Deerfield Management Co. v. Ohio Farmers Ins. Co.

• Decision Date: 01 September 1988
• Docket Number: No. 2-87-0709,2-87-0709
• Citation: 124 Ill.Dec. 423,174 Ill.App.3d 837,529 N.E.2d 243
• Parties: , 124 Ill.Dec. 423 DEERFIELD MANAGEMENT COMPANY et al., Plaintiffs and Couterdefendants-Appellants, v. OHIO FARMERS INSURANCE COMPANY, Defendant and Counterplaintiff-Appellee (Georgia Diamantopulos, Indiv. and d/b/a Georgia's Fashions, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

Page 243

529 N.E.2d 243

174 Ill.App.3d 837, 124 Ill.Dec. 423

DEERFIELD MANAGEMENT COMPANY et al., Plaintiffs and Couterdefendants-Appellants, v. OHIO FARMERS INSURANCE COMPANY, Defendant and Counterplaintiff-Appellee (Georgia Diamantopulos Indiv. and d/b/a Georgia's Fashions Defendants-Appellees).

No. 2-87-0709.

Appellate Court of Illinois,

Second District.

Sept. 1, 1988.

Rehearing Denied Oct. 21, 1988.

Louis W. Brydges, Sr., Leslie A. Peterson, Brydges, Riseborough, Morris, Franke & Miller, Waukegan, for Deerfield Management Co. d/b/a Unigard Security Ins. Co. and Karcher Hotel.

Shaun McParland, Jean E. Faulhaber, Michael W. Morrison, Tressler, Soderstrom, Maloney & Priess, Chicago, for Ohio Farmers Ins. Co., Verna Allen and Georgia Diamantopulos, Indiv. and d/b/a Georgia's Fashions Cleaners.

James Bartlett, Orner & Wasserman, Ltd., Chicago, for Allstate Ins. Co., Thomas R. Douglas, Adm. Est., Frank C. Marshall, Deceased, Dennis Ehrhardt, Spec. Adm. Est., Gustave Emil Ehrhardt, Deceased, David McDermott, Spec. Adm. Est., John McDermott, Deceased, Arabella Link, Frank G. Thomas, Gary M. Thomas, Co-Execs.Est., Helen J.M. Thomas, Deceased, Judy Zamost, Spec. Adm. Est., Seymour Wagner, Deceased, Harold L. Wright, Executor Est., and Magdalen Deck, Deceased.

Presiding Justice LINDBERG delivered the opinion of the court:

Plaintiffs-counterdefendants, Deerfield Management Company, Inc. (Deerfield), d/b/a Karcher Hotel, and Unigard Security Insurance Company (Unigard), appeal from an order of the circuit court of Lake County. The order appealed from denied plaintiffs' motion for summary judgment on their complaint for declaratory judgment and granted defendant-counterplaintiff Ohio Farmers Insurance Company's (Ohio's) motion for summary judgment on its counterclaim for declaratory judgment. We affirm in part and dismiss in part.

Prior to deciding the merits of an appeal an appellate court has the duty to determine whether the appeal has been properly taken so as to invoke its jurisdiction, even though that issue is not raised by a party. (Mar Cement, Inc. v. Diorio Builders, Inc. (1987), 153 Ill.App.3d 798, 800, 106 Ill.Dec. 674, 676, 506 N.E.2d 381, 383.) Thus, while neither party has raised the issue, we will first consider whether we have jurisdiction to decide this appeal.

As relevant to our jurisdiction, the order appealed from provides:

"This cause having come on for hearing on the motion of [Deerfield and Unigard] for Summary Judgment on their Complaint for Declaratory Judgment and for hearing on the motion of [Ohio] for Summary Judgment on its Counterclaim for Declaratory Judgment, the parties having received notice, and the Court having heard oral argument, it is hereby ordered:

1) The motion of [Deerfield and Unigard] for Summary Judgment on the Complaint for Declaratory Judgment is denied;

2) The motion of [Ohio] for Summary Judgment on the Counterclaim for Declatory [sic ] Judgment is granted in favor of [Ohio] and against [Deerfield and Unigard].

* * *

* * *

4) This Court finds no just reason to delay enforcement or appeal of this Order."

Although contained in a single written document, it is readily apparent that the trial court was disposing of two separate motions going to two different claims. First, there was the motion for summary judgment on the complaint, which was denied. Second, there was the motion for summary judgment on the counterclaim, which was granted. At this point, the jurisdictional question is obvious.

This court, subject to exceptions for appeals from interlocutory orders specified in our supreme court's rules, is without jurisdiction to review judgments, orders, or decrees which are not final. (Flores v. Dugan (1982), 91 Ill.2d 108, 112, 61 Ill.Dec. 783, 784-85, 435 N.E.2d 480, 481-82. See also Ill. Const. 1970, art. VI, § 6; 107 Ill.2d Rules 301, 303, 304, 306 through 308.) Since none of the rules permitting interlocutory appeals applies in the case at bar (107 Ill.2d Rules 306 through 308), this appeal must be from a final judgment for this court to have jurisdiction.

The jurisdictional problem stems from the denial of plaintiffs' motion for summary judgment on their complaint for a declaratory judgment. Our supreme court has said:

"A final judgment has been defined as 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. [Citations.] We have also stated on many occasions that a judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. [Citations.]" (Flores v. Dugan (1982), 91 Ill.2d 108, 112, 61 Ill.Dec. 783, 785, 435 N.E.2d 480, 482.)

