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Tyler v. J.c. Penney Co.

OPINION FILED JULY 28, 1986.

ERMA TYLER ET AL., PLAINTIFFS-APPELLANTS,

v.

J.C. PENNEY COMPANY, DEFENDANT-APPELLEE (THE LA SALLE NATIONAL BANK, AS TRUSTEE, ET AL., DEFENDANTS; MARKET PLACE SHOPPING CENTER, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE; J.C. PENNEY COMPANY ET AL., THIRD-PARTY DEFENDANTS).



Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.

JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 28, 1986.

Plaintiffs, husband and wife, filed an eight-count complaint on January 21, 1983, seeking damages for injuries allegedly sustained when Erma Tyler slipped and fell outside a J.C. Penney store in the Market Place Shopping Center in Champaign.

Plaintiffs' complaint named four defendants: J.C. Penney Company, Inc.; the La Salle National Bank as trustee under a certain trust and identified as the legal owner of the premises; the development firm of Landau-Heyman, Inc.; and the "Market Place Shopping Center" (Market Place). Service of summons, however, was only effectuated on the general manager of Market Place. The record indicates no attempt to serve any of the other three named defendants, and in fact no service was had upon them.

On February 14, 1983, defendant Market Place filed its answer to the complaint, which generally denied the plaintiffs' allegations. Later, on February 22, 1984, Market Place filed a motion to dismiss the complaint pursuant to Supreme Court Rule 219(c) (103 Ill.2d R. 219(c)) based upon the plaintiffs' purported failure to respond to interrogatories.

Then, on March 2, 1984, Market Place filed a third-party complaint for contribution against J.C. Penney, Landau-Heyman, and the La Salle National Bank. That third-party complaint, however, was subsequently dismissed as to the La Salle National Bank and Landau-Heyman upon motion of Market Place. On April 21, 1985, J.C. Penney appeared and moved to dismiss the plaintiffs' complaint pursuant to Supreme Court Rule 103(b) (87 Ill.2d R. 103(b)) for lack of diligence in obtaining service on that defendant. J.C. Penney also at that time answered the third-party complaint.

Discovery continued in this matter. Finally, on May 29, 1985, Market Place filed a motion to dismiss under section 2-619(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619(2)) alleging that it did not have legal capacity to be sued. In support thereof, Market Place attached the affidavit of Eugene Warner, vice-president and corporate counsel for Landau-Heyman. That affidavit stated that Market Place Shopping Center is not a legal entity, and therefore is not subject to suit in Illinois. Instead, that denotation represents the "common description of the diverse, independent, [sic] businesses which comprise the entire Shopping Mall." The affidavit further recounted that Market Place is not a corporation, partnership, sole proprietorship, joint venture, or other such entity recognized in law.

Upon a hearing, the circuit court of Champaign County on June 18, 1985, granted the motion of Market Place and dismissed the action against it with prejudice on the basis that it did not have legal status to be sued. Furthermore, the court dismissed with prejudice the action against J.C. Penney for lack of diligence by the plaintiffs in obtaining service. The third-party action was also dismissed.

For reasons unknown to us, defendant Market Place on July 15, 1985, moved for leave to file an amended answer, and on July 22, 1985, moved for leave to substitute a new affidavit of Eugene Warner. These motions were granted, and Market Place filed an amended answer accompanied by affidavit reflecting the fact that it was not a legal entity with capacity to be sued.

Plaintiffs now appeal the dismissal of their cause of action. Initially, though, we must deal with a threshold issue, raised by the defendants, concerning whether we have jurisdiction to hear this appeal.

The order dismissing the plaintiffs' complaint with prejudice was entered on June 18, 1985. Subsequently, on July 12, 1985, plaintiffs filed a "Post-Trial Motion for Reconsideration." On August 6, 1985, two days before a scheduled hearing on that motion, plaintiffs filed a motion for a continuance and for leave to conduct further discovery. The court on August 8 granted the plaintiffs' motion for a continuance "providing that [the] motion of plaintiff [sic] for reconsideration shall be heard no later than 90 days from this date." Should the plaintiffs fail to move for such a hearing within 90 days however, the court also provided that "the motion for reconsideration shall stand as denied unless good cause is shown otherwise."

On November 12, 1985, once 90 days had expired and the plaintiffs had not yet set a hearing for their motion, the court denied the motion for reconsideration "[p]ursuant to the terms" of its August 8 order. Plaintiffs thereafter filed their notice of appeal on December 9, 1985.

• 1 The filing of a timely notice of appeal is jurisdictional. (English v. English (1979), 72 Ill. App.3d 736, 393 N.E.2d 18; 87 Ill.2d R. 301.) Under Supreme Court Rule 303 (103 Ill.2d R. 303), notice of appeal must be filed within 30 days after the entry of a final judgment or within 30 days after the entry of an order disposing of a timely filed post-trial motion directed against the judgment. Certainly, the June 18, 1985, order dismissing the entire complaint with prejudice constituted a final judgment for purposes of this rule. Still, a party is permitted to file one post-judgment motion attacking the validity of that judgment within 30 days of its entry (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203), and the plaintiffs' "post-trial" motion of July 12, 1985, was timely filed.

Defendants point to the language of the August 8, 1985, order allowing the plaintiffs' motion for a continuance, which states that the motion for reconsideration "shall stand as denied" should the plaintiffs fail to obtain a hearing on that motion within 90 days. Defendants urge that the failure of the plaintiffs to in any way present this motion for a determination on the merits within the 90-day deadline constituted an abandonment of that motion. Thus, defendants continue, the judgment became final as of the June 18, 1985, order, and the time for filing a notice of appeal began to run as of that date. (See English v. English (1979), 72 Ill. App.3d 736, 393 N.E.2d 18; Page v. Estate of Page (1978), 66 Ill. App.3d 214, 383 N.E.2d 615; Richey Manufacturing Co. v. Mercantile National ...


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