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03/04/94 S & S LAUNDRY SERVICE v. G.M. REALTY

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION


March 4, 1994

S & S LAUNDRY SERVICE, PLAINTIFF-APPELLEE,
v.
G.M. REALTY COMPANY, AN ILLINOIS CORPORATION, AND HIGHLAND MANAGEMENT COMPANY, AN ILLINOIS CORPORATION, DEFENDANTS-APPELLANTS.

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MICHAEL W. STUTTLEY, JUDGE PRESIDING.

Murray, Gordan, McNULTY

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Defendants, G.M. Realty Company and Highland Management Company, appeal from the trial court's order denying defendants' motion to reconsider a previous order directing defendants to place plaintiff in possession of certain commercial premises it had formerly leased from defendants.

S & S Laundry and Highland Management Company entered into a written lease dated April 22, 1986. In its amended complaint plaintiff alleged that by virtue of said lease agreement, plaintiff was in possession of the laundry room located at 830-58 Hinman, Evanston, Illinois, and that on or about September 25, 1992, Highland Management Company or its agents wrongfully disconnected plaintiff's laundry machines.

Paragraph 13 of the lease agreement between plaintiff and Highland Management Company (the Lease), provides in pertinent part:

"In the event of any dispute or controversy arising out of the operation or alleged breach of this Lease Agreement, such dispute or controversy shall be submitted to and be governed by the rules of the American Arbitration Association. * * * No litigation shall be instituted between the parties hereto except to enforce the award or order of the arbitrators."

On February 22, 1993, the trial court entered an order: (1) that the pending arbitration between the parties was to go forward without stay, and denying plaintiff's motion to reconsider the ruling compelling arbitration; (2) defendants were ordered to allow plaintiff to reinstate its laundry machines into the subject premises, the trial court having determined that to preserve the status quo, plaintiff was entitled to possession of the laundry room in the subject premises; (3) enforcement of paragraph 2 was stayed until March 8, 1993, and defendants were granted leave to file a motion for an appeal bond prior to March 8, 1993, to stay, pending appeal, paragraph 2 of the order.

At the hearing on March 8, 1993, the trial court stated: "it was quite clear at the time that order was entered the contract no doubt called for arbitration, and I stated from the day one that I feel that the parties should proceed pursuant to the contract, which was the -- which is the arbitration as spelled out in the contract." The trial court further stated it was within his judicial discretion to place the plaintiff back in possession, where the defendant has used self-help to evict a party without due process and indicated he was placing the parties back at arm's length where they should have been when the dispute arose. The court indicated that arbitration should go forward "but * * * to allow one party to proceed in arbitration at [the] position they want to be at is not the purpose of the arbitration agreement nor the purpose of the forcible entry and detainer law in this State" and that "it is clear that anytime a party uses self-help to effectuate an eviction that they are in violation of the state's forcible detainer law."

The trial court requested some indication on the type of income that was derived from the laundry machines in the last calendar year and indicated that the court would set a bond based on that information in the form of a use and occupancy bond. The court continued the matter to March 15, 1993, for said purpose.

On March 15, the court entered an order setting a supersedeas bond in the amount of $1,200 to stay the provisions of paragraph 2 of the court's February 22, 1993, order. Defendants filed a notice of appeal on April 5, 1993.

The sole issue defendants present on appeal is whether the trial court abused its discretion in granting a preliminary mandatory injunction, sua sponte, without prior notice and without the benefit of a request from either of the parties or evidence establishing entitlement to an injunction.

Defendant argues that the trial court's issuance of a mandatory injunction, which was improperly issued sua sponte and without prior notice, was violative of due process of the law under the fourth and fourteenth amendments to the United States Constitution, was an abuse of discretion. Defendant further argues that the order granting a preliminary mandatory injunction is violative of the Illinois Injunction Act as well as case law.

In response, plaintiff attacks the jurisdiction of this court to hear this appeal based on the fact that the notice of appeal was filed 42 days after the entry of the February 22nd order and that the order appealed from was not a mandatory injunction. Alternatively, plaintiff argues that if this court has jurisdiction, we should affirm the decision of the trial court.

We must first determine if this court has jurisdiction to decide the merits of this appeal. For the following reasons we find that we lack jurisdiction and consequently dismiss this appeal.

