Citylink Group, Ltd., v. Hyatt Corp., No. 1-99-0943
1st District, May 12, 2000
SIXTH DIVISION
| CITYLINK GROUP, LTD. and HOTEL SERVICES LTD., United Kingdom corporations; andROBOSERVE, INC., and HOTEL SERVICES, INC., Delaware corporations, Plaintiffs-Appellants and Cross-Appellees, v. HYATT CORPORATION, a Delaware corporation, Defendant-Appellee and Cross-Appellant. | APPEAL FROM THECIRCUIT COURT OFCOOK COUNTY. HONORABLELORETTA C.DOUGLAS, JUDGEPRESIDING. |
JUSTICE CAMPBELL delivered the opinion of the court:
Plaintiffs, Citylink Group, Ltd. (Citylink), Hotel Services, Ltd. (Hotel Services), Roboserve, Inc.(Roboserve), appeal fromseveral orders of the circuit court of Cook County: (1) granting summary judgment in favor of defendant, the HyattCorporation (Hyatt), in connection with a breach of contract action regarding the installation of computerized in-room mini-bars at the Hyatt Regency Chicago (HRC), and (2) dismissing certain counts of Roboserve's complaint. This opinionaddresses only plaintiffs' appeal from the order of the trial court entered February 10, 1999, granting summary judgment infavor of Hyatt on count I of plaintiffs' complaint for fraud, and dismissing count II of plaintiff's complaint pursuant tosections 2-615 and 2-619 of the Illinois Code of Civil Procedure.(1)
This appeal arises out of two cases originally brought in federal court by Roboserve against Kato Kagaku, Ltd. (Kato), theowner of the HRC and employer of Hyatt, as manager of the HRC. Roboserve prevailed on certain counts against Kato inthe federal court and brought this subsequent state action against Hyatt to recover damages for fraud (count I) and tortiousinterference with prospective business relations (count II) respecting the same mini-bar installation contract. Kato is not aparty to this appeal.
On appeal, plaintiffs contend that: (1) the trial court erred in failing to award attorney fees for costs incurred in the priorfederal litigation; and (2) the trial court erred in dismissing its claim for tortious interference with prospective businessrelations. For the following reasons, we affirm the judgment of the trial court.
BACKGROUND
Roboserve is a company that leases and services hotel in-room mini-bars. On June 23, 1986, Roboserve entered into aConcession Agreement with Hyatt, as manager of the HRC, to install 1000 mini-bars ("RoboBars") in the rooms at theHRC. Hyatt in turn agreed that the HRC would use "reasonable endeavours" to place guests most likely to use theRoboBars into the rooms equipped with the RoboBar units. On October 2, 1986, Roboserve and Hyatt negotiated anamended Concession Agreement extending its duration to five years from "the date when all the RoboBar units have beencommissioned" or installed.
Between February and April 1987, Roboserve installed 900 of the 1000 RoboBars in the west tower of the HRC. Late in1987, Hyatt informed Roboserve of its intention to contract with ServiSystems, another mini-bar vendor, to install its"ServiBars" in the east tower of the HRC. Hyatt subsequently installed 970 ServiBars in the east tower of the HRC. Hyattrepresented to RoboServe that a test would be conducted between the two mini-bar systems, and that the "winner" wouldget the contract for the entire hotel. Unbeknownst to RoboServe, on May 1, 1988, Hyatt signed a seven-year contract withServiSystems to provide ServiBars, beginning on May 15, 1988.
In August 1988, Kato purchased the HRC and assumed the prior owner's management agreement which provided that Hyattwould manage the hotel. Kato also assumed all of the contracts of the prior owner, including the Concession Agreement.
RoboServe was subsequently informed that it had "won" the one-year test. Thereafter, RoboServe and Hyatt begannegotiating for the replacement of the ServiBars with RoboBars. Hyatt did not reveal the existence of the seven-yearcontract with ServiSystems. Negotiations dragged on for about three years, and Roboserve did not press Hyatt for theinstallation of the remaining 100 RoboBars pursuant to the original Concession Agreement. In February 1992, Hyattnotified Roboserve that it would not replace the ServiBars with RoboBars at the HRC as a result of "complications ofanother contractual arrangement."
