Circuit Court Need Not “Parrot” Rule 304(a) In Order To Invoke It

February 02, 2020 3:16 PM | Carson Griffis (Administrator)

By:  Katherine A. Grosh, Levin Ginsburg

The case of Illinois State Bar Association Mut. Ins. Co. v. Canulli, 2019 IL App (1st) 109141, reminds appellate practitioners that filing a notice of appeal prematurely is far less risky than the alternative, i.e., not filing one at all based on false comfort provided by less-than-perfect Rule 304(a) language.

The First District of the Appellate Court dismissed as untimely defendant's appeal from the Circuit Court of Cook County’s declaratory judgment in favor of ISBA Mutual finding that it owed no duty to defend defendant against defendant's former client’s legal malpractice complaint. ISBA Mutual originally accepted the tender of defense, but withdrew its tender after the client amended her complaint to seek only a reduction in legal fees. 

Three months earlier, ISBA Mutual filed a separate action seeking a declaratory judgment that it did not owe defendant a duty to defend him against a sanctions motion filed by third parties whom defendant sued on behalf of his former client. The two declaratory judgment actions were consolidated.

The parties filed cross-motions for summary judgment in both actions. The circuit court granted ISBA Mutual’s motion for summary judgment as to the sanctions motion, but, significantly, the court did not enter judgment on ISBA Mutual’s declaratory judgment action regarding the legal malpractice complaint. In its ruling, the circuit court stated that there was “no reason to delay enforcement of or appeal from (assuming such an appeal is possible)” its judgment in favor of ISBA Mutual regarding the sanctions motion.

Almost seven months later, defendant filed a motion to reconsider the court’s judgment and after it was denied, he filed a notice of appeal—nine months after the entry of the summary judgment order he sought to appeal.

The appellate court dismissed the appeal as untimely, rejecting defendant's two arguments. First, the court rejected defendant's argument that the summary judgment order did not comply with Rule 304(a). The Court stated: “[t]he circuit court need not ‘parrot’ Rule 304(a) in order to invoke it,” and cited to previous decisions in which it found it had jurisdiction to review orders with inexact Rule 304(a) language. Thus, the Court concluded that the language used by the court “clearly invoked Rule 304(a).” 

Second, the court rejected defendant's argument that, even assuming that the order complied with Rule 304(a), the order was not final. The court acknowledged that “the inclusion of Rule 304(a) language cannot render final an otherwise nonfinal order,” but stated that that rule did not apply. The court found that the circuit court’s finding that ISBA Mutual did not owe defendant a duty to defend was a ruling on the merits. And even if the court did not rule on the merits, the circuit court’s order dismissing ISBA’s declaratory judgment action as moot with respect to the sanctions motion “fully disposed of the rights of the parties as to that controversy.”

Finally, the appellate court rejected defendant's argument that the order was nonfinal because the still-pending declaratory judgment claim regarding the legal malpractice complaint was “based on the same operative facts.” The appellate court stated that, “[m]erely because both the sanctions motion and the legal malpractice litigation arose out of the same divorce proceedings, it does not follow that the two are related for purposes of determining whether ISBA Mutual owed [defendant] a duty to defend” because “such a duty depends on the language of the complaints, not the conduct on which the complaints were based.” 

Accordingly, the appellate court concluded that defendant's notice of appeal was untimely and dismissed the appeal for lack of jurisdiction.

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