Puleo v. McGladrey & Pullen

• Decision Date: 21 August 2000
• Docket Number: No. 1-99-4353, No. 1-99-4477.
• Citation: 249 Ill.Dec. 106,315 Ill. App.3d 1041,735 N.E.2d 710
• Parties: Christina PULEO, Plaintiff-Appellant, v. McGLADREY & PULLEN and Clarence Johnson, Defendants (State Farm Mutual Automobile Insurance Company and Hartford Insurance Company, Intervenor-Appellees).
• Court: United States Appellate Court of Illinois

735 N.E.2d 710

315 Ill. App.3d 1041

249 Ill.Dec. 106

Christina PULEO, Plaintiff-Appellant, v. McGLADREY & PULLEN and Clarence Johnson, Defendants (State Farm Mutual Automobile Insurance Company and Hartford Insurance Company, Intervenor-Appellees).

Nos. 1-99-4353, 1-99-4477.

Appellate Court of Illinois, First District, First Division.

August 21, 2000.

Clifford Law Offices and David A. Novoselsky & Associates, Chicago (Keith A. Hebeisen, David A. Novoselsky, Robert P. Sheridan, of counsel), for Plaintiff-Appellant.

Tressler, Soderstrom, Maloney & Priess, Chicago (Jay H. Tressler, Elaine S. Vorberg, of counsel), for Defendant McGladrey & Pullen.

Keisler & Berman, Chicago (Robert L. Keisler, John J. Piegore, Shannon F. O'Shea, Donald E. Elder, of counsel), for Intervenor-Appellee Hartford Insurance Company.

Justice GALLAGHER delivered the opinion of the court:

This appeal is a consolidation of plaintiff Christina Puleo's two separate appeals, one pursuant to Illinois Supreme Court Rule 307 (155 Ill.2d R. 307) and the other pursuant to Illinois Supreme Court Rules 301 and 303 (155 Ill.2d Rs. 301, 303), from an order entered by the trial court on November 30, 1999, requiring her to deposit funds in the sums of $1,003,806.45 and $510,652.60 with the clerk of the circuit court of Cook County. These amounts had been paid to plaintiff in partial satisfaction of a judgment in her underlying personal injury suit against defendants, McGladrey & Pullen and Clarence Johnson. Hartford Insurance Company (Hartford) tendered $1,003.806.45 on behalf of McGladrey & Pullen, its insured. State Farm Insurance Company (State Farm) tendered $510, 652.60 on behalf of Clarence Johnson, its insured. Subsequently, this court reversed the judgment in plaintiff's personal injury suit and remanded the case for a retrial on damages only. Hartford and State Farm then filed petitions for leave to intervene in the underlying suit in order to file motions for restitution of the funds they had paid. Over objection, that intervention was granted. After a hearing on the merits of the motion for restitution of funds brought by Hartford and joined by State Farm, the trial court denied the motion to the extent it sought return of the funds directly to Hartford and State Farm (the intervenors), but granted the alternative relief requested by intervenors, ordering the plaintiff to deposit the funds with the court to be placed in an interest-bearing account subject to the redetermination of damages owed to plaintiff.

Plaintiff now appeals from that order of the trial court. With respect to this court's jurisdiction, she argues two positions. One appeal is based upon Illinois Supreme Court Rule 307 governing certain nonfinal orders. The other is based upon Illinois Supreme Court Rule 301 governing final orders. The intervenors agree with plaintiffs position that this court has jurisdiction pursuant to Rule 307, but disagree with her position regarding jurisdiction under Rule 301. Finally, McGladrey & Pullen, defendant in the case below, although not a direct party to this appeal, has filed a motion to dismiss the appeal. We took that motion with this case. In its motion, defendant contends that the order below was final and this court lacks jurisdiction because the trial court refused to grant the necessary language required under Illinois Supreme Court Rule 304 (155 Ill.2d 304), which governs appeals of final orders entered in multiparty actions. We agree with defendant. For the reasons stated below, we dismiss the appeal for lack of jurisdiction.

