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07/25/95 O'BRIEN & ASSOCIATES v. TIM THOMPSON

July 25, 1995

O'BRIEN & ASSOCIATES, P.C., PLAINTIFF AND COUNTERDEFENDANT AND APPELLEE-CROSS-APPELLANT,
v.
TIM THOMPSON, INC., DEFENDANT AND COUNTERPLAINTIFF AND APPELLANT-CROSS-APPELLEE (WALTER J. O'BRIEN II AND ANGELA IMBRIEROWICZ, PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES, V. CHARLES TIMOTHY THOMPSON AND CAROLYN THOMPSON, DEFENDANTS AND APPELLANTS-CROSS-APPELLEES; TIMOTHY THOMPSON BUILDERS, INC., DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Du Page County. No. 91-L-1795. Honorable William E. Black, Judge, Presiding.

The Honorable Justice Hutchinson delivered the opinion of the court: Geiger, J., concurs. Justice Bowman, specially concurring:

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

Defendants, Tim Thompson, Inc., Tim Thompson Builders, Ind., Charles Timothy Thompson and Carolyn Thompson (collectively, Thompson), appeal the trial court's orders of August 31, 1993, November 23, 1993, and February 22, 1994, granting summary judgment in favor of plaintiffs-counterdefendants, O'Brien & Associates, P.C. (O'Brien & Associates), Walter J. O'Brien II and Angela Imbrierowicz (collectively, O'Brien). Tim Thompson, Inc., brought a counterclaim against O'Brien. O'Brien & Associates, as plaintiff, cross-appeals from the trial court's order of June 8, 1994, denying its motion for sanctions under Rule 137 (134 Ill. 2d R. 137) against Tim Thompson, Inc., Charles Timothy Thompson, Carolyn Thompson and their attorneys.

Thompson, contends the trial court erred in granting O'Brien's motions for summary judgment on the issues of (1) O'Brien's failure to tender the defense of Patricia and Paul Purcell (the Purcells) lawsuit to Pekin Insurance Company (Pekin); (2) O'Brien's failure to investigate possible contribution claims against Protection Plus Security Systems, Inc. (Protection Plus), and Vac Com, Inc. (Vac Com), and then join these subcontractors as third-party defendants in the Purcell lawsuit; and (3) whether Tim Thompson, Inc., by being on constructive notice of a proposed Village of Hinsdale (Hinsdale) zoning ordinances (see Tim Thompson, Inc. v. Village of Hinsdale (1993), 247 Ill. App. 3d 863, 876, 187 Ill. Dec. 506, 617 N.E.2d 1227), was collaterally estopped from arguing O'Brien breached the duty of care it owed Tim Thompson, Inc., in connection with a lawsuit Tim Thompson, Inc. filed against Hinsdale. On cross-appeal, O'Brien & Associates contends the trial court abused its discretion in failing to impose sanctions under Rule 137. We affirm.

PROCEDURAL ISSUES

We have taken the following motions and objections with the case. On January 6, 1995, we allowed a motion filed by the law firm of Tenney & Bentley (Tenney) and one of its attorneys John V. Schrock (Schrock) to dismiss the O'Brien & Associates' cross-appeal. Our order stated, "motion by appellees [Tenney and Schrock] to dismiss cross-appeal is allowed and the cross-appeal is hearby dismissed. The appeal remains extant." O'Brien & Associates has filed a "Motion to Clarify Order Dated January 6, 1995," (Motion to Clarify). O'Brien & Associates requests we "make clear that the cross[-]appeal as to *** Thompson ***, Michael Childress and Edward Eshoo[,] Jr. remains before this court." Childress and Eshoo, formerly of Tenney, are principals in the firm of Childress, Eshoo, Williams & Zdeb, Ltd. (Childress). Childress then filed a "Motion to Dismiss Cross-Appeal" (Motion to Dismiss) as to Michael Childress and Edward Eshoo, Jr. O'Brien & Associates has filed a "Response to Motion to Dismiss Cross-Appeal as to Michael Childress and Edward Eshoo, Jr." (Response). Childress then lodged "Objections to Motion to Clarify Order" (Objections). Finally, Childress filed its "Motion for Leave to File and to Adopt Reply Brief [of Tenney and Schrock]" (Reply) as their reply to O'Brien & Associates' Response to Childress' Motion to Dismiss.