FIRST FEDERAL LAWSUIT
On August 4, 1992, Roboserve filed an action against Kato for breach of contract, wrongful termination and fraud in theUnited States District Court for the Northern District of Illinois. Roboserve sought to hold Kato responsible for the actionsof its agent, Hyatt. A trial commenced in October 1993. The jury returned a verdict in favor of Roboserve on all counts,awarding compensatory and punitive damages totaling $9,950,000. On Kato's post-trial motion, the district court entered aremittitur of $127,500 on the wrongful termination claim, reducing the judgment to $9,722,500. Roboserve, Inc., v. KatoKagaku Co., Ltd, 857 F. Supp. 1124 (N.D. Ill. 1995).
FIRST FEDERAL APPEAL
Kato appealed from the $9,722,500 judgment in the United States Court of Appeals for the Seventh Circuit. The Appealscourt affirmed the jury's findings of breach of contract, wrongful termination and fraud. However, the Appeals courtvacated the award of damages for the breach of contract and fraud counts, reduced the compensatory damage award from$1,000,000 to $37,810, and eliminated the punitive damages award under the fraud count. The Appeals court furtherdetermined that the damages for breach of contract should have been limited to $1,053.784, and to $722,500 for wrongfultermination, for a total award to Roboserve in the amount of $1,814.094, plus $25,000 in costs. The Appeals courtremanded the case to the District Court for a new trial on the issues of damages for breach of contract and fraud. Roboserve,Inc., v. Kato Kagaku Co., Ltd., 78 F.3d (7th Cir. 1996).
NEW TRIAL ON DAMAGES UPON REMAND
On remand to the District Court, Kato was granted an offset in the amount of $312,687.22, against the portion of thejudgment in the amount of $722,500, pertaining to plaintiff's wrongful termination claim. The offset represented moniespaid for the use of RoboBars, which were not removed from the Hyatt Regency by Roboserve notwithstanding Roboserve'sclaim that the contract had been terminated. Roboserve, Inc. v. Kato Kaguku Co., Ltd, 936 F. Supp. 522 (N.D. Ill. 1996) and942 F. Supp. 1199 (N.D. Ill. 1996). On Roboserve's appeal, the District Court's order granting the setoff was affirmed.Roboserve, Inc., v. Kato Kaguku Co., Ltd., 121 F.3d 1027 (7th Cir. 1997).
SECOND FEDERAL LAWSUIT
In 1996, Roboserve filed a second case against Kato in the District court claiming breach of contract and unjust enrichmentarising out of the use of the RoboBars during the same period as claimed in the prior litigation. The District Court grantedKato's motion for summary judgment on grounds of res judicata. Roboserve, Inc., v. Kato Kagaku Co., Ltd., No. 96 C 7098(N.D. Ill. February 19, 1997).
SECOND FEDERAL APPEAL
Roboserve appealed the summary judgment order of the District Court. The appeal was consolidated with the second appealfrom the first case in the District Court and the judgment was affirmed. Roboserve, Inc., v. Kato Kagaku Co., Ltd., 121 F.3d 1027 (7th Cir. 1997).
PRESENT STATE ACTION
A. CHRONOLOGY
The record reveals the following chronology:
July 2, 1996: Original complaint filed.
March 26, 1997: Order entered denying Hyatt's 2-615 motion to dismiss plaintiffs' complaint.
June 26, 1997: Order entered denying Hyatt's motion to dismiss count III of plaintiffs' complaint.
September 18, 1997: Order entered granting, in part, Hyatt's 2-619 motion on count I and granting Hyatt's 2-619 motion oncount II.
October 9, 1997: First amended complaint filed
February 10, 1998: Order entered denying Hyatt's motion to dismiss count I of amended complaint and granting motion todismiss count II with prejudice.
March 12, 1998: Hyatt filed motion for summary judgment.
July 10, 1998: Hyatt's motion for summary judgment granted in part.
December 9, 1998: Second amended complaint filed.
January 25, 1999: Hyatt files motion to dismiss second amended complaint
February 10, 1999: Order entered denying motion to dismiss count I; granting motion to dismiss count II with prejudice;and granting summary judgment in favor of Hyatt on count I of second amended complaint.
B. BACKGROUND
On July 2, 1996, plaintiffs filed their original action in the circuit court of Cook County, against Hyatt alleging in threecounts that Hyatt: (1) defrauded plaintiffs, by the same conduct as alleged in the federal litigation (count I); (2) interferedwith and induced Kato to breach the Concession Agreement as determined in the federal litigation (count II); and (3) asagent of "other Hyatt managed Hotels across the United States and abroad," interfered with plaintiffs' "reasonableexpectancy of entering into a valid business relationship with the Hyatt Regency Chicago and other Hyatt managed hotels"(count III).
