Bauman v. Patterson

FILED
April 23, 2018
Carla Bender
2018 IL App (4th) 170169 4th District Appellate
Court, IL
NOS. 4-17-0169, 4-17-0170, 4-17-0190, 4-17-0191 cons.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
ABBY BAUMAN and DAVE ANDERSON, ) Appeal from the
Cotrustees of the Fifth Amended and Restated R. Mack ) Circuit Court of
Brown Revocable Trust, Dated October 19, 2016, as ) McLean County
Successor in Interest to R. Mack Brown, Deceased, ) Nos. 10-LM-638
d/b/a Golfview Apartments, ) 11-LM-9
)
Plaintiffs and Counterdefendants­ )
Appellants )
)
v. (Nos. 4-17-1069 and 4-17-0190) )
)
)
WAYNE PATTERSON and JOAN SCHNEIDER,
)
)
Defendants, )
)
(Wayne Patterson, Defendant, Counterplaintiff, and )
Third-Party Plaintiff-Appellee; Dennis Brooks, )
Individually, Third-Party Defendant-Appellant). )
)
)
____________________________________________ )
ABBY BAUMAN and DAVE ANDERSON, )
Cotrustees of the Fifth Amended and Restated R. Mack )
Brown Revocable Trust, Dated October 19, 2016, as )
Successor in Interest to R. Mack Brown, Deceased, )
d/b/a Golfview Apartments, )
)
Plaintiffs and Counterdefendants­ )
Appellants, )
)
v. (Nos. 4-17-0170 and 4-17-0191) )
)
WAYNE PATTERSON and ANY UNKNOWN )
OCCUPANTS, )
Defendants, )
) Honorable
) David Butler,
(Wayne Patterson, Defendant, Counterplaintiff, and ) Judge Presiding.
Third-Party Plaintiff-Appellee; Dennis Brooks, )
Individually, Third-Party Defendant-Appellant). )
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with
opinion.
Justice Steigmann concurred in the judgment and opinion.
Justice Turner dissented, with opinion.
OPINION
¶1 This litigation began with actions to evict Wayne Patterson from an apartment.
Dennis Brooks filed an action as an agent of the landlord, R. Mack Brown, and Brown filed his
own action. Thus, two eviction actions against Patterson were filed in the McLean County circuit
court.
¶2 Patterson in turn filed counterclaims against Brooks and Brown, alleging they
converted his belongings while enforcing a judgment for possession of the apartment—a
judgment that, after its enforcement, was vacated because of defective service of process.
(Brown died after Patterson filed his action, and on appeal, we have allowed cotrustees of
Brown’s revocable trust, Abby Bauman and Dave Anderson, to be substituted for him.) The final
expression of the conversion claim was Patterson’s fourth amended counterclaim, which
consisted of one count against Brooks and another count against Brown.
¶3 Brooks and Brown moved for summary judgment on the fourth amended
counterclaim, and Patterson cross-moved for summary judgment. After consolidating the two
cases, the circuit court denied the motions by Brooks and Brown, and the court granted the
motion by Patterson—but only as to liability, reserving the issue of damages for a trial. Thus, it
was “deemed established” that Brooks and Brown had converted Patterson’s chattels, but the
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amount of damages resulting from the conversion was to be determined in a trial. 735 ILCS 5/2­
1005(d) (West 2016).
¶4 After entering the partial summary judgment in Patterson’s favor, the circuit court
granted a motion by him to voluntarily dismiss, without prejudice, his fourth amended
counterclaim. See id. § 2-1009. Consequently, the trial on damages never occurred.
¶5 Brooks and Brown (through his personal representatives, Bauman and Anderson)
appeal in the two cases, thereby generating four appeals, which we have consolidated. We
dismiss all four appeals for lack of subject-matter jurisdiction because (1) a voluntary dismissal
renders appealable only prior orders that are final in nature and (2) none of the rulings on the
cross-motions for summary judgment were final in nature.
¶6 I. BACKGROUND
¶7 A. McLean County Case No. 10-LM-638
¶8 In September 2010, in McLean County case No. 10-LM-638, Dennis Brooks, as
the agent of R. Mack Brown, the owner of Golfview Apartments, filed a civil complaint against
Wayne Patterson and Joan Schneider. (Brooks was represented by counsel.) The complaint was
pursuant to the Forcible Entry and Detainer Act (735 ILCS 5/9-101 to 9-321 (West 2010)), and it
sought (1) possession of an apartment leased to Patterson and (2) overdue rent.