Appellate jurisdiction is restricted to reviewing final judgments unless the order to be reviewed comes within one of the exceptions for interlocutory orders specified by our supreme court. Board of Trustees of Community College District No. 508 v. Rosewell, 262 Ill.App.3d 938, 950, 200 Ill.Dec. 74, 635 N.E.2d 413, 424 (1992). A judgment or order is considered final if it "disposes of the rights of the parties either upon the entire controversy or upon some definite and separate part thereof." In re Estate of French, 166 Ill.2d 95, 101, 209 Ill.Dec. 677, 651 N.E.2d 1125, 1128 (1995); see also Tyler v. Tyler, 230 Ill.App.3d 1009, 1011, 172 Ill.Dec. 840, 596 N.E.2d 119 (1992). A final judgment has also been defined as one which "decides the controversy between the parties on the merits and fixes their rights, so that, if the judgment is affirmed, nothing remains for the trial court to do but to proceed with its execution." In re J.N., 91 Ill.2d 122, 127, 61 Ill.Dec. 776, 435 N.E.2d 473 (1982). In addition, this court has defined a claim as "`any right, liability or matter raised in an action. [Citation.]'" In re Estate of French, 166 Ill.2d at 101, 209 Ill.Dec. 677, 651 N.E.2d at 1128. We first consider whether the order being appealed here is final or nonfinal.

In determining whether the order in the instant case was final, we believe it helpful to consider the particular nature of the order here. One of the positions advanced by the parties is that the order directing plaintiff to tender funds to the court constitutes an injunction. The Illinois Supreme Court has defined an injunction as follows:

"`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, 130 Ill.Dec. 225, 537 N.E.2d 292 (1989), quoting Wangelin v. Goe, 50 Ill. 459, 463, 1869 WL 5252 (1869).

We believe that this definition applies here and conclude that the order was an injunction.

Plaintiff and the intervenors contend that, because the order below was an injunction, this court has jurisdiction over this pursuant to Rule 307(a)(1), which provides that an appeal may be taken to the appellate court from an interlocutory order "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." 155 Ill.2d R. 307(a)(1). This rule, however, is applicable only to either preliminary injunctions or temporary restraining orders which are granted to preserve the status quo pending a decision on the merits and conclude no rights. Such orders are limited in duration and in no case extend beyond the conclusion of the action. Steel City Bank v. Village of Orland Hills, 224 Ill.App.3d 412, 416, 166 Ill.Dec. 667, 586 N.E.2d 625, 628 (1991). Orders which are not limited in duration and which alter the status quo are permanent in nature and, therefore, constitute final orders for purposes of appeal. Davis v. Human Rights Comm'n, 286 Ill.App.3d 508, 515, 221 Ill.Dec. 794, 676 N.E.2d 315, 320 (1997); Steel City Bank v. Village of Orland Hills, 224 Ill.App.3d at 417, 166 Ill. Dec. 667, 586 N.E.2d at 628. The status quo is defined as "`the last actual, peaceable, uncontested status which [preceded] the pending controversy.' [Citation.]" Steel City Bank v. Village of Orland Hills, 224 Ill.App.3d at 417, 166 Ill.Dec. 667, 586 N.E.2d at 629.

Regardless of whether the "pending controversy" originated when this court ordered a retrial on damages, when the trial court granted the motion to intervene, or when the trial court entered its order requiring the deposit of funds, "the last peaceable uncontested status" before the controversy would show plaintiff in possession of the funds. Whether plaintiff here was entitled to retain the funds given to her by the intervenors, in view of our prior decision ordering a retrial on damages, is not before us. Rather, the legal propriety of the status quo relates to the merits of the instant appeal. We believe that the order, which affirmatively required plaintiff to tender the funds to the court, altered, rather than preserved, the status quo. See, e.g., Rock Island Bank v. Paul, 48 Ill.App.3d 874, 879, 6 Ill.Dec. 180, 362 N.E.2d 815, 819 (1977) (where, at the time an injunction issued that prevented both party and her bank from transferring funds in her account, the last actual, peaceable, uncontested status which preceded the controversy would show that the party had $25,000 in an account at the bank in her name and, as such, the injunction actually changed the status quo rather than preserved it). By its order, the trial court already addressed the merits of the intervenor's motion for restitution, granting alternative relief and denying the direct return of the funds to the intervenor. Because the order altered the status quo, it was a permanent injunction and not within those orders that are appealable as of right under Rule 307(a)(1).

Moreover, the order was final because it "disposes of the rights of the parties * * * upon some definite and separate part [of the controversy]" (In re Estate of French, 166 Ill.2d at 101, 209 Ill.Dec. 677, 651 N.E.2d at 1128) by completely disposing of the intervenors' claim so that nothing further need be done apart from executing the order by securing deposit of the funds. See In re J.N., 91 Ill.2d 122, 127, 61 Ill.Dec. 776, 435 N.E.2d 473 (1982). Thus, because the order is a final order, if appellate jurisdiction exists here, it must be pursuant to Illinois Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)), which states in pertinent part:

"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on motion of any party." (Emphasis added.) 155 Ill.2d R. 304(a).

Under Illinois law, an intervenor has all the rights of an original party. 735 ILCS 5/2-408(f) (West 1998). At the point in time when the trial court granted the intervenors'...