Zanayed v. Mufarreh , 2024 IL App (1st) 230331-U ( 2024 )

2024 IL App (1st) 230331-UNo. 1-23-0331
Order filed February 16, 2024
Fifth Division
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 DISTRICT
______________________________________________________________________________
AKRAM ZANAYED, INDIVIDUALLY AND )
DERIVATIVELY ON BEHALF OF PROTÉGÉ )
INVESTMENTS INCORPORATED, AN ILLINOIS )
CORPORATION, )
) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
) Cook County.
v. )
) No. 20 CH 05869
MICHAEL P. MUFARREH, INDIVIDUALLY, BAMCO )
CONSTRUCTION, LLC, AN ILLINOIS LIMITED ) Honorable
LIABILITY COMPANY, AND PROTÉGÉ ) Caroline Kate Moreland,
INVESTMENTS, INCORPORATED, AN ILLINOIS ) Judge Presiding.
CORPORATION AS A NOMINAL DEFENDANT, )
)
Defendants-Appellants. )
JUSTICE LYLE delivered the judgment of the court.
Justice Mikva concurred in the judgment.
Justice Mitchell dissented, with opinion.
ORDER
¶1 Held: We affirm the judgment of the circuit court over defendant’s contention that the
circuit court lacked jurisdiction to enter an order enforcing the settlement
agreement.
No. 1-23-0331
¶2 This appeal arises following the circuit court’s entry of an order enforcing the settlement
agreement between plaintiff, Akram Zanayed, and defendant, Michael Mufarreh. Mr. Zanayed and
Mr. Mufarreh owned and operated a corporation that managed rental properties. Mr. Zanayed filed
suit against Mr. Mufarreh alleging that he was improperly funneling funds from their jointly owned
corporation to a company owned by Mr. Mufarreh. The parties eventually settled and the circuit
court dismissed the action without prejudice, instructing the parties to provide status updates on
the performance of the settlement terms.
¶3 More than 30 days after the dismissal, Mr. Zanayed filed a motion in the circuit court to
enforce the settlement agreement. Mr. Mufarreh contended that the circuit court lacked jurisdiction
to enforce the settlement agreement where it did not intend to retain jurisdiction and simply
dismissed the case. The court found that it had jurisdiction to enforce the settlement agreement,
found that Mr. Mufarreh was in breach, and ordered that Mr. Zanayed did not have to send
payments to Mr. Mufarreh pursuant to the agreement until Mr. Mufarreh fulfilled his obligation to
transfer real property.
¶4 On appeal, Mr. Mufarreh contends that the court erred in finding that it retained jurisdiction
to enforce the settlement agreement where the court’s dismissal order did not reflect an intent to
retain jurisdiction. Mr. Mufarreh also asserts that the court did not have jurisdiction because the
settlement agreement involved third parties who did not submit to the court’s jurisdiction. For the
reasons that follow, we affirm the judgment of the circuit court.
¶5 I. BACKGROUND
¶6 Mr. Zanayed filed a complaint for injunctive and other relief on September 15, 2020.
According to the complaint, Protégé Investments Incorporated (Protégé) owned and managed
rental properties in the Chicago area. The management of Protégé was controlled by Mr. Zanayed,
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Mr. Mufarreh, and Khalil Barbari. Mr. Mufarreh was also a member of BAMCO Construction,
LLC (BAMCO), a Chicago-based construction company. Mr. Mufarreh contracted BAMCO to
make repairs to certain Protégé properties. Mr. Zanayed alleged that, at Mr. Mufarreh’s direction,
BAMCO overcharged Protégé for the repairs and Mr. Mufarreh facilitated Protégé’s payments to
BAMCO.
¶7 Mr. Zanayed further alleged that after Mr. Mufarreh was removed as an officer of Protégé,
he began “looting” Protégé’s bank accounts and locked the other officers out of Protégé’s
management software. Mr. Zanayed raised claims of violations of the Illinois Business
Corporation Act of 1983, conversion, breach of fiduciary duty, and unjust enrichment.
¶8 After further pleadings, on June 3, 2022, the parties entered into a settlement agreement.
