Lurz v. Panek

• Decision Date: 11 February 1988
• Docket Number: No. 2-86-0429,2-86-0429
• Citation: 116 Ill.Dec. 895,519 N.E.2d 1110,166 Ill.App.3d 179
• Parties: , 116 Ill.Dec. 895 Donald LURZ, Plaintiff-Appellee and Cross-Appellant, v. Lawrence PANEK et al., Defendants-Appellants and Cross-Appellees (American National Bank and Trust Company of Chicago, et al., Defendants and Cross-Appellees).
• Court: United States Appellate Court of Illinois

Page 1110

519 N.E.2d 1110

166 Ill.App.3d 179, 116 Ill.Dec. 895

Donald LURZ, Plaintiff-Appellee and Cross-Appellant, v. Lawrence PANEK et al., Defendants-Appellants and Cross-Appellees (American National Bank and Trust Company of Chicago, et al., Defendants and Cross-Appellees).

No. 2-86-0429.

Appellate Court of Illinois Second District.

Feb. 11, 1988.

John B. Kincaid, argued, Mirabella & Kincaid, Wheaton, for Lawrence R. panek.

James I. Marcus, Michael Fries, argued, Williams & Marcus, Ltd., Chicago, for American Nat. Bank & Trust Co. of Chicago.

Jerold S. Solovy, Patrick J. Phillips, Darryl L. DePriest, argued, Jenner & Block, Chicago, for CMC Real Estate Corp.

Linda S. Puvogel, Sr. Atty. Law Dept. Continental Bank, Chicago, for Continental Illinois Nat. Bank & Trust.

Thomas F. Meyer, Asst. Trial Atty. CMSTP & Pac. R.R. Co., Chicago, for Milwaukee Road, Inc.

Norman H. Lehrer, argued, Lehrer, Flaherty & Canavan, Wheaton, for Donald Lurz.

Justice DUNN delivered the opinion of the court:

Defendant, attorney Lawrence Panek, appeals from several orders entered in favor of plaintiff, Donald Lurz. Lurz cross-appeals from an order entering summary judgment in favor of Panek on a count based on the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill.Rev.Stat.1985, ch. 121 1/2, par. 261 et seq.), from an order vacating a portion of the damage award, and from the section of the final order which granted setoff rights to Panek, the American National Bank and Trust Company of Chicago (American), and the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (Railroad). In his notice of appeal and brief, Panek contends this court is without jurisdiction to consider his appeal. We agree and therefore dismiss the appeal and the cross-appeal.

Plaintiff's original complaint charged Panek and attorney Joseph Lascaro with fraud, breach of fiduciary duty, and conversion. Amended complaints added a count against Panek and Lascaro under the Consumer Fraud Act and counts against American, the Continental Bank, and the Railroad for conversion. The claims stemmed from misconduct surrounding the disbursement of a judgment draft obtained in favor of Lurz in an underlying personal injury suit against the Railroad.

During the course of the proceedings, plaintiff's difficulties in serving Lascaro resulted in a series of voluntary dismissals and reinstatements of Lascaro. Meanwhile, the court granted plaintiff summary judgment on the fraud, breach of fiduciary duty, and conversion claims, awarded damages on the conversion claim, and granted defendant summary judgment on the consumer fraud claim. In addition, a jury trial on the remaining damage claims was completed, and many of the claims and counterclaims involving the banks and the Railroad were resolved. Plaintiff then moved for an order severing Lascaro and a finding that the cause against Panek was final and appealable. A hearing on the motion was held, although a transcript of the report of proceedings was not included in the record on appeal. The order entered following the hearing stated that "Lascaro is severed from this cause." The final order makes no mention of enforcement or appealability. An accompanying opinion letter included the following statement: "It is my understanding that the severance of Mr. Lascaro allows this to be a final and appealable Order so that these issues maybe [sic ] brought before the Appellate Court if that is your desire."

In determining whether we have jurisdiction to entertain appeals from judgments that do not dispose of the entire proceedings, the starting point is Supreme Court Rule 304(a), which provides 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 enforcement or appeal. * * * 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." (107 Ill.2d R. 304(a).)

The purpose of Rule 304(a) is "to prevent piecemeal appeals and the uncertainty which exists when a final judgment is entered on less than all the matters in controversy." Hamer v. Lentz (1987), 155 Ill.App.3d 692, 695, 108 Ill.Dec. 163, 508 N.E.2d 324.

In the present case, compliance with Rule 304(a) turns on whether the aforementioned statement in the court's letter of opinion represents "a written finding that there is no just reason for delaying enforcement or appeal." (107 Ill.2d R. 304(a).) Recent case law confirms our conclusion that it does not. In Hamer, the court determined the trial court's statement that the order was "final and appealable" did not satisfy the finding required because "final" did not equate with "enforceable" under Rule 304(a). ( Hamer, 155 Ill.App.3d at 695, 108 Ill.Dec. 163, 508 N.E.2d 324; see also Rauscher v. Albert (1985), 138 Ill.App.3d 799, 93 Ill.Dec. 152, 485 N.E.2d 1362 (court dismissed appeal because the written finding spoke in terms of enforcement but made no mention of appealability).) We agree with the reasoning in Hamer and therefore conclude that the absence of the enforcement language in the court's statement contravenes the requirements of Rule 304(a).

While the absence of the necessary Rule 304(a) findings generally requires dismissal of the appeal, an exception exists in cases, such as this one, where parties or claims have been severed by the trial court. The applicable standard was recently clarified by our supreme court in Carter v. Chicago & Illinois Midland Ry. Co. (1988), 119 Ill.2d 296, 116 Ill.Dec. 210, 518 N.E.2d 1031, wherein the court stated:

"[R]egardless of the section of the Code [of Civil Procedure] relied upon by the court to bring about a separate trial of a claim or a counterclaim, the finding required by Rule 304(a) that 'there is no just reason for delay in...