Cole v. Hoogendoorn, Talbot, Davids, Godfrey & Milligan

Citations: 759 N.E.2d 110; 325 Ill. App. 3d 1152; 259 Ill. Dec. 630; 2001 Ill. App. LEXIS 810Docket: 1-01-0226

Court: Appellate Court of Illinois; October 26, 2001; Illinois; State Appellate Court

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Marilyn Cole, the plaintiff, appeals a trial court's order striking her second amended complaint against defendants, including the law firm Hoogendoorn, Talbot, and partner Bruce J. Van Heukelem. The complaint alleged common law fraud, breach of fiduciary duty, legal malpractice, and constructive fraud related to the defendants' billing practices. The trial court granted the defendants' motion to strike, allowing Cole to file a third amended complaint limited to a breach of contract claim within 14 days. Cole chose not to amend her complaint and instead filed a motion to reconsider, which the court denied, asserting her case was not dismissed with prejudice. Despite this, the written order indicated that there was no reason to delay the enforcement or appeal of the order under Supreme Court Rule 304(a). 

On appeal, Cole argues that the court has jurisdiction based on this rule, maintaining that her second amended complaint contained valid claims. The defendants counter that the appeal is not valid as there was no final, appealable order, emphasizing that an order striking or dismissing a complaint is typically not final unless it explicitly terminates the litigation or prohibits repleading. The appellate court's jurisdiction hinges on the finality of the trial court's order, which must be assessed by its substance rather than its form.

The defendant filed a motion to dismiss the plaintiff's second amended complaint under section 2-615 of the Code of Civil Procedure due to failure to state a cause of action. The court granted the motion but allowed the plaintiff 21 days to amend the complaint and the defendants 14 days to respond. On appeal, it was determined that the trial court's order did not resolve the rights of the parties and allowed for further pleadings, thus the appeal was dismissed for lack of jurisdiction. The order was not a final judgment since it did not dismiss the case with prejudice, allowing the plaintiff to file a third amended complaint.

During a hearing on December 14, 2000, the plaintiff requested that the court dismiss her entire suit with prejudice to facilitate an appeal. The court noted that the current order did not constitute a final order. The court indicated it would provide language under Rule 304(a) to allow for appeal but clarified that the case was not dismissed with prejudice. The trial court's order denying the motion to reconsider reiterated that the ruling did not bar the plaintiff from amending her complaint, and for a proper appeal, the plaintiff would need to obtain a dismissal with prejudice.

The plaintiff sought to have her entire lawsuit dismissed with prejudice during a hearing on her motion to reconsider, intending to appeal the dismissal. However, the trial court improperly denied this request and created confusion by indicating that the case was not dismissed with prejudice. The court's addition of Rule 304(a) language to the order denying the motion to reconsider further complicated matters, despite objections from the defendants. Legal precedent establishes that an order is not final or appealable unless the trial court explicitly dismisses the suit. Consequently, the appellate court ruled it lacked jurisdiction to address the merits of the plaintiff's appeal and dismissed it. The court noted that the plaintiff could still file a motion to stand on her second amended complaint and seek a dismissal with prejudice, which would then be a final order eligible for appeal. The ruling emphasized the importance of clarity in legal proceedings, particularly for pro se litigants.