Cashmore v. Builders Square, Inc.

Citations: 565 N.E.2d 703; 207 Ill. App. 3d 267; 152 Ill. Dec. 170; 1990 Ill. App. LEXIS 1937Docket: 2-90-0522, 2-90-0660, 2-90-0979 cons.

Court: Appellate Court of Illinois; December 27, 1990; Illinois; State Appellate Court

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In the case of Cashmore v. Builders Square, Inc., and related appeals, the Appellate Court of Illinois consolidated three appeals for a singular opinion, determining that none of the appealed orders were final or appealable, thus lacking jurisdiction to hear them. The court emphasized the importance of jurisdiction, noting that even if parties do not raise jurisdictional issues, the court must examine its own authority to hear the case. 

Specifically in appeal No. 2-90-0979, Ronald Achs challenged the dismissal of his amended complaint for attorney malpractice against defendants Leonard M. Ring, Henry P. Gruss, and their associates, following inadequate representation in a prior lawsuit stemming from an automobile accident. Achs alleged that his attorneys failed to inform him of settlement offers, investigate adequately, prepare him for deposition, and competently try the case. In their defense, the attorneys filed motions to dismiss, claiming the amended complaint only cited errors in judgment, which do not constitute actionable grounds for malpractice. The trial court considered both written and oral arguments regarding these motions.

The court partially granted the defendants' motions to dismiss the amended complaint, allowing only the allegation regarding the failure to communicate settlement offers to survive. Achs was permitted to file a second amended complaint on this specific allegation within 21 days; all other allegations were dismissed with prejudice. Despite this, no new amended complaint was filed, and Achs stated in his appellate brief that he was appealing from a final judgment dismissing the amended complaint in its entirety. The court ruled that the order was not a final judgment under Supreme Court Rule 301, as the allegation regarding settlement offers remained. Consequently, the appeal was deemed jurisdictionally invalid. 

In a separate case, plaintiff John E. Cashmore appealed the dismissal of his negligence complaint against Builders Square and its employees, Jorgenson and Adams, with the dismissal occurring despite Jorgenson and Adams not being served. Cashmore had also filed a petition for sanctions against Builders Square for inconsistent positions, which the trial court did not rule on, nor did he withdraw it.

On January 30, 1990, the trial court dismissed Cashmore's complaint against Builders Square with prejudice, citing that Cashmore had already received benefits under the Workers' Compensation Act. After Cashmore's motion for reconsideration was denied, he appealed, but the appeal was deemed non-final and unappealable because his section 2-611 petition for sanctions remained unresolved by the trial court. The court emphasized that it could not speculate on the potential outcome of the petition. 

A similar issue arose in the appeal by Government Employee Insurance Co. Inc. (GEICO) regarding a summary judgment in favor of Thomas C. Roser. After the trial court denied GEICO's motion for summary judgment and granted Roser's, Roser filed a post-judgment petition for sanctions. GEICO filed its notice of appeal after Roser's petition was submitted, but the trial court reserved judgment on Roser's petition pending the appeal, leading to jurisdictional challenges for GEICO's appeal. The court pointed out that any section 2-611 claims filed after a main judgment are not appealable without a Supreme Court Rule 304(a) finding, which was absent in this case. Therefore, both appeals were ruled non-final and unappealable due to unresolved sanctions petitions. Additionally, GEICO's own petition under Supreme Court Rule 137, which parallels section 2-611, presented another jurisdictional barrier.

GEICO filed a Rule 137 petition after submitting a notice of appeal but within 30 days of the June 5 order granting summary judgment to Roser. According to Illinois law, if a section 2-611 petition is filed post-notice of appeal but within 30 days of a final judgment, the notice of appeal is rendered ineffective due to its premature nature. This principle also applies to sanctions petitions under Rule 137. Consequently, even if Roser had not submitted a post-judgment petition for sanctions, GEICO's motion would have invalidated its notice of appeal and eliminated appellate jurisdiction. If Roser’s motion had not been pending, GEICO's time to appeal would have expired 30 days after the July 6 order on sanctions, thus terminating its appeal rights. GEICO's ability to appeal the summary judgment was preserved only because Roser's petition remained unresolved. The court expressed regret in dismissing appeals due to jurisdictional issues and emphasized the importance of careful procedural adherence. The orders in cases 2-90-0522, 2-90-0660, and 2-90-0979 were deemed non-final and not appealable, leading to the dismissal of the appeals.