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09/28/95 WAYNE TAYLOR AND JERRY LEVERSON v. PEOPLES

September 28, 1995

WAYNE TAYLOR AND JERRY LEVERSON, PLAINTIFFS-APPELLANTS,
v.
THE PEOPLES GAS LIGHT & COKE COMPANY, A CORPORATION, SPECIAL OPERATIONS ASSOCIATES, INC., WILLIE SUGGS, AND THOMAS J. SHEEHAN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Kathy M. Flanagan, Judge Presiding.

Rehearing Denied October 27, 1995. Released for Publication November 3, 1995. Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice Theis delivered the opinion of the court: Cahill and O'brien, S., JJ., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

The plaintiffs appeal from a determination that the claims in their fourth amended complaint were barred under res judicata and collateral estoppel. Plaintiffs assert that (1) the court erred in finding their claims to be precluded by a prior arbitration determination; and (2) the court erred in dismissing their negligent hiring claim for failure to state a claim under Code of Civil Procedure section 2-615. 735 ILCS 5/2-615 (West 1992).

In 1987, defendant Peoples Gas commenced an inquiry into the alleged theft of company gas meters and sale of narcotics by its employees. Peoples Gas retained defendant, Special Operations Associates (SOA), to conduct an investigation into the matter. SOA assigned the task to its part-time employee, defendant Thomas Sheehan, and to an undercover investigator, defendant Willie Suggs (hereinafter referred to Collectively as SOA defendants).

The investigation led to the indictment of 31 Peoples Gas employees, including Taylor, Leverson, and Carl E. Tigner, who were charged in early 1988 with meter theft. Shortly thereafter, Peoples Gas terminated the plaintiffs' employment. The plaintiffs' union, Gas Workers Local 18007, commenced grievance proceedings on the plaintiffs' behalf for wrongful termination, alleging, inter alia, that the plaintiffs committed no wrongdoing and that Peoples Gas discharged them without proof of their guilt.

In 1989, the State's Attorney entered a nolle prosequi for most of the 31 indictments including those against Taylor, Leverson, and Tigner. Shortly thereafter, Taylor and Tigner initiated the instant civil action against Peoples Gas, the SOA defendants and Suggs. Leverson joined as a plaintiff in 1990. Plaintiffs' fourth amended complaint charged all the defendants with malicious prosecution (count I) and charged Peoples Gas with wrongful discharge (count II) and negligent hiring of the SOA defendants (count V). The complaint charged the SOA defendants with tortious interference with the contractual relationship between plaintiffs and Peoples Gas (count III) and with negligent employment of Suggs (count IV).

The complaint alleged that during the meter theft investigation, SOA was the agent of Peoples Gas, and Sheehan and Suggs were employees of SOA acting within the scope of their employment. Suggs, whom the defendants knew or should have known had prior felony convictions and a bad reputation for honesty, knowingly provided the defendants with false information regarding the plaintiffs' involvement in the alleged thefts. Peoples Gas and the SOA defendants allegedly were aware the information was untrue, and conspired to turn it over to the State's Attorney and grand jury in order to falsely prosecute the plaintiffs. The State repeatedly continued the case, allegedly relying upon the defendants' promises to produce credible evidence of the plaintiffs' guilt. When the evidence never materialized, the State dismissed the case, but after the plaintiffs had lost their jobs and incurred great expense.

While the civil suit remained pending, the plaintiffs' grievances proceeded to separate arbitration hearings. Both arbitrators issued comprehensive written orders, finding clear and convincing evidence that the plaintiffs had sold stolen gas meters and that their discharges were based upon proper cause. The orders indicate that in the grievance proceedings, the plaintiffs were represented by union counsel, offered their own testimony in support of their claims of innocence, and cross-examined the witnesses against them, including Suggs and Sheehan. In light of the arbitrators' rulings, Peoples Gas moved for summary judgment as to the instant action (735 ILCS 5/2-1005 (West 1992)), and the SOA defendants moved for dismissal under Code of Civil Procedure section 2-619(4) (735 ILCS 5/2-619(4) (West 1992)). Suggs later joined in SOA's motion. The defendants argued that the plaintiffs should be collaterally estopped from relitigating the claims in their complaint because each was premised upon the factual assertion that the plaintiffs were innocent of the thefts, the very issue decided adversely to the plaintiffs in the arbitration proceedings. Peoples Gas alternatively sought summary judgment as to the wrongful discharge claim under the doctrine of res judicata.

In response to the summary judgment motion, the plaintiffs argued, inter alia, that they were denied a full and fair opportunity to present their claims in the arbitration because they were required to accept representation by union counsel rather than counsel of their own choosing. In support of this argument, the plaintiffs submitted the unsigned affidavits of Taylor, Leverson, and Taylor's private attorney Robert E. Gordon.

On September 15, 1993, following a hearing, the trial court entered an order granting the SOA defendants' motion to dismiss and the Peoples Gas motion for summary judgment. On September 23, 1993, the court entered an order granting Suggs' motion to dismiss, and entering findings under Supreme Court Rule 304(a) (134 Ill. 2dR. 304(a)) as to each of the defendants. On September 29, 1993, the court entered an agreed amended order vacating the order of September 23, 1993, granting Suggs' motion to dismiss and entering judgment in his favor, and entering 304(a) findings as to all the defendants. The plaintiffs filed a motion to reconsider, which the court denied on November 1, 1993. The plaintiffs then brought the instant appeal.

On appeal, we initially address Suggs' contention that this court lacks jurisdiction over him because the plaintiffs failed to appeal from any order pertaining to him. The plaintiffs' amended notice of appeal was directed towards the orders of November 1, 1993, September 15, 1993, and September 23, 1993. Suggs points out that the September 23, 1993, order was vacated by the agreed amended order of September 29, 1993, and that the September 15, 1993, dismissal order was not directed to him. Suggs maintains that in order to confer jurisdiction over him, the notice of appeal should have specified the order of September 29, 1993, which dismissed the complaint as to him. We disagree.

The purpose of a notice of appeal is to inform the party prevailing in the trial court that the opposing party seeks review of the judgment; to this end, where the notice sufficiently sets forth the judgment complained of and the relief sought, mere formal defects will not deprive this court of jurisdiction. ( Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380, 31 Ill. Dec. 178; Lang v. Consumers Insurance Service, Inc. (1991), 222 Ill. App. 3d 226, 583 N.E.2d 1147, 164 Ill. Dec. 825.) A notice of appeal need not designate a particular order to confer jurisdiction, as long as the order which is specified directly relates back to the judgment or order from which review is sought. ( Burtell, 76 Ill. 2d at 434, 394 N.E.2d at 383; Dalen v. Ozite Corp (1992), 230 Ill. App. 3d 18, 23, 594 N.E.2d 1365, 1367, 171 Ill. Dec. 845.) An unspecified judgment is reviewable if it is a "step in the ...


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