Dagen v. Dagen ( 2021 )

2021 IL App (5th) 200316-UNOTICE
NOTICE
Decision filed 04/02/21. The
This order was filed under
text of this decision may be NO. 5-20-0316
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
TROY DAGEN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Shelby County.
)
v. ) No. 18-CH-1
)
MILDRED L. DAGEN, Individually and as Trustee of the )
Mildred L. Dagen Irrevocable Trust dated August 13, 2008, ) Honorable
) Kimberly G. Koester,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court.
Justices Welch and Cates concurred in the judgment.
ORDER
¶1 Held: The defendant’s appeal is dismissed for a lack of appellate jurisdiction because the
order appealed is not final where the circuit court, by docket entry, granted the
plaintiff’s motion for summary judgment on the plaintiff’s claim for breach of
fiduciary duty but did not enter a judgment on the plaintiff’s request for money
damages, which included prejudgment interest and costs.
¶2 The defendant, Mildred L. Dagen, individually and as trustee of the Mildred L. Dagen
Irrevocable Trust dated August 13, 2008, appeals the August 20, 2020, order of the circuit court
of Shelby County, which granted summary judgment for the plaintiff, Troy Dagen, as to count III
of his first amended complaint, which alleges a cause of action for breach of fiduciary duty. For
the following reasons, we dismiss the appeal for a lack of appellate jurisdiction.
1
¶3 BACKGROUND
¶4 On March 19, 2018, the plaintiff filed a first amended complaint against the defendant in
the circuit court of Shelby County, alleging that the defendant established an irrevocable trust in
2008 and that the defendant is the trustee of that trust. The complaint further alleges that, in 2016,
the defendant transferred real estate held in trust out of the trust for inadequate or no consideration.
Count I of the complaint requests an accounting based on the theory that the plaintiff was a
contingent beneficiary of the trust, count II requested an accounting based on the theory that the
plaintiff had a vested interest in the trust, and count III requested money damages for the
defendant’s alleged breach of fiduciary duty in transferring the real estate out of the trust for
inadequate or no consideration. Subsequently, the circuit court granted the defendant’s motion to
dismiss count I. Counts II and III remained pending.
¶5 On February 26, 2020, the plaintiff filed a motion for summary judgment as to all counts
of his complaint. In his motion for summary judgment as to count III, the plaintiff requested that
the circuit court enter judgment against the defendant “in the amount of $123,500.00, plus
prejudgment interest at the rate of 5% per annum from and after July 13, 2016, plus his costs, and
for any other and such further relief as [the] [c]ourt deems just.” The circuit court held a hearing
on the plaintiff’s motion for summary judgment on June 9, 2020, and took the motion under
advisement. On June 11, 2020, the circuit court made the following docket entry:
“This court had previously taken this matter under advisement in regard to Ct. III—motion
for summary judgment. Now being more fully informed in the premises, finds as follows:
1.) summary judgment may be entered if there are no material allegations in dispute; 2.) the
evidence is clear that the trust that was created was an irrevocable trust and therefore
subject to the modification requir[e]ments of 760 ILCS 3/411; 3.) there is no dispute that
2
the trustee transferred the entire assets of the trust out of the trust without the consent of all
of the beneficiaries and without proper consideration; 4.) there is no evidence that the
transfers were proper. Therefore, summary judgment is proper as there are no issues in
dispute and the petitioner is entitled to judgment. Clerk to notify all parties of said entry.”
(Emphasis added.)
¶6 On July 13, 2020, the defendant filed a motion to reconsider the circuit court’s order, as
well as a motion to clarify the order as to the status of count II of the complaint and to make a
finding that the case is final and appealable. On August 20, 2020, the circuit court held a hearing
on these motions. During the hearing, the plaintiff made an oral motion to voluntarily dismiss
count II of the complaint. The circuit court responded:
“If that is being withdrawn, I’ll show Count II as being withdrawn by [the plaintiff] and
then I’ll enter a ruling on Count III making it a final ruling. But before I grant or deny the
motion to reconsider I am going to review the file this morning and refresh my recollection
and make sure that that’s how I want to proceed. I’ll take it under advisement and I will
send a docket entry this morning or later today and you will both receive that.”
¶7 The circuit court entered a docket entry the same day, stating, “[Court] denies motion to
reconsider ruling on summary judgment. Plaintiff moves to dismiss [count] 2 which requested an
accounting. Court finds that this ruling is final and appealable. Clerk to notify all parties of said
entry.” On September 21, 2020, the defendant filed a notice of appeal.
¶8 ANALYSIS
¶9 “Appellate courts have a duty to consider, sua sponte, whether we have jurisdiction over
an appeal and to dismiss the appeal if jurisdiction is lacking.” In re Marriage of Mackin, 391 Ill.
App. 3d 518, 519 (2009). Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) provides that every
3
final judgment in a circuit court in a civil case is appealable as of right. “A final judgment is a
determination by the court on the issues presented by the pleadings which ascertains and fixes
absolutely and finally the rights of the parties in the lawsuit.” Big Sky Excavating, Inc. v. Illinois
Bell Telephone Co., 217 Ill. 2d 221, 232-33 (2005). A judgment is final if it determines the
litigation on the merits so that, if affirmed, the only thing remaining is to proceed with execution
of the judgment. In re Marriage of Ehgartner-Shachter, 366 Ill. App. 3d 278, 283 (2006).
¶ 10 Here, the circuit court’s June 11, 2020, docket entry states that the plaintiff is entitled to
summary judgment as to count III of his complaint. However, the circuit court never actually
entered judgment on count III, and did not specify the amount of damages it was awarding the
plaintiff, nor whether it was granting the plaintiff’s request for prejudgment interest and costs. An
order that determines liability but does not quantify damages is a “classic example” of a nonfinal
order. See Lamar Whiteco Outdoor Corp. v. City of West Chicago, 395 Ill. App. 3d 501, 505 (2009)
(citing Szabo v. United States Marine Corp., 819 F.2d 714, 717 (7th Cir. 1987), citing Liberty
Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 744 (1976)). In addition, following the circuit
court’s docket entry, count II of the plaintiff’s complaint remained pending, further compromising
the finality of the docket entry, because it did not contain a finding pursuant to Illinois Supreme
Court Rule 304(a) (eff. Mar. 8, 2016). See Waitcus v. Village of Gilberts, 185 Ill. App. 3d 248,
250-51 (1989).
¶ 11 The circuit court’s subsequent August 20, 2020, order reflects that the plaintiff had
withdrawn count II of his complaint, and further states that the order is “final and appealable.”
However, a circuit court’s finding that an order is “final and appealable” does not affect the finality
of an order, and the inclusion of an Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) finding
does not transform a nonfinal order into a final and appealable one. Lamar Whiteco Outdoor Corp.,
4
395 Ill. App. 3d at 506. Because the circuit court has not entered a judgment specifying the amount
of damages it has awarded to the plaintiff, and has not ruled as to the plaintiff’s request for
prejudgment interest and costs, the circuit court’s order is not final, and this court lacks appellate
jurisdiction to review it on appeal.
¶ 12 CONCLUSION
¶ 13 For the foregoing reasons, we dismiss this appeal for a lack of jurisdiction.
¶ 14 Appeal dismissed.
5