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05/22/97 CHARLES R. LABATE v. DATA FORMS

May 22, 1997

CHARLES R. LABATE, PLAINTIFF-APPELLEE,
v.
DATA FORMS, INC. AND CHARLES S. THOMAS, INDIVIDUALLY, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE PADDY H. McNAMARA, JUDGE PRESIDING.

Released for Publication June 25, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Burke, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

After being found liable by a jury, can a defendant challenge the sufficiency of the plaintiff's complaint? Ordinarily, no. On occasion, yes. In this case, where the plaintiff claimed tortious interference with his business expectation with a third party, the answer is no.

FACTS

Plaintiff Charles Labate (Labate) alleged that his application for a purchase money mortgage was denied because Charles Thomas (Thomas), president of Data Forms, refused to verify Labate's past employment with Data Forms to a prospective lender. Labate alleged that Data Forms' refusal to supply this basic information was done with malicious intent, knowing that without this information the bank's approval of the mortgage would be denied.

The trial court found that Labate's complaint stated a cause of action and denied defendants' section 2-615 motion for dismissal. After discovery was exchanged and depositions were taken, defendants filed a motion for summary judgment. Again, the question was whether the facts stated a cause of action for intentional interference with a prospective business expectation.

The trial court maintained that a cause of action was stated and denied the motion. The case went to trial and a jury entered judgment in favor of Labate.

On appeal, no issues are raised regarding the sufficiency of the evidence at trial. A transcript of the trial is not before the court. Instead, defendants again question the sufficiency of the pleadings. They ask this court to decide whether a cause of action for intentional, tortious interference with a prospective business expectation was stated. Defendants ask us to reverse the judgment entered and grant judgment in their favor, finding that the trial court erred when it denied the motions for dismissal and for summary judgment. We affirm.

DECISION

Since the matter went to trial and Labate won a judgment in his favor, we first consider whether defendants' challenge to the pleadings and the trial court's denial of summary judgment, at this juncture, are properly before this court. If they are not, that is the end of the matter.

In general, when a motion for summary judgment is denied and the case proceeds to trial, the order denying the motion for summary judgment merges with the judgment entered and is not appealable. Battles v. La Salle National Bank, 240 Ill. App. 3d 550, 608 N.E.2d 438, 181 Ill. Dec. 365 (1992). But where the issue raised in the summary judgment motion is one of law and would not be before the jury at trial, the order denying the motion does not merge and may be reviewed by the appellate court. Walters v. Yellow Cab Co., 273 Ill. App. 3d 729, 653 N.E.2d 785, 210 Ill. Dec. 590 (1995).

Also, when a motion to dismiss is denied and defendant files an answer, the defendant, generally, is held to have waived any defects in the pleading. Adcock v. Brakegate, Ltd., 163 Ill. 2d 54, 60, 645 N.E.2d 888, 206 Ill. Dec. 636 (1994). An important corollary to the waiver principle -- aider by verdict -- provides that when a defendant allows an action to proceed to verdict, the verdict will cure all formal and purely technical defects or clerical errors, as well as "any defect in failing to allege or alleging defectively or imperfectly any ...


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