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Gibson v. Belvidere National Bank and Trust Co.

November 26, 2001


Appeal from the Circuit Court of Kane County. No. 99--CH--0554 Honorable Patrick J. Dixon, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN.


Following a bench trial, the court allowed plaintiffs, Todd and Lisa Gibson, to rescind a contract to purchase real estate from defendants, Anthony and Beverly Capasso. Defendants appeal a portion of the amended judgment order that required plaintiffs to pay defendants for the time plaintiffs occupied the premises. Defendants argue that the trial court miscalculated the amount plaintiffs owed.

Plaintiffs filed a four-count amended complaint against defendants. Plaintiffs had contracted to buy a house from defendants and alleged that defendants misrepresented the property's size. Count I sought rescission of the contract, count II alleged a violation of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2000)), count III alleged fraud, and count IV alleged breach of contract. Defendants counterclaimed against plaintiffs, arguing that plaintiffs had failed to make payments under the agreement for deed and had failed to pay for personal property they were purchasing from defendants. Defendants also alleged that plaintiffs had committed waste to the property.

The trial court ordered the contract rescinded based on a reasonable mistake regarding the amount of acres actually conveyed. The court stated in the order that the parties executed an agreement for deed on January 29, 1999. The court ordered plaintiffs to deliver possession of the property to defendants, pay defendants $42,504 for plaintiffs' use of the property "through May 31, 2000," and pay defendants $2,400, the balance due for personal property plaintiffs purchased from defendants. The court then ordered defendants to pay plaintiffs $66,065.63, which represented the $64,615.46 plaintiffs paid to defendants for the purchase of the property and the $1,450.17 paid by plaintiffs for improvements on the property. The trial court's order did not provide a final figure that defendants were required to pay plaintiffs in light of the offsetting figures. The court dismissed counts II, III, and IV of the amended complaint and count I of the counterclaim, except as to the agreement to purchase personal property. The court allowed defendants to withdraw count II of the counterclaim. The court entered this judgment on April 25, 2000.

Both sides filed timely postjudgment motions. On April 28, 2000, plaintiffs moved for reconsideration. Plaintiffs alleged that the court miscalculated the amount they should have to pay for using the property, stating that they delivered possession of the property to defendants on March 24, 2000, earlier than the May 31, 2000, date provided for in the trial court's judgment. Thus, plaintiffs sought a reduction of the amount they owed defendants for the use of the premises, stating that they should have to pay for the use of the property for 9 months and 24 days, rather than 12 months.

On May 3, 2000, defendants moved to amend the judgment. Defendants asked the court to vacate its rescission order. In the alternative, defendants argued that the trial court erred by ordering defendants to pay plaintiffs $1,450.17 for improvements made by plaintiffs to the property at issue. In addition, defendants asked the court to recalculate the amount due to defendants for rent by adding an additional $668 a month for property taxes. Defendants also filed a petition for attorney fees.

On May 12, 2000, the trial court disposed of the parties' motions. The trial court amended the original judgment order, granting plaintiffs' request to reduce the amount of rent owed from 12 months to 10 months. The trial court denied defendants' motion except for the request for "an adjustment of the rental amount to reflect the obligation of taxes." The trial court then entered judgment in plaintiffs' favor and against defendants in the amount of $21,961.63.

On May 18, 2000, defendants moved to reconsider and vacate the second judgment entered May 12, 2000. Defendants argued that the trial court erred by calculating rent and taxes for 10 months instead of 14 months. Defendants argued that plaintiffs occupied the property from January 20, 1999, through or about March 31, 2000. Defendants also argued, again, that the trial court erred by ordering defendants to pay plaintiffs $1,450.17 for improvements plaintiffs made to the property. The trial court denied defendants' motion on June 19, 2000. On June 26, 2000, defendants filed their notice of appeal, contesting in part, the judgments entered May 12, 2000, and June 19, 2000.

Initially, we must determine whether we have jurisdiction to decide this appeal. The parties did not raise this issue in their initial briefs to this court. However, we are always mindful that this court has an independent duty to consider our jurisdiction before considering the merits of any case. See Almgren v. Rush-Presbyterian-St. Luke's Medical Center, 162 Ill. 2d 205, 210 (1994). Thus, given the multiple posttrial motions and judgments, we requested the parties to file supplemental briefs addressing the issue of jurisdiction.

It is well settled that a timely notice of appeal is jurisdictional. Childers v. Kruse, 297 Ill. App. 3d 70, 73 (1998). Supreme Court Rule 303(a)(1) provides that a notice of appeal must be filed within 30 days of the final judgment or, "if a timely post-trial motion directed against the judgment is filed, whether in a jury or a non-jury case, within 30 days after the entry of the order disposing of the last pending post-judgment motion." 155 Ill. 2d R. 303(a)(1). A final judgment is one that disposes of the rights of the parties with regard to the entire controversy or a definite and separate part thereof. Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 502 (1997).

