Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd.

Annotate this Case
Niccum v. Botti, Marinaccio, DeSalvo & Tameling, No. 83214 (4/16/98)


Docket No. 83214--Agenda 9--January 1998.
FOREST G. NICCUM et al., Appellants, v. BOTTI, MARINACCIO,
DESALVO & TAMELING, LTD., et al., Appellees.
Opinion filed April 16, 1998.

JUSTICE HEIPLE delivered the opinion of the court:
Finality is generally a prerequisite to appellate jurisdiction. A final order is
appealable as of right, and filing a notice of appeal is the jurisdictional step which
initiates appellate review. 155 Ill. 2d R. 301. The filing of a timely motion for
sanctions in the trial court, however, renders a notice of appeal from such an order
premature and precludes appellate jurisdiction. See Marsh v. Evangelical Covenant
Church, 138 Ill. 2d 458, 468-69 (1990). No appeal may be taken from an
otherwise final judgment when a motion for sanctions remains to be resolved,
except where a trial court has made a written finding consistent with Supreme
Court Rule 304(a) that there is no just reason to delay enforcement or appeal.
Marsh, 138 Ill. 2d at 468. Rule 304(a) allows appeal from a final order which
disposes of fewer than all the parties or claims if an express written finding is
made that there is no just reason to delay enforcement or appeal. 155 Ill. 2d R.
304(a). We allowed leave to appeal in this case to answer the following arcane
question of appellate jurisdiction arising from the interplay of these jurisdictional
rules: Is a timely notice of appeal filed from a final order dismissing a complaint
with prejudice, which includes a Rule 304(a) finding that there is no just reason
to delay enforcement or appeal, effective to confer jurisdiction on the appellate
court notwithstanding that a subsequent motion for sanctions is filed in the trial
court?
The facts of this case are uncomplicated. On February 7, 1995, the circuit
court of Cook County dismissed the plaintiffs' complaint with prejudice and
included in this otherwise final and appealable order the Rule 304(a) language that
"there is no just reason or cause as to why enforcement or appeal should be
stayed." On March 7, the plaintiffs filed a timely notice of appeal. Two days later,
on March 9, the defendants filed a timely motion for sanctions in the circuit court;
on April 17, the defendants moved to dismiss the plaintiffs' appeal, arguing that
their motion for sanctions rendered the plaintiffs' notice of appeal ineffective and
divested the appellate court of jurisdiction. On May 11, the appellate court denied
the defendants' motion to dismiss the appeal. The circuit court subsequently
denied the defendants' motion for sanctions. Then, two years later, the appellate
court reversed itself and dismissed the plaintiffs' appeal after concluding that the
defendants' motion for sanctions had indeed rendered the plaintiffs' notice of
appeal premature.
There is no dispute that the circuit court order dismissing the plaintiffs'
complaint with prejudice was a final and appealable order. Nor is there any
dispute that a motion for sanctions filed in the circuit court typically renders a
notice of appeal from an otherwise appealable order premature. The issue is what
effect, if any, did the circuit court's Rule 304(a) finding in its order dismissing the
complaint have on the appealability of the order in the face of a subsequent
motion for sanctions.
Our appellate court is divided on the question. Some cases hold that a Rule
304(a) finding is entirely without effect in an order which is otherwise appealable
as of right, and thus cannot later support jurisdiction over such an order when a
subsequent claim like a motion for sanctions is filed. See, e.g., Waters v. Reingold,
278 Ill. App. 3d 647, 653 (1996); Pines v. Pines, 262 Ill. App. 3d 923, 929
(1994). Other cases hold that a notice of appeal from an order which includes a
Rule 304(a) finding remains effective, even after a motion for sanctions is filed
and despite that the finding was unnecessary when made. See, e.g., American
National Bank & Trust Co. v. Bus, 212 Ill. App. 3d 133, 136 (1991); Cashmore
v. Builders Square, Inc., 207 Ill. App. 3d 267, 273 (1990).
This court has not expressly reached the question but came close in Marsh v.
Evangelical Covenant Church, 138 Ill. 2d at 468-69, where the court held that a
notice of appeal was premature because it was filed before the trial court had
disposed of a motion for sanctions. The court suggested that a different result
might have obtained had there been a Rule 304(a) finding in the order. Marsh,
138 Ill. 2d at 468 ("no appeal may be taken from an otherwise final judgment
entered on a claim when a [motion for sanctions] claim remains to be resolved,
absent a finding pursuant to Rule 304(a) that there is no just reason to delay
enforcement or appeal" (emphasis added)).
Here we address the question directly and must balance competing institutional
interests. We want to discourage piecemeal litigation in an effort to preserve
scarce judicial resources. At the same time, we recognize the judicial economy in
allowing a trial court to make a Rule 304(a) finding in anticipation of a motion
for sanctions. In the interests of judicial economy, we hold that the better rule is
to permit such a practice: a notice of appeal filed from a final order including a
304(a) finding--though unnecessary to render the order appealable--allows the
appellate court to retain jurisdiction even where a subsequent motion for sanctions
is filed and is pending in the trial court. Therefore, we reverse the judgment of the
appellate court and remand to that court for further proceedings.

