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Witvoet v. Fireman's Fund Insurance Inc.

December 01, 2000

JAMES A. WITVOET, SR.,
PLAINTIFF-APPELLANT,
v.
FIREMAN'S FUND INSURANCE INC., J.I. CASE CREDIT INC., VIRGIL N. ROTHROCK D/B/A ROTHROCK'S IMPLEMENT INC., GERALD A. DRENDEL, EDWARD F. KELLY, MICHAEL T. REAGAN, M. TOD R. MELTON, AND JAMES LANNON, JR.,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court for the 21st Judicial Circuit Kankakee County, Illinois No. 98 L 10 Honorable Duane J. O'Connor Judge Presiding

The opinion of the court was delivered by: Justice Koehler

Not Released For Publication

JAMES A. WITVOET, SR.,
PLAINTIFF-APPELLANT,
v.
FIREMAN'S FUND INSURANCE INC., J.I. CASE CREDIT INC., VIRGIL N. ROTHROCK D/B/A ROTHROCK'S IMPLEMENT INC., GERALD A. DRENDEL, EDWARD F. KELLY, MICHAEL T. REAGAN, M. TOD R. MELTON, AND JAMES LANNON, JR.,
DEFENDANTS-APPELLEES.

Appeal from the Circuit Court for the 21st Judicial Circuit Kankakee County, Illinois No. 98 L 10 Honorable Duane J. O'Connor Judge Presiding

The opinion of the court was delivered by: Justice Koehler

In this malicious prosecution action, the plaintiff, James A. Witvoet, Sr., appeals (1) the circuit court's June 28, 1999, order denying his motion for leave to file third amended complaint; (2) its September 3, 1999, order granting the defendant's motion to strike; and (3) its September 30, 1999, order clarifying its previous order to reflect the stricken motion was plaintiff's motion to reconsider. We affirm.

 FACTS

This dispute arose after defendant Rothrack Implement, Inc., sold a combine to a third party, Ronald Shepard. It accepted Shepard's personal check after plaintiff provided a positive reference that Shepard was a good credit risk. Shepard turned around and sold the combine to Witvoet and then closed his bank account. When Rothrack presented Shepard's check and learned that the account had been closed, it took steps to procure the combine. These steps included a civil proceedings against Witvoet, which was voluntarily dismissed after the defendants successfully obtained a preliminary injunction against Witvoet.

On January 20, 1998, Witvoet filed a complaint for malicious prosecution against the defendants for their various roles in the underlying civil proceeding. The defendants filed separate motions to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992); 735 ILCS 5/2-619 (West 1992)). The circuit court consolidated the motions, granted the 2-615 motions, and allowed Witvoet 28 days to file an amended complaint.

Witvoet filed his first amended complaint, and the defendants again moved to dismiss. The circuit court granted these motions on February 19, 1999, and denied Witvoet's oral motion for leave to file a second amended complaint. Instead, it directed Witvoet to file a written motion to amend within 35 days, along with an attached proposed second amended complaint. On March 25, 1999, Witvoet filed such a motion, along with a proposed pleading similar to the pleadings previously dismissed. The circuit court ultimately issued an order on May 5, 1999, denying leave to file the proposed second amended complaint. In so doing, the circuit court did not grant Witvoet leave to file or even propose another amended pleading. That order was silent as to whether it was entered with or without prejudice.

Thirty days later, on June 4, 1999, Witvoet filed a motion for leave to file a third amended complaint with an attached proposed pleading. The defendants moved to strike the motion, arguing that the May 5 order was final and appealable, since it had terminated the litigation and Witvoet had been denied leave to further amend his pleadings. *fn1 On June 28, 1999, the circuit court ultimately denied the defendants' motions to strike and Witvoet's motion to file. Witvoet filed a motion to reconsider its denial on July 21, 1999, which defendant Fireman's Fund moved to strike as an improper successive motion.

The circuit court granted defendant Fireman's Fund's motion to strike on September 3, 1999, but incorrectly stated in its docket entry that it was striking Witvoet's motion for leave to file third amended complaint. On September 24, 1999, the circuit court entered a clarifying order that it had stricken the motion to reconsider without hearing. Witvoet filed a notice of appeal on October 1, 1999, seeking to appeal the circuit court's orders of June 28, September 3, and September 24, 1999. ANALYSIS

Several (but not all) defendants initially assert that this court does not have jurisdiction to hear this case on appeal. This court must determine whether the appeal has been properly taken so as to invoke the court's jurisdiction prior to considering the merits of an appeal. Westinghouse Airbrake Co. v. Industrial Commission, 306 Ill. App. 3d 853, 856, 715 N.E.2d 294, 297 (1999). The filing of a timely notice of appeal is jurisdictional. Bean v. Norfolk & Western Railway Co., 84 Ill. App. 3d 395, 400, 405 N.E.2d 418, 422-23 (1980). Illinois Supreme Court Rule 301 states:

"Every final judgment of a circuit court in a civil case is appealable as of right. The appeal is initiated by filing notice of appeal. No other step is jurisdictional. An appeal is a ...


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