On March 26, 1997, the trial court, Judge William Lassers presiding, denied Hyatt's 2-615 motion to strike and dismissplaintiffs' complaint. Hyatt then moved to dismiss count III of the complaint pursuant to section 2-619. On June 26, 1997,the trial court denied Hyatt's motion and ordered Hyatt to answer to count III.
On September 18, 1997, Judge Lassers denied Hyatt's section 2-619 motion to strike and dismiss plaintiff's claim fortortious interference with prospective business relations and entered a Memorandum Opinion and Order: (1) grantingHyatt's 2-619 motion to dismiss count II (interference with contract), on grounds of res judicata; (2) striking count I (fraud)on grounds of res judicata, and (3) ordering plaintiffs to file an amended complaint. The trial court held:
"In the federal lawsuit . . . the action against Kato was based on the theory of respondeat superior, in other wordsHyatt was the agent for Kato and the [Hyatt Regency Chicago] . . . Case law provides that when there is anadjudication against a principal based upon the acts of the agent then they are said to arise from the same operativefacts and cannot be asserted against the agent in a subsequent action."
The only surviving claims were plaintiffs' claims against Hyatt with respect to Hyatt Hotels other than the Hyatt Regency.
On October 9, 1997, plaintiffs filed a two-count amended complaint alleging fraud (count I) and tortious interference withprospective business relations (count II). Plaintiffs alleged that Hyatt defrauded plaintiffs by acting "of its own accord andapart from its role as agent for [HRC] or Kato."
Plaintiffs further alleged that Hyatt interfered with their "reasonable" expectancy of entering into a valid businessrelationship with Hyatt itself. Plaintiffs alleged that they were told by Hyatt that in order to do business with Hyatt,plaintiffs first had to enter into a business "arrangement" with The Marmon Group (Marmon), a "sister" corporation toHyatt. Plaintiffs alleged that they negotiated with Marmon's subsidiary, MTN, to service RoboBars installed in Hyatt-managed hotels in the United States. In December 1985, Hyatt requested a proposal from plaintiffs to provide RoboBars inten Hyatt-managed hotels, subject to establishing a relationship with Marmon. In March 1986, plaintiffs and Marmonagreed that MTN would install and maintain the RoboBars in Hyatt-managed hotels. Thereafter, plaintiffs obtained acontract to provide RoboBars in four of the ten Hyatt-managed hotels, one which was the HRC. Plaintiffs alleged that theyreasonably expected to receive contracts for the six other Hyatt-managed hotels, as well as future business from other Hyatt-managed hotels.
Hyatt filed motions to dismiss plaintiffs' fraud count pursuant to section 2-619, and to dismiss plaintiff's tortiousinterference count pursuant to both sections 2-615, for failure to state a claim, and 2-619, on the grounds that plaintiffs'principal knew that Hyatt acted as agent for the owners of Hyatt managed hotels, therefore Hyatt was privileged to act in itsprincipals' interests in recommending or not recommending the installation of RoboBars, and plaintiffs failed to show thatthe privilege was inapplicable.
On February 10, 1998, the trial court, Judge Loretta Douglas presiding, denied Hyatt's motion to dismiss plaintiffs' fraudclaim pursuant to section 2-619 and granted Hyatt's motion to dismiss plaintiffs' claim for tortious interference. In denyingplaintiff's motion for reconsideration, the trial court invited plaintiffs to amend their count for tortious interference withprospective business relations.
On March 12, 1998, Hyatt filed a motion for summary judgment on plaintiffs' fraud count. Hyatt argued that by reason ofthe federal litigation, plaintiffs were barred from seeking damages: (1) related to the preparation of "various proposals forthe addition of new RoboBar units at the Hotel and other Hyatt properties"; (2) for "loss of credibility and injury to itsreputation in the hotel industry"; and (3) for "the benefit of installations of RoboBars at other Hyatt hotels."
On July 10, 1998, the trial court entered an order granting Hyatt's motion for summary judgment on the issues of, inter alia,expenses and attorney fees incurred in the federal litigation. The trial court denied Hyatt's motion as to plaintiffs' claim for"benefit of the bargain damages" arising from Hyatt's alleged fraud for depriving plaintiffs of an alleged contract to installRoboBars in five hotels instead of the four actually installed.
