SJJV, LLC V. APA Realty, Inc ( 2022 )

2022 IL App (1st) 201089-UTHIRD DIVISION
June 15, 2022
No. 1-20-1089
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
______________________________________________________________________________
SJJV, LLC, )
)
Plaintiff-Appellant, ) Appeal from the
) Circuit Court of
v. ) Cook County
)
APA REALTY, INC., ANGELA HOWARD, JOHN H. ) 16 L 1623
HOWARD, and TRIPLE J SERVICES, INC., )
) Hon. Brigid M. McGrath,
Defendants, ) Michael F. Otto,
) Judges Presiding
(APA Realty, Inc. and Angela Howard, )
Defendants-Appellees). )
_____________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court.
Justices McBride and Burke concurred in the judgment.
ORDER
¶1 Held: Appeal dismissed for lack of jurisdiction. Orders on appeal were not final and
appealable judgments, as a single count remained pending in circuit court. Nor does
Supreme Court Rule 304(a) confer jurisdiction, as orders did not contain requisite language
to invoke rule.
¶2 Plaintiff SJJV, LLC sued various defendants for allegedly shoddy renovation work
conducted on its properties. The multi-complaint sounded in contract and tort. Defendants Angela
and John Howard are brother and sister; the other defendants are the companies they owned, APA
No. 1-20-1089
Realty, Inc. (Angela’s company) and Triple J Services (John’s). For our purposes, no other factual
detail is necessary.
¶3 More relevant here is the procedural history. In a nutshell, the trial court disposed of four
of the six counts by summary judgment or dismissal—counts 1, 3, 5, and 6—all against SJJV and
in favor of Angela and APA Realty.
¶4 Two counts remained pending. One was count 2, also directed at Angela and APA Realty,
a claim for conversion. The other was count 4, the sole count directed against John and Triple J
Services.
¶5 After the dispositive rulings in favor of Angela and APA Realty on counts 1, 3, 5, and 6,
SJJV moved to voluntarily dismiss count 2 for the purposes of disposing of the litigation in the
trial court. SJJV was obviously under the belief that count 4 was no longer pending, and thus the
voluntary dismissal of count 2 would put an end to the litigation in the trial court.
¶6 That was incorrect, of course. We cannot say for sure how this happened, but the record
does indicate, however vaguely, that the corporate defendant named in count 4, Triple J Services,
had filed for bankruptcy, and its attorney had withdrawn from the case. It thus appears that count
4, for all intents and purposes, had all but fallen out of the case from the perspective of the parties.
¶7 In any event, the circuit court granted SJJV’s motion to voluntarily dismiss count 2,
including in its order the following language: “As all other counts were previously disposed of,
this order will dispose of the case in its entirety and is a final order.”
¶8 Following the entry of that order, SJJV appealed the court’s judgments of dismissal or
summary judgment as to counts 1, 5, and 6. The matter was fully briefed before this court, with
neither side raising any question of appellate jurisdiction.
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¶9 But of course, this court has a duty to independently consider its own jurisdiction.
Johansson v. Glink, 2021 IL App (1st) 210297, ¶ 35. In the course of our review, we noted that the
record showed no indication of what became of count 4, the sole count directed at John and Triple
J Services. As far as we could tell, count 4 remained pending in the circuit court.
¶ 10 We directed our inquiry to the parties, asking for their understanding of whether count 4
was ever the subject of a final judgment and, if not, whether that impacted our appellate
jurisdiction. The parties both acknowledged that count 4 had never been the subject of a final
judgment. To Angela and APA, that meant that we lacked jurisdiction over this appeal. SJJV
argued, on the other hand, that we had jurisdiction under either Supreme Court Rule 301 (eff. Feb.
1, 1994) or Supreme Court Rule 304(a) (eff. Mar. 8, 2016).
¶ 11 As we explain below, we agree with defendants Angela and APA Realty that we lack
jurisdiction over this appeal.
¶ 12 Rule 301 allows appeals from final judgments as a matter of right. See Ill. S. Ct. R. 301
(eff. Feb. 1, 1994). A judgment is “final” if it disposes of the rights of the parties, either on the
entire case or some definite, separate part of the action. Dubina v. Mesirow Realty Development,
Inc., 178 Ill. 2d 496, 502 (1997); Fabian v. BGC Holdings, LP, 2014 IL App (1st) 141576, ¶ 12.
¶ 13 But finality and appealability are two different things. If a judgment disposes of all claims
as to some of the parties but not all the parties, the judgment is “final” but not automatically
appealable. The judgment can only become immediately appealable if the court finds that there is
no just reason to delay appeal from that order under Supreme Court Rule 304(a) (eff. Mar. 8, 2016).
See Dubina, 178 Ill. 2d at 502 (“[w]ithout a Rule 304(a) finding, a final order disposing of fewer
than all of the claims in an action is not instantly appealable.”).