It is unclear in the record whether that portion of the February 22, 1993, order restoring possession of the leased premises until Conclusion of the arbitration between the parties is a mandatory injunction as claimed by the defendants, or an order restoring possession under the Illinois Forcible Entry and Detainer Act as claimed by the plaintiff. (See 735 ILCS 5/9--101 et seq. (West 1992).) Defendants rest their entire appeal on the theory that trial court's actions constituted the issuance of a mandatory injunction under the Illinois Injunction Act (735 ILCS 5/11--102 (West 1992)) and do not discuss the forcible entry and detainer law. Since defendants filed their notice of appeal pursuant to Supreme Court Rule 307, we will first address whether the appeal is timely under that rule. Since we conclude that the appeal was not timely we do meet the jurisdictional issue of whether the order appealed from was a mandatory injunction, nor do we meet the substantive issue raised on appeal. 134 Ill. 2d R. 307.

Supreme Court Rule 307(a)(1) specifically provides that an appeal may be taken from an interlocutory order of court "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction" provided that the appeal is perfected within 30 days from the entry of the interlocutory order. (134 Ill. 2d R. 307(a)(1).) Supreme Court Rule 307(b) provides that if an interlocutory order is entered on an ex parte application, the party intending appeal therefrom must first present a motion to the trial court to vacate the order. If the motion is denied or the court does not act thereon within seven days an appeal may be taken. The 30 days allowed for taking an appeal and filing the record begins to run from the day the motion is denied or from the last day for action thereon. 134 Ill. 2d R. 307(b).

Plaintiff argues that although defendant filed a motion seeking reconsideration of the February 22nd order, the filing of that motion does not toll the running of the 30-day period expressly provided for by Rule 307(a). Plaintiff maintains (1) if the matter before this court is an appeal of the February 22, 1993, order, the notice of appeal is untimely and thus cannot confer jurisdiction, and; (2) if the matter before this court is an appeal of the March 8, 1993, order, there has been no appropriate notice of appeal filed and therefore no appellate jurisdiction.

Defendants did not file a motion entitled "motion to vacate", they did however, file a motion to reconsider the February 22, 1993, order. *fn1 Said motion to reconsider was denied on March 8, 1993, and the notice of appeal was filed on April 5, 1993. The notice of appeal was filed in excess of 30 days after the February 22nd order, but less than 30 days after the March 8th order.

If we only consider the February 22nd order, the interlocutory appeal was untimely and we have no jurisdiction to consider the appeal. ( Ben Kozloff, Inc. v. Leahy (1986), 149 Ill. App. 3d 504, 501 N.E.2d 238, 103 Ill. Dec. 217.) However, we must also consider the March 8, 1993, order.

We must next consider whether the defendants' motion to reconsider can be considered a motion to vacate and if so, whether the defendants' filed an appropriate notice of appeal from that order. First, although named a motion to reconsider, the defendants' prayer for relief, included the following: "that the Court reconsider and vacate such cited portion of its Order of February 22, 1993." Accordingly, considering the content of the motion, we find that the defendants filed a motion to vacate.

The notice of appeal stated that pursuant to Supreme Court Rule 307(a)(1), the defendants were appealing "a portion of the trial court's February 22, 1993 Order stay (sic) - by the trial court until March 8, 1993." The notice of appeal quotes the following from the February 22, 1993, order:

"(2) The Court, however, finds that Defendant HIGHLAND MANAGEMENT shall allow Plaintiff to reinstall the laundry machine into the subject premises; having determined that to preserve the status quo, Plaintiff is entitled to possession of the laundry room in the subject premises. Such adjudication shall remain in full force and effect until the Conclusion of the arbitration, however, the determination of the arbitrator, as contained in his final award, is final and binding upon the parties.

(3) Enforcement of paragraph number 2 of this Order is stayed until March 8, 1993, at 2:00 p.m. Defendants are granted leave of court to file, prior to March 8, 1993, a motion for an appeal bond, to stay, pending appeal, the provisions of paragraph number 2 of this Order."

Finally, defendants state that they "seek a reversal of the above captioned portion of the trial court's February 22, 1993, order, the reconsideration of which was denied by the trial court on March 8, 1993."

First, defendants do not specifically state that they are appealing from the March 8, 1993, order. Second, in order for defendants to appeal from the March 8, 1993, order, the appeal would have to be brought pursuant to Supreme Court Rule 307(b) rather than Supreme Court Rule 307(a)(1). Since defendants filed their notice of appeal pursuant to 307(a)(1) and the appeal was filed in excess of 30 days after the entry of the order appealed from, we must find that this court lacks jurisdiction to consider this appeal.

APPEAL DISMISSED.

GORDON and McNULTY, JJ., concur.


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