Bauman v. Patterson

• Decision Date: 23 April 2018
• Docket Number: NOS. 4–17–0169,4–17–0191 cons.,4–17–0190,4–17–0170,S. 4–17–0169
• Citation: 101 N.E.3d 795,2018 IL App (4th) 170169
• Parties: 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 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).
• Court: United States Appellate Court of Illinois

2018 IL App (4th) 170169

101 N.E.3d 795

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 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).

NOS. 4–17–0169

4–17–0170

4–17–0190

4–17–0191 cons.

Appellate Court of Illinois, Fourth District.

FILED April 23, 2018

Brian P. Thielen and Barbara Snow Mirdo, of Thielen, Foley & Mirdo, LLC, of Bloomington, for appellant Dennis Brooks.

Wayne Patterson, of Normal, appellee pro se.

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with 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 5/21005(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.

¶ 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, 288 Ill.Dec. 765, 818 N.E.2d 453 (2004) ; Dennett v. Kuenzli , 130 Idaho 21, 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.

¶ 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), (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, 83 Ill.Dec. 332, 470 N.E.2d 290 (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, 321 Ill.Dec. 306, 889 N.E.2d 210 (2008), and Dubina v. Mesirow Realty Development, Inc. , 178 Ill. 2d 496, 503–04, 227 Ill.Dec. 389, 687 N.E.2d 871 (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.

¶ 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, 321 Ill.Dec. 306, 889 N.E.2d 210....