are obliged to dismiss the action.

• 1 The rules promulgated by the supreme court provide for the filing of an amended notice of appeal. (94 Ill.2d R. 303(c)(4).) However, an amendment specifying a part of the judgment not specified in the original notice of appeal may be made only within 30 days after expiration of the time for filing the original notice of appeal. (94 Ill.2d R. 303(a)(3).)

"After the expiration of the initial 30-day period for filing notice of appeal, and the additional 30-day safety-valve period allowed by Supreme Court Rule 303(e) [citation], the appellate court is without jurisdiction to permit further amendments of the notice of appeal." (Brenkman v. Belmont Marketing, Inc. (1980), 87 Ill. App.3d 1060, 1062-63, 410 N.E.2d 500, 503.)

As the amended notice of appeal in the instant case was not filed within the time periods provided, we are compelled to agree with the defendant architect that leave to file the amended notice was improvidently granted. Accordingly, we believe the appeal against this defendant must be dismissed.

• 2 A primary issue raised by the plaintiffs on this appeal concerns the circuit court's reliance on the Moorman decision in dismissing the actions sounding in tort directed against the defendant builder and the defendant material supplier. Subsequent to the circuit court's decision, the Moorman rule was clarified and expanded upon with the decision in Ferentchak v. Village ...

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