{ "id": 257172, "name": "EILEEN McCarthy, Plaintiff-Appellant, v. TITO DENKOVSKI et al., d/b/a T and H Construction, Inc., Defendants-Appellees", "name_abbreviation": "McCarthy v. Denkovski", "decision_date": "1998-09-30", "docket_number": "Nos. 1\u201496\u20142344, 1\u201496\u20143712 cons.", "first_page": "69", "last_page": "75", "citations": [ { "type": "official", "cite": "301 Ill. App. 3d 69" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "660 N.E.2d 114", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 221", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172340 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0221-01" ] }, { "cite": "221 Ill. App. 3d 317", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5798850 ], "year": 1991, "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0317-01" ] }, { "cite": "614 N.E.2d 879", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "245 Ill. App. 3d 487", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5384271 ], "year": 1993, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0487-01" ] }, { "cite": "513 N.E.2d 534", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649685 ], "year": 1987, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0498-01" ] }, { "cite": "570 N.E.2d 662", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 751", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2527106 ], "year": 1991, "pin_cites": [ { "page": "757-58" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0751-01" ] }, { "cite": "563 N.E.2d 459", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "138 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576586 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "462" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0458-01" ] }, { "cite": "625 N.E.2d 198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "252 Ill. App. 3d 692", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2967603 ], "year": 1993, "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/252/0692-01" ] }, { "cite": "664 N.E.2d 302", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 242", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75275 ], "year": 1996, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0242-01" ] } ], "analysis": { "cardinality": 555, "char_count": 14033, "ocr_confidence": 0.793, "pagerank": { "raw": 1.0702957460429925e-07, "percentile": 0.5595938218791906 }, "sha256": "be0213af379a6122d7e9d070630e5ab3136a891e1736c3539bfc4643449bbf5c", "simhash": "1:b16bfd6f5e4fc9a1", "word_count": 2317 }, "last_updated": "2023-07-14T19:13:21.929948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EILEEN McCarthy, Plaintiff-Appellant, v. TITO DENKOVSKI et al., d/b/a T and H Construction, Inc., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nPlaintiff Eileen McCarthy appeals from two orders of the circuit court granting summary judgment in favor of defendants Tito and Helina Denkovski, d/b/a T&H Construction, Inc., in her contract action against defendants pursuant to the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1994)), and the trial court\u2019s directed finding for defendants on her common law fraud claim. Defendants cross-appeal the trial court\u2019s denial of a directed verdict in their favor on plaintiffs breach of contract claim, and the court\u2019s denial of their posttrial motion for judgment notwithstanding the verdict or, in the alternative, a new trial on their counterclaim. For the reasons set forth below, we dismiss plaintiff s appeal for lack of jurisdiction and dismiss defendants\u2019 cross-appeal based upon their failure to comply with Supreme Court Rule 343(b)(1) (155 Ill. 2d R. 343(b)(1)).\nPlaintiff initially filed a pro se small claims complaint on February 9, 1995, alleging defendants breached an oral contract to remodel her home. On June 29, 1995, plaintiff amended her complaint to add counts of common law fraud and violations of the Consumer Fraud Act as a result of her discovery of allegedly more serious structural defects. Defendants filed a counterclaim alleging that plaintiff owed them money in payment for work they had completed on her house. On May 28, 1996, before a jury trial on plaintiffs amended complaint, the trial court granted defendants\u2019 motion for summary judgment on plaintiffs Consumer Fraud Act count, but denied defendants\u2019 summary judgment motion as to the breach of contract and common law fraud counts.\nAt trial, on June 3, 1996, after plaintiffs presentation of her case in chief, the trial court granted defendants\u2019 motion for a directed verdict on plaintiffs common law fraud count but denied defendants\u2019 motion for a directed verdict on plaintiffs breach of contract count. A copy of the written motion does not appear of record, but there is argument on the motion that does appear of record. Thereafter, on the same day, the jury returned a verdict in favor of plaintiff on her breach of contract claim and awarded her damages in the amount of $30,000. The jury also found for plaintiff on defendants\u2019 counterclaim. On July 1, 1996, plaintiff filed a notice of appeal seeking review of the trial court\u2019s June 3, 1996, order entering a judgment on the jury\u2019s verdict in her favor on her breach of contract count, granting defendants\u2019 motion for a directed verdict on plaintiffs common law fraud claim, and the court\u2019s May 28, 1996, order granting defendants\u2019 motion for summary judgment on plaintiffs Consumer Fraud Act claim.\nOn July 3, 1996, defendants filed a posttrial motion attacking the judgments in plaintiffs favor on her breach of contract claim and on defendants\u2019 counterclaim. Defendants sought a judgment notwithstanding the verdict or, in the alternative, a new trial on their counterclaim. On August 23, 1996, the trial court ordered defendants\u2019 posttrial motion \u201coff call.