The settlement agreement provided that it was entered by and among Khalil Barbari, Mr. Mufarreh,
Joseph Ortinau, Mr. Zanayed, Protégé, BAMCO, and numerous other parties who are not parties
to this lawsuit. The settlement agreement resolved disputes among the parties in four separate
lawsuits and one arbitration proceeding. The agreement provided for payments among the parties,
including payments from Mr. Zanayed to Mr. Mufarreh and Mr. Ortinau, and required Mr.
Mufarreh and Mr. Ortinau to divest themselves of their interest in Protégé and resign from their
positions. The agreement also required Mr. Mufarreh to transfer his interest in certain real property
to Mr. Zanayed and Protégé.
¶9 Following the settlement agreement, the trial court entered a written order dismissing the
case without prejudice on June 21, 2022:
“This case coming before the Court by agreement of the parties, the parties having
resolved all allegations, claims and defenses in this case pursuant to a settlement
(“Settlement”), and the Court fully advised, IT IS HEREBY ORDERED:
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Pursuant to the Settlement, this action, including all claims and defenses alleged by
the parties, is hereby dismissed in its entirety without prejudice. The parties shall jointly
advise the Court when certain of the Settlement terms have been performed, at which point,
as provided for by the Settlement, the dismissal of this action shall become a dismissal with
prejudice.”
¶ 10 On December 1, 2022, Mr. Zanayed filed a motion to enforce the settlement agreement.
Mr. Zanayed alleged that under the terms of the settlement agreement, he and Protégé were
required to make certain payments to Mr. Mufarreh and Joseph Ortinau. Mr. Zanayed represented
that he and Protégé had made all of the required payments to date. He maintained, however, that
Mr. Mufarreh and Mr. Ortinau had failed to transfer real property to Protégé as required by the
agreement. Mr. Zanayed contended that the transfer was necessary so that Protégé could refinance
or sell the property to pay its obligations to Mr. Mufarreh and Mr. Ortinau. Mr. Zanayed asked the
court to enforce the settlement agreement by requiring Mr. Mufarreh and Mr. Ortinau to make
certain payments to third parties or by allowing Protégé and Mr. Zanayed to pay those obligations
and deduct the amount paid from their balance under the settlement agreement. Mr. Zanayed also
asked for an extension for his time to make payments pursuant to the settlement agreement and
asked the court to order Mr. Mufarreh and Mr. Ortinau to reimburse Protégé for certain expenses
incurred based on their failure to comply with the terms of the settlement agreement.
¶ 11 Mr. Mufarreh moved to dismiss the motion to enforce the settlement agreement for lack of
jurisdiction. Mr. Mufarreh argued that the court lacked jurisdiction over the entities who were
parties to the settlement agreement, but were not parties to the original action between Mr. Zanayed
and Mr. Mufarreh, including Mr. Ortinau. Mr. Mufarreh maintained that these parties were not
before the circuit court and never had been, and permitting the court to rewrite the settlement
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No. 1-23-0331
agreement as Mr. Zanayed requested would “strip the third party entities” of their rights under the
agreement. Mr. Mufarreh asserted that the court declined to retain jurisdiction over the settlement
agreement by not explicitly stating in its dismissal order that it intended to retain jurisdiction.
¶ 12 In a written order, the circuit court found that it retained jurisdiction to enforce the terms
of the settlement agreement. In reaching that determination, the court found that while presiding
over three of the underlying litigations, it allowed several continuances for status on the settlement
negotiations. The court acknowledged that its dismissal order did not address the issue of
jurisdiction, but found that the order directed the parties to advise the court about certain terms of
the settlement, which contemplated future conduct. The court reasoned, relying on W.R. Grace &
Co. v. Beker Industries, Inc., 128 Ill. App. 3d 215 (1984) and McGoey v. Brace, 2022 IL App (1st)
210322, that “where an order contemplates future conduct, it may be inferred that the Court
intended to retain jurisdiction to enforce settlement terms.” The court noted that in his prayer for
relief, Mr. Zanayed sought to enforce the settlement agreement, which was directly contemplated
by the court’s dismissal order.