In ruling on these motions and objections, we have considered O'Brien & Associates' Response and Reply (including the arguments adopted by Childress from the Tenney and Schrock reply brief) and Childress' Objections. The captions of O'Brien & Associates' motion for leave to file cross-appeal, notice of cross-appeal, docketing statement and briefs do not list Edward Eshoo, Jr., and Michael Childress as appellees or cross-appellees. O'Brien & Associates' notice of cross-appeal does not request relief against Edward Eshoo, Jr., or Michael Childress. In paragraph one of the notice of cross-appeal, O'Brien & Associates distinguishes between Thompson (referring to them as "defendants") and Edward Eshoo, Jr., and Michael Childress (calling them "attorneys"). In paragraph two, O'Brien & Associates then asks that we "impose sanctions upon such defendants *** as the court deems appropriate." (Emphasis added.)

The plain language of the notice of cross-appeal did not inform Edward Eshoo, Jr., and Michael Childress that O'Brien would pursue a cross-appeal against the Thompson attorneys. The notice of cross-appeal, therefore, cannot be applied against Edward Eshoo, Jr., and Michael Childress. Neither did O'Brien & Associates file a separate appeal as to Edward Eshoo, Jr., and Michael Childress. Filing a timely notice of cross-appeal is a prerequisite to appellate jurisdiction. ( Harding v. City of Highland Park (1992), 228 Ill. App. 3d 561, 572, 169 Ill. Dec. 448, 591 N.E.2d 952; see 134 Ill. 2d R. 303(a)(3).) Childress' Motion to Dismiss is granted. O'Brien & Associates' Motion to Clarify is denied as to Edward Eshoo, Jr., and Michael Childress; the Motion to Clarify is granted as to Thompson. We will address the cross-appeal as it relates to Thompson later in this opinion.

SUMMARY OF FACTS

Thompson purchases real estate and builds single-family homes. The present case involves two separate transactions; i.e., (1) Thompson's 1989 purchase of three residential lots in the Norman Hill subdivision in Hinsdale, and (2) Thompson's entry into a written home construction agreement to build a home for the Purcells. Each transaction ended in litigation; i.e., (1) Thompson initiated an action against Hinsdale seeking declaratory and injunctive relief on November 7, 1990, and (2) the Purcells filed a lawsuit in the Chancery Division of the circuit court of Du Page County against Thompson.

The Hinsdale litigation focused on proposed zoning ordinances that would obstruct Thompson's ability to develop the Norman Hill lots. The complete facts of the Hinsdale litigation are set forth in Thompson, 247 Ill. App. 3d 863, 187 Ill. Dec. 506, 617 N.E.2d 1227. This decision figures prominently in the trial court's order in the present case.

The Purcells brought their action after fire destroyed the home being built by Thompson. They requested a variety of declaratory and equitable relief that included, inter alia, the issuance of a court order directing Pekin and Cory & Associates (Cory) to (1) reconstruct the home; (2) pay off the mortgage plus interest and fees; or (3) advance the Purcells all monies owed them by the three parties. Pekin issued a comprehensive general liability (CGL) insurance policy on the home Thompson was building for the Purcells. Cory acted as the broker on the CGL policy.

The Hinsdale fire department issued a report indicating the fire was started by a nail that had been driven through three groups of wires. These wires were connected to the alarm, central vacuum and intercom systems. The alarm system was installed by Protection Plus, while the vacuum and intercom systems were installed by Vac Com under a subcontract with Protection Plus. The nail acted as a "heat sink." The heat sink started a "long smoldering fire" which eventually spread and destroyed the home. According to the report, the fire spread quickly due to the open design of the home. The architect for the Purcells' ill-fated home was Robert Mifflin. Mifflin was joined as a third-party defendant. Thompson, according to the trial court, alleged that because Mifflin negligently designed the home "with an open concept to the living area," the home burned faster than it otherwise would have. At the time of the fire, the Purcells had paid Thompson $1,117,000 of the agreed $1,250,260 price of the new home.

O'Brien is a professional service corporation engaged in the practice of law. On December 15, 1989, O'Brien "was employed" by Thompson to represent it in the Purcells' lawsuit. According to O'Brien's first amended complaint, O'Brien last rendered legal services to Thompson on the Purcell lawsuit on August 19, 1991. Additionally, the first amended complaint ...


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