Van Der Hooning v. Bd. of Trs. of the Univ. of Ill.
Decision Date | 08 May 2012 |
Docket Number | No. 1–11–1531.,1–11–1531. |
Citation | 2012 IL App (1st) 111531,361 Ill.Dec. 690,282 Ed. Law Rep. 1213,972 N.E.2d 175 |
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 |
OPINION TEXT STARTS HERE
Pugh, Jones & Johnson, P.C., Chicago (Dennis P.W. Johnson, Jonathan B. Cifonelli, of counsel), Thomas, Mamer and Haughey, LLP, Champaign (William J. Brinkmann, of counsel), for Appellants.
Miller Shakman & Beem LLP, Chicago (Michael L. Shakman, Gabriel Bankier Plotkin, of counsel), for Appellee.
[361 Ill.Dec. 691]¶ 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).
¶ 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, 314 Ill.Dec. 809, 875 N.E.2d 1096 (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. (); Pizzato's Inc. v. City of Berwyn, 168 Ill.App.3d 796, 798, 119 Ill.Dec. 583, 523 N.E.2d 51 (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, 314 Ill.Dec. 809, 875 N.E.2d 1096. 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, 250 Ill.Dec. 876, 739 N.E.2d 639 (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, 250 Ill.Dec. 876, 739 N.E.2d 639. 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, 250 Ill.Dec. 876, 739 N.E.2d 639. 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, 323 Ill.Dec. 2, 892 N.E.2d 994 (2008) ( ).
¶ 9 Unlike Crain, our own district's decision in Stein v. Krislov, 405 Ill.App.3d 538, 345 Ill.Dec. 675, 939 N.E.2d 518 (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, 345 Ill.Dec. 675, 939 N.E.2d 518; see also Mund v. Brown, 393 Ill.App.3d 994, 997, 332 Ill.Dec. 935, 913 N.E.2d 1225 (2009) (5th Dist.) (). 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 and appealable.” State Farm Mutual Automobile Insurance Co., 226 Ill.2d at 415, 314 Ill.Dec. 809, 875 N.E.2d 1096.
¶ 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, 345 Ill.Dec. 675, 939 N.E.2d 518 (); Estate of Bass v. Katten, 375 Ill.App.3d 62, 69–70, 313 Ill.Dec. 187, 871 N.E.2d 914 (2007) (). Plaintiff does not dispute that we have jurisdiction to review whether the circuit court erred in denying defendants' motion to stay the proceedings.
¶ 11 Accordingly, we will not consider whether the circuit court erred in denying defendants' motion to dismiss pursuant to section 2–619(a)(3) of the Code, but we will review whether the circuit court erred in denying defendants' alternative request that the case be stayed pursuant to section 2–619(a)(3) of the Code. 735 ILCS 5/2–619(a)(3) (West 2010).
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