On December 9, 1998, plaintiffs filed their second amended complaint. In that pleading, plaintiffs reiterated the allegationsof their first amended complaint, except for those allegations the trial court construed as a claim that the alleged frauddeprived plaintiffs of the benefit of an alleged contract to install five hotels instead of the four actually installed.
Hyatt filed a motion to dismiss plaintiffs' second amended complaint; plaintiffs filed a response and Hyatt filed a reply.
On February 10, 1999, the trial court granted Hyatt's motion to dismiss count II of plaintiffs' second amended complaint andalso granted Hyatt's motion for summary judgment on count I. Plaintiffs filed a notice of appeal from: (1) the trial court'sMemorandum and Order entered September 18, 1997, granting in part Hyatt's motion to dismiss pursuant to 2-619 withrespect to count I of the complaint and granting Hyatt's motion to dismiss pursuant to 2-619 with respect to count II of thecomplaint; (2) the order entered February 10, 1998, granting Hyatt's motion to dismiss pursuant to section 2-615 and 2-619with respect to count II of the first amended complaint, and granting summary judgment in favor of Hyatt with respect tocount I of the first amended complaint; (3) the order entered February 10, 1999, granting Hyatt's motion to dismiss pursuantto sections 2-615 and 2-619 with respect to count II of the second amended complaint; and (4) the order entered July 10,1998, granting summary judgment in favor of Hyatt regarding damages with regard to count I of the first amendedcomplaint.
Hyatt filed a cross-appeal from: (1) the trial court's order entered on March 10, 1997, which denied Hyatt's motion todismiss plaintiffs' original complaint for failure to state a cause of action pursuant to section 2-615; (2) the trial court's orderof June 26, 1997, denying Hyatt's motion to dismiss count III of plaintiffs' original complaint pursuant to section 2-619 andordering Hyatt to answer that count; and (3) that portion of the order entered September 18,1997, denying in part Hyatt'smotion to dismiss count I of the original complaint pursuant to section 2-619.
Thereafter, Hyatt filed a motion in this court to strike and dismiss portions of plaintiffs' notice of appeal; to declare its owncross-appeal moot; and to limit the appeal to the issues decided by the order entered on February 10, 1999. This motion wastaken with the case.
OPINION
Initially, plaintiffs contend that the trial court erred granting summary judgment in favor of Hyatt on plaintiffs' claim forattorney fees and costs incurred in the prior federal litigation against Kato. This is an issue of first impression.
Our standard of review of the circuit court's decision to grant summary judgment is de novo. Mack v. Ford Motor Company,283 Ill. App. 3d 52, 669 N.E.2d 608 (1996). On appeal from the granting of summary judgment, the only issue before thiscourt is whether all the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of materialfact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1994); Jewish Hospitalv. Boatmen's National Bank, 261 Ill. App. 3d 750, 754, 633 N.E.2d 1267, 1272 (1994). Summary judgment is to be grantedonly where the evidence, construed most strongly against the moving party, establishes clearly and without doubt themovant's right to relief. Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986).
Citing Sorenson v. Fio Rito, 90 Ill. App. 3d 368, 371, 413 N.E. 2d 47, 51 (1980), plaintiffs argue that attorney fees incurredin the federal litigation against Kato are recoverable against Hyatt on the theory that "a wrongdoer is liable for all of theordinary and natural consequences of his act." Plaintiffs contend that they have satisfied the following elements as requiredby Sorenson: (1) they incurred attorney fees in a prior litigation ($700,000); (2) the prior litigation was against a third party,Kato (the trial court ruled that plaintiffs could maintain their action against Hyatt as separate and apart from its agencyrelationship with Kato); and (3) plaintiffs were involved in such litigation because of the tortious act of Hyatt in the presentlitigation (Hyatt proposed the fraudulent one-year test for the RoboBars). See Sorenson, 90 Ill. App. 3d at 372.
