TODD M. GIBSON et al., Plaintiffs-Appellees, v. BELVIDERE NATIONAL BANK AND TRUST COMPANY, as Trustee, Defendant (Anthony Capasso et al., Defendants-Appellants).
Second District No. 2-00-0734
Second District
November 26, 2001
45
Josette Skelnik, of Law Offices of Josette Skelnik, of Elgin, for appellants.
Scott G. Richmond, of Ariano, Hardy, Nyuli, Richmond & Castillo, P.C., of Elgin, for appellees.
JUSTICE MCLAREN delivered the opinion of the court:
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 (
The trial court ordered the contract rescinded based on a reasonable mistake regarding the amount of acres actually conveyed.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
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 consider-
It is well settled that a timely notice of appeal is jurisdictional. Childers v. Kruse, 297 Ill. App. 3d 70, 73 (1998).
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
•4 We take notice of
There are at least three alternative dispositions that can arise when the court rules upon a postjudgment motion under
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
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
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 could not see the tree for the twigs, i.e., could not see the new final judgment because they were focusing on the judgment‘s constituent parts and the new issues raised in the new final judgment.
Further, we are mindful that, when interpreting a supreme court rule, we must consider the reasons and necessity for its enactment, the evil to be remedied, and the purpose of the rule. See Hill v. Behr & Sons, Inc., 293 Ill. App. 3d 814, 817 (1997). One of the purposes of
Defendants argue on appeal that the trial court‘s May 12, 2000, judgment rescinding the parties’ contract must be amended to reflect the 14 months that plaintiffs had possession of the property. Plaintiffs argue that the trial court‘s judgment reflected a lump sum for plaintiff‘s possession and was not based on a monthly figure. We disagree with plaintiffs.
It is well settled that when a court orders a contract to be rescinded, the contract is canceled and the parties must be restored to their status before contracting. Majcher v. Laurel Motors, Inc., 287 Ill. App. 3d 719, 728 (1997). To restore the parties to their status before contracting, the purchaser must receive back any consideration paid and the seller must receive back any benefit received by the purchaser. See Majcher, 287 Ill. App. 3d at 728.
In its April 25, 2000, order, the trial ordered plaintiffs to pay defendants $42,504 for use of the property through May 31, 2000. Defendants argue and plaintiffs acknowledge in their postjudgment motion that this figure represented a monthly payment of $3,542. Contrary to their previous position, plaintiffs now claim for the first time on appeal that this figure represents a lump-sum figure. However, this argument is not supported by the record. There is nothing in the record supporting a lump-sum figure of $42,504. The record contains no evidence that the lump-sum value of the benefit received by the plaintiffs for possession was $42,504. However, there is support in the record for the monthly value of possession of $3,542. The record reflects that plaintiffs made three monthly payments to defendants of $3,542. Multiplying $3,542 by 12 renders the sum of $42,504, the precise amount the trial court ordered plaintiffs to pay defendants for possession of the property. Thus, the only conclusion that can be drawn from the record is that the trial court found that this was the monthly value of the benefit plaintiffs received for possession of the property. No other conclusion is supported by the record. We note that the parties agree that the trial court also ordered plaintiffs to pay defendants for taxes at a rate of $668 a month. Therefore, the trial court intended plaintiffs to pay defendants $4,210 a month for possession of the property.
This brings us to the crux of the matter, that is, how many months did the trial court intend to order plaintiffs to pay for the possession of the property? Defendants argue that, since the sale closed on January 29, 1999, and plaintiffs relinquished possession on March 24, 2000, plaintiffs must pay for 14 months. Although we do not agree
The record supports the trial court‘s findings that the sale closed on January 29, 1999, plaintiffs discovered the mistake regarding the size of the property conveyed in March 1999, and they returned possession of the property on March 24, 2000. The record reveals that plaintiffs lived in the house for one week after closing but then returned to Colorado until March 1999 so that Lisa Gibson could give birth. Therefore, the fewest months the trial court reasonably could have found that plaintiffs derived a benefit from the property is for 13 months and 24 days. Accordingly, the trial court abused its discretion by ordering plaintiffs to pay for only 10 months’ possession. The correct figure plaintiffs must pay defendants for possession of the property is $58,261, representing a prorated calculation of “rent” and taxes rounded to the nearest dollar.