¶9 Patterson filed an answer, affirmative defenses, and a counterclaim. The
counterclaim, which alleged conversion, was against Brown and also against Brooks,
“individually and as [the] agent for” Brown. In substance, it was a counterclaim against Brown
combined with a third-party complaint against Brooks in his individual capacity.
¶ 10 Brooks voluntarily dismissed his complaint, but Patterson’s counterclaim
remained pending.
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¶ 11 R. Mack Brown died on February 8, 2017. On June 15, 2017, we granted a motion
to substitute Brown with Abby Bauman and Dave Anderson in their capacities as cotrustees of
the Fifth Amended and Restated R. Mack Brown Revocable Trust, Dated October 19, 2016. The
caption in these consolidated appeals originally listed the trust as a party, but because a trust is a
fiduciary relationship rather than a legal person (see National City Bank of Michigan/Illinois v.
Northern Illinois University, 353 Ill. App. 3d 282, 288 (2004); Dennet v. Kuenzli, 936 P.2d 219,
228 (Idaho Ct. App. 1997)) and because a relationship cannot be a party to an appeal, the
cotrustees, Bauman and Anderson, are now listed as parties in lieu of the trust. We also have
changed the caption to reflect that Brooks is sued only in his individual capacity since we have
ordered that Bauman and Anderson, rather than Brooks, will serve as Brown’s personal
representatives. So, Bauman and Anderson are sued in their representative capacities, and
Brooks is sued in his individual capacity.
¶ 12 B. McLean County Case No. 11-LM-9
¶ 13 In McLean County case No. 11-LM-9, Brown, the landlord, filed an eviction
action against Patterson and unknown occupants. This case was substantially identical to
McLean County case No. 10-LM-638 except that Brown, rather than Brooks, was the plaintiff.
The complaint was pursuant to the Forcible Entry and Detainer Act, and Brown sought
possession of the same apartment.
¶ 14 Again, Patterson filed an answer, affirmative defenses, and a counterclaim against
Brown and Brooks for conversion. As in the other case, the conversion was allegedly of
Patterson’s personal property that remained in the apartment when Brown took possession of the
apartment pursuant to a judgment.
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¶ 15 In August 2011, the trial court resolved Brown’s complaint against Patterson by
granting Brown possession of the apartment, but Patterson’s counterclaim remained pending.
¶ 16 C. Proceedings in the Consolidated Cases
¶ 17 In May 2011, the circuit court consolidated the two cases.
¶ 18 Patterson filed a fourth amended counterclaim against Brown and Brooks. It
consisted of two counts, both of which alleged conversion. Count I was against Brown, and
count II was against Brooks.
¶ 19 After discovery, Brown and Brooks each moved for summary judgment on the
counts against them, and Patterson cross-moved for summary judgment on those counts. On
August 12, 2015, the circuit court denied the motions by Brown and Brooks but, on the issue of
liability alone, granted Patterson’s motion, leaving the issue of damages to be determined in a
trial. On January 6, 2016, the court denied motions by Brown and Brooks to reconsider or, more
precisely, vacate the summary judgment rulings.
¶ 20 On January 17, 2017, pursuant to section 2-1009 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-1009 (West 2016)), the circuit court granted a motion by Patterson to
voluntarily dismiss, without prejudice, his fourth amended counterclaim. Consequently, a trial on
damages never occurred. No claims remained pending after the voluntary dismissal. These
appeals followed.
¶ 21 In case No. 4-17-0169, Brooks appeals (1) the denial of his motion for summary
judgment on the fourth amended counterclaim and the partial granting of Patterson’s cross-
motion for summary judgment (the order of August 12, 2015), (2) the denial of Brooks’s motion
to reconsider the rulings on the cross-motions for summary judgment (the order of January 6,
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2016), and (3) the granting of Patterson’s motion to voluntarily dismiss his fourth amended
counterclaim (the order of January 17, 2017).
¶ 22 In case No. 4-17-0170, Brooks appeals the same three orders. It is a duplicate
notice of appeal because the circuit court entered the orders in the two consolidated cases.
