BCSP 330 North Wabash Property, LLC v. 401 NSS, LLC

2025 IL App (1st) 250425-U

• Court: Appellate Court of Illinois
• Decided: December 16, 2025
• Docket: 1-25-0425
• Status: Unpublished

Opinion

2025 IL App (1st) 250425-U No. 1-25-0425 Order filed December 16, 2025 Second Division NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ___________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ BCSP 330 NORTH WABASH PROPERTY, LLC, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 20 CH 1378 ) 401 NSