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Northtown Warehouse v. Transamerica Ins.

OPINION FILED DECEMBER 21, 1984.

NORTHTOWN WAREHOUSE AND TRANSPORTATION COMPANY, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

TRANSAMERICA INSURANCE COMPANY ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 2, 1985.

Defendants, Transamerica Insurance Company and I.I.A., Inc., appeal from the trial court's judgment entered on a $287,428 verdict in favor of plaintiffs. The dispositive issue presented for review is whether the instant appeal has been properly taken so as to invoke our jurisdiction. For reasons hereinafter set forth, we dismiss the appeal for lack of jurisdiction.

On April 10, 1979, plaintiff Northtown Warehouse and Transportation Company, Inc. (Northtown), filed a complaint against defendants Transamerica Insurance Company (Transamerica), I.I.A., Inc., and Kenneth Dickerson. Count I of the complaint alleged that I.I.A., Inc., and Dickerson were agents of Transamerica; that I.I.A., Inc., through its president, Dickerson, agreed with plaintiff that it would obtain a policy of insurance from Transamerica which would cover the same risks which were already covered by a then-existing policy owned by plaintiff on a warehouse located at 4201-65 West Diversey Avenue, Chicago; that as a result of plaintiff's reliance upon the experience and representation of the defendants, plaintiff took out the suggested policy from Transamerica; and that on January 24, 1979, the roof of plaintiff's warehouse collapsed as the result of an accumulation of snow, a peril covered by plaintiff's original "all risk" policy, but not the Transamerica "replacement" policy then in effect on the premises. Damages in the amount of $510,000 were sought against Transamerica and I.I.A., Inc./Dickerson.

Count II alleged that I.I.A., Inc., and Dickerson were employed by plaintiff as advisor and counselor regarding insurance coverage and were experienced in real property peril insurance; that plaintiff had relied upon I.I.A., Inc., and Dickerson's experience and representations in inducing plaintiff to take out the Transamerica policy; and that as a result of Transamerica's denial of liability as to the collapse of plaintiff's roof, plaintiff was damaged.

The answers of both Transamerica and I.I.A., Inc./Dickerson denied the material allegations of plaintiff's complaint.

On March 3, 1980, the trial court granted Transamerica's motion for leave to file its counterclaim against I.I.A., Inc./Dickerson. On August 14, 1980, the trial court ordered that Transamerica's counterclaim be stricken. However, on August 28, 1980, the trial court vacated its prior order of August 14 and ordered I.I.A., Inc./Dickerson to respond to the counterclaim. Defendant I.I.A., Inc./Dickerson's amended answer to Transamerica's counterclaim was filed on November 15, 1982. On that same day, the trial court sustained I.I.A., Inc.'s, motion to sever Transamerica's counterclaim from the case in chief because it believed that once the primary issues of the case in chief were resolved, "the Court might be able to resolve the other issue [counterclaim] on his own without the taking of any further evidence." On November 16, 1982, the trial court allowed I.I.A., Inc., to file its own counterclaim against Transamerica, but also severed it from the case in chief.

The case proceeded to trial on the amended complaint. At the close of plaintiff's evidence, the court allowed plaintiff's motion to amend the complaint to conform to the proof so as to join Harry Newberger as a party plaintiff. In addition, the trial court allowed defendant I.I.A., Inc./Dickerson's motion for directed verdict on behalf of Kenneth Dickerson, leaving only Transamerica and I.I.A., Inc., as party defendants.

Following the conclusion of the trial on November 24, 1982, the jury returned a verdict in favor of the plaintiffs and against both defendants, in the amount of $287,428. The trial court's judgment on the verdict followed. On March 28, 1983, the post-trial motions of both defendants were denied by the trial court. Defendants individually appeal from the trial court's judgment entered on the verdict.

OPINION

• 1 Our initial inquiry is whether an appeal properly lies from this judgment on the verdict. Before considering the merits of an appeal, the appellate court is duty bound to determine whether the appeal has been properly taken so as to invoke its jurisdiction. (Camp v. Chicago Transit Authority (1980), 82 Ill. App.3d 1107, 1109, 403 N.E.2d 704.) "The question of whether a court has jurisdiction is always open, and the court may of its own motion dismiss an action where want of jurisdiction appears." (Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App.3d 625, 629, 295 N.E.2d 41.) Thus, if jurisdiction is lacking, the court may dismiss the appeal even though the issue of jurisdiction was not raised by the parties. Prado v. Evanston Hospital (1979), 72 Ill. App.3d 622, 624, 390 N.E.2d 1270.

The jurisdiction of the appellate court usually depends upon the timely filing of a notice of appeal after the entry of a final judgment. (87 Ill.2d R. 301; 94 Ill.2d R. 303(a).) A judgment or decree is final and reviewable if it either terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or some definite part thereof, so that, if affirmed, the trial court has only to proceed with execution. (Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App.3d 625, 631, 373 N.E.2d 416.) Here, the final judgment challenged by both defendants is the judgment on the jury's verdict, a judgment which is appealable in an action involving a single party or claim. See 87 Ill.2d R. 301.

However, where multiple claims or parties are involved in an action, the case is governed by Supreme Court Rule 403(a):

"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable ...


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