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Four recent cases highlight the importance of obtaining finality before appealing 

8/22/24

By: Donald Patrick Eckler and Joshua W. Zhao

The Illinois Appellate Court recently ruled on a series of cases considering whether an appellate court has jurisdiction to hear an appeal on a purportedly final judgment without a finding under Illinois Supreme Court Rule 304(a) being issued.  

In the Fifth District, the court held in Dillon v. Christie Clinic, LLC, 2024 IL App (5th) 230270-U and Doenitz v. Anderson, 2024 IL App (5th) 231225-U that while a request for attorney fees remains pending in the trial court, an appeal from an otherwise final judgment cannot be taken absent a Rule 304(a) finding. In both Dillon and Doenitz, one of the parties alleged that the opposing party had made an improper filing or a filing without legal justification. The moving party requested attorney’s fees subject to Illinois Supreme Court Rule 137. However, in both cases, the appeal was filed prior to a trial court’s order on the attorney’s fees. The court held that requests for sanctions under Illinois Supreme Court Rule 137 constitute claims within the underlying action. As a result, an appeal cannot be filed until the trial court has disposed of all requests for sanctions. In Doenitz, the court specifically outlined that a 304(a) finding must be “an express written finding” and that without this written finding, an appeal cannot be granted. Further, an appeal of attorney’s fees does not constitute an interlocutory appeal. As a result, in both Dillon and Doenitz, the appellate court dismissed the appeals for lack of appellate jurisdiction. 

In the First District, in Goldberg v. Goodman, 2024 IL App (1st) 230023-U, the Illinois Appellate Court held that a voluntary dismissal without prejudice is not a final order until the right to refile expires under 735 ILCS 5/13-217. Absent a 304(a) finding, an appeal cannot be filed prior to the refiling deadline for a voluntary dismissal. In Goldberg, the appellant filed a notice of appeal on January 5, 2023 even though the appellee had until January 13, 2023 to refile its complaint in the trial court. As a result, the appeal was premature as to a motion to reconsider summary judgment as a voluntary dismissal is not a final order until the time to refile expires. The court held that it lacked jurisdiction to consider the appeal as the appellant did not file a new or amended notice of appeal after the time to refile had expired. 

Also in the First District, in Tag Holding, LLC v. Rizza, 2024 IL App (1st) 241078-U, the Illinois Appellate Court held that a permanent injunction is not appealable as an interlocutory order under Illinois Supreme Rule 307(a)(1). The court held that the trial court entered a permanent injunction when it ordered specific performance, in this case, the sale of real estate. Illinois Supreme Court Rule 341(h)(4) requires a statement of jurisdiction with an appeal that specifically states what rule confers jurisdiction upon the appellate court. Since the appellant failed to state that it was appealing under any other Illinois Supreme Court Rule and failed to state a rule that could have been applied, the appeal must be denied, as the appeal was not interlocutory and Rule 307(a)(1) was not the correct mechanism for appeal. 

The holdings of these cases demonstrate the importance of ensuring that 304(a) language is incorporated into a court’s order when a final judgment has not yet been issued so that an order is appealable when not all issues have been resolved in the trial court. Further, these cases also demonstrate the importance of knowing the correct procedure for conferring jurisdiction upon the appellate court for hearing the appeal to ensure that the appeal is not dismissed upon procedural grounds. 

Please contact Donald Patrick Eckler at patrick.eckler@fmglaw.com or Joshua W. Zhao at josh.zhao@fmglaw.com, appellate lawyers in Freeman, Mathis & Gary, LLP’s Chicago office, if you need assistance with a civil appeal.