\u201d The order contained in the record originally stated that the motion was denied, but prior to its entry, the word \u201cdenied\u201d was crossed out and replaced with \u201coff call.\u201d On September 20, 1996, defendants filed a \u201cNotice of Appeal/Cross-Appeal,\u201d appealing from the trial court\u2019s denial of their motion for a directed verdict on plaintiff\u2019s breach of contract claim, and the order denying their posttrial motion. On November 22, 1996, plaintiff filed an amended notice of appeal, removing the $30,000 judgment from her appeal and only appealing the grant of summary judgment and the directed verdict.\nIn her opening brief, plaintiff states that this court\u2019s jurisdiction is based upon the timely appeal from two final orders entered by the trial court pursuant to Supreme Court Rule 301. Defendants do not challenge plaintiffs jurisdictional statement. However, this court must initially determine sua sponte whether it has jurisdiction to decide the issues presented. Beale v. Edgemark Financial Corp., 279 Ill. App. 3d 242, 244, 664 N.E.2d 302 (1996). As this court has stated many times, \u201cjurisdiction is conferred upon this court only through the timely filing of a notice of appeal. [Citations!] Thus, the requirement that the appellant file a notice of appeal within the prescribed time is both jurisdictional and mandatory.\u201d Foster v. Plant, 252 Ill. App. 3d 692, 697, 625 N.E.2d 198 (1993). Supreme Court Rule 303 governs the filing of a notice of appeal and provides:\n\u201c(1) Except as provided in paragraph (b) below, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, 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.\n(2) When a timely post-judgment motion has been filed by any party, whether in a jury case or a nonjury case, a notice of appeal filed before entry of the order disposing of the last pending post-judgment motion shall have no effect and shall be withdrawn by the party who filed it, by moving for dismissal pursuant to Rule 309. This is so whether the timely post-judgment motion was filed before or after the date on which the notice of appeal was filed. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the post-judgment motion, as provided in subparagraph (a)(1) of this rule.\u201d 155 Ill. 2d R. 303.\nBy Rule 303\u2019s express language, if a notice of appeal is filed before the disposition of a timely posttrial motion, that notice is of no effect. It does not matter whether the notice was filed before or after the post-trial motion.\nIn the present case, in order for defendants\u2019 posttrial motion of July 3, 1996, to qualify as a \u201cposttrial motion\u201d pursuant to Rule 303, it must be \u201cdirected against the judgment.\u201d If defendants\u2019 posttrial motion was directed against the judgment, then plaintiffs first notice of appeal, filed on July 1, 1996, was premature and of no effect, and her amended notice of appeal, filed on November 6, 1996, was untimely filed in excess of 30 days from the disposition of defendants\u2019 posttrial motion and does not vest this court with jurisdiction. If the posttrial motion is not \u201cdirected against the judgment,\u201d then plaintiffs first notice of appeal was timely and the amended notice was proper.\nWhether a posttrial motion is one \u201cdirected against the judgment\u201d is determined by looking at the motion and determining if it attacks the original judgment or involves an independent determination, \u201centirely distinct from [the] judgment previously entered.\u201d Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 462, 563 N.E.2d 459 (1990). In Marsh, our supreme court held that a section 2 \u2014 611 request for attorney fees was not a motion to modify the judgment or directed against the judgment (Marsh, 138 Ill. 2d at 462) because the motion did not seek a modification of the original judgment that related to alleged zoning violations by a church. See also Servio v. Paul Roberts Auto Sales, Inc., 211 Ill. App. 3d 751, 757-58, 570 N.E.2d 662 (1991); Knapp v. City of Decatur, 160 Ill. App. 3d 498, 503, 513 N.E.2d 534 (1987).\nIn the present case, defendants\u2019 motion sought a judgment notwithstanding the verdict in favor of plaintiff for $30,000 or, in the alternative, a new trial on their counterclaim seeking their alleged contract damages from plaintiffs failure to pay the full contract price of defendants\u2019 work. The trial court\u2019s granting of defendants\u2019 motion regarding either plaintiffs claim or defendants\u2019 counterclaim obviously would have resulted in modifying its original judgment and, therefore, it is clear that defendants\u2019 motion was \u201cdirected against the verdict.\u201d This is not a situation, as in Marsh, where the trial court\u2019s decision on the issue of attorney fees would have no bearing on the force or effect of the original judgment related to zoning. Additionally, in plaintiffs first notice of appeal here, plaintiff appealed from not only the grant of summary judgment and the trial court\u2019s directed verdict on her fraud counts, she also appealed the verdict in her favor on her breach of contract count. Therefore, defendants\u2019 posttrial motion directly challenged the judgment that was also the basis for part of plaintiffs first notice of appeal. We further note the present situation clearly illustrates the rationale underlying Rule 303, requiring the parties to wait to file an appeal until the disposition of all posttrial motions. For example, had the trial court granted defendants\u2019 motion, then plaintiff, pursuant to section 2 \u2014 1202 of the Code of Civil Procedure, would have had an additional 30 days to file her own posttrial motion challenging the grant of defendants\u2019 posttrial motion. See 735 ILCS 5/2 \u2014 1202 (West 1996). This contingency is exactly what Rule 303 is meant to prevent, i.e., a notice of appeal is not timely until all motions are disposed of in a timely fashion by the trial court. We therefore hold that plaintiffs notice of appeal filed on July 1, 1996, was untimely and of no effect.