Sorenson is factually distinguishable. There, the plaintiff, Sorenson, contacted the defendant, Fio Rito, an attorney, aboutprobating her husband's estate shortly after his death. Fio Rito represented that he would "take care of everything," andSorenson gave Fio Rito relevant estate and tax documents. After a few years, Sorenson still had no resolution of the estate.Sorenson contacted Fio Rito who admitted that Sorenson would have to pay some tax penalties because of the delay, butnevertheless failed to attend to her estate matters. Sorenson ultimately contacted another attorney to handle the matter,incurring attorney fees in the amount of $1500, and was required to pay tax penalties in excess of $6400. Thereafter,Sorenson filed a malpractice action against Fio Rito seeking damages incurred as a result of his failure to timely file herestate matter. The jury awarded damages to Sorenson in the form of penalties, interest and attorney fees. This court affirmedthe award, notwithstanding Fio Rito's argument that the "American Rule" prohibited the recovery of such damages absent astatute allowing such expenses on the grounds that: "one should not be penalized for merely defending or prosecuting alawsuit." Sorenson, 90 Ill. App. 3d at 372. This court stated:
"The plaintiff here is not attempting to recover the attorneys' fees she expended in bringing this lawsuit. Rather, sheseeks to recover losses incurred in trying to obtain refunds of tax penalties which were assessed against her solely asa result of defendant's negligence." Sorenson, 90 Ill. App. 3d at 372. (Emphasis supplied).
Here, the record shows that after a trial in federal court, Roboserve was awarded damages for certain losses resulting fromKato's breach of contract under a theory of respondeat superior, finding that Kato was vicariously liable for the actions ofHyatt, its agent, acting within the scope of its agency for Kato. Unlike Sorenson, the record in the present case does notshow that Roboserve was assessed any penalties by a government body for any action resulting from Kato's negligence.Plaintiffs' alternative argument that Hyatt acted outside the scope of its agency to Kato is inconsistent with its theory in thefederal litigation. Logically, plaintiffs could not be entitled to attorney fees for pursuing litigation against the principalwhere the principal was not vicariously liable for the actions of its agent.
With reference to the American Rule, our supreme court has held that:
"While it is recognized that where the natural and proximate consequences of a wrongful act have been to involve theplaintiff in litigation with others, there may be a recovery in damages against the author of such act, measured by thereasonable expenses incurred in such litigation [citation omitted], yet the rule is equally well established that where anaction based on the same wrongful act has been prosecuted by the plaintiff against the defendant to a successful issue,he can not in a subsequent action recover, as damages, his costs and expenses in the former action." Ritter v. Ritter,381 Ill. 549, 554-55, 46 N.E.2d 41 (1943).
Hyatt points to several cases outside of our jurisdiction where courts denied the extension of the American Rule incircumstances similar to those presented here. See, e.g., Golden West Baseball Co. v. Talley 232 Cal. App. 3d 1294, 284Cal. Rptr. 53 (1991) (City manager cannot be sued under the "tort of another"doctrine to recover attorney fees incurred byprofessional baseball club in a breach of contract action against the city, where it is not shown that the city manager was notacting on behalf of the city); Miller v. Hydro Group v. Popovitch, 851 F.Supp. 7 (D. Me. 1994) (holding "tort of another"doctrine did not allow buyer of hydroelectric power to recover litigation costs in state law fraud claim which costs wereincurred in earlier federal action against seller).
Here, the record shows that all of the facts relevant to plaintiffs' case were completed and known by all parties as of 1992,and that plaintiffs failed to raise any new issues with the initiation of the present action in our state court. Plaintiffs do notexplain their failure to raise the issue of attorney fees during federal court proceedings while that action was pending.Although not binding on this court, we find the decisions of the Maine and California courts persuasive, and similarlydecline to extend the American Rule in light of the facts and circumstances of this case.
Next, plaintiffs contend that the trial court erred in dismissing their claim for tortious interference with prospective businessrelations pursuant to section 2-615. To recover on a claim for tortious interference with prospective business relations, aplaintiff must plead and prove:
"(1) his reasonable expectation of entering into a valid business relationship; (2) the defendant's knowledge of theplaintiff's expectancy; (3) purposeful interference by the defendant that prevents the plaintiff's legitimate expectancyfrom ripening into a valid business relationship; and (4) damages to the plaintiff resulting from such interference."Fellhauer v. City of Geneva, 142 Ill. 2d 495, 568 N.E. 2d 870, 878 (1991).
Plaintiffs argue that their complaint set forth a reasonable business expectancy of RoboBar contracts with third parties inthe form of Hyatt-managed hotels; that these hotels were sufficiently specifically identified as a class; that Hyatt promisedexpanded business to plaintiffs and made plaintiffs "jump through hoops"; and failed to deliver on its promised business.