¶ 13 Following a hearing on the motion to enforce where Mr. Zanayed testified, the court found
that there was no dispute that Mr. Mufarreh had breached the terms of the settlement agreement
by failing to transfer the real property to Mr. Zanayed. The court noted that Mr. Zanayed had also
breached the settlement agreement by failing to pay Mr. Mufarreh and Mr. Ortinau the amounts
due, but found that this was not a defense to Mr. Mufarreh’s breach because Mr. Zanayed could
not make the payments without the transfer of the real property. The court allowed an extension
of the deadline for Mr. Zanayed to pay Mr. Mufarreh the amount owed so that Mr. Mufarreh could
transfer his interest in the real property to Mr. Zanayed and Protégé. The court determined that this
extension of time did not constitute a change to the terms of the settlement agreement. The court
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No. 1-23-0331
stayed Mr. Zanayed’s obligation to pay Mr. Mufarreh the remaining amount until the real property
was transferred and sold.
¶ 14 The court reiterated its oral ruling in a written order finding that Protégé and Mr. Zanayed’s
obligation to make payments under the settlement agreement were stayed until the real property
was transferred to Protégé and Protégé had a reasonable opportunity to sell or refinance the
property. The court set the matter for status on the issue of the transfer of the real property and
continued the issues of indemnity and attorney fees to the next status date.
¶ 15 Following the court’s order, Mr. Mufarreh filed an interlocutory appeal to this court
pursuant to Illinois Supreme Court Rule 307(a) (eff. Nov. 1, 2017).
¶ 16 II. ANALYSIS
¶ 17 On appeal, Mr. Mufarreh contends that the trial court erred in finding that it retained
jurisdiction to enforce the settlement agreement. He maintains that when the trial court dismissed
the case, it entered a “garden variety” dismissal order and did not intend to retain jurisdiction to
enforce the settlement agreement. He asserts that the settlement agreement concerns 25 other
parties who were not subject to the court’s jurisdiction and the record is devoid of any evidence to
support the court’s finding of jurisdiction.
¶ 18 A. Jurisdiction
¶ 19 Before we can address the merits of this appeal, we must first determine whether we have
jurisdiction to do so. Mr. Mufarreh filed his notice of appeal pursuant to Illinois Supreme Court
Rule 307(a) and in his brief clarifies his assertion that we have jurisdiction pursuant to Rule
307(a)(1). Rule 307 concerns interlocutory appeals as of right and subsection (a)(1) provides that
a party may appeal to this court from an order of court “granting, modifying, refusing, dissolving,
or refusing to dissolve or modify an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2017).
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¶ 20 In his appellee brief, Mr. Zanayed responds that the order appealed from is not an
injunction. He maintains that the order simply declares the rights and obligations of the parties
under the settlement agreement. Specifically, Mr. Zanayed asserts that the trial court found that
under the agreement, Mr. Mufarreh did not have the right to prevent Mr. Zanayed from fulfilling
his obligation to pay by withholding his performance of his obligation to convey the real property.
Mr. Zanayed contends that we therefore lack jurisdiction because the order was not a final order,
the court did not enter a Rule 304(a) finding, and was not an appealable interlocutory order because
it only declared the rights of the parties under the agreement.
¶ 21 In his reply brief, Mr. Mufarreh contends that trial court’s order was an injunction because
it stayed Mr. Zanayed’s obligation to pay Mr. Mufarreh.
¶ 22 An injunction is a “ ‘prohibitive, equitable remedy issued or granted by a court at the suit
of a party complainant, directed to a party defendant in the action, or to a party made a defendant
for that purpose, forbidding the latter to do some act.’ ” People v. Reynolds, 274 Ill. App. 3d 696,
698 (1995) (quoting Black’s Law Dictionary 705 (5th ed.1979)). Stated another way, an injunction
is “ ‘a judicial process, by which a party is required to do a particular thing, or to refrain from
doing a particular thing, according to the exigency of the writ, the most common sort of which
operate as a restraint upon the party in the exercise of his real or supposed rights.’ ” In re A Minor,
127 Ill. 2d 247, 261 (1989) (quoting Wangelin v. Goe, 50 Ill. 459, 463 (1869)). To determine
whether an order is an injunction, we consider its substance, rather than its form. TIG Insurance
Co. v. Canel, 389 Ill. App. 3d 366, 371 (2009). Illinois courts have a policy of broadly construing
the meaning of the term “injunction.” In re A Minor, 127 Ill. 2d at 261.
