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Appellate Court Date: 2018.06.26
10:06:04 -05'00'
Bauman v. Patterson, 2018 IL App (4th) 170169
Appellate Court ABBY BAUMAN and DAVE ANDERSON, Cotrustees of the Fifth
Caption 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. 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.
WAYNE PATTERSON and ANY UNKNOWN OCCUPANTS,
Defendants (Wayne Patterson, Defendant, Counterplaintiff, and
Third-Party Plaintiff-Appellee; Dennis Brooks, Individually,
Third-Party Defendant-Appellant).
District & No. Fourth District
Docket Nos. 4-17-0169, 4-17-0170, 4-17-0190, 4-17-0191 cons.
Filed April 23, 2018
Decision Under Appeal from the Circuit Court of McLean County, Nos. 10-LM-638,
Review 11-LM-9; the Hon. David Butler, Judge, presiding.
Judgment Appeals dismissed.
Counsel on Brian P. Thielen and Barbara Snow Mirdo, of Thielen, Foley & Mirdo,
Appeal LLC, of Bloomington, for appellant Dennis Brooks.
Wayne Patterson, of Normal, appellee pro se.
Panel 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
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
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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.
¶ 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.
¶ 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.
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¶ 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,
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) and (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
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
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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 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.
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).
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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,
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 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
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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 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
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.
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¶ 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.
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 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’s 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.
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¶ 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 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’ 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
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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
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 recognize 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.
¶ 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 appealability 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.
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¶ 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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