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08/04/87 Robert E. Skees, v. Growmark

August 4, 1987

ROBERT E. SKEES, PLAINTIFF-APPELLANT

v.

GROWMARK, INC., ET AL., DEFENDANT-APPELLEE (DIVERSIFIED BUILDINGS, INC., THIRD-PARTY PLAINTIFF; STAR ERECTION



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Service, Inc., Third-Party Defendant)

511 N.E.2d 982, 158 Ill. App. 3d 842, 110 Ill. Dec. 805 1987.IL.1120

Appeal from the Circuit Court of Henry County; the Hon. Joseph F. Beatty, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. BARRY, P.J., and HEIPLE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

Plaintiff, Robert E. Skees, appeals the dismissal of his cause of action with prejudice pursuant to Supreme Court Rule 219 (c) -- Failure to Comply with Order or Rules (107 Ill. 2d R. 219 (c)), the denial of his motion to vacate the trial court's order of dismissal, and the denial of his request for leave to file a third amended complaint.

On April 15, 1982, Robert E. Skees filed a complaint pursuant to the Illinois Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60 through 69), seeking recovery for injuries received in a fall from a ladder while working in an area allegedly under the control of defendants, F & S, Inc., and Diversified Buildings, Inc. On January 13, 1983, Skees filed an emergency motion to file an amended complaint naming F. S. Services, Inc., Growmark, Inc., F. S. Services, Inc., a division of Growmark, Inc., and Growmark, Inc., d/b/a F. S. Services, Inc., as additional defendants. Skees' motion was granted and his complaint was amended by adding the parties as defendants.

On February 18, 1983, Diversified Buildings, Inc., filed a motion for sanctions alleging Skees failed to comply with discovery and failed to make a reasonable attempt to resolve differences concerning discovery disputes pursuant to Supreme Court Rule 201(k) (107 Ill. 2d R. 201(k)). The motion was granted and Skees' action was dismissed with prejudice. The trial court thereafter vacated its order of dismissal on motion of Skees' counsel to vacate. In July 1983, Skees obtained service on the defendants who were added in January, and a verified motion was filed by these defendants alleging they had no legal connection with the project Skees was working on when injured. The trial court entered an order dismissing these parties from the suit on December 5, 1983.

A hearing was held on a motion filed by Growmark, Inc., and joined in by Diversified Buildings, Inc., on April 3, 1984, challenging the adequacy of Skees' complaint, claiming it did not set forth separate claims and separate counts as required by our Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-603(b)). The trial court entered an order granting, inter alia, leave to Skees to file an amended complaint within 28 days. Skees' counsel did not file an amended complaint within the time allowed and 17 months later, during a pretrial conference, sought leave of court to file an amended complaint. The trial court on October 1, 1985, granted the request and Skees' counsel was given until October 15, 1985, to file an amended complaint. The trial court advised Skees' counsel that if the amended complaint was not on file on October 15, 1985, the suit would be dismissed with prejudice. Six days after the court's deadline, Skees' counsel filed a second amended complaint naming as defendants those parties dismissed from the suit 22 months earlier. Further, Skees' counsel did not set forth separate claims and separate counts pursuant to our Code of Civil Procedure as instructed in the court's order of April 3, 1984. The defendants filed motions to dismiss and, after hearing, the court granted the motions and dismissed Skees' complaint with prejudice on February 19, 1986.

Skees' counsel thereafter filed a motion to vacate judgment and a motion for leave to file a third amended complaint, alleging a heavy case and trial workload as grounds for not filing said motions on time. The third amended complaint offered on motion did not set forth the separate claims and separate counts as earlier directed by the court. Hearing was held August 21, 1986, on both motions, wherein the trial court found there existed a pattern of conduct by Skees' counsel which demonstrated deliberate and willful disregard of the court's orders. The trial court entered a written order of record denying Skees' motions on October 26, 1986, and copies of the order were sent to all parties. Skees' counsel thereafter filed a notice of appeal with the clerk of the circuit court on September 25, 1986.

We first direct our attention to the argument of F & S, Inc., and Diversified Buildings, Inc., which requests dismissal of the Skees appeal, contending he failed to timely serve them with notice of the date of filing of the notice of appeal, along with a copy of the notice of appeal filed with the circuit clerk. It is well settled that a notice of appeal must be filed with the clerk of the circuit court within 30 days after entry of the order or judgment appealed from. After filing of the notice of appeal, a copy of the notice of appeal, together with notice of the date of filing, is to be served within seven days on every other party. Further, timely filing of the notice of appeal is jurisdictional and may not be waived. 107 Ill. 2d Rules 303(a), (d); Lubben v. Lubben (1985), 135 Ill. App. 3d 302, 481 N.E.2d 856; Country Mutual Insurance Co. v. National Bank of Decatur (1969), 109 Ill. App. 2d 133, 248 N.E.2d 299.

Skees' motion to vacate the trial court's dismissal order was denied after the hearing held August 21, 1986. On August 26, 1986, a written order from the hearing transcript was filed by the court and copies sent to all parties. Skees filed his notice of appeal on September 25, 1986, 34 days after the hearing, but 29 days after the transcript was sent to all parties. The issue presented is when did the judgment of the court become final and appealable. We find that the order became final and appealable on August 26, 1986, the date the court's written order from the hearing transcript was filed and copies sent to all parties. 107 Ill. 2d R. 272.

The record reveals that the trial Judge's memorandum opinion and order taken from the transcript was filed and signed as entered on August 26, 1986. We conclude that the intent of the trial court was that judgment be considered final and appealable on the date of filing and of mailing copies to all parties. Skees' ...


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