Dubina v. Mesirow Realty Development, Inc.

• Decision Date: 18 September 1997
• Docket Number: No. 81860,81860
• Citation: 687 N.E.2d 871,178 Ill.2d 496,227 Ill.Dec. 389
• Parties: , 227 Ill.Dec. 389 Michael DUBINA et al. v. MESIROW REALTY DEVELOPMENT, INC., et al. (Mesirow Realty Development, Inc., et al., Appellees; Litgen Concrete Cutting & Coring Company, Appellant).
• Court: Illinois Supreme Court

Page 871

687 N.E.2d 871

178 Ill.2d 496, 227 Ill.Dec. 389

Michael DUBINA et al. v. MESIROW REALTY DEVELOPMENT, INC., et al. (Mesirow Realty Development, Inc., et al., Appellees; Litgen Concrete Cutting & Coring Company, Appellant).

No. 81860.

Supreme Court of Illinois.

Sept. 18, 1997.

Rehearing Denied Dec. 1, 1997.

[178 Ill.2d 498] [227 Ill.Dec. 390] Nancy J. Arnold, Kralovec & Marquard, Chartered, Chicago, for Litgen Concrete Cutting & Coring Company.

Robert Marc Chemers, Scott L. Howie, Pretzel & Stouffer, Chartered, Chicago, for CCL of Chicago and Creative Construction, Ltd.

Stephen T. Mikus, Menges, Mikus & Molzahn, Chicago, for Mesirow Realty Development, Mesirow Realty Management, American National Bank & Trust Co. of Chicago, Superior Street Redevelopment Limited Partnership, Fireman's Fund Insurance Companies.

Stephen A. Rehfeldt, Wylie, Mulherin, Rehfeldt & Varchetto, P.C., Wheaton, for K&S Automatic Sprinklers, Inc.

Michael W. Rathsack, Chicago, for Amicus Curiae Illinois Appellate Lawyers Association.

Justice NICKELS delivered the opinion of the court:

The issue presented in this appeal is whether defendant Litgen Concrete Cutting & Coring Company (Litgen) may appeal certain final orders entered in a suit that was voluntarily dismissed where the action was later refiled in the circuit court. The appellate court held that, because the suit was refiled by plaintiffs, it lost jurisdiction to entertain Litgen's appeal. 283 Ill.App.3d 36, 218 Ill.Dec. 551, 669 N.E.2d 694. This court allowed Litgen's petition for leave to appeal (155 Ill.2d R. 315), and the Illinois Appellate Lawyers Association filed a brief as amicus curiae in support of Litgen. We reverse and

[227 Ill.Dec. 391] remand to the appellate court for further proceedings consistent with this opinion.

BACKGROUND

Plaintiffs brought numerous separate actions in the circuit court of Cook County. These separate suits were later consolidated by the circuit court. In these suits, plaintiffs sought to recover damages for fire losses incurred on April 15, 1989, when a Chicago building, housing multiple art galleries, was damaged by fire. Most plaintiffs were either artists or art gallery owners, and the property damage claims related generally to works of art damaged or destroyed by the fire. At the time of the fire, the building was under renovation.

Most complaints involved the same group of defendants. These defendants included: the owners and managers of the building, the general contractors retained to perform renovation work on the building, and the subcontractors involved in that renovation work. In general, each defendant was alleged to have been negligent in either causing the fire or contributing to the spread of the fire. Each defendant filed an answer in the circuit court denying liability. Most, if not all, defendants also filed third-party claims for contribution against the other defendants.

Before trial, plaintiffs collectively settled their suits with all defendants, except defendant Litgen. The multiple settlement agreements provided that plaintiffs would release their claims against all defendants, except Litgen. ¹ They further provided that plaintiffs would assign their direct claims against Litgen to some of the settling defendants. Pursuant to the settlement agreements, plaintiffs assigned their claims against Litgen to Mesirow Realty Development and certain other settling defendants (the Mesirow parties). Based on this assignment, the Mesirow parties, not plaintiffs, are now the real parties in interest with respect to the claims against Litgen.

In separate orders, on June 14, 1994, July 19, 1994, and July 26, 1994, the circuit court found that the settlement agreements were made in good faith, as required by the Joint Tortfeasor Contribution Act. 740 ILCS 100/2 (West 1992). Based on these good-faith findings, the circuit court dismissed the contribution claims between Litgen and the settling defendants with prejudice. 740 ILCS 100/2 (West 1992). Plaintiffs' direct claims against Litgen remained pending in the circuit court. After the entry of the good-faith settlement orders, plaintiffs filed a motion to voluntarily dismiss their direct claims against Litgen, and these claims were dismissed without prejudice. The circuit court then dismissed the remaining claims pending in the circuit court.