¶ 23 In case No. 4-17-0190, Bauman and Anderson appeal (1) the order denying their
motion for summary judgment on the fourth amended counterclaim and partially granting
Patterson’s cross-motion for a summary judgment (the order of August 12, 2015), (2) the order
denying Bauman’s and Anderson’s motion to reconsider the rulings on the cross-motions for
summary judgment (the order of January 6, 2016).
¶ 24 In case No. 4-17-0191, Bauman and Anderson appeal the same two orders, which
the trial court entered in the two consolidated cases.
¶ 25 II. ANALYSIS
¶ 26 Patterson does not dispute our jurisdiction over these appeals. Even so, we have
an independent duty to make sure we have jurisdiction and to dismiss the appeals if we lack
jurisdiction. See Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984).
¶ 27 Patterson voluntarily dismissed his fourth amended counterclaim, and in their
statements of jurisdiction, Brooks, Bauman, and Anderson argue that the voluntary dismissal of a
lawsuit renders immediately appealable all prior orders that were not otherwise appealable at the
time they were entered. In support of that argument, they cite Hudson v. City of Chicago, 228 Ill.
2d 462, 468 (2008), and Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503-04
(1997).
¶ 28 Both of those cases are distinguishable because the prior orders in those cases
were final in nature whereas the prior orders in the present cases were not final in nature.
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¶ 29 We first examine Hudson. In that case, the plaintiffs brought a tort action against
the City of Chicago and some of its employees in the fire department. Hudson, 228 Ill. 2d at 464.
The complaint consisted of two counts: count I, which alleged negligence, and count II, which
alleged willful and wanton misconduct. Id. The circuit court granted the defendants’ motion to
dismiss count I with prejudice, pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2­
619(a)(9) (West 2000)), on the ground that the city and its employees had immunity under
section 3.150 of the Emergency Medical Services (EMS) Systems Act (210 ILCS 50/3.150
(West 2000)). Hudson, 228 Ill. 2d at 464-65. Then, pursuant to section 2-1009 of the Code (735
ILCS 5/2-1009 (West 2000)), the plaintiffs voluntarily dismissed the remaining count, count II.
Later, the plaintiffs refiled their action, pleading only one count, the same count of willful and
wanton misconduct. Hudson, 228 Ill. 2d at 465. The circuit court granted a motion by the
defendants to dismiss the refiled action as barred by res judicata. Id. The supreme court agreed
with that ruling. The voluntary dismissal had “terminated [the litigation] in its entirety[,] and all
final orders [had] bec[o]me immediately appealable.” (Emphasis added.) Id. at 468. The
dismissal of count I, the negligence count, was a final order, and because the plaintiffs
voluntarily dismissed count II, thereby ending the case, the rule against claim-splitting now
prevented them from subverting that finality by refiling count II, which, with its allegations of
willful and wanton misconduct, arose out of the same set of operative facts as the negligence
count and could have been litigated at the same time as the negligence count. Id. at 473-74.
¶ 30 The other case, Dubina, likewise turned on the finality of the orders entered
before the voluntary dismissal. The final orders in Dubina were the dismissal, with prejudice, of
contribution claims between settling defendants. Dubina, 178 Ill. 2d at 503. Absent a finding
pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 1, 1994), the dismissal of the
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contribution claims, though final, was not immediately appealable. Dubina, 178 Ill. 2d at 503.
Later, however, when the plaintiffs voluntarily dismissed their action, the dismissal of the
contribution claims became appealable. “The order of voluntary dismissal, because it disposed of
all matters pending before the circuit court, rendered all orders which were final in nature, but
which were not previously appealable, immediately final and appealable.” (Emphasis added.) Id.
¶ 31 Taking our lead from Hudson and Dubina, we must determine whether the orders
appealed in the present cases were “final in nature.” Id.; see also Hudson, 228 Ill. 2d at 468.
Brooks, Bauman, and Anderson appeal (1) the denial of their motions for summary judgment on
Patterson’s fourth amended counterclaim and (2) the partial granting of Patterson’s cross-motion
for summary judgment. (Brooks also appeals the granting of Patterson’s motion for a voluntary
dismissal, but he makes no argument on that issue.) We begin with the denial of the motions by
Brooks and Brown for summary judgment. (We will treat Bauman and Anderson as
interchangeable with Brown.) Unlike dismissals with prejudice (Hudson, 228 Ill. 2d at 473;
Dubina, 178 Ill. 2d at 503), “[t]he denial of a summary judgment motion is not a final order ***.
