In order for a party to have standing to appeal a particular judgment, that party's rights must have been prejudiced by that particular judgment. Clay v. Pepper Construction Co., 205 Ill. App. 3d 1018, 1022, 563 N.E.2d 937, 940 (1990). In support of their claim that Brouwer Brothers lacks standing, plaintiffs cite Stickler v. American Augers, Inc., 303 Ill. App. 3d 689, 708 N.E.2d 403 (1999).
¶ 22 In these circumstances, we conclude that plaintiff lacked standing to appeal the dismissal of the third-party complaint. See Clay v. Pepper Construction Co. , 205 Ill. App. 3d 1018, 1022, 150 Ill.Dec. 810, 563 N.E.2d 937 (1990) ("The right to appeal exists only in favor of a party whose rights have been prejudiced by the judgment or decree appealed from."). Where plaintiff had raised no claim against the Union in the trial court and where he was not a party to the third-party complaint between the CTA and the Union, he had no rights that were prejudiced by the dismissal of the third-party complaint.
Moreover, there is no question that the Union has not forfeited the issue of standing, as they have consistently raised the issue from the outset of their involvement and through this appeal. ¶ 23 In these circumstances, we conclude that plaintiff lacked standing to appeal the dismissal of the third-party complaint. See Clay v. Pepper Construction Co., 205 Ill. App. 3d 1018, 1022 (1990) ("The right to appeal exists only in favor of a party whose rights have been prejudiced by the judgment or decree appealed from."). Where plaintiff had raised no claim against the Union in the trial court and where he was not a party to the third-party complaint between the CTA and the Union, he had no rights that were prejudiced by the dismissal of the third-party complaint.
A defendant is not entitled to any award of damages in the absence to a pleading raising the claim. See Clay v. Pepper Construction Company, 205 Ill.App.3d 1018, 1022 (1990). Consequently, the defendants are not entitled to any award of damages by this court.
U-Haul Co. of E. Bay v. Meyer, 586 So.2d 1327, 1331 (Fla.Dist.Ct.App. 1991), cited with approval in Benton Inv. Co. v. Wal-Mart Stores, Inc., 704 So.2d 130, 132 (Fla.Dist.Ct.App. 1997). However, where the grant of summary judgment is not determinative of the co-defendant's rights or does not impact potential liability, a co-defendant has been held not to have standing to appeal. See, e.g.Aguirre v. Phillips Properties, Inc., 2001 WL 961337, ___ S.W.3d ___ (Tex.Ct.App. 2001) (Because co-defendant could not show prejudice by grant of summary judgment and had not filed cross-claim, it had no standing since relative liability was not affected.); Tinker v. KentGypsum Supply, Inc., 977 P.2d 627 (Wash.Ct.App. 1999) (where no cross-claim was filed, co-defendant could not appeal grant of summary judgment); Clay v. Pepper Constr. Co., 563 N.E.2d 937 (Ill.Ct.App. 1990) (co-defendants who did not cross-claim for contribution lacked standing to appeal summary judgment). Thus, in this case, City is an aggrieved party within the contemplation of the rule and may appeal the grant of summary judgment to its co-defendant.
Initially, we consider whether Augers has standing to appeal the trial court's finding as to the construction defendants. The failure to timely file a claim for contribution against a joint tortfeasor waives any right to object to a settlement by plaintiff. See Clay v. Pepper Construction Co., 205 Ill. App.3d 1018, 1022-23, 563 N.E.2d 937 (1990). Here, Augers filed a contribution action against Cee-Jay only and not against the construction defendants. Thus, Augers is without standing to object to that portion of plaintiff's combined, structured settlement allocated to the Village of Schaumburg ($25,000), Blackmore ($350,000) or Pavia ($25,000).
According to the court, " '[t]he right to appeal exists only in favor of a party whose rights have been prejudiced by the judgment or decree appealed from.' " ( Carter, 256 Ill. App.3d at 944, quoting Clay v. Pepper Construction Co. (1990), 205 Ill. App.3d 1018, 1022, 563 N.E.2d 937.) Because of this rationale, defendants in the instant case contend that Carter is limited to its facts. Defendants argue that Carter is inapplicable here because the remittitur does not address the relief they seek: a new trial based on alleged evidentiary matters or a judgment notwithstanding the verdict.
Shopko argues that "[w]here a defendant for some reason has no such claim for contribution against a co-defendant, the cases uniformly hold that the appealing defendant is not aggrieved by the dismissal of the co-defendant, and the appealing defendant has no standing to appeal." It cites Clay v. Pepper Constr. Co., 563 N.E.2d 937, 939-40 (Ill.App.Ct. 1990); Landers v. Ghosh, 491 N.E.2d 950, 954 (Ill.App.Ct. 1986); Shackelford v. Green, 349 S.E.2d 781, 782 (Ga.Ct.App. 1986), aff'd, 356 S.E.2d 27 (Ga. 1987); and Indiana State Highway Comm'n v. Clark, 371 N.E.2d 1323, 1326 (Ind.Ct.App. 1978). In Tierney v. Lacenski, 114 Wis.2d 298, 338 N.W.2d 522 (Ct.App. 1983), standing to appeal existed in the absence of any right to contribution.
" However, "[t]he right to appeal exists only in favor of a party whose rights have been prejudiced by the judgment or decree appealed from." ( Clay v. Pepper Construction Co. (1990), 205 Ill. App.3d 1018, 1022, 563 N.E.2d 937.) The defendants requested a new trial on damages only or in the alternative a remittitur.