¶ 23 In contrast, declaratory judgments are statutory in nature and section 2-701 of the Illinois
Code of Civil Procedure provides that:
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“The court may, in cases of actual controversy, make binding declarations of rights,
having the force of final judgments, whether or not any consequential relief is or could be
claimed, including the determination, at the instance of anyone interested in the
controversy, of the construction of any statute, municipal ordinance, or other governmental
regulation, or of any deed, will, contract or other written instrument, and a declaration of
the rights of the parties interested.” 735 ILCS 5/2-701(a) (West 2022).
A declaratory judgment allows “the court to take hold of a controversy one step sooner than
normally—that is, after the dispute has arisen, but before steps are taken which give rise to claims
for damages or other relief. The parties to the dispute can then learn the consequences of their
action before acting.” (Internal quotation marks omitted). Beahringer v. Page, 204 Ill. 2d 363, 372-
73 (2003) (quoting Kaske v. City of Rockford, 96 Ill. 2d 298, 306 (1983)). “The declaratory
judgment procedure was designed to settle and fix rights before there has been an irrevocable
change in the position of the parties that will jeopardize their respective claims of right.” First of
America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 174 (1995)).
¶ 24 In this case, the trial court’s order was not a declaratory judgment. The court did not merely
declare the rights of the parties, but specifically found that both parties had breached the settlement
agreement, which gave rise to claims for damages or other relief. The court therefore ordered Mr.
Mufarreh to transfer the real property to Mr. Zanayed and determined that Mr. Zanayed did not
have to pay Mr. Mufarreh until after the transfer had been completed, thus staying his obligation
to pay. A court’s order has the effect of an injunction where it requires a party to transfer real
property. In re Marriage of Roman-Kroczek and Kroczek, 2021 IL App (1st) 210613, ¶ 18.
Similarly, the portion of the order staying Mr. Zanayed’s obligation to pay was an injunction
because it directed him to refrain from doing a particular thing. In re A Minor, 127 Ill. 2d at 261.
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It also infringed on Mr. Mufarreh’s “right” to receive payments under the agreement. Id.Accordingly, we find that we have jurisdiction to consider the merits of this appeal under Rule
307(a)(1).
¶ 25 B. The Trial Court’s Jurisdiction
¶ 26 Turning to the merits, Mr. Mufarreh contends that the trial court erred in finding that it had
jurisdiction to enforce the settlement agreement. He asserts that the trial court did not have the
authority to enter an order that affected the rights of third parties who were not parties to the
underlying litigation, such as Mr. Ortinau. He maintains that the trial court’s dismissal without
prejudice terminated the litigation between the parties and if Mr. Zanayed sought to enforce the
terms of the agreement, he should have done so by initiating a new lawsuit.
¶ 27 1. Standard of Review
¶ 28 At the outset, we observe that the parties disagree as to the standard of review to be applied
in this case. Mr. Mufarreh contends that the issue of whether a trial court retained jurisdiction to
enforce the terms of the settlement agreement is a question of law, which we review de novo. Mr.
Zanayed asserts, however, that we should apply an abuse of discretion standard of review because
the issue is the trial court’s interpretation of its own order.
¶ 29 We agree with Mr. Zanayed. The question raised in this case is whether the trial court
intended to retain jurisdiction to enforce the settlement agreement by its order of June 21, 2022.
The trial court is in the best position to interpret its own orders and we will not reverse a court’s
interpretation of its own order unless the record shows an abuse of discretion. Board of Trustees
of Community College District No. 508 v. Rosewell, 262 Ill. App. 3d 938, 965 (1992). “Even if the
orders are unclear on review, deference to the court’s interpretation of its order is warranted.” Id.An abuse of discretion occurs when the trial court’s decision is arbitrary, fanciful, or unreasonable
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or where no reasonable person would take the view adopted by the trial court. Seymour v. Collins,
2015 IL 118432, ¶ 41.
¶ 30 2. The Trial Court’s Intent
¶ 31 Mr. Mufarreh’s assertion that the trial court did not retain jurisdiction to enforce the terms
of the settlement agreement rests on three primary arguments: (1) There were multiple parties to
the settlement agreement who were not part of the underlying litigation, and the trial court lacked
personal jurisdiction over those parties to enter an order affecting their rights under the settlement
agreement; (2) The court’s dismissal order does not show that the court intended to retain
jurisdiction after dismissal; and (3) the record does not contain evidence of the trial court’s intent
to retain jurisdiction.