[Citation.] An exception exists where the parties have filed cross-motions for summary judgment
and the circuit court has granted one, disposing of all the issues in the case.” (Emphasis added.)
Fogt v. 1-800-Pack-Rat, LLC, 2017 IL App (1st) 150383, ¶ 95. When denying the motions by
Brooks and Brown for summary judgment in their favor, the circuit court granted Patterson’s
cross-motion for summary judgment—but the court granted it only partly, as to the issue of
liability. By granting Patterson’s motion only as to liability, the court did not “dispos[e] of all the
issues in the case.” Id. The issue of damages remained unresolved by the partial summary
judgment. That issue was left to potential future litigation, which would be “an entirely new and
separate action” (Dubina, 178 Ill. 2d at 504). Therefore, contrary to the exception described in
-8­
Fogt, the denial of the motions by Brooks and Brown for summary judgment in their favor was
not a final order. See Fogt, 2017 IL App (1st) 150383, ¶ 95. Although the denial of a motion for
summary judgment is regarded as final under an exception for totally dispositive rulings on
cross-motions for summary judgment, that exception has no applicability here.
¶ 32 Brooks, Bauman, and Anderson invoke another exception, which the appellate
court created in DePluzer v. Village of Winnetka, 265 Ill. App. 3d 1061 (1994). In that case, the
complaint had two counts, and as to count I, the circuit court granted the defendant’s motion for
summary judgment, but as to count II, the court denied the defendant’s motion. Id. at 1062. The
court then granted a motion by the plaintiff to voluntarily dismiss count II. Id. The plaintiff
appealed the summary judgment on count I, and the defendant cross-appealed the denial of
summary judgment on count II. Id. The plaintiff moved that the appellate court dismiss the
defendant’s appeal for lack of subject-matter jurisdiction, arguing that the denial of a summary
judgment was not a final order. Id. at 1064. While agreeing that typically this was true, the First
District held that the plaintiff’s voluntary dismissal of count II made the preceding denial of the
defendant’s motion for a summary judgment on that count final and appealable. Id. at 1064-65.
The First District reasoned as follows:
“Although [the plaintiff] is correct that the denial of a motion for summary
judgment is typically not appealable, the propriety of the denial may be
considered if the case is properly before a reviewing court from a final judgment
and no trial or hearing has been conducted. [Citation.] In this case the order is
final and appealable because, in addition to denying summary judgment, the trial
court granted [the plaintiff’s] motion to voluntarily dismiss this count, making the
order final and appealable.
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Our Illinois Supreme Court has determined that it is important that a
defendant have the ability to appeal from an order of voluntary dismissal since,
otherwise, such an order would never be subject to review. [Citations.]
Consequently, the order granting [the plaintiff] a voluntary dismissal as to count
II of his complaint is a final and appealable order, which brings before the
reviewing court all other orders and rulings directly associated with that
judgment, including, in this case, the denial of summary judgment. This court,
therefore, has jurisdiction to consider the appeals.” Id.
¶ 33 For two reasons, we are unconvinced by the quoted reasoning. First, the First
District states: “[T]he propriety of the denial [of a motion for summary judgment] may be
considered if the case is properly before a reviewing court from a final judgment and no trial or
hearing has been conducted.” (Emphasis added.) However, there was no final judgment in
DePluzer. The supreme court has explained:
“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. A judgment is final if it determines the litigation on the merits so
that, if affirmed, nothing remains for the trial court to do but to proceed with its
execution.” Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d
221, 232-33 (2005).
By granting the motion for a voluntary dismissal without prejudice, a court does not determine
the litigation on the merits. If statutory law allowed the plaintiff in DePluzer to refile count II
within one year after voluntarily dismissing it (see 735 ILCS 5/13-217 (West 1994)), then,
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necessarily, the voluntarily dismissal left the issues in count II unresolved and the merits of that
count undetermined.
¶ 34 Second, although the decision to grant the plaintiff’s motion for a voluntary
dismissal of count II was appealable by the defendant (see Dillie v. Bisby, 106 Ill. 2d 487, 491
(1985)), it did not follow that every order preceding the voluntary dismissal was appealable.
