Barron v. Spencer

2022 IL App (1st) 210866-UFIRST DISTRICT,
FIRST DIVISION
December 12, 2022
No. 1-21-0866
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
_____________________________________________________________________________
ROBERTO BARRON and ARRON MARTIN, )
)
Plaintiffs-Appellants, )
v. )
)
Appeal from the
MICHAEL S. SPENCER, CLAYTON TERRILL, )
Circuit Court of
MATTHEW DYER, NIC ILIEFF, EDIN BEGIC, )
Cook County, Illinois.
LASZLO SIMOVIC, LASZLO SIMOVIC )
ARCHITECTS, LLC, CIS GROUP OF )
No. 2020 L 6148
COMPANIES, LLC, CESAR LEYNES, CORP., )
CESAR LEYNES, and SUNNY BEACH CORP., )
Honorable
)
John H. Ehrlich,
Defendants )
Judge Presiding.
)
(Laszlo Simovic and Laszlo Simovic Architects, )
LLC, )
)
Defendants-Appellants). )
_____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court.
Justices Pucinski and Hyman concurred in the judgment.
ORDER
¶1 Held: We dismiss the appeal for lack of jurisdiction since the record on appeal does not
contain the order appealed from and does not establish that it was final and
appealable.
No. 1-21-0866
¶2 On June 10, 2018, plaintiffs Roberto Barron and Arron Martin sustained injuries when a
second-floor wooden deck directly above them collapsed. Plaintiffs brought suit against various
parties, including defendants Laszlo Simovic and Laszlo Simovic Architects, LLC (collectively
Simovic), who designed the deck in 2004. The trial court granted Simovic’s motion to dismiss
the claims against him. We dismiss the appeal for lack of jurisdiction since the record on appeal
does not contain the order appealed from and does not establish that it was final and appealable.
¶3 BACKGROUND
¶4 In 2004, Edin Begic owned a two-story house at 5417 North Ashland Avenue in Chicago
and hired Simovic to design a wooden deck on the second floor of the property. The City of
Chicago (City) issued a permit for construction of the deck on March 12, 2004, and the deck was
completed “sometime thereafter.”
¶5 In 2011, Begic sold the house to Matthew Dyer, who made “high-end upgrades” to the
second-floor deck. (Simovic is not alleged to have been involved in designing or installing the
upgrades.) In July 2016, after conducting an inspection, the Chicago Department of Buildings
(DOB) issued violations requiring the repair and replacement of the deck.
¶6 In November 2016, Dyer sold the house to Michael Spencer. On June 10, 2018, Nic Ilieff
and Clayton Terrill, tenants of the property, hosted a house party and “ushered *** large
amounts of guests” onto the second-floor deck while plaintiffs were standing on the first-floor
deck directly below. The second-floor deck collapsed, causing severe and permanent injuries to
plaintiffs.
¶7 On June 9, 2020, plaintiffs brought suit against Simovic, Begic, Dyer, Spencer, Ilieff,
Terrill, and several other parties involved in constructing and inspecting the deck. Only the
counts against Simovic as set forth in the first amended complaint are relevant to this appeal. In
-2-
No. 1-21-0866
count X (negligence), plaintiffs alleged that Simovic negligently designed the deck “to be
supported with nails instead of the industry-standard lag screws or bolts in direct violation of the
City of Chicago Porch Design and Construction Guidelines under the City of Chicago Building
Code.” As a result, the deck was not safely secured to the building and was “not suitable for use
for those rightfully on the premises.”
¶8 In count XI (fraudulent misrepresentation), plaintiffs alleged that Simovic is registered
with the DOB as a self-certification professional and falsely certified that the permit drawings for
the deck were safe, habitable, and in compliance with all relevant codes, despite knowing that the
design was “improper and hazardous” and that “persons utilizing the deck/porch could and
would injure themselves when the deck/porch collapsed.” Simovic allegedly made these
misrepresentations to induce the City to grant a permit for the deck and to induce subsequent
owners and occupiers of the property to believe the deck was safe. Plaintiffs relied on these
misrepresentations in using the property and sustained severe and permanent injuries as a result.
¶9 In count XII (fraudulent concealment), plaintiffs alleged that Simovic knowingly
concealed the deck’s design and construction defects from the City and from owners and users of
the deck. Plaintiffs were deceived into occupying the property with the belief that it was safe to
use and were not aware of any potential cause of action against Simovic until the accident on
June 10, 2018.
¶ 10 Simovic filed a motion to dismiss the counts against him under sections 2-615 and 2-619
of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2018)). He argued that
plaintiffs’ negligence claims were time-barred by the 10-year statute of repose for design and
construction claims, since the deck was designed in 2004 and plaintiffs did not file suit until
2020. Although there is a tolling provision for actions that have been fraudulently concealed
-3-
No. 1-21-0866
(735 ILCS 5/13-215 (West 2018)), Simovic argued that plaintiffs failed to allege he committed
any affirmative acts of concealment.