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¶ 14 We find this appeal in this very posture. It is conceded by the parties that count 4 was never
the subject of a final judgment below. So the judgments of dismissal or summary judgment on
appeal before us, though final, are not automatically appealable. Rather, they are appealable only
if the court entered Rule 304(a) findings as to those judgments. See id.; Holt v. City of Chicago,
2022 IL App (1st) 200950-U, ¶¶ 5, 6 (finding we lacked jurisdiction over appeal, as one count
remained pending in circuit court, and no Rule 304(a) findings were made).
¶ 15 SJJV argues first that there was no need for Rule 304(a) findings, that jurisdiction under
Rule 301 is proper in the first instance. It points to the language in the order dismissing count 2,
quoted above and repeated here, where the court wrote that: “As all other counts were previously
disposed of, this order will dispose of the case in its entirety and is a final order.”
¶ 16 But how a circuit court order characterizes its judgment is not controlling. For example, a
court order declaring a judgment to be “final” does not make it so; we must determine whether
that characterization is correct before determining the existence of appellate jurisdiction. See Cole
v. Hoogendoorn, Talbot, Davids, Godfrey & Milligan, 325 Ill. App. 3d 1152, 1156 (2001) (an
“order is not a final order just because the trial court says that it is”); Curtis v. Lofy, 394 Ill. App.
3d 170, 185 (2009). Likewise, here, though the court obviously believed that all other counts had
been the subject of final judgments, that clearly was not so. The court order stating otherwise
cannot erase the fact that count 4 remained pending. So while the judgments before us on appeal
were final judgments, they were not appealable judgments.
¶ 17 As noted, however, those final judgments would be appealable if the court made Rule
304(a) findings that there was no just reason to delay the appeal of those judgments. See Dubina,
178 Ill. 2d at 502. That brings us to SJJV’s alternative argument, where it once again points to the
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language in the order dismissing count 2: “As all other counts were previously disposed of, this
order will dispose of the case in its entirety and is a final order.”
¶ 18 SJJV claims that this language qualified as a Rule 304(a) finding supporting appellate
jurisdiction here. It cites Application of Du Page County Collector, 152 Ill. 2d 545 (1992) for the
proposition that a litigant need not track verbatim the language of Rule 304(a) to invoke it for
jurisdictional purposes. That is no doubt true, but our supreme court made clear that a reference
to “appealability” must be included somewhere within that language. See id. at 551 (“we hold
that where appeal is sought pursuant to Rule 304(a) from a judgment which defeats a claim or is
in the nature of a dismissal, the written finding is sufficient only if it refers to appealability.”);
see also Lee v. Berkshire Nursing & Rehab Center, LLC, 2018 IL App (1st) 171344, ¶ 4.
¶ 19 Nothing in the order’s language cited by SJJV comes anywhere close to referencing an
appeal, much less an appeal of the specific judgment orders SJJV has attempted to appeal. We
have no jurisdiction under Rule 304(a), either.
¶ 20 As the judgment orders under review were final but not appealable judgments, and the trial
court did not make Rule 304(a) findings with respect to those specific judgment orders, this appeal
was filed prematurely. As we did recently in Holt, 2022 IL App (1st) 200950-U, ¶ 12, we have no
choice here but to dismiss this appeal for lack of appellate jurisdiction.
¶ 21 We recognize that this appeal has been fully briefed, and the court had set a date for oral
argument. This will obviously set back the appellate process. But there is no reason why all the
parties’ work need be for naught. We offer the following observations, as we did in Holt. See id.
¶¶ 9-11.
¶ 22 Should SJJV wish to proceed with an appeal, it must obtain either 1) a Rule 304(a)
finding from the circuit court as to the specific judgment orders it wishes to appeal, thus allowing
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an interlocutory appeal under Rule 304(a), or (2) a final judgment order disposing of Count 4
against John and Triple J, thereby permitting an appeal under Rule 301. Id. ¶ 9.
¶ 23 And SJJV may take these steps immediately; it need not wait for our mandate to issue. As
we noted in Holt, because this appeal is premature, and thus we have no jurisdiction, it follows
that the circuit court has retained jurisdiction all along. See id. ¶ 10 (“ ‘It is well settled that the
filing of a notice of appeal prematurely from an order or judgment which is not yet a final and
appealable order neither deprives the trial court of jurisdiction to proceed with the case nor vests
the appellate court with jurisdiction to consider it.’ ” (quoting Noland v. Steiner, 213 Ill. App. 3d
611, 616 (1991)).
¶ 24 Should SJJV file a new notice of appeal after doing so, which of course would bring the
case before this court under a new docket number, this court would consider a motion to adopt
the briefs previously filed under this docket number 1-20-1089, along with a motion to adopt the
record on appeal previously filed under this docket number.
¶ 25 With that said, this appeal is dismissed.
¶ 26 Appeal dismissed.
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