Several years after DePluzer, the appellate court dispelled such a misconception:
“An order granting a plaintiff’s motion for a voluntary dismissal is final
and appealable by the defendants. [Citation.] But, because jurisdiction in the
appellate court is generally limited to appeals from final judgments, the power to
address a defendant’s appeal from a voluntary dismissal does not form the
jurisdictional basis from which we may also address the substantive merits of
other nonfinal orders entered by a trial court prior to the granting of a voluntary
dismissal. [Citations.]
A judgment is final if it determines the litigation on the merits so that, if
affirmed, nothing remains for the trial court to do but to proceed with its
execution. [Citation.] When an order leaves a cause still pending and undecided, it
is not a final order. [Citation.] Accordingly, the denial of a motion for summary
judgment is not final. [Citation.]
It is true that an appeal from a final judgment draws into issue all previous
interlocutory orders that produced the final judgment. [Citation.] But such orders
must constitute procedural steps in the progression leading to the entry of the final
judgment. [Citation.] The denial of summary judgment is not a procedural step to
an order of voluntary dismissal. [Citation.] Thus, the denial here was neither a
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final judgment nor a procedural step to a final judgment, and it is not appealable.”
(Internal quotation marks omitted.) Resurgence Financial, LLC v. Kelly, 376 Ill.
App. 3d 60, 62 (2007).
While we disagree with the implicit statement of law, in the third paragraph of the quotation
from Resurgence Financial, that an order granting a motion for a voluntary dismissal is a “final
judgment” (it is not, because it is not a determination on the merits (see Big Sky, 217 Ill. 2d at
232-33)), we otherwise agree with Resurgence Financial, and we disagree with DePluzer. We
agree with Resurgence Financial that a voluntary dismissal that disposes of all remaining claims
in the case makes appealable only those orders preceding the voluntary dismissal that were “final
in nature.” Dubina, 178 Ill. 2d at 503; see also Jackson v. Victory Memorial Hospital, 387 Ill.
App. 3d 342, 352 (2008) (“While it is well settled that upon entry of a voluntary dismissal all
final orders become appealable (see Hudson, 228 Ill. 2d at 468; Dubina, 178 Ill. 2d at 503), [the
defendant] does not cite, nor have we found, any case holding that an order granting a voluntary
dismissal renders final an otherwise nonfinal order.”).
¶ 35 Such preceding orders, made appealable by the voluntary dismissal, necessarily
were interlocutory when they were entered—otherwise, nothing would have remained for the
plaintiff to voluntarily dismiss. See Commonwealth Edison Co. v. Illinois Commerce Comm’n,
368 Ill. App. 3d 734, 742 (2006) (“An interlocutory order is one that does not dispose of all of
the controversy between the parties.”). But in addition to being interlocutory, these orders had to
be final when they were entered. Dubina, 178 Ill. 2d at 503. It is possible for an order to be both
interlocutory and final. “A judgment is final for appeal purposes if it determines the litigation on
the merits or some definite part thereof” (that is, the judgment is interlocutory) “so that, if
affirmed, the only thing remaining is to proceed with the execution of the judgment.” (Emphasis
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added.) In re Marriage of Verdung, 126 Ill. 2d 542, 553 (1989). To be made appealable by a
voluntary dismissal, the preceding order had to be final in nature, such that it would have been
eligible for a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). See
MidFirst Bank v. McNeal, 2016 IL App (1st) 150465, ¶ 25 (“While Rule 304(a) permits appeals
from orders which do not dispose of an entire proceeding, the mere inclusion of Rule 304(a)
language cannot make a nonfinal order final and appealable.”). Thus, to use some contrasting
examples, a voluntary dismissal does not make appealable the preceding denial of the
defendant’s motion to dismiss the plaintiff’s complaint (Saddle Signs, Inc. v. Adrian, 272 Ill.
App. 3d 132, 140 (1995)), but it makes appealable the dismissal of a count with prejudice
(Reagan v. Baird, 140 Ill. App. 3d 58, 61-62 (1985); Saddle Signs, 272 Ill. App. 3d at 139). The
difference is that the denial of a motion for dismissal is not final in nature (Saddle Signs, 272 Ill.
App. 3d at 135) whereas the dismissal of a count with prejudice is final in nature (Dubina, 178
Ill. 2d at 502 (“A dismissal with prejudice is usually considered a final judgment, including the
dismissal of claims in a complaint ***.”)).
