St. Joseph Data Service, Inc. v. Thomas Jefferson Life Ins. Co. of America

• Decision Date: 18 July 1979
• Docket Number: No. 15243,15243
• Citation: 30 Ill.Dec. 575,73 Ill.App.3d 935,393 N.E.2d 611
• Parties: , 30 Ill.Dec. 575 ST. JOSEPH DATA SERVICE, INC., a corporation, Plaintiff-Appellant, v. THOMAS JEFFERSON LIFE INSURANCE COMPANY OF AMERICA, a corporation, Defendant- Appellee.
• Court: United States Appellate Court of Illinois

Page 611

393 N.E.2d 611

73 Ill.App.3d 935, 30 Ill.Dec. 575

ST. JOSEPH DATA SERVICE, INC., a corporation, Plaintiff-Appellant, v. THOMAS JEFFERSON LIFE INSURANCE COMPANY OF AMERICA, a corporation, Defendant- Appellee.

No. 15243.

Appellate Court of Illinois, Fourth District.

July 18, 1979.

Rehearing Denied Aug. 14, 1979.

Richard T. West, Follmer, West, Erdmann & Clem, Champaign, for plaintiff-appellant.

Lawrence E. Johnson & Associates, Champaign, for defendant-appellee.

MILLS, Justice:

What is a final order for purposes of appealability?

The primal problem which we must untangle is whether or not we have jurisdiction to entertain this appeal on the rather mundane procedural issues posited.

Let us see.

St. Joseph Data Service, Inc., filed an action against Thomas Jefferson Life Insurance Company of America in three separate counts. Counts I and II sought relief for breach of express contract and count III was based on a theory of estoppel. After the court granted defendant's motion to dismiss counts I and III of the complaint, St. Joseph filed an amended complaint. Again the court granted Jefferson's motion to dismiss as to counts I and III. St. Joseph then filed a second amended complaint, containing an additional count. Following arguments of counsel, the court dismissed counts I, III, and IV, and via docket entry said:

"Now on this day, ruling on cause heretofore taken under advisement. Motion to dismiss allowed on the grounds that there is no ambiguity in the contract appended as Exhibit "A" to the Second Amended Complaint and that the written instrument is controlling. Counts I, III and IV of Second Amended Complaint dismissed. No just cause for delay of enforcement or appeal as to such dismissal. No written order required."

St. Joseph has appealed from that order dismissing the three counts.

The threshold question which must be dealt with is whether this court has jurisdiction to consider this appeal under Supreme Court Rule 304. (Ill.Rev.Stat.1977, ch. 110A, par. 304.) Supreme Court Rule 304(a) provides that an appeal may be taken from a final judgment as to one or more but fewer than all the parties or claims if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. The rule, however, does not dispense with the necessity of a final order. (Peterson v. Tazewell County (1975), 29 Ill.App.3d 915, 330 N.E.2d 888.) As the committee comments to the rule note: "(I)t is not the court's finding that makes the judgment final, but it is the court's finding that makes this kind of final judgment appealable."

The Illinois Supreme Court, in Village of Niles v. Szczesny (1958), 13 Ill.2d 45, 48, 147 N.E.2d 371, 372, defined a final and appealable order this way:

"To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment. (Citations.) While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof. (Citations.)"

While there is no general provision in the Civil Practice Act which requires that orders of dismissal specifically include certain "magic" words to indicate finality, previously orders dismissing complaints which did not include the words "plaintiff take nothing," "defendant go hence without day," or phrases of equal import, were not final orders. Johnson v. City of Rockford (1960), 26 Ill.App.2d 133, 169 N.E.2d 534, Overruled, Peach v. Peach (1966), 73 Ill.App.2d 72, 218 N.E.2d 504; Thompson v. Contreras (1950), 340 Ill.App. 527, 92 N.E.2d 340; Aetna Plywood & Veneer Co. v. Robineau (1949), 336 Ill.App. 339, 83 N.E.2d 896; Prange v. City of Marion (1938), 297 Ill.App. 353, 17 N.E.2d 616; contra Peach v. Peach (1966), 73 Ill.App.2d 72, 218 N.E.2d 504.