\nWe next determine whether we have jurisdiction to consider plaintiffs amended notice of appeal which she filed on November 6, 1996. On August 23, 1996, the trial court ruled that defendants\u2019 post-trial motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, was \u201coff call,\u201d thereby disposing of the motions before it. Any appeal from the trial court\u2019s judgment was required to be filed within 30 days of August 23, 1996, to satisfy Rule 303. Since plaintiffs amended notice of appeal was not filed until 75 days after the entry of the order disposing of defendants\u2019 posttrial motion, the amended notice of appeal was untimely and we lack jurisdiction to consider it.\nWe also find that the trial court\u2019s August 23, 1996, order, which merely ordered defendants\u2019 posttrial motion \u201coff call\u201d without disposing of the motion on the merits, has no effect on the timeliness of plaintiffs first notice of appeal. Rule 303 merely provides that a valid postjudgment motion be filed. 155 Ill. 2d R. 303. Once the motion is filed, any prior filing of a notice of appeal is of no effect. For all practical purposes, it is as if the notice of appeal never existed. 155 Ill. 2d R. 303. Rule 303 specifically mandates that \u201ca notice of appeal filed before the entry of the order disposing of the last pending post-judgment motion shall have no effect and shall be withdrawn by the party who filed it, by moving for dismissal pursuant to Rule 309.\u201d (Emphasis added.) 155 Ill. 2d R. 303(a)(2). The rule does not require that the order disposing of the last pending posttrial motion be disposed of on its merits, and it requires that the prior notice of appeal be withdrawn. The operative time for purposes of divesting this court of jurisdiction, when a notice of appeal has previously been filed, here July 1, 1996, is the filing of a posttrial motion, here July 3, 1996. Once the posttrial motion was filed, plaintiffs prior notice of appeal became ineffective.\nLastly, we consider defendants\u2019 notice of cross-appeal filed on September 20, 1996. The last day to file an appeal was September 23, 1996, which was 30 days from the entry of the trial court\u2019s order taking defendants\u2019 posttrial motion off the call. As such, even though defendants are cross-appealing, the basis of the appeal is independent of the basis of the plaintiff\u2019s flawed appeal and was timely filed. Defendants appeal from three orders of the trial court. Defendants state that the first order was entered May 30, 1996, denying their motion for a directed verdict. However, a review of the record reveals no such motion on May 30, 1996, and the trial court\u2019s half sheets show no such motion on that date. The second order, entered on June 3, 1996, denied defendants\u2019 motion for a directed verdict as to plaintiffs breach of contract count. The third, entered on August 23, 1996, ordered defendants\u2019 posttrial motion off call.\nSupreme Court Rule 343(b)(1) (155 Ill. 2d R. 343(b)(1)) states, in relevant part, that \u201c[a] cross-appellant shall file a single brief as appellee and cross-appellant at the time his *** brief as appellee is due.\u201d Supreme Court Rule 341 requires an appellant, or in this case a cross-appellant, to provide citations to relevant authority supporting arguments advanced on appeal. Weidner v. Szostek, 245 Ill. App. 3d 487, 494, 614 N.E.2d 879 (1993). In the present case, defendants\u2019 brief only contains arguments in response to plaintiffs brief; defendants failed to make any argument or, consequently, cite to authority regarding the issues raised in their cross-appeal relative to the three orders set forth in their notice of appeal. \u201cA reviewing court is entitled to have issues clearly defined with pertinent authority cited and coherent arguments presented; arguments inadequately presented on appeal are waived.\u201d Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991). We therefore dismiss defendants\u2019 cross-appeal based on their failure to comply with Supreme Court Rules 341 and 343. See People v. Kraft, 277 Ill. App. 3d 221, 660 N.E.2d 114 (1995).\nFor the reasons stated, we dismiss plaintiffs appeal for lack of jurisdiction, and defendants\u2019 cross-appeal for failure to comply with supreme court rules.\nNo. 1 \u2014 96\u20142344, Dismissed.\nNo. 1 \u2014 96\u20143712, Dismissed.\nCAHILL, EJ., and LEAVITT, J., concur.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Law Offices of Alice C. Lerman, of Lincolnwood (Alice C. Lerman, of counsel), for appellant.", "Elaine C. Jensen, of Chicago, for appellees." ], "corrections": "", "head_matter": "EILEEN McCarthy, Plaintiff-Appellant, v. TITO DENKOVSKI et al., d/b/a T and H Construction, Inc., Defendants-Appellees.\nFirst District (3rd Division)\nNos. 1\u201496\u20142344, 1\u201496\u20143712 cons.\nOpinion filed September 30, 1998.\nRehearing denied December 2, 1998.\nLaw Offices of Alice C. Lerman, of Lincolnwood (Alice C. Lerman, of counsel), for appellant.\nElaine C. Jensen, of Chicago, for appellees." }, "file_name": "0069-01", "first_page_order": 87, "last_page_order": 93 }