¶ 36 We find that Resurgence Financial is correct in identifying finality as the criterion
of appealability with regard to any previously entered interlocutory orders when all remaining
claims are voluntarily dismissed without prejudice. This is the criterion the supreme court laid
down and by which we are bound: “The order of voluntary dismissal, because it disposed of all
matters pending before the circuit court, rendered all orders which were final in nature, but
which were not previously appealable, immediately final and appealable.” (Emphasis added.)
Dubina 178 Ill. 2d at 503; see also Hudson, 228 Ill. 2d at 468. Resurgence Financial correctly
concluded that because the denial of a motion for summary judgment lacked finality, a
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subsequent termination of the case by a voluntary dismissal did not make the denial appealable.
See Resurgence Financial, 376 Ill. App. 3d at 62.
¶ 37 That is the germane conclusion in Resurgence Financial, and it is irrelevant
whether an order preceding the voluntary dismissal was a “procedural step” to the voluntary
dismissal. The only relevant consideration is the finality of the preceding order. Dubina, 178 Ill.
2d at 503. We observe here that the procedural-step analysis applies to a wholly different
question: the construction of a notice of appeal when the appeal is from a final judgment. “[T]he
appeal from a subsequent final judgment draws in question all prior non-final orders and rulings
which produced the judgment.” (Internal quotation marks omitted.) Burtell v. First Charter
Service Corp., 76 Ill. 2d 427, 433 (1979). In other words, a notice of appeal from a final
judgment should be liberally construed (In re Jamari R., 2017 IL App (1st) 160850, ¶ 39) to
include “prior orders that [were] a step in the procedural progression leading to the judgment
specified in the notice of appeal” (internal quotation marks omitted) (id. ¶ 41). This legal
construct is not germane to the issue of the appealability of an interlocutory order that preceded
the plaintiff’s voluntary dismissal, without prejudice, of all remaining claims. The construction
or scope of a notice of appeal is not at issue in this case. The only jurisdictionally relevant issue
is the finality of orders preceding the voluntary dismissal. Because the denial of the summary
judgment motions by Brooks and Brown was nonfinal in nature, Patterson’s voluntary dismissal
of his fourth amended counterclaim did not make the denial appealable. See Resurgence
Financial, 376 Ill. App. 3d at 62.
¶ 38 We next consider the partial summary judgment in Patterson’s favor on the issue
of liability for conversion and whether it became final and appealable by virtue of Patterson’s
voluntary dismissal of his lawsuit. Brooks relies on Home Savings & Loan Ass’n of Joliet v.
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Samuel T. Isaacs & Associates, Inc., 99 Ill. App. 3d 795 (1981), for the following proposition:
“An order that grants partial summary judgment on liability, but does not address damages, is an
order that resolves a definite and separate part of the controversy, and therefore is final for
purposes of appeal.” Bauman and Anderson rely on Home Savings for the same proposition.
¶ 39 Granted, the appellate court held in Home Savings: “Insofar as the partial
summary judgment determined the issue of liability, a ‘definite and separate part’ of the instant
lawsuit, it is appealable.” Home Savings, 99 Ill. App. 3d at 806 (quoting Village of Niles v.
Szczesny, 13 Ill. 2d 45, 48 (1958)). Actually, though, the circuit court in Home Savings did more
than determine the issue of liability; it also awarded remedies, thereby “ ‘dispos[ing] of the rights
of the parties *** upon some definite and separate part’ ” of the controversy. Id. (quoting
Szczesny, 13 Ill. 2d at 48). In granting the partial summary judgment, the court imposed
constructive and resulting trusts, reformed loan instruments, and ordered the assignment of all
rights and title the defendants had in the loan instruments. Id. at 797. For that reason, Home
Savings is distinguishable.
¶ 40 Moreover, since deciding Home Savings, the appellate court has repeatedly
rejected the argument that a partial summary judgment on the issue of liability alone is a final
and appealable order. Morgan v. Richardson, 343 Ill. App. 3d 733, 739 (2003); Lindsey v.
Chicago Park District, 134 Ill. App. 3d 744, 747 (1985); Harold Butler Enterprises No. 662, Inc.
v. Underwriters at Lloyds, London, 100 Ill. App. 3d 681, 686 (1981).
“[B]ecause jurisdiction in the appellate court is generally limited to appeals from
final judgments, the power to address a defendant’s appeal from a voluntary
dismissal does not form the jurisdictional basis from which we may also address
the substantive merits of other nonfinal orders entered by a trial court prior to the
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granting of a voluntary dismissal.” (Internal quotation marks omitted.)
