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11/16/87 Curtis J. Elg Et Al. v. Jon A. Whittington Et Al.

November 16, 1987

CURTIS J. ELG ET AL

v.

JON A. WHITTINGTON ET AL. (WALTER SKEISTAITIS, JR., ET AL., APPELLANTS; FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHAMPAIGN, APPELLEE)



SUPREME COURT OF ILLINOIS

518 N.E.2d 1232, 119 Ill. 2d 344, 116 Ill. Dec. 252 1987.IL.1684

Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Champaign County, the Hon. John C. Townsend, Judge, presiding.

APPELLATE Judges:

CHIEF JUSTICE CLARK delivered the opinion of the court. JUSTICE SIMON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

This appeal addresses the question of whether a motion which is directed against an appealable circuit court judgment concerning one party or claim in a multiparty or multiclaim litigation will toll the running of the period for filing a timely notice of appeal. The circuit court dismissed the third-party complaint of the appellants, Walter Skeistaitis, Jr., and Aldona V. Skeistaitis. In the appellate court, appellants' appeal from this judgment was dismissed as untimely. (149 Ill. App. 3d 307.) We granted appellants' petition for leave to appeal (107 Ill. 2d R. 315).

The plaintiffs-counterdefendants in this lawsuit, Curtis Elg and Hilde Trieglaff, filed a complaint in the circuit court of Champaign County against the defendants-counterplaintiffs, Jon and Penny Whittington, and the defendants-third-party plaintiffs, Walter and Aldona Skeistaitis, the appellants here. Count I of Elg and Trieglaff's complaint alleged that the Whittingtons breached a contract to buy certain described real property from Elg and Trieglaff. Elg and Trieglaff sought specific performance or, in the alternative, damages from the Whittingtons. Count II of their complaint alleged that the appellants had breached a

The Whittingtons filed an answer to the complaint and a counterclaim against Elg and Trieglaff. The counterclaim alleged that since Elg and Trieglaff were unable to provide them with marketable title, the Whittingtons were entitled to the return of their earnest money, which had been deposited in escrow. Elg and Trieglaff filed an answer to this counterclaim.

The appellants filed an answer to the complaint, pleading as an affirmative defense that the appellants' inability to remove the encumbrance on the property's title stemmed from the refusal of the appellee, First Federal Savings and Loan Association of Champaign, to release a lien on the property despite an attempt by the appellants to satisfy the lien.

At the same time, appellants also filed a third-party complaint against the appellee. Count I of the third-party complaint alleged that the appellee had refused to accept appellants' tender of an amount sufficient to satisfy their debt to the appellee or to release its lien on their property. This count sought from appellee an indemnity for any judgment entered against the appellants on the Elg and Trieglaff complaint, as well as the costs of appellants' defense against that complaint. Count II of the appellants' third-party complaint alleged that the appellee's refusal to release the lien was willful, malicious, and intentionally designed to hinder appellants' sale of the property. In this count, appellants sought statutory damages (see Ill. Rev. Stat. 1983, ch. 95, pars. 52 through 54), punitive damages, and an order directing the appellee to release its lien on the subject property. Because of the many different parties involved in this litigation, the following diagram may be helpful:

On November 21, 1984, the appellee filed an answer to the third-party complaint which pleaded three affirmative defenses. The first affirmative defense alleged that the third-party complaint and the relief requested were barred by res judicata. The second affirmative defense alleged that another cause of action was pending between the parties for the same cause. The third affirmative defense alleged that the appellants' claim was barred by other affirmative matter avoiding the legal effect of, or defeating, the claim. The appellee also filed a motion to dismiss count II of the third-party complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 2-615).

The circuit court dismissed count II of the third-party complaint, and the appellants filed an amended count II. Shortly thereafter, the Whittingtons filed a motion for summary judgment, supported by affidavits and other materials. In response, Elg and Trieglaff filed affidavits and other documents.

On March 11, 1985, the appellee filed a motion for judgment on the pleadings. The motion alleged that the appellants had failed to reply to the affirmative defenses, and that they had therefore admitted the factual allegations contained in the defenses. The motion further alleged that the defenses were legally sufficient to defeat the third-party complaint. On the same date, the appellee filed a motion under section 2-615 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 2-615) to dismiss amended count II of the third-party complaint.

On May 2, 1985, the circuit court made the following docket entry:

"Hearing on Third Party Defendant, First Federal's motion to dismiss amended Count II and Motion for Judgment on pleadings resumed. Motion for judgment on pleadings allowed. Judgment on pleadings entered in favor of Third Party Defendant, First Federal Savings and Loan Association of Champaign and against Third Party Plaintiffs Walter Skeistaitis, Jr. and Aldona V. Skeistaitis and in bar of the causes of action sought to be stated in Count I and amended Count II of the Third Party Complaint. No just reason to delay enforcement or appeal of the order.

By reason of ruling on Motion for Judgment, Motion to dismiss not reached.

Hearing resumed on motion for summary judgment on Defendants/Counterplaintiffs Whittington. Court finds that motion and supporting affidavits do no [ sic ] demonstrate that there is no genuine issue of material fact and accordingly the motion for summary judgment is denied."

Neither party had moved the court to make a finding that there was no just reason to delay enforcement or appeal of the order.

On May 24, 1985, the appellants filed a "motion to vacate a summary judgment and for leave to reply to affirmative defenses." In the motion, appellants expressed their view of the prior and pending proceedings and requested that the order granting judgment on the pleadings in favor of appellee ...


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