Hooning v. Bd. of Trs. of the Univ. of Illinois

• Decision Date: 08 May 2012
• Docket Number: Docket No. 1-11-1531
• Citation: 2012 IL App (1st) 111531
• Parties: ROBERT VAN DER HOONING, Plaintiff-Appellee, v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, AVIJIT GHOSH, LARRY DEBROCK, DAVID IKENBERRY, AND SANDY FRANK, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 111531

ROBERT VAN DER HOONING, Plaintiff-Appellee,

v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, AVIJIT GHOSH, LARRY DEBROCK, DAVID IKENBERRY,AND SANDY FRANK, Defendants-Appellants.

Docket No. 1-11-1531

Appellate Court of Illinois First District, Second Division

Filed May 8, 2012

ILLINOIS OFFICIAL REPORTS

Appellate Court

Held (Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)

In an action alleging violations of the State Officials and Employees Ethics Act, the appellate court did not have jurisdiction to review the trial court's denial of defendants' motion to dismiss on the ground that another action was pending in the Court of Claims between the same parties for the same cause, since the denial of the motion to dismiss was not a final and appealable order and the denial was not appealable under Supreme Court Rule 307, but the trial court did not abuse its discretion in denying defendants' alternative request to stay the proceedings due to the pending action in the Court of Claims, because the action in the Court of Claims was stayed to allow plaintiff to exhaust his remedies in the trial court, and under the circumstances, the denial of the motion to stay was not arbitrary or beyond the bounds of reason.

Decision Under Review

Appeal from the Circuit Court of Cook County, No. 10-L-011858; the Hon. Brigid Mary McGrath, Judge, presiding.

Judgment Affirmed.

Counsel on Appeal

Pugh, Jones & Johnson, P.C., of Chicago (Dennis P.W. Johnson and Jonathan B. Cifonelli, of counsel), and Thomas, Mamer & Haughey, LLP, of Champaign (William J. Brinkmann, of counsel), for appellants.

Miller Shakman & Beem LLP, of Chicago (Michael L. Shakman and Gabriel Bankier Plotkin, of counsel), for appellee.

Panel

JUSTICE HARRIS delivered the judgment of the court, with opinion.

Presiding Justice Quinn and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Robert Van Der Hooning, filed a verified complaint in the circuit court of Cook County against the Board of Trustees of the University of Illinois (Board)¹ , Avijit Ghosh, Larry DeBrock, David Ikenberry, and Sandy Frank alleging violations of the State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/15-5 to 15-40 (West 2010)).² Defendants filed a motion to dismiss pursuant to section 2-619(a)(3) of the Illinois Code of Civil Procedure (Code) alleging that there is another cause of action pending between the same parties for the same cause. 735 ILCS 5/2-619(a)(3) (West 2010). In the alternative, defendants requested a stay of the proceedings. 735 ILCS 5/2-619(a)(3) (West 2010). The circuit court denied defendants' motion to dismiss and their alternative request for a stay pursuant to section 2-619(a)(3) of the Code. 735 ILCS 5/2-619(a)(3) (West 2010).

¶ 2 Defendants raise the following issues on appeal: (1) whether the circuit court abused its discretion when it denied defendants' motion to dismiss pursuant to section 2-619(a)(3) of the Code (735 ILCS 5/2-619(a)(3) (West 2010)); and in the alternative, (2) whether the circuit court erred when it denied defendants' motion to stay pursuant to section 2-619(a)(3)of the Code (735 ILCS 5/2-619(a)(3) (West 2010)).³ We hold that this court does not have jurisdiction to review whether the circuit court erred in denying defendants' motion to dismiss pursuant to section 2-619(a)(3) of the Code (735 ILCS 5/2-619(a)(3) (West 2010)) because it is not a final and appealable order and it does not qualify as an interlocutory appeal as of right under Illinois Supreme Court Rule 307. Ill. S. Ct. R. 307 (eff. Feb. 26, 2010). Additionally, we hold that the circuit court did not abuse its discretion when it denied defendants' alternative request to stay proceedings pursuant to section 2-619(a)(3) of the Code. 735 ILCS 5/2-619(a)(3) (West 2010).

¶ 3 JURISDICTION

¶ 4 On May 3, 2011, the circuit court denied defendants' section 2-619(a)(3) motion to dismiss and their alternative request that plaintiff's case be stayed. 735 ILCS 5/2-619(a)(3) (West 2010). On June 2, 2011, defendants filed their notice of interlocutory appeal pursuant to Illinois Supreme Court Rule 307. Ill. S. Ct. R. 307 (eff. Feb. 26, 2010).

¶ 5 Plaintiff argues this court does not have jurisdiction to review whether the circuit court erred in denying defendants' motion to dismiss pursuant to section 2-619(a)(3) of the Code. 735 ILCS 5/2-619(a)(3) (West 2010). Plaintiff does not contest this court's jurisdiction to hear whether the circuit court erred in denying defendants' alternative request that the matter be stayed pursuant to section 2-619(a)(3) of the Code. 735 ILCS 5/2-619(a)(3) (West 2010). In their reply brief, defendants assert jurisdiction is proper under Rule 307(a). Ill. S. Ct. R. 307 (eff. Feb. 26, 2010).