Resurgence Financial, 376 Ill. App. 3d at 62.
A partial summary judgment on the issue of liability is one such nonfinal order, which a
subsequent voluntary dismissal of the lawsuit, without prejudice, does not make final.
¶ 41 It follows that we have subject-matter jurisdiction solely over Brooks’ appeal of
the circuit court’s order of January 17, 2017, which granted Patterson’s motion to voluntarily
dismiss his fourth amended counterclaim. We dismiss the remaining portions of Brooks’s appeal,
and we dismiss the appeals of Bauman and Anderson, for lack of subject-matter jurisdiction.
Because Brooks fails to explain how the circuit erred by granting Patterson’s motion for a
voluntary dismissal, he has forfeited the sole issue we have jurisdiction to consider. See Vancura
v. Katris, 238 Ill. 2d 352, 369 (2010). He appears to have abandoned that issue.
¶ 42 III. CONCLUSION
¶ 43 For the foregoing reasons, we dismiss the appeals for lack of subject-matter
jurisdiction.
¶ 44 Appeals dismissed.
¶ 45 JUSTICE TURNER, dissenting:
¶ 46 I respectfully dissent. For the reasons set forth below, I find this court has
jurisdiction to address the denial of the appellants’ motion for summary judgment.
¶ 47 I agree the denial of a summary judgment motion is ordinarily not appealable
because it is an interlocutory order. See Clark v. Children’s Memorial Hospital, 2011 IL 108656,
¶ 119. However, in Clark, 2011 IL 108656, ¶ 119, our supreme court acknowledged some
exceptions to the aforementioned rule, which permit a reviewing court to entertain an
interlocutory order denying a motion for summary judgment. The supreme court first noted it
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had previously recognized an exception “when the parties have filed cross-motions for summary
judgment and one party’s motion is granted and the other party’s denied.” Clark, 2011 IL
108656, ¶ 119 (citing In re Estate of Funk, 221 Ill. 2d 30, 85 (2006)). That exception exists
because the order on the cross-motions disposes of all the issues in the case. Clark, 2011 IL
108656, ¶ 119 (citing Funk, 221 Ill. 2d at 85). Citing DePluzer and La Salle National Bank v.
Malik, 302 Ill. App. 3d 236, 247 (1999), the supreme court next noted “[o]ur appellate court has
similarly concluded that the propriety of the denial may be considered if the case is properly
before a reviewing court from a final judgment and no trial or hearing has been conducted.”
Clark, 2011 IL 108656, ¶ 119. The Clark case involved several interlocutory orders, including a
denial of a summary judgment motion, and culminated with the court dismissing the complaint
with prejudice. Clark, 2011 IL 108656, ¶¶ 15, 18. Our supreme court reviewed the denial of
summary judgment because the circuit court’s order disposed of all issues in the case, the
defendants had properly preserved the issue at each stage of the litigation, and it was in the
interest of judicial economy. Clark, 2011 IL 108656, ¶ 120.
¶ 48 The DePluzer case involved an appeal from the denial of a summary judgment
that was followed by the circuit court granting the plaintiff’s motion to voluntarily dismiss the
same claim at issue in the summary judgment. DePluzer, 265 Ill. App. 3d at 1062. The final
judgment in DePluzer was the voluntary dismissal order. See DePluzer, 265 Ill. App. 3d at 1065
(citing Swisher v. Duffy, 117 Ill. 2d 376, 379 (1987); Dillie, 106 Ill. 2d at 491; Kahle v. John
Deere Co., 104 Ill. 2d 302, 307 (1984)). The supreme court cases cited by the DePluzer court for
that proposition have not been overturned. In La Salle National Bank, 302 Ill. App. 3d at 246-47,
the appellate court addressed the defendants’ cross-appeal from the denial of a summary
judgment on other grounds after it reversed the circuit court’s orders barring the plaintiffs’
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experts from testifying and granting summary judgment in the defendants’ favor. Thus, the
supreme court has recognized different situations in which a denial of a summary judgment
motion can be appealed.
