Appellate Law

Partial Summary Judgment Not Final, So Post-Trial Motion To Vacate Was Timely

By Steven R. Merican

Aureen Berry, a model, sued Chade Fashions for breach of contract and violation of the Illinois Right to Privacy Act. She claimed that Chade impermissibly used her photograph to promote Chade products. The trial court granted her summary judgment on liability under the Privacy Act, but ruled there were questions of fact as to breach of contract and damages. The trial court did not make a finding under Illinois Supreme Court Rule 304(a) (no reason to delay enforcement or appeal of the order).

After Berry put in her case at trial, Chade moved for a directed verdict and to vacate the summary judgment ruling. The trial court granted Chade?s motions. Then Berry asked for reconsideration of the ruling that vacated her summary judgment, arguing that Chade?s motion was too late, having come more than 30 days after the judgment was entered. The trial court granted Berry?s reconsideration motion, reinstated the summary judgment, and awarded Berry $1,000, the minimum award under the Act.

Both parties appealed. Chade argued that its motion to vacate was timely because the partial summary judgment was not a final and appealable order. The First District Illinois Appellate Court agreed, and stated there was nothing in the summary judgment ruling to indicate it was final and appealable (no Rule 304(a) language or the like), so it was no more than a typical non-final interlocutory order.

As the trial court noted, allowing the partial summary judgment to remain in place even after the plaintiff failed to provide evidence to support her underlying claims yielded an inconsistent and irreconcilable result. If the defendant did not breach the contract or violate the Act, then clearly it could not be liable for damages. Yet, allowing the partial summary judgment to remain in place resulted in the trial court awarding statutory damages of $1,000, although no damages were due.

The appellate court clearly was frustrated with this case. The court found the trial court?s result ?flies in the face of established legal principles.? Read the whole opinion, Berry v. Chade Fashions, No. 1-07-0639 (6/30/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on July 10, 2008 (boomark / email).