¶ 6 Unless a supreme court rule or statute provides appellate jurisdiction, this court only has jurisdiction to review appeals from final judgments. State Farm Mutual Automobile Insurance Co. v. Illinois Farmers Insurance Co., 226 Ill. 2d 395, 415 (2007). The circuit court's denial of a motion to dismiss is not a final and appealable order but, rather, is an interlocutory order. Id. ("It is *** well settled in this state that a trial court's denial of a motion to dismiss is an interlocutory order that is not final and appealable."); Pizzato's Inc. v. City of Berwyn, 168 Ill. App. 3d 796, 798 (1988). Rule 307(a), under which defendants brought this appeal, lists specific instances in which an interlocutory appeal is allowed as of right. Ill. S. Ct. R. 307 (eff. Feb. 26, 2010). Rule 307(a), provides in relevant part:

"(a) *** An appeal may be taken to the Appellate Court from an interlocutory order of the court:

(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction;

(2) appointing or refusing to appoint a receiver or sequester;

(3) giving or refusing to give other or further powers or property to a receiver or sequester already appointed;

(4) placing or refusing to place a mortgagee in possession of mortgaged premises;

(5) appointing or refusing to appoint a receiver, liquidator, rehabilitator, or other similar officer for a bank, savings and loan association, currency exchange, insurance company, or other financial institution, or granting or refusing to grant custody of the institution or requiring turnover of any of its assets;

(6) terminating parental rights or granting, denying or revoking temporary commitment in adoption proceedings ***;

(7) determining issues raised in proceedings to exercise the right of eminent domain ***." Ill. S. Ct. R. 307 (eff. Feb. 26, 2010).

¶ 7 In this case, the denial of defendants' motion to dismiss was not a final and appealable order but, rather, an interlocutory order. State Farm Mutual Automobile Insurance Co., 226 Ill. 2d at 415. The denial of defendants' motion to dismiss does not fall under any of the specific Rule 307 instances that would allow an interlocutory appeal as of right. Accordingly, we are without jurisdiction to consider whether the circuit court erred in denying the motion to dismiss pursuant to section 2-619(a)(3) of the Code. 735 ILCS 5/2-619(a)(3) (West 2010).

¶ 8 In contesting plaintiff's challenge to jurisdiction, defendant relies on the Fifth District's decision in Crain v. Lucent Technologies, Inc., 317 Ill. App. 3d 486 (2000). The defendants in Crain, similarly, argued that the circuit court should have dismissed, or in the alternative stayed, proceedings pursuant to section 2-619(a)(3) of the Code because of another action pending between the same parties in federal court. Id. at 495. The panel in Crain affirmed the circuit court's denial of the defendants' motion to stay or to dismiss the cause of action pursuant to section 2-619(a)(3). Id. at 496. We find defendants' reliance on Crain misplaced because the Crain court did not address whether it had jurisdiction to consider a denial of a motion to dismiss. Further, we are not bound by the Fifth District's decision in Crain. See O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008) (under the doctrine of stare decisis, "the opinion of one district, division, or panel of the appellate court is not binding on other districts, divisions, or panels").

¶ 9 Unlike Crain, our own district's decision in Stein v. Krislov, 405 Ill. App. 3d 538 (2010), addresses whether this court had jurisdiction to hear a motion to dismiss. In Stein, this court held that a motion to dismiss brought pursuant to section 2-619 of the Code was not injunctive in nature and Rule 307(a)(1) did not provide jurisdiction. Id. at 539-42; see also Mund v. Brown, 393 Ill. App. 3d 994, 997 (2009) (5th Dist.) ("motions to dismiss are not final and appealable under Rule 307(a)"). Additionally, our supreme court has stated that "a trial court's denial of a motion to dismiss is an interlocutory order that is not final andappealable." State Farm Mutual Automobile Insurance Co., 226 Ill. 2d at 415.

¶ 10 Although we are without jurisdiction to consider defendant's first issue, whether the circuit court erred in denying its motion to dismiss, we do have jurisdiction to consider defendants' remaining issue, whether the circuit court erred in denying defendants' alternative request that the matter be stayed pursuant to section 2-619(a)(3) of the Code. 735 ILCS 5/2-619(a)(3) (West 2010); see Ill. S. Ct. R. 307(a)(1) (eff. Feb. 26, 2010) (which provides, in relevant part, that an appeal may be taken from a circuit court's interlocutory order "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction"); Stein, 405 Ill. App. 3d at 541 ("orders staying or denying the stay of proceedings are reviewable"); Estate of Bass v. Katten, 375 Ill. App. 3d 62, 69-70 (2007) ("it is well settled that the denial of a motion to stay proceedings may be treated as a denial...