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Dick Lashbrook Corp. v. Pinebrook Found.

OPINION FILED JUNE 19, 1985.

DICK LASHBROOK CORPORATION, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

PINEBROOK FOUNDATION, INC., DEFENDANT-APPELLEE AND CROSS-APPELLANT.



Appeal from the Circuit Court of Tazewell County; the Hon. William H. Young, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

The plaintiff owns and operates WVEL-AM, a radio station in Pekin. The defendant owns and operates WPEO-AM, another Peoria radio station. The defendant had for some time been airing a prerecorded religious program distributed by Koine Radio Agency. In 1983, the plaintiff contracted with Koine to broadcast the same religious program. The defendant advised Koine that it would discontinue the religious program unless it was the exclusive Peoria area station allowed to air the show. Koine then exercised a 28-day cancellation provision in its contract with the plaintiff. The plaintiff brought suit in the circuit court of Tazewell County against the defendant for interference with its contract.

In the circuit court, the plaintiff filed a motion for summary judgment. The motion was denied. The plaintiff then refused to proceed with the suit, electing instead to stand on its motion for summary judgment. The circuit court dismissed the suit with prejudice when the plaintiff failed to proceed. This appeal by the plaintiff followed. The defendant cross-appealed from an order denying its post-trial motion for costs of suit.

In the appellate court the defendant filed a motion to dismiss the appeal on the theory that the circuit court issued no final appealable order. That motion was taken with the case.

• 1, 2 Generally, our rules of court provide that, except in special circumstances, only final judgments of the circuit court are appealable. (87 Ill.2d Rules 303, 304.) In applying those rules to cases where the circuit court has denied a motion for summary judgment, where the denial of the request for summary judgment is cited as error committed by the circuit court, there have been a number of seemingly inconsistent appellate opinions. Several of those opinions have been brought to our attention by the written arguments of the litigants in this case. Before determining the merits of the defendant's motion to dismiss, it is appropriate to discuss each of those cases and the factual setting in which a similar issue was raised in each case.

In Kern v. Chicago & Eastern Illinois R.R. Co. (1961), 31 Ill. App.2d 300, 175 N.E.2d 408, stockholders of the defendant railroad brought suit seeking a declaratory judgment finding that the defendant illegally amended its bylaws, prejudicing the plaintiffs' rights as minority shareholders. The plaintiffs and the defendant filed motions for summary judgment. The trial court granted the defendant's motion and denied the plaintiffs' motion. On appeal by the plaintiffs, the appellate court held:

"[W]hile we have concluded that the chancellor erred in sustaining defendants' motion, it does not follow that he erred in denying plaintiffs' motion. There is not and there cannot be an appeal from the order denying plaintiffs' motion. That is not a final order nor is there any provision for an appeal from such an order. [Citation.] Therefore, the cause must be remanded." (Kern v. Chicago & Eastern Illinois R.R. Co. (1961), 31 Ill. App.2d 300, 312, 175 N.E.2d 408, 414.)

We read the Kern case as concluding that an order denying a motion for summary judgment is interlocutory, not final. Further, Kern concluded that when faced with cross-motions for summary judgment, where one motion is properly denied, the court is not obligated to grant the opposing motion. Accord, Beverly Bank v. Alsip Bank (1982), 106 Ill. App.3d 1012, 436 N.E.2d 598.

A year after Kern, the appellate court rendered opinions in two cases, Bogdan v. Ausema (1962), 33 Ill. App.2d 294, 179 N.E.2d 401, and Home Indemnity Co. v. Reynolds & Co. (1962), 38 Ill. App.2d 358, 187 N.E.2d 274. In Bogdan, the plaintiff brought suit on a note. She filed a motion for summary judgment which the trial court denied. An appeal followed. According to the reported decision in that case:

"[The plaintiff] elected to stand on her motion and refused to proceed with the case. The trial court dismissed the suit at plaintiff's cost and [the] appeal followed." (Bogdan v. Ausema (1962), 33 Ill. App.2d 294, 296, 179 N.E.2d 401.)

The decision went on to consider the merits of the trial court's order denying the plaintiff's motion, an order that was interlocutory in character. The decision upheld the order of denial, finding that there were questions to be determined by a trier of fact. However, it is important to note that the Bogdan court found the dismissal by the trial court to be "a final judgment * * * entered for defendants."

In Home Indemnity, the plaintiff issued an employee's fidelity bond to the defendant. The defendant sought reimbursement on the bond for acts of its employees which were, according to the plaintiff, excluded from coverage. The plaintiff sought a declaratory judgment to judicially determine the coverage question. Its motion for summary judgment was denied and a jury trial followed, resulting in a verdict for the defendant. On appeal, the plaintiff asserted that its earlier request for summary relief was improperly denied. In addressing this assertion, the Home Indemnity court held:

"[I]f a motion for summary judgment is improperly denied the error is not reversible for the result becomes merged in the subsequent trial." (Home Indemnity Co. v. Reynolds & Co. (1962), 38 Ill. App.2d 358, 367, 187 N.E.2d 274, 278.)

There was no issue in Home Indemnity as to the existence of a final judgment, as the verdict of the jury was clearly that. The court did address the issue of whether it could consider alleged errors in the trial court's ruling on the interlocutory summary judgment question, and concluded that under the particular facts, ...


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