¶ 32 We will first address Mr. Mufarreh’s second and third contentions. “As there exists a strong
policy in favor of settlement and the resulting avoidance of costly and time-consuming litigation,
courts retain inherent power to enforce settlement agreements reached in litigation pending before
them.” Security Pacific Financial Services v. Jefferson, 259 Ill. App. 3d 914, 919 (1994). “The
court’s jurisdiction to enforce a settlement agreement does not depend on the use of ‘magic words’
to retain jurisdiction.” McGoey, 2022 IL App (1st) 210322, ¶ 21. Instead, we look to the trial
court’s intent. Id.¶ 33 In this case, the court did not expressly state in its dismissal order that it retained
jurisdiction to enforce the agreement. The record shows, however, that the trial court continued
the underlying litigation on several occasions for status on the settlement negotiations. Further, the
court dismissed the action “[p]ursuant to the Settlement.” In doing so, “the trial court expressly
made the dismissal contingent on the terms of the agreement,” which “incorporated the agreement
into the order.” Director of Insurance ex rel. State v. A & A Midwest Rebuilders, Inc., 383 Ill. App.
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3d 721, 725 (2008). The order also expressly contemplated “future conduct” in that it directed the
parties to jointly advise the court of when certain settlement terms had been performed. As the trial
court recognized in finding that it retained jurisdiction, “where an order contemplates future
conduct, it may be inferred that the court retained jurisdiction to enforce it.” Id. at 723. In addition,
because the judgment contemplated future performance by the parties, the court was entitled to
retain jurisdiction to enforce the order after the lapse of the 30-day period. Brigando v. Republic
Steel Corp., 180 Ill. App. 3d 1016, 1020 (1989) (citing Village of Gilberts v. Holiday Park Corp.,
150 Ill. App. 3d 932 (1986); Adam–Martin Construction Co. v. Brandon Partnership, 135 Ill. App.
3d 324 (1985)).
¶ 34 The record also shows that Mr. Zanayed had partly fulfilled his obligations under the
agreement, but Mr. Mufarreh had declined to perform his. This court has found that the “the circuit
court was empowered to entertain enforcement proceedings after the dismissal of a lawsuit by
entry of a consent decree under which the parties to the agreement contemplated further
performance of certain acts and had partly performed them, but one of the parties declined to fulfill
his performance as agreed.” W.R. Grace, 128 Ill. App. 3d at 219 (citing Comet Casualty Co. v.
Schneider, 98 Ill. App. 3d 786 (1981)). In such circumstances, the trial court’s orders do not
constitute an improper alteration, modification or vacation of the decree, but solely relate to its
enforcement. Comet, 98 Ill. App. 3d at 791-92. Although the trial court loses jurisdiction to amend
a judgment after 30 days from entry, it retains indefinite jurisdiction to enforce the judgment.” In
re Marriage of Allen, 343 Ill. App. 3d 410, 412 (2003).
¶ 35 We find the cases of Brigando and Kempa v. Murphy, 260 Ill. App. 3d 701 (1994), cited
by Mr. Mufarreh, distinguishable. In both cases, this court was presented with the question of
whether a trial court had retained jurisdiction to enforce a settlement agreement. In Brigando, the
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parties reached a settlement and the trial court entered a “form dismissal” consisting of
“generalized language.” Brigando, 180 Ill. App. 3d at 1017. The order provided:
“This cause coming to be heard upon the regular call of cases for pre-trial, and it
appearing to the court that the said cause has been settled by agreement of the parties.
IT IS HEREBY ORDERED, adjudged and decreed that the above entitled cause be
and the same is hereby dismissed with prejudice—and without costs.” Id. at 1017-18.
Nine months later, the plaintiff brought a motion to “enforce” the trial court’s dismissal order
contending that the third-party defendant had failed to pay him as required under the settlement
agreement. Id. at 1018. After a hearing, the trial court entered an order that its dismissal order
should be “ ‘enforced’ ” against the parties. Id. After the third-party defendant still refused to pay
the plaintiff, the plaintiff filed a second motion to enforce the dismissal order. Id. The third-party
defendant argued that he had not paid anything because the court’s dismissal order did not order
him to pay anything. Id. The trial court disagreed, finding that the terms of the settlement
agreement were undisputed, again ordered the third-party defendant to pay the plaintiff, and
specifically incorporated language into its order ordering the third-party defendant to pay. Id. at
1018-19.