After the voluntary dismissal, Litgen appealed to the appellate court. Litgen appealed the orders finding the settlements to have been made in good faith and dismissing its contribution claims. While the appeal was still pending, plaintiffs filed a new action against Litgen in the circuit court, as permitted by statute. See 735 ILCS 5/13-217 (West 1992). ² Based on this refiling, the Mesirow parties filed a motion in the appellate court to dismiss Litgen's appeal for lack of subject matter jurisdiction.

The appellate court held that it lacked jurisdiction to consider Litgen's appeal. The court stated that, although it initially had jurisdiction over Litgen's appeal, it was divested of jurisdiction by the refiling. Because of the refiling, the dismissal and good-faith orders were transformed from final orders

[227 Ill.Dec. 392] into nonfinal ones. The appellate court also found that, although the contribution claims were dismissed with prejudice, Litgen would not be barred by res judicata from filing its contribution claims in the second action. The court therefore found that Litgen would not be prejudiced by waiting for the conclusion of the second action before being allowed to appeal.

ANALYSIS

Initially, we note that Litgen does not seek to appeal the order of voluntary dismissal itself. Instead, Litgen seeks to appeal the orders finding that the settlements were made in good faith and dismissing Litgen's contribution claims with prejudice. ³ Litgen argues that these were final orders because they disposed of Litgen's third-party claims. According to Litgen, once the case was voluntarily dismissed, these orders became appealable. Litgen further argues that plaintiffs' refiling of the action against Litgen did not alter this final and appealable status and that the appellate court therefore had jurisdiction to consider the merits of the appeal.

Resolution of this appeal requires consideration of Supreme Court Rules 301 and 304 (155 Ill.2d Rs. 301, 304). Rule 301 allows appeals from final judgments as a matter of right. See also Ill. Const.1970, art. VI, § 6. A judgment or order is "final" if it disposes of the rights of the parties, either on the entire case or on some definite and separate part of the controversy. Village of Niles v. Szczesny, 13 Ill.2d 45, 48, 147 N.E.2d 371 (1958); see Waters v. Reingold, 278 Ill.App.3d 647, 651, 215 Ill.Dec. 376, 663 N.E.2d 126 (1996); Citicorp Savings v. First Chicago Trust Co., 269 Ill.App.3d 293, 296-97, 206 Ill.Dec. 786, 645 N.E.2d 1038 (1995). A dismissal with prejudice is usually considered a final judgment, including the dismissal of claims in a complaint (J. Eck & Son, Inc. v. Reuben H. Donnelley Corp., 188 Ill.App.3d 1090, 136 Ill.Dec. 646, 545 N.E.2d 170 (1989)) or third-party action (Geier v. Hamer Enterprises, Inc., 226 Ill.App.3d 372, 379-81, 168 Ill.Dec. 311, 589 N.E.2d 711 (1992)).

The dismissal of a claim with prejudice, however, is not always immediately appealable. Supreme Court Rule 304(a) provides:

"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. * * * In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." 155 Ill.2d R. 304(a).

Without a Rule 304(a) finding, a final order disposing of fewer than all of the claims in an action is not instantly appealable. Such an order does not become appealable until all of the claims in the multiclaim litigation have been resolved. Once the entire action is terminated, all final orders become appealable under Rule 301. Marsh v. Evangelical Covenant Church, 138 Ill.2d 458, 464, 150 Ill.Dec. 572, 563 N.E.2d 459 (1990); see Ratkovich v. Hamilton, 267 Ill.App.3d 908, 912, 204 Ill.Dec. 933, 642 N.E.2d 834 (1994).

In the instant case, the circuit court entered good-faith findings and, accordingly, dismissed Litgen's contribution claims with prejudice. These dismissal orders were "final" orders because they terminated Litgen's third-party claims. The circuit court did not enter a Rule 304(a) finding. Because other claims were still pending at the time of the dismissal, these final orders were not immediately appealable.

Later, plaintiffs voluntarily dismissed the action, as permitted by statute. See 735 ILCS 5/2-1009 (West 1992). The voluntary dismissal terminated the action in its entirety. All pending claims were dismissed. The order of voluntary dismissal, because it disposed Nevertheless, the appellate court held that it lacked jurisdiction to consider Litgen's appeal because, while the appeal was pending, the action had been refiled in the circuit court. The appellate court relied heavily on Kleiman v. Northwestern Memorial Hospital, 253 Ill.App.3d 47, 192 Ill.Dec. 324, 625 N.E.2d 284 (1993). In Kleiman, the plaintiffs were the ones who sought to appeal a final order after taking a voluntary dismissal. The Kleiman court stated that the plaintiffs' refiling of the action, while the appeal was pending, transformed final orders into nonfinal ones and that it therefore had no jurisdiction. The Kleiman court further stated that to hold otherwise would allow litigants to take...