More recently courts have held that substance not form determines whether the order is final. In Bates v. Ulrich (1976), 38 Ill.App.3d 203, 347 N.E.2d 286, this court considered the following order: "It is Ordered that this cause be dismissed at the cost of the Plaintiff." The trial court had earlier dismissed the original and first amended complaints for failure to state a cause of action, but had granted leave to amend. In holding the order to be final and appealable, this court stated:

"A general dismissal with no right given to plead over, and followed by no request for leave to plead over is a final, appealable order. (Citation.) Substance, not form, determines whether the order is final. (Citation.) The phrase that defendant 'go hence without day' are not words of art essential to finality. (Citation.) Neither does finality depend upon whether the 'suit,' 'cause of action,' or 'complaint' is dismissed. (Citation.) The record here demonstrates that the trial judge intended the order in question to be final. On the first two occasions his order specifically dismissed the complaint and granted leave to amend. The order in question dismissed the 'cause' Not the complaint, and assessed costs against the plaintiff. Had the order been other than final, the trial judge would have had no authority to assess the costs." (38 Ill.App.3d 203, 204, 347 N.E.2d 286, 288.)

By like token, Kita v. Young Men's Christian Association of Metropolitan Chicago (1964), 47 Ill.App.2d 409, 198 N.E.2d 174, held that the language of the following order was sufficient to make the judgment final: " 'It is further ordered that the Motion to Dismiss the Second Complaint at Law is sustained and the above-entitled cause is hereby dismissed.' " 47 Ill.App.2d 409, 426, 198 N.E.2d 174, 183.

And again in Martin v. Masini (1967), 90 Ill.App.2d 348, 232 N.E.2d 770, the court found that finality depends on the basis and substance of the dismissal and the effect of the adjudication. Since the dismissal in that case was not based upon any technical defects or matters which could have been cured by an amended pleading, it was a final order. This principle was reiterated in Lakatos v. Prudence Mutual Casualty Co. (1969), 113 Ill.App.2d 310, 252 N.E.2d 123.

Effective January 1, 1967, the Illinois Supreme Court enacted Rule 273 (43 Ill.2d R.273) which directs that:

"Unless the order of dismissal or a statute of this state otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits."

In the absence of contrary language, the rule renders all involuntary dismissals not within its exceptions final. Thus, clarity and uniformity are brought to an area fraught with the opposite.

Rule 273 is based upon Federal Rule 41(b) (Fed.R.Civ.P. 41(b)) which provides, in part:

"Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits." (See Committee Comments, Ill.Ann.Stat., ch. 110A, par. 273, at 281 (Smith-Hurd 1973).)

The burden which the Federal rule created was discussed in Rinehart v. Locke (7th Cir. 1971), 454 F.2d 313:

"(W)e are persuaded that under the Rule an order of a district court which dismisses a complaint for failure to state a claim, but which does not specify that the dismissal is without prejudice, is res judicata as to the then existing claim which it appears plaintiff was attempting to state. This view places upon a plaintiff in a case like the 1969 case in this instance the burden of persuading the district court either to include a specification that the dismissal is without prejudice or to permit an amendment. If plaintiff is unsuccessful, his recourse is to appeal. We think this view is consistent with the expedient purpose of the Rules." 454 F.2d 313, 315.

In the case at bench, we too find that St. Joseph had the burden of persuading the trial judge to include a specification that dismissal was without prejudice if it wished to plead over. However, such language was not included. Thus, the order is Final when judged against the backdrop of Rule 273 and Appealable by reason of Rule 304(a). 58 Ill.2d Rules 273, 304(a).

Jefferson also questions whether the nature of St. Joseph's cause of action permits the dismissal of three of four counts to be an appealable order. When only one claim is involved although stated in different ways, a ruling on the pleadings which does not dispose of the single claim is interlocutory and, again, the trial court has no authority to confer appellate jurisdiction by merely finding that there is no just reason for a delaying of enforcement or appeal. (Veach v. Great Atlantic & Pacific Tea Co. (1959), 22 Ill.App.2d 179, 159 N.E.2d 833.) St. Joseph points out that although the ultimate recovery is for breach of contract, the count not dismissed seeks damages for Jefferson's failure to pay for computer program maintenance while the three dismissed counts seek damages for Jefferson's failure to provide St. Joseph with computer production work.

Where two separate causes of action are joined in a single complaint, an order dismissing one count of the complaint is final even though the matters raised in the other count remain. (Mills v. Ehler (1950), 407 Ill. 602, 95 N.E.2d 848.) The test is whether the order appealed from constitutes a final determination of the rights of the parties with respect to a definite and separable portion of the subject matter. (Northern Trust Co. v. Essaness Theatres Corp. (1952), 348 Ill.App. 134, 108 N.E.2d 493.) Although closely related, the counts concerning Production and the count involving Maintenance are...