¶ 49 Clark, DePluzer, and La Salle National Bank all involved reviewing denials of
motions for summary judgment that, after review, could still result in an interlocutory order. In
La Salle National Bank, 302 Ill. App. 3d at 248, the reviewing court affirmed the denial of the
summary judgment motion on cross-appeal and remanded for further proceedings. Thus, the
reviewing court’s affirmation of the denial of summary judgment resulted in further proceedings
on the claim. Likewise, in Clark, the supreme court affirmed the judgment of the appellate court
that reversed the circuit court’s dismissal of plaintiffs’ claims for negligent infliction of
emotional distress, affirmed the denial of the summary judgment motion, and remanded for
further proceedings. Clark, 2011 IL 108656, ¶ 125. In DePluzer, 265 Ill. App. 3d at 1069, the
reviewing court reversed the circuit court’s order denying the defendant’s motion for summary
judgment and granting the plaintiff’s motion for voluntary dismissal and remanded the case to
the circuit court to enter summary judgment in the defendant’s favor on the count at issue. Thus,
in that case, the review of the interlocutory denial of summary judgment and subsequent reversal
led to a final judgment on the claim. DePluzer demonstrates why it is important for this court to
have jurisdiction of the denial of the motion for summary judgment when a voluntary motion to
dismiss is entered on the same claim. Accordingly, I disagree with the majority’s focus on
finality.
¶ 50 Moreover, I disagree with the analysis in Resurgence Financial, which stems
from Valdovinos v. Luna-Manalac Medical Center, Ltd., 307 Ill. App. 3d 528 (1999). See
Resurgence Financial, 376 Ill. App. 3d at 62. In support of its finding jurisdiction of an
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interlocutory order only arises if the interlocutory order was a procedural step in granting the
motion for voluntary dismissal, the Valdovinos decision cites Burtell, 76 Ill. 2d at 433, and
Hough v. Kalousek, 279 Ill. App. 3d 855, 863-64 (1996). Valdovinos, 307 Ill. App. 3d at 538.
Both of those cases addressed the sufficiency of the notice of appeal as to orders not specified in
the notice of appeal. See Burtell, 76 Ill. 2d at 432; Hough, 279 Ill. App. 3d at 863. The issue of
what interlocutory orders may be addressed on appeal from a voluntary dismissal is a very
different issue then whether a notice of appeal was sufficient to review an unspecified order. Any
time before a trial or hearing has begun, the plaintiff may voluntarily dismiss without prejudice
his or her cause of action for any reason. See 735 ILCS 5/2-1009(a) (West 2016). The reason is
personal to the plaintiff and does not even have to relate to the case. Thus, the “procedural step”
analysis makes little sense with a voluntary dismissal. The majority attempts to suggest
Resurgence Financial stands for the proposition only final orders can be addressed in an appeal
from a voluntary dismissal, but if that is the case, then there was no need for the “procedural
step” language. Regardless, while the “procedural step” analysis is unworkable, Resurgence
Financial does recognizes an interlocutory order may be appealable from the grant of a voluntary
dismissal.
¶ 51 I recognize Dubina was the last supreme court case to address what other orders
are appealable from the granting of a voluntary dismissal. However, the only issue before the
supreme court was the appealability of a final order. See Dubina, 178 Ill. 2d at 503 (noting the
dismissal orders the appellant sought to appeal were final where the court had dismissed the
claims with prejudice). The supreme court has yet to specifically address the appealability of
interlocutory orders from a voluntary dismissal, but the Dubina decision indicates appellate
review is not limited to just the granting of the voluntary dismissal.
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¶ 52 Last, I note that, of the cases that have dealt with the issue, the language of
DePluzer that the voluntary dismissal “brings before the reviewing court all other orders and
rulings directly associated with that judgment” best addresses the appealablity of a denial of a
summary judgment motion on a defendant’s appeal from the granting of a voluntary dismissal.
DePluzer, 265 Ill. App. 3d at 1065. It prevents a defendant from appealing an interlocutory order
related to a claim that is not part of the voluntary dismissal order but allows a defendant to
appeal a potentially dispositive interlocutory order on the claim that was voluntarily dismissed,
as shown in DePluzer. I emphasize dispositive because appellate court review of an evidentiary
ruling or a section 2-615 motion to dismiss from an appeal of the granting of a voluntary
dismissal would have no impact on any future litigation. However, a denial of a dispositive
motion, such as one for summary judgment, if overturned, would bar future litigation on the
same claim.
¶ 53 Accordingly, I would find we have jurisdiction of the denial of the appellants’
motion for summary judgment under the exception announced in DePluzer and cited by the
supreme court in Clark.
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