Court of Appeals of Illinois, First District, Sixth Division
Appeal from the Circuit Court of Cook County. No. 10 L 10521. Honorable John C. Griffin, Judge Presiding.
Defendant's appeal from an award of summary judgment to plaintiff in her action to recover her earnest money, upgrade fees, and accrued interest in connection with her contract to purchase a condominium was dismissed for lack of jurisdiction, where the trial court struck defendant's postjudgment motion with prejudice when defendant failed to appear at a status call, defendant did not seek to vacate that order within 30 days, and defendant's notice of appeal was filed more than 30 days after the order was issued.
For Defendant-Appellant: David A. Epstein, Timothy R. Matheson, Dennis E. Both, of counsel, Brown Udell Pomerantz & Delrahim, Ltd. Chicago, IL.
For Plaintiff-Appellee: Kevin A. Sterling, Laura A. Newcomer, of counsel, The Sterling Law Office, Chicago, IL.
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justice Hall concurred in the judgment and opinion. Presiding Justice Rochford specially concurred, with opinion.
Defendant, Grant Park 2, L.L.C., appeals the circuit court's order granting summary judgment in favor of plaintiff, Gloria Won, in her breach of contract action and awarding the return of her earnest money and upgrade fees, plus any accrued interest. Defendant contends the circuit court erred in awarding summary judgment in favor of plaintiff where she was in material breach of the parties' contract for the sale of a newly constructed condominium.
We consider whether this court has jurisdiction over defendant's appeal where defendant's postjudgment motion was stricken with prejudice for failing to appear at a clerk's status call, defendant did not move the court to vacate the striking order within 30 days of its issuance, and the notice of appeal was filed more than 30 days after the issuance of the striking order. For the following reasons, we dismiss the appeal for lack of jurisdiction.
Plaintiff challenges this court's jurisdiction over defendant's appeal. Previously, plaintiff filed with this court a motion to dismiss the appeal for lack of jurisdiction. We initially denied plaintiff's motion. However, plaintiff again argues in her brief on appeal that this court lacks jurisdiction to consider defendant's appeal because defendant failed to file a motion to vacate the trial court's April 5, 2012 order striking defendant's postjudgment motion and failed to file its notice of appeal by May 5, 2012.
We have a duty to consider our jurisdiction before proceeding to the merits of the case, and this duty includes the obligation to reconsider the basis of our jurisdiction if our earlier ruling finding jurisdiction appears to be erroneous. Dus v. Provena St. Mary's Hospital, 2012 IL App (3d) 091064, ¶ 9, 968 N.E.2d 1178, 360 Ill.Dec. 425. Accordingly we must determine whether defendant's notice of appeal was timely filed.
Plaintiff's amended two-count complaint alleged defendant breached the parties' real estate contract and breached its fiduciary duty by willfully intending to deprive plaintiff of her earnest money. Defendant filed an amended answer, affirmative defenses, and counterclaims.
In August 2011, plaintiff filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2010)). Plaintiff argued that, because the condition precedent of closing by the outside date specified in the parties' contract was not completed, she had a unilateral right to terminate the contract, which she did. She also argued that defendant fabricated its defense regarding an oral agreement under which the parties agreed to extend the outside closing date. Plaintiff supported her argument with portions of deposition testimony by each party's attorney. Plaintiff additionally argued that she had the unilateral right to terminate the parties' contract because defendant refused to remove the title exceptions not permitted by the contract or the attorney amendment to the contract.
The trial court denied plaintiff's motion for summary judgment, finding that
issues of fact existed precluding summary judgment regarding whether the planned development documents for the property permitted the title exceptions at issue. The planned development documents were absent from the record.
In January 2012, the trial court denied plaintiff's motion to bar the admission of the planned development documents, which defendant had supplemented into the record. However, the trial court agreed to reconsider plaintiff's motion for summary judgment. Defendant filed an emergency cross-motion for summary judgment.
On January 19, 2012, the trial court conducted a hearing on the parties' cross-motions for summary judgment. The trial court granted plaintiff's motion, denied defendant's motion, and entered summary judgment in favor of plaintiff. In so ruling, the trial court found defendant failed to satisfy the conditions precedent to plaintiff's obligation to close the real estate transaction as contemplated by the parties' contract and the attorney amendment. The trial court entered judgment in favor of plaintiff in the amount of $63,550 (the earnest money) plus accrued interest and $975 (the upgrade fee) plus court costs.
On February 16, 2012, defendant filed a postjudgment motion to reconsider and reverse summary judgment. On February 29, 2012, the trial court entered a briefing schedule, ordering defendant to provide the court " at the Clerk's Status Call" on April 5, 2012, with complete copies of all relevant documents, including the motion, response and reply. The briefing schedule order provided that defendant's reply brief in support of its postjudgment motion was due April 4, 2012. The briefing schedule order prohibited the filing of supplemental briefs or citations without leave of court, indicated that no continuance of any of the brief due dates or the status call date would be granted without leave of court, and stated that the " [l]ack of compliance with any of the above may result in either striking or ruling on the motion without hearing, as applicable."
On April 5, 2012, defendant failed to appear at the clerk's status call, and the trial court entered an order striking defendant's motion to reconsider and reverse ...