An order denying a summary judgment does not terminate the litigation and so is not a final judgment. (See, e.g., La Salle National Bank v. Little Bill "33" Flavors Stores, Inc. (1967), 80 Ill.App.2d 298, 225 N.E.2d 465; Home Indemnity Co. v. Reynolds & Co. (1962), 38 Ill.App.2d 358, 366, 187 N.E.2d 274, 278; Jeske v. Leoris (1961), 31 Ill.App.2d 231, 175 N.E.2d 672.) Moreover, the trial court's finding that there was "no just reason to delay enforcement or appeal" did not make the interlocutory order denying summary judgment a final judgment. In re Marriage of Lentz (1980), 79 Ill.2d 400, 408, 38 Ill.Dec. 582, 585, 403 N.E.2d 1036, 1039; Davis v. Childers (1965), 33 Ill.2d 297, 300-01, 211 N.E.2d 364, 367; O'Donnell v. Sears, Roebuck & Co. (1979), 71 Ill.App.3d 1, 6, 27 Ill.Dec. 110, 115, 388 N.E.2d 1073, 1078; 107 Ill.2d R. 304(a).

There are some cases in which the denial of a summary judgment is reviewable. However, those are cases on appeal from a final judgment on the claim on which summary judgment was denied.

The general rule is "that if a motion for summary judgment is improperly denied the error is not reversible for the result becomes merged in the subsequent trial." (Home Indemnity Co. v. Reynolds & Co. (1962), 38 Ill.App.2d 358, 367, 187 N.E.2d 274, 278.) However, an appellate court may review:

"[T]he denial of a motion for summary judgment where the case is on appeal * * * from a final judgment and there has been no evidentiary hearing or trial, and the party seeking such review has not in any way prevented or avoided such hearing or trial." (Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill.App.3d 1031, 1034, 402 N.E.2d 352, 355.)

(See also International Association of Machinists & Aerospace Workers, District Lodge No. 140 v. Cheshire/A Xerox Co. (1984), 125 Ill.App.3d 350, 352, 80 Ill.Dec. 635, 637, 465 N.E.2d 981, 983; Novak v. Insurance Administration Unlimited, Inc. (1980), 91 Ill.App.3d 148, 152, 46 Ill.Dec. 536, 539-40, 414 N.E.2d 258, 261-62.) Similarly, where a trial court ruled on cross-motions for summary judgment, denying the plaintiff's and granting the defendant's, the Illinois Supreme Court held:

"[W]hen, as in this case, the trial court granted defendant's summary judgment motion as well as denying plaintiff's motion [for summary judgment], the resulting order became final because it entirely disposed of the litigation. The cause was thus appealable in its entirety. Therefore it was not improper for the appellate court to reverse the denial of plaintiff's motion [for summary judgment]." (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill.2d 482, 494, 106 Ill.Dec. 8, 14, 505 N.E.2d 314, 320.)

The denial of summary judgment at bar is not appealable under these principles.

What makes the case at bar different, and the denial of summary judgment nonappealable, is that there has been no final judgment on the claim for which summary judgment was denied. There were motions for summary judgment by plaintiffs on the one hand and defendant Ohio on the other, but these motions were directed at two different claims.

Plaintiffs sought summary judgment on their complaint, which was based upon an insurance policy issued by Ohio and sought a declaration:

"1. That [Deerfield] is a named insured under the [insurance policy issued by Ohio].

2. That [Ohio] is obligated to defend and indemnify Deerfield * * * with respect to any claims brought against Deerfield arising out of the fire of December 25, 1984 and pay all cost [sic ] and attorneys fees incurred by [Deerfield].

3. For such other and further relief as this court deems just and equitable."

Ohio sought summary judgment on its counterclaim, which was based upon an insurance policy issued by Unigard and sought a declaration:

"1. That [Unigard] is obligated to defend and indemnify [Deerfield] with respect to any claims brought against [Deerfield] arising out of the fire of December 25, 1984 and to pay all costs and attorney's fees incurred by [Deerfield].

2. That [Ohio] has no duty to indemnify any party to this cause until and unless the limits of the primary policy are exhausted.

3. That [Ohio] has no duty to defend [Deerfield] with respect to any claims brought against [Deerfield] arising out of the fire of December 25, 1984; has no duty to pay any costs associated with such a defense; and has no duty to pay any attorney's fees associated with such a defense."

There are obviously different claims at issue in the complaint and the counterclaim.

Although there has been a final judgment as to the counterclaim (see, e.g., Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill.2d 482, 494, 106 Ill.Dec. 8, 12, 505 N.E.2d 314, 320; Bloom v. Landy (1979), 72 Ill.App.3d 383, 398-99, 27 Ill.Dec. 878, 890, 389 N.E.2d 1286, 1298), there has been no final judgment as to the complaint. This court therefore lacks jurisdiction to review the denial of plaintiffs' motion for summary judgment on their complaint for a declaratory judgment. (See City of Chicago ex rel. Charles Equipment Co. v. United States Fidelity & Guaranty Co. (1986), 142 Ill.App.3d 621, 629, 96 Ill.Dec. 809, 814-15, 491 N.E.2d...