¶ 11 Simovic also argued that plaintiffs failed to state a cause of action for fraudulent
misrepresentation, since (1) Simovic, who designed the deck in 2004, had no duty to attendees of
a party in 2018; (2) plaintiffs failed to plead the element of factual misrepresentation with
particularity but made only vague statements that the deck was not code-compliant; (3) Simovic
had no intent to induce plaintiffs to attend a party in 2018; (4) plaintiffs’ reliance on Simovic’s
alleged misrepresentations was not reasonable; and (5) there was no proximate cause between
Simovic’s alleged misrepresentations and plaintiffs’ injury, since the deck was “repaired and/or
replaced” in 2016.
¶ 12 On March 20, 2021, the trial court granted Simovic’s motion to dismiss. The trial court’s
order is not contained in the record. Plaintiffs moved to reconsider, and the trial court denied
their motion on June 28, 2021.
¶ 13 ANALYSIS
¶ 14 Simovic argues we lack jurisdiction over this appeal because plaintiffs’ notice of appeal
did not adequately express an intent to challenge the trial court’s judgment in favor of him.
Although the filing of a notice of appeal is jurisdictional, such a notice is construed liberally and
will be deemed sufficient “when it fairly and adequately sets out the judgment complained of and
the relief sought, thus advising the successful litigant of the nature of the appeal.” Lang v.
Consumers Insurance Service, Inc., 222 Ill. App. 3d 226, 229 (1991).
¶ 15 Plaintiffs’ notice of appeal, filed on July 23, 2021, bore the caption “Roberto Barron and
Arron Martin v. Michael Spencer, Clayton Terrill, et al” and stated that it was an appeal from a
July 23, 2021 judgment. It listed Nic Ilieff and Lazlo Simovic as appellees and requested the
-4-
No. 1-21-0866
following relief: “Reverse the ruling of the lower court denying plaintiffs’ Motion to Reconsider
the lower court’s granting of the defendant Ilieff’s, Lazlo Simovic Architects, LLC’s, and Lazlo
Simovic’s motions to dismiss.” Although Simovic was not listed in the caption (see Ill. S. Ct.
Rule 303(b)(1)(ii) (eff. July 1, 2017)) and the notice misstated the date of the order being
appealed from, the remainder of the notice sufficiently advised Simovic of the nature of the
appeal. Notably, Simovic does not claim he has been prejudiced by the technical deficiencies in
the notice of appeal. See Lang, 222 Ill. App. 3d at 230.
¶ 16 In Nussbaum v. Kennedy, 267 Ill. App. 3d 325, 327-29 (1994), we found plaintiff’s notice
of appeal insufficient to perfect our jurisdiction over defendants Tkac and Gutkowski where it
omitted any reference to those defendants. “Also, neither Tkac or Gutowski acceded in this
court’s jurisdiction by participating in this case, through the filings of briefs or appearing at oral
argument.” Id. at 328. Since the notice of appeal in this case explicitly references Simovic, who
has participated fully in this appeal, his reliance on Nussbaum is misplaced.
¶ 17 More significantly, however, the record does not contain the trial court’s March 30, 2021
order granting Simovic’s motion to dismiss. Additionally, multiple of plaintiff’s claims are still
pending in the trial court, and there is no record of any finding under Supreme Court Rule 304(a)
that there is no just reason for delaying enforcement or appeal of the March 30 order.
¶ 18 Rule 304(a) provides that “If multiple parties or multiple claims for relief are involved in
an action, an appeal may be taken from a final judgment as to one or more but fewer than all of
the parties or claims only if the trial court has made an express written finding that there is no
just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a) (eff. Mar. 8,
2016). “Without a Rule 304(a) finding, a final order disposing of fewer than all the claims is not
an appealable order and does not become appealable until all of the claims are resolved.”
-5-
No. 1-21-0866
(Internal quotation marks omitted.) Stasko v. City of Chicago, 2013 IL App (1st) 120265, ¶ 28
(finding no jurisdiction where counterclaim remained pending and trial court made no findings
pursuant to Rule 304(a)); see also City of Champaign v. Madigan, 2013 IL App (4th) 120662,
¶ 21 (finding no jurisdiction where trial court order left unresolved issues of attorney fees and a
counterclaim and there was no formal finding under Rule 304(a)).
¶ 19 The appellant bears the burden of presenting a sufficiently complete record (Webster v.
Hartman, 195 Ill. 2d 426, 432 (2001)), and “ ‘[a]ny doubts which may arise from the
incompleteness of the record will be resolved against the appellant.’ ” Pate v. Wiseman, 2019 IL
App (1st) 190449, ¶ 17 (quoting Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984)). Although
plaintiffs have attached a purported copy of the order being appealed from (which includes a
Rule 304(a) finding) in the appendix to their brief, it is well settled that the record on appeal
cannot be supplemented by attaching documents to a brief or including them in an appendix. In
re Parentage of Melton, 321 Ill. App. 3d 823, 826 (2001) (ignoring documents appended to
parties’ briefs that were not part of the record on appeal); see also Geary v. Telular Corp., 341
Ill. App. 3d 694, 697 n. 1 (2003) (same); Pikovsky v. 8440-8460 North Skokie Boulevard
Condominium Ass’n, Inc., 2011 IL App (1st) 103742, ¶ 16 (same). Accordingly, based on the
record before us, we lack jurisdiction and must dismiss this appeal.
¶ 20 Appeal dismissed.
-6-