¶ 36 On appeal, the third-party defendant contended, inter alia, that the trial court did not have
jurisdiction to enter either order “enforcing” its dismissal order. Id. at 1019. This court recognized
that a trial court generally has 30 days after entering a final judgment order to amend, modify,
rehear, retry, vacate, or grant other relief. Id. at 1020. The court noted that there were exceptions
to this general rule, such as where the trial court entered a consent judgment or where the judgment
“contemplates or orders future performance by the parties.” Id.- 12 -
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¶ 37 In determining whether the trial court had jurisdiction to enter the enforcement orders, this
court first looked to the “scope” of the dismissal order. Id. The Brigando court determined that the
scope of the order was limited solely to the dismissal of the claims and there were no “special
circumstances” that could have extended the court’s jurisdiction to “enforce” the order. Id. at 1021.
The court observed that the order did not include any terms of the alleged oral settlement
agreement, and only referenced the settlement agreement to note the reason for the dismissal. Id.The court determined that the trial court simply intended to “dispose of the litigation between the
parties, and nothing in that order or in the record suggests that the court intended to do otherwise.”
Id. The court concluded that the trial court therefore lost jurisdiction over the matter 30 days after
the entry of the dismissal order and did not have jurisdiction to enter the enforcement orders. Id.¶ 38 Mr. Mufarreh contends that like the dismissal order in Brigando, the trial court in this case
solely intended to dispose of the litigation and nothing more. In contrast to the dismissal order in
Brigando, however, the dismissal order in this case contemplated future conduct by the parties,
specifically with regard to the settlement agreement. The order directed the parties to advise the
court about the performance of certain terms under the settlement agreement and provided that the
court’s dismissal without prejudice would become a dismissal with prejudice when those terms
were completed, “as provided for by the Settlement.” Although we observe, under Illinois
precedent, that there is no procedural effect to the trial court’s use of the phrases “with prejudice”
or “without prejudice” in terms of finality of the court’s judgment (see, e.g., Schal Bovis, Inc. v.
Casualty Insurance Co., 314 Ill. App. 3d 562, 568 (1999)), such a distinction may be meaningful
in determining the trial court’s intent. In this case, the court’s choice of language in its order
reflected its intent was not simply to dismiss the action and nothing more. The court instead
intended to oversee the parties’ compliance with the agreement. Nonetheless, we urge the trial
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court to not rely on the distinction between dismissals “with prejudice” and “without prejudice”
where such language is not dispositive under Illinois law, even if it is under federal law. See A &
A Midwest Rebuilders, Inc., 383 Ill. App. 3d at 726.
¶ 39 Similar to Brigando, , in Kempa, the trial court’s dismissal order stated:
“ ‘This cause coming on to be heard on this date upon the Stipulation for Dismissal
with prejudice filed herein by the above plaintiff[s] and above named defendant[s], and the
Court having examined said Stipulation and being fully advised in the premises, finds that
this cause of action has been fully compromised and settled and the parties have stipulated
and agreed to dismissal of the complaint with prejudice, and that the court further finds that
all costs have been paid.
IT IS THEREFORE ORDERED that the complaint of plaintiff[s] against the
defendant[s] be and the same is hereby dismissed with prejudice.' ” Kempa, 260 Ill. App.
3d at 703.
The Kempa court relied on Brigando in finding that the trial court failed to retain jurisdiction to
enforce the terms of the settlement agreement where the dismissal order neither incorporated the
terms of the settlement agreement, ordered future conduct, or specifically retained jurisdiction. Id.
at 705-06. The Kempa court concluded that, “[a]s in Brigando, nothing in the record suggests that
the court intended to do anything other than terminate the litigation between the parties.” Id. at
706.
¶ 40 As discussed, the trial court’s order in this case ordered future conduct related to the
settlement agreement and it is apparent that the court did not solely intend to terminate the litigation
between the parties. The court’s dismissal order shows contemplation of overseeing the parties’
compliance with the settlement terms.
