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06/24/88 Lawyers Title Insurance v. Gary A. Kneller Et

June 24, 1988

LAWYERS TITLE INSURANCE CORPORATION, PLAINTIFF-APPELLEE

v.

GARY A. KNELLER ET, AL., DEFENDANTS-APPELLANTS (UNITED STATES TITLE AND ABSTRACT COMPANY ET AL., PLAINTIFFS)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

525 N.E.2d 1155, 172 Ill. App. 3d 210, 121 Ill. Dec. 848 1988.IL.998

Appeal from the Circuit Court of Grundy County; the Hon. Robert G. Wren, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. HEIPLE, J., concurs. JUSTICE BARRY, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Defendants, Gary and Barbara Kneller, were purchasers of certain business property located in Grundy County, Illinois. Plaintiffs Lawyers Title Insurance Corp. and United States Title & Abstract Co., were the issuer and issuing agent of a title insurance policy issued in connection with the transfer of the real estate from Verna and James Sak and Carol O'Neill to the Knellers. Plaintiffs Robert Tyer II and John Hanson were the attorneys who represented the sellers and buyers, respectively. Both the title policy and the warranty deed which were issued in connection with the conveyance appear in the record before us. Neither document contains an exception for a 35-foot easement which had been granted to and recorded by the property's former lessee, Shell Oil Company, for ingress to and egress from adjoining property.

On October 7, 1986, the plaintiffs filed a complaint acknowledging the liability of Lawyers Title under the policy of title insurance and praying for a determination of damages owed to the defendants. The defendants answered the complaint and prayed for damages up to $1 million from each of the plaintiffs named in the complaint.

On November 24 the defendants moved for the entry of summary judgment against each of the plaintiffs. On December 18, Lawyers Title moved for a substitution of attorneys. That motion was granted. Discovery ensued until March 19, 1987, when Lawyers Title moved to voluntary dismiss its cause of action pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). Counsel set the motion to be heard at 1:30 p.m. on March 23.

On March 24, 1987, defendants filed with the court their notice for hearing the summary judgment motion filed four months prior. The notice states that the latter motion was set to be heard at 1:45 p.m. on March 23, 1987. On that date, the court heard Lawyers Title's motion to voluntary dismiss and took the matter under advisement. The parties briefed the issue, and on April 28 the court granted plaintiff's motion to dismiss. No action was taken on the summary judgment motion.

Defendants then moved for an order to vacate the April 28 dismissal order, to reconsider and deny Lawyers Title's motion for a voluntary non-suit and to find Lawyers Title guilty of contempt. On June 4, that motion was denied. On motion of Lawyers Title on the same date, the court granted leave to file an amended complaint. An amended complaint was filed accordingly on June 15. Defendants subsequently moved to make the June 4 order appealable pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). On June 29, the court allowed the motion and entered the order as presented by defendants' attorney. Defendants pursued their appeal to this court.

Initially, we note that the trial court's order of June 29, stating that "pursuant to Supreme Court Rule, being section 304(a) of chapter 110A, Illinois Revised Statutes, there is no just cause for delaying an appeal from the order entered herein on June 4, 1987," is an order which confers appellate court jurisdiction. Rule 304 specifically calls for a finding that there is no just reason for delaying "enforcement or appeal." However, we find that the trial Judge's citation to the rule itself, specifically identifying it in his order, constructively fulfills the technical language requirement and confers the intended jurisdiction to review the order of June 4. There is no case authority to dictate otherwise. It has been often noted that the rules governing civil procedure are to be liberally construed so long as the substantive rights of all parties are protected. (Turner v. Smiley (1972), 8 Ill. App. 3d 388, 291 N.E.2d 27.) All rules of practice, whether in trial or reviewing courts, are adopted to promote the orderly and effective operation of the judicial process. Vasco Trucking, Inc. v. Parkhill Truck Co. (1972), 6 Ill. App. 3d 572, 286 N.E.2d 383.

Turning to the merits of the case, the central issue before this court is whether the plaintiff had an absolute right to dismiss its action for a declaratory judgment notwithstanding defendants' pending motion for summary judgment.

In the defendants' brief on appeal, they allege that their answer to the plaintiffs' complaint, joining with the plaintiffs in a request for a determination of the controversy presented by the complaint, is to be construed as a counterclaim. When a counterclaim has been pleaded by a defendant, no dismissal may be had as to the defendant except by defendant's consent. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009.) We wholly reject this position as it finds no support in the record. The defendants filed an "answer" requesting the same declaratory relief as the plaintiffs' complaint prayed for. No counterclaim was pled or arose, and the propriety of the dismissal does not involve consideration of the defendants' consent.

Further, the law is clear that the trial court acted properly in passing upon the plaintiff's motion to dismiss even though the defendants had made a prior motion ...


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