Reversed and remanded.

JUSTICE MILLER, dissenting:
I do not agree with the majority's conclusion that a premature and unnecessary
finding under Supreme Court Rule 304(a) may later take effect when, as in this
case, a motion for sanctions is subsequently filed. In my view, the majority's
holding is inconsistent with the purposes of Rule 304.
The order dismissing the plaintiffs' complaint was originally appealable of
right under Supreme Court Rule 301, for it disposed of all the then-pending claims
of all the parties. The additional finding under Rule 304(a) included in the
dismissal order was unnecessary and of no effect. Pines v. Pines, 262 Ill. App. 3d
923, 929 (1994). The plaintiffs could have sought that finding later, after the
defendants filed their motion for sanctions; as Rule 304(a) states, "Such a finding
may be made at the time of the entry of the judgment or thereafter on the court's
own motion or on motion of any party." The plaintiffs did not later request a
finding under Rule 304(a), however, and the earlier finding contained in the
dismissal order should not be given effect.
Rule 304(a) is designed to prevent piecemeal appeals in the absence of
circumstances that would justify an immediate appeal. Marsh v. Evangelical
Covenant Church, 138 Ill. 2d 458, 465 (1990). This requires a judge to consider,
before making a Rule 304(a) finding, the advisability of permitting an immediate
appeal from an order that is final but not otherwise appealable, because of the
existence of other parties or claims. Waters v. Reingold, 278 Ill. App. 3d 647, 657
(1996). Application of the rule should therefore be discretionary, but the procedure
approved by the majority removes all discretion from the trial court's
consideration. Rather than require an assessment of the circumstances of the case
and a decision whether an immediate appeal of an order disposing of fewer than
all the claims or parties would be beneficial, the majority dispenses with that
discretion and gives subsequent effect to a finding that was not operative when it
was made.
Findings under Rule 304(a) should not be entered reflexively; rather, due
consideration must be given to the circumstances of the case at hand. Indeed, in
the present case, there is reason to believe that entry of a finding allowing an
immediate appeal would have represented an abuse of discretion. The plaintiffs'
appeal from the order dismissing their complaint raised the question whether the
complaint stated a cause of action; the defendants' subsequent motion for
sanctions involved a similar question, whether the plaintiffs' action was frivolous.
Because of the substantial overlap between the two, allowing an immediate appeal
from the order dismissing the complaint would have been an abuse of discretion.
The language of Rule 304(a) was invoked here without the requisite exercise
of discretion on the part of the judge entering the finding. Because application of
Rule 304(a) is meant to be discretionary, a finding under the rule should be
effective only when the judge has been called upon to exercise his or her
discretion. To allow a Rule 304(a) finding to have effect later, even though it was
unnecessary when it was made, undermines the purpose of the rule.