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12/27/89 Phil Dressler & Associates v. Old Oak Brook Investment

December 27, 1989





548 N.E.2d 1343, 192 Ill. App. 3d 577, 139 Ill. Dec. 629 1989.IL.2033

Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.


JUSTICE REINHARD delivered the opinion of the court. INGLIS and McLAREN, JJ., concur.


Plaintiff, Phil Dressler & Associates, Inc., brings this interlocutory appeal pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) from an order of the circuit court of Du Page County entering summary judgment in favor of defendant, Old Oak Brook Investment Corporation, on counts II and III of plaintiff's complaint seeking specific performance and declaratory relief in connection with an alleged contract for the sale of certain real property.

On appeal, plaintiff contends that the circuit court erred in finding that its claims were barred by a release executed by plaintiff and defendant because a genuine issue existed as to a material fact, namely, whether the release was procured by fraud. Defendant responds that no genuine issue exists in this regard and summary judgment was properly entered. Defendant also contends that this court is without jurisdiction to review the summary judgment order, and accordingly, this appeal must be dismissed.

As this court's jurisdiction is in issue, we briefly recount the procedural history of this case. On May 23, 1988, plaintiff filed its three-count complaint against defendant and Michael Butler, who is not a party to this appeal. Plaintiff alleged that a contract between plaintiff and defendant provided defendant the option to purchase a certain lot, after certain other lots were sold, subject to the right of Michael Butler or his sister to purchase the lot "for the purpose of consolidating his/her property for the use of himself or herself or his or her family." Plaintiff further alleged that defendant refused to sell the lot, indicating that Michael Butler had exercised his option, though it was known to defendant that Butler intended to purchase the property for resale rather than personal use. Plaintiff also alleged that defendant fraudulently induced it to execute a release from liability for claims on the contract. Count II was against defendant only and sought specific performance of the contract. Count III is against defendant and Butler and sought certain declaratory relief. Count I is against Butler only and alleged intentional interference with contractual relations.

Defendant moved for summary judgment on counts II and III on the basis of, inter alia, the release, contending that no genuine issue existed with respect to its validity. Following a hearing on the motion on July 13, 1988, the circuit court entered summary judgment in favor of defendant. The circuit court's order did not contain a finding of no just reason to delay enforcement or appeal of the order pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Thereafter, on July 13, 1988, plaintiff filed a notice of appeal from the order. On July 19, 1988, on defendant's motion to clarify the July 13 order nunc pro tunc, the circuit court entered an order stating that the July 13 order was amended, nunc pro tunc, to include a finding of no just cause to delay enforcement or appeal.

On December 8, 1988, on defendant's motion, this court dismissed, for lack of jurisdiction, the appeal taken pursuant to the July 13, 1988, notice of appeal. Thereafter, on plaintiff's motion, the circuit court on March 7, 1989, entered an order finding, as of that date, no just cause to delay enforcement or appeal of the July 13, 1988, order. On March 31, 1989, plaintiff filed a notice of appeal from the July 13, 1988, order.

Defendant filed a motion in this court to dismiss the present appeal. We initially denied the motion, but defendant reiterated its position in its appellate brief. We note our firmly established obligation to consider our jurisdiction and dismiss an appeal if jurisdiction is found wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252.) Having again considered the question, we conclude that jurisdiction is proper.

The July 13, 1988, order was a final judgment as to fewer than all of the parties and claims in an action involving multiple claims and parties. Pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), such an order is not appealable in the absence of an express finding of no just reason to delay its enforcement or appeal. (Ferguson, 111 Ill. 2d at 442, 490 N.E.2d at 1254.) Prior to its amendment, effective January 1, 1989, Rule 304(a) provided that the time for filing the notice of appeal shall run from the entry of the required finding. (107 Ill. 2d R. 304(a).) When an order contains the requisite finding, the affected party loses the right to appeal by waiting until the termination of the remainder of the case. In re Johnson (1985), 134 Ill. App. 3d 365, 368, 480 N.E.2d 520.

Here, the July 13, 1988, order did not contain the requisite finding and, hence, was not appealable at the time entered. It is undisputed that the notice of appeal filed on that day was premature and that the subsequent order of July 19, 1988, purporting to amend the July 13, 1988, order nunc pro tunc to include the finding could not cure the jurisdictional defect where the later order was not a correction of a clerical error but was an attempt to supply omitted judicial action. (See Rauscher v. Albert (1985), 138 Ill. App. 3d 799, 804-05, 485 N.E.2d 1362.) "The office of an order nunc pro tunc is only to supply some omission in the record of an order which was really made but omitted from the record. If an order is actually made by the court but there is a failure to enter it, the court may correct the mistake in failing to enter the order and make the record show the order which the court actually made as of the time it was made." (People v. Rosenwald (1915), 266 Ill. 548, 554, 107 N.E. 854, 856.) No court has a right, as attempted in the case at bar, to create an order by that method or to supply an order which was never, in fact, made. Rosenwald, 266 Ill. at 554, 107 N.E. at 856.

Defendant maintains, however, that while the addition of the finding was not effective nunc pro tunc, the finding was effectively entered on July 19, 1988, and the time for filing a notice of appeal began to run on that date and expired 30 days thereafter. Thus, defendant contends the instant appeal is not timely. Plaintiff responds that the July 19, 1988, order should be given no effect, and thus the requisite finding was ...

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