We find that the trial court properly dismissed plaintiffs' claim for interference with prospective business relations. Therecord shows that plaintiffs failed to: (1) specifically identify another Hyatt hotel from which they expected to receive acontract; (2) allege that any other clearly identified group was "contemplating prospective contractual arrangements" withplaintiffs; and (3) allege any specific acts of interference. See Parkway Bank & Trust Co. v. City of Darien, 43 Ill. App. 3d400, 357 N.E. 2d 211 (1978). A defendant cannot "interfere" with its own prospective relationships with a plaintiff. Ik Corp.v. One Financial Place Partnership, 200 Ill. App. 3d 802, 558 N.E. 2d 161, 172 (1990).
Plaintiffs further contend that the trial court erred in dismissing its claim for tortious interference with prospective businessrelations pursuant to section 2-619. The trial court found that plaintiffs failed to allege any facts sufficient to demonstratethat Hyatt was not acting in the interests of its principals in recommending or not recommending the installations ofRoboBars at any Hyatt-managed hotel, and that plaintiffs were barred by res judicata from re-litigating damage claimswhich could have been litigated in the federal case.
Plaintiffs assert that they do not have the burden to allege that Hyatt lacked the justification or privilege to interfere in thebusiness of its principals. Plaintiffs argue that Hyatt is required to allege its privilege as an affirmative defense. Plaintiffsfurther argue that Hyatt acted with an "improper purpose" in furtherance of its own interests and not the interests of theother Hyatt-managed hotels in interfering with plaintiffs' prospective business relations with other Hyatt-managed hotels.
Where the complaint establishes the existence of a privilege, the plaintiff must plead and later prove that the defendantacted unjustifiably or inconsistent with such privilege. Roy v. Coyne, 259 Ill. App. 3d 269, 630 N.E. 2d 1024 (1994); HPIHealth Care v. Mt. Vernon Hospital, 131 Ill. 2d 145, 545 N.E. 2d 672 (1989). Corporate officers, directors, shareholdersand agents are normally privileged against claims that their activities interfered in a third party's relationships with theirprincipals. Swager v. Couri, 77 Ill. 2d 173, 395 N.E. 2d 921 (1979). To overcome the privilege, plaintiffs must allege orprove that a defendant acted in its own interests and contrary to the interests of its principal, or engage in conduct totallyunrelated or antagonistic to the interest giving rise to the privilege.
In support of its 2-619 motion, Hyatt submitted the sworn testimony of plaintiffs' chief executive and operating officer,William Fattal, wherein Fattal admitted that he knew that: (1) Hyatt was acting as the agent of the various hotels' owners inmaking recommendations regarding mini-bars; and (2) owner approval of RoboBar installations was required. Plaintiffsfailed to allege that Hyatt acted in its own interest or against the interest of Kato. Thus, the trial court properly dismissedcount II of plaintiffs' complaint pursuant to section 2-619.
For the reasons set forth above, we therefore affirm the judgment of the trial court.
Affirmed.
Buckley, J., and O'BRIEN, J., concur.
1. 00000In their notice of appeal, plaintiffs' appealed from portions of orders of the trial court entered on September 18, 1997,February 10, 1998, July 10, 1998 and February 10, 1999. Hyatt filed a cross appeal from orders of the trial court entered onMarch 10, 1997, June 26, 1997, and from portions of the order entered on September 18, 1997. Hyatt then filed a motion inthis court to strike and dismiss portions of plaintiffs' notice of appeal and to declare its own cross appeal moot, noting, interalia, that: (1) plaintiffs presented no argument on appeal relevant to any order other than that entered by the trial court onFebruary 10, 1999, which granted Hyatt's motion for summary judgment as to count I of plaintiffs' second amendedcomplaint; and (2) the order entered on September 18, 1997, pertained to Hyatt's motions to dismiss plaintiffs' originalcomplaint. Plaintiffs subsequently filed a first amended complaint without preserving the dismissed portions of the originalcomplaint. No response to Hyatt's motion was filed by plaintiffs. By order of this court, all portions of plaintiffs' notice ofappeal pertaining to orders other than the order of February 10, 1999, are stricken and dismissed, and Hyatt's cross-appeal isdeclared moot.