Here, there were two judgments, one on April 25, 2000, that was superseded by the second judgment, entered on May 12, 2000. This May 12, 2000, judgment finally determined and disposed of the rights of the parties and, thus, was a final judgment for purposes of Rule 303. Defendants filed one timely posttrial motion directed against the May 12, 2000, judgment, and this motion was disposed of by the trial court on June 19, 2000. Thus, according to Supreme Court Rule 303(a)(1), defendants had 30 days from the entry of this June 19, 2000, order confirming the second final judgment to file their notice of appeal. Because defendants filed their notice of appeal seven days after the order disposing of the only postjudgment motion directed at the only extant final judgment, their appeal is timely, and we have jurisdiction to consider the merits of this case.

We take notice of Supreme Court Rule 303(a)(2), which provides that "[n]o request for reconsideration of a ruling on a post-judgment motion will toll the running of the time within which a notice of appeal must be filed." 155 Ill. 2d R. 303(a)(2). However, this rule does not apply here, where there were two judgments and defendants' second postjudgment motion did not seek reconsideration of a ruling on a postjudgment motion; rather, defendants' second postjudgment motion attacked an amended and, thus, the only final, judgment.

There are at least three alternative dispositions that can arise when the court rules upon a postjudgment motion under Supreme Court Rule 303. First, the motion may be denied and the final judgment remains intact. Second, the motion may be granted and the final judgment ceases to exist and a new final judgment arises. Third, the motion may be granted and the judgment is vacated and a new trial is ordered. In the first instance, further motions for reconsideration may be filed within 30 days of the denial, but they will not stay the time for filing a notice of appeal. In the second instance, a postjudgment motion filed in apt time will stay the time for filing a notice of appeal, as it is not a reconsideration of the first final judgment but the first postjudgment motion filed against a new final judgment. In the third instance, there is no final judgment, and the right to appeal is not from a final judgment under Supreme Court Rule 303 but from an order granting a new trial under Supreme Court Rule 306. The case at bar presents us with the second example. Thus, because the second postjudgment motion addressed a new final judgment, the clock was reset and the time to file a notice of appeal started again.

To support its position that defendants' notice of appeal was untimely, plaintiffs cite Sears v. Sears, 85 Ill. 2d 253 (1981), Deckard v. Joiner, 44 Ill. 2d 412 (1970), Bernhauser v. Glen Ellyn Dodge, Inc., 288 Ill. App. 3d 984 (1997), and Rose v. Centralia Township High School District No. 200, 59 Ill. App. 3d 606 (1978). We understand these cases to hold that successive posttrial motions, attacking the only existing final judgment, do not toll the time to file a notice of appeal. Thus, one posttrial motion filed by a party is permitted for each final judgment. Further, an order that merely denies a posttrial motion is not considered a "final judgment" for purposes of this rule. Rather, an order denying relief confirms the preceding final judgment. Thereafter, a second postjudgment motion is, in fact, a request for reconsideration of a ruling as contemplated by Supreme Court Rule 303(a)(2). These cases do not support the proposition advanced by plaintiffs that the time to appeal is not tolled by the filing of a posttrial motion that attacks a successive judgment that becomes the only final judgment. In these cases there was only one judgment disposing of the merits of the case. See Sears, 85 Ill. 2d at 260 (in one of the cases in this consolidated appeal, the second judgment merely denied a posttrial motion; in the other case, the trial court lacked jurisdiction to render the second judgment and, thus, the second judgment was improper); Deckard, 44 Ill. 2d at 417; Bernhauser, 288 Ill. App. 3d at 988 (the second order merely denied the plaintiff's motion to reconsider); Rose, 59 Ill. App. 3d at 606-07 (the second order merely denied the plaintiff's motion to reconsider). In contrast, here, there was a second judgment that altered the rights of the parties as they were determined in the first judgment. This second judgment became the final judgment. Thus, these cases are not controlling here.

We acknowledge that, in cases where a second posttrial motion was deemed to toll the time for a notice of appeal, the courts reasoned that the issues raised in the second posttrial motions could not have been raised in the first posttrial motions. See, e.g., Jeanblanc v. Mellott, 152 Ill. App. 3d 801, 809-10 (1987); Aetna Life Insurance Co. v. H.W. Stout & Associates, Inc., 112 Ill. App. 3d 570, 575 (1983); In re Marriage of Viehman, 91 Ill. App. 3d 315, 319-20 (1980). We also acknowledge that the exception applied in those cases is not present here. That is, in this case, the issues raised by defendants in their second posttrial motion could have been raised in their first posttrial motion (and in fact one issue was raised in both posttrial motions). However, contrary to plaintiffs' contentions, we do not believe that the exception applied in Jeanblanc, Aetna, and Viehman is the only circumstance that will toll the time for filing a notice of appeal under Supreme Court Rule 303. Rather, we believe that, where a trial court amends its initial final order, the clock is reset regarding the filing of posttrial motions attacking this new final judgment and, thus, the time is reset regarding the time for the filing of a notice of appeal.

We also question the logic of these cases. Unless there is a new judgment that alters the rights of the parties, there could not be an issue that could not have been addressed in the first postjudgment motion. We believe these cases engrafted a rationale explaining why only one postjudgment motion is required with a cause that has only one final judgment. Rather than analyzing the fact that a new final judgment was entered that could alter the parties' rights, these courts looked to an exception to the rationale and made it a rule. They essentially looked at whether a new issue existed that could not be raised previously. What they failed to discern was that the new issue arose only because a new final judgment had been entered. We believe the prior cases ...

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