Defendants also assert that they are entitled to a setoff of $2,400 for plaintiffs’ purchase of personal property from defendants. However, because plaintiffs have not received possession of this personal property, defendants are not entitled to a setoff. This portion of the judgment may be executed when the personal property is delivered to plaintiffs.
Accordingly, we affirm the judgment of the circuit court of Kane County, but modify it as follows: Defendants owe plaintiffs $66,065.63, representing $64,615.46 as reimbursement for the amounts paid by plaintiffs to defendants and $1,450.17 for improvements plaintiffs made to the property. Plaintiffs owe defendants $58,261, for the benefit received from possession of the property. After a setoff of these figures, defendant owes plaintiffs $7,804.63.
Affirmed as modified.
O‘MALLEY, J. concurs.
JUSTICE CALLUM, dissenting:
Because the majority acts beyond its jurisdiction, I cannot join its opinion. Defendants’ notice of appeal was filed more than 30 days after the court resolved the parties’ postjudgment motions and was thus untimely and ineffective to invoke this court‘s jurisdiction. Accordingly, we should dismiss the appeal. Instead, the majority saves the appeal by erasing posttrial practice as it has existed in this state for years and inventing a new rule that is unsupported by any authority. Indeed, the policy rationale the majority offers to support its judicial
The majority‘s holding is as follows: anytime a trial court makes any modification to its judgment in response to a posttrial motion, the entire judgment is open to a new round of posttrial motions, even those solely raising issues that either have been or could have been raised in the first motion. This rule is contrary both to the plain language of the supreme court rules and the common law of this state.
SUPREME COURT RULE 303
A timely notice of appeal is jurisdictional. Childers v. Kruse, 297 Ill. App. 3d 70, 73 (1998). The notice of appeal must be filed within 30 days of final judgment or, “if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-judgment motion.”
The proper resolution of this case under
Because the court ruled on the postjudgment motions on May 12, 2000, the notice of appeal had to be filed within 30 days of that date. Defendants apparently believed they could extend the time for appeal by filing a motion to reconsider. They were mistaken.
Also irrelevant is the fact that the second postjudgment motion was filed within 30 days of the original order. As we explained in Illinois State Toll Highway Authority v. Gary-Wheaton Bank, 203 Ill. App. 3d 672, 676-77 (1990), the time for appeal is not extended by a successive postjudgment motion filed within 30 days of the original order if the second motion is filed only after the court disposes of the first one.
Faced with the unmistakably clear language of
The majority asserts that, because the court‘s ruling included a modification of the judgment, there was then a new final judgment. That may be true, but there is no authority for the proposition that the entire posttrial process began anew.
It has long been the rule that a party is entitled to one posttrial motion. In jury trial cases, posttrial motions are mandatory to preserve issues for review. The applicable statute specifically provides that all relief sought after trial must be requested in a single motion.
As the Historical and Practice Notes to
“When subparagraph (a)(2) was adopted, the Court also included language to give expression to the principle that requests for reconsideration of a ruling on a post-trial motion will not toll the running of the time for filing a notice of appeal. This again was a familiar rule, but one that had continued to cause difficulty and therefore bore repeating. It was always the rule that a party was entitled absent some highly unusual circumstances to only one post-trial motion which would serve to extend the time for appeal.” (Emphasis added.) Ill. Ann. Stat., ch. 110A, R. 303, Historical & Practice Notes, at 94 (Smith-Hurd 1985).
The majority‘s holding—that any action of the trial court on a postjudgment motion, other than an outright denial, restarts the entire posttrial process—is an impermissible rewriting of
THE COMMON-LAW EXCEPTION
As the majority notes, the appellate court has recognized a limited exception to the rule against successive postjudgment motions when the court modifies its judgment in response to a postjudgment motion and the second motion attacks the modified judgment and raises something that could not have been raised in the previous motion. See Jeanblanc, 152 Ill. App. 3d at 809-10; Aetna, 112 Ill. App. 3d at 575-76; Viehman, 91 Ill. App. 3d at 319-20. The rationale of these cases is essentially that a party should have at least one chance to ask the court to reconsider each part of its ruling.