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¶ 41 Finally, we reject Mr. Mufarreh’s contention that the trial court lacked jurisdiction to enter
an order enforcing the settlement agreement because the order affected the rights of third parties
who were not parties to the litigation between Mr. Zanayed and Mr. Mufarreh. Our supreme court
has recognized that “a party may ‘object to personal jurisdiction or improper service of process
only on behalf of himself or herself, since the objection may be waived.’ ” In re M.W., 232 Ill. 2d
408, 427 (2009) (quoting Fanslow v. Northern Trust Co., 299 Ill. App. 3d 21, 30 (1998)).
Therefore, Mr. Mufarreh cannot raise an objection challenging the trial court’s personal
jurisdictional on behalf of another party. In any event, the trial court’s order did not affect any
rights of these third parties by modifying or altering the agreement and merely ordered Mr.
Mufarreh to comply with the terms of the settlement agreement as written. Comet, 98 Ill. App. 3d
at 791-92.
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 44 Affirmed.
¶ 45 PRESIDING JUSTICE MITCHELL, dissenting:
¶ 46 The disposition of this case is controlled by two bedrock jurisdictional limitations:
Rule 1: Absent an express retention of jurisdiction,1 the circuit court loses
jurisdiction over a case 30 days after entry of a final judgment. See 735
ILCS 5/2-1301(e) (West 2022); Ill. Sup. Ct. R. 274 (eff. July 1, 2019); 303
(eff. July 1, 2017).
Rule 2: The circuit court lacks jurisdiction to modify a final judgment more than 30
days after entry of the judgement absent the filing of a timely post judgment
motion. 735 ILCS 5/2-1202, 2-1203 (West 2022).
1
See American Society of Lubrication Engineers v. Roetheli, 249 Ill. App. 3d 1038, 1042
(1993) (explaining that a court maintains jurisdiction after 30 days only where “the court explicitly
retained jurisdiction under its order dismissing the case.”); see also Brigando v. Republic Steel
Corp., 180 Ill. App. 3d 1016, 1020 (1989).
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¶ 47 There was no expression in the June 21, 2022, order to retain jurisdiction for enforcement:
“Pursuant to the Settlement, this action, including all claims and defenses alleged
by the parties, is hereby dismissed in its entirety without prejudice. The parties shall jointly
advise the Court when certain of the Settlement terms have been performed, at which point
as provided by the Settlement, the dismissal of this action shall become a dismissal with
prejudice.”
¶ 48 The June 21 order was a final order that disposed of all claims and defenses in their entirety.
The order left nothing to be done. The distinction between “with prejudice” and “without
prejudice” is meaningless in Illinois practice when it comes to measuring finality. Director of
Insurance ex rel. State v. A & A Midwest Rebuilders, Inc., 383 Ill. App. 3d 721, 722-23, 726
(2008).
¶ 49 The express temporal limitation in the June 21 order is not performance but the
modification of the dismissal from one without prejudice to one with prejudice. Again, Illinois law
is clear: 30 days after the entry of a final order, the trial court loses jurisdiction to modify that final
order absent the filing of a timely post-judgment motion. 735 ILCS 5/2-1202; 5/2-1203. That is so
even when the order is designated “without prejudice” because (unlike federal practice)2 that
designation does not affect finality. By its plain terms, the June 21 order contemplated the trial
court’s involvement for a period of no more than 30 days absent a timely post judgment motion.
2
A dismissal without prejudice in federal court renders an order nonfinal and that is how
a district court retains jurisdiction to enforce a settlement. See Lynch, Inc. v. SamataMason Inc.,
279 F.3d 487, 489 (7th Cir. 2002); Jessup v. Luther, 277 F.3d 926, 929 (7th Cir. 2002). That is not
the rule under Illinois law. A & A Midwest Rebuilders, Inc., 383 Ill. App. 3d at 722-23, 726 (2008).
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¶ 50 In my view, the trial court lost jurisdiction over the case 30 days after entering the June 21,
2022, order and therefore could not entertain the motion to enforce brought 6 months later. Here,
the complaining party’s remedy was to file a breach of contract action for breach of the settlement
agreement or to file a petition to vacate the dismissal under section 2-1401 and seek to reinstate
the dismissed action. 735 ILCS 5/2-1401 (West Supp. 2024).
¶ 51 For these reasons, I respectfully dissent.
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