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A.J. Maggio Co. v. Willis

September 27, 2001

A.J. MAGGIO COMPANY, APPELLANT,
v.
COY WILLIS ET AL.(ILLINOIS EMCASCO INSURANCE COMPANY, APPELLEE).



The opinion of the court was delivered by: Justice Thomas

UNPUBLISHED

Agenda 41-May 2001.

The plaintiff, A.J. Maggio Company (Maggio), brought a four-count, second-amended complaint against the defendants, Willis Construction (Willis) and Illinois Emcasco Insurance Company (Emcasco), to recover the cost of repairing a defective sewer installed by Willis. Counts III and IV of the second-amended complaint alleged claims of assignment and subrogation against Emcasco in connection with a commercial general liability policy that Emcasco issued to Willis. The trial court granted Emcasco's motion to dismiss counts III and IV and found that there was no just reason to delay enforcement or appeal. The appellate court eventually affirmed the dismissal of counts III and IV (316 Ill. App. 3d 1043) and we granted Maggio's petition for leave to appeal (see 177 Ill. 2d R. 315). For the reasons that follow, we now dismiss Maggio's appeal for lack of jurisdiction.

BACKGROUND

The underlying facts of this case are fully set forth in the opinion of the appellate court. 316 Ill. App. 3d 1043. For the purpose of this appeal, we need only discuss the relevant procedural history. On Maggio's appeal from the trial court, the appellate court initially ruled in favor of Maggio and held that the trial court erred in dismissing Maggio's claims of assignment and subrogation. Thereafter, Emcasco filed a petition for rehearing (hereinafter, the first petition for rehearing) before the appellate court pursuant to Supreme Court Rule 367 (155 Ill. 2d R. 367). Emcasco argued that the appellate court had "overlooked or misapprehended" the nature of the insurance policy Emcasco had issued to Willis. See 155 Ill. 2d R. 367(b). The appellate court allowed Emcasco's petition for rehearing. Maggio then answered the petition and argued that Emcasco had raised a wholly new issue and, therefore, Emcasco's petition should be denied. Maggio did not answer the merits of Emcasco's petition regarding the nature of the insurance policy Emcasco had issued to Willis. The appellate court was persuaded by Emcasco. It entered an order withdrawing and vacating its initial opinion and, on September 26, 2000, the court entered judgment on Emcasco's petition and affirmed the trial court's dismissal of Maggio's assignment and subrogation claims. 316 Ill. App. 3d at 1049.

At that point, Maggio filed neither a petition for leave to appeal or a notice of intent to do so. Instead, Maggio filed its own petition for rehearing (hereinafter, the second petition for rehearing) arguing that the appellate court had improperly considered a new argument on Emcasco's petition for rehearing and, as a result, Maggio was denied due process. Emcasco responded by filing a motion to strike Maggio's petition as improper under Supreme Court Rule 367(e) (155 Ill. 2d R. 367(e)), which the appellate court denied. Then on November 6, 2000, the appellate court denied Maggio's petition and 15 days later, Maggio filed a notice of intent to appeal.

On appeal before this court, Maggio submits various arguments directed to the appellate court's September 26, 2000 judgment on the first petition for rehearing filed by Emcasco. In response, Emcasco argues that, pursuant to Supreme Court Rule 367(e), which prohibits successive petitions for rehearing (155 Ill. 2d R. 367(e)), Maggio was barred from filing its petition in the appellate court in the first place. In addition, Emcasco argues that Maggio failed to file a timely appeal from the appellate court's September 26, 2000 judgment on Emcasco's petition for rehearing. Emcasco maintains that Maggio's filing of the second petition for rehearing did not toll the time for filing an appeal. Therefore, Emcasco argues, this court lacks jurisdiction. We agree with Emcasco.

ANALYSIS

Because the dispute over this court's jurisdiction turns in part on Maggio's filing of the second petition for rehearing and, in particular, whether the second petition for rehearing may toll the deadline for filing a notice of intent to appeal, we will begin with a discussion of the propriety of that petition.

Supreme Court Rule 367 states that a petition for rehearing "may be filed within 21 days after the filing of the judgment, unless on motion the time is shortened or enlarged by the court or a judge thereof." 155 Ill. 2d R. 367(a). In 1967, we added paragraph (e), which states:

"When the Appellate Court has granted a petition for rehearing and entered judgment on rehearing no further petitions for rehearing shall be filed in that court." 36 Ill. 2d R. 367(e).

Previously, petitions for rehearing before the appellate courts were governed by the rules of the respective appellate courts. See 7 Ill. 2d R. 44(4); 355 Ill. R. 44. With the addition of paragraph (e) in 1967, however, we established the rule against successive petitions for rehearing in the appellate court.

Maggio argues that the language of Rule 367(e) is ambiguous because it does not say that no further petitions shall be filed by "any of the parties." Maggio then reasons that because Rule 367(e) is ambiguous, we must look to the committee comments to discern its meaning. Our comment states:

"When [the appellate court] has twice considered a case, once initially and a second time on rehearing, there would seem to be no need for further consideration, especially when there is a higher court from which relief can be sought. See Rules 315(b), 316, and 317 as to the date from which the time for seeking ...


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