Nevertheless, it should be noted that this exception was created by the appellate court and that a party still proceeds at its own risk by filing a second postjudgment motion. The Illinois Institute of Continuing Legal Education thus cautions attorneys as follows:
“Successive post-trial motions are not permitted in nonjury cases. Sears v. Sears, 85 Ill. 2d 253 (1981). A narrow exception to this rule has been recognized when new or additional relief is granted against a party for the first time in an order disposing of a timely filed post-trial motion. See Jeanblanc v. Mellott, 152 Ill. App. 3d 801 (1970); Viehman v. Viehman, 91 Ill. App. 3d 315 (1980); Aetna Life Insurance Co. v. H.W. Stout & Associates, Inc., 112 Ill. App. 3d 570 (1983). This exception has not been ruled on by the Supreme Court. Thus, extreme caution should be used before relying on it.” J. Torshen & A. Spreyer, Post-Trial Notions in Illinois Civil Practice § 14.29, at 14-11 (Ill. Inst. For Cont. Legal Educ. 1997).
Assuming that the exception is legitimate, defendants’ second postjudgment motion did not fall within it. Although the trial court modified its judgment in response to the first postjudgment motions, defendants’ successive motion attacked the first judgment.
The gravamen of the second postjudgment motion is paragraph four, which provides:
“The problem with the prior order, and conduct of counsel in adjusting the proper amount, lies in the erroneous premise that Plaintiffs paid Defendants an original down payment of $64,615.46 (April 25, 2000 Order, paragraph C). The undisputed amount paid was $53,990.00 which should have been used for the starting point.” (Emphasis added.)
The majority now repudiates the commonsense exception recognized in these cases in favor of a rule with no foundation in the law. According to the majority, these cases reached the right result for the wrong reason. Because the court modified its judgment in these cases, the majority asserts, both parties could file new posttrial motions raising any issues they wished, and the time for appeal would be extended until the court disposed of these new motions.
It has always been the rule, however, that successive redundant posttrial motions are not allowed. A second motion attacking the original judgment and containing nothing that could not have been raised in the first motion does not extend the time for an appeal. Sears, 85 Ill. 2d at 258; Deckard, 44 Ill. 2d at 418-19; Bernhauser, 288 Ill. App. 3d at 988-89; Rose, 59 Ill. App. 3d at 607. The majority claims that these cases are inapplicable because they involved a single judgment. Nevertheless, the court offers no authority that the mere modification of a judgment has a talismanic effect that opens up the entire original judgment to a new round of posttrial attacks. Curiously, even the majority recognizes this. The majority states, “Other successive postjudgment motions attacking the identical final judgment will not extend the time for filing a notice of appeal.” 326 Ill. App. 3d at 50. Here, the second postjudgment motion attacked the original judgment, and therefore the majority should conclude that it did not extend the time for an appeal.
The Viehman line of cases established a reasonable rule that has been the law in this state for 20 years. We should not repudiate it in favor of a rule that favors successive and redundant postjudgment motions.
POLICY
The majority offers two unpersuasive policy reasons for repudiating Viehman in favor of a rule that allows redundant successive postjudgment motions. First, the majority claims that its new rule is consistent with the purposes of
“Permitting successive post-judgment motions would tend to prolong the life of a lawsuit—at a time when the efficient administration of justice demands a reduction in the number of cases pending in trial courts—and would lend itself to harassment. There must be finality, a time when the case in the trial court is really over and the loser must appeal or give up. Successive post-judgment motions interfere with that policy. And justice is not served by permitting the losing party to string out his attack on a judgment over a period of months, one argument at a time, or to make the first motion a rehearsal for the real thing the next month.” Sears, 85 Ill. 2d at 259.
The second policy justification the majority offers is even more curious, as it supports the Viehman rule. The majority repudiates Viehman because the new rule “allows the trial court to reconsider and correct any defects in the new final judgment before the need for appeal arises.” 326 Ill. App. 3d at 50-51. But that was already the rule under Viehman. Under the Viehman line of cases, any new matters in the modified judgment could be attacked in a new postjudgment motion. Thus, as to every dispositive ruling by the trial court, the losing party had one chance to ask the court to reconsider. Under the majority‘s rule, the modification of the judgment permits the losing party to raise not only new matters in response to the modification but also those already raised or that could have been raised. The majority permits a modification of a judgment to allow the losing party to file new attacks against the previous judgment. Thus, the majority misstates its own holding when it states 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.” 326 Ill. App. 3d at 50. That is the Viehman rule, not the majority‘s rule.
In sum, I would not repudiate Viehman and its progeny. Those cases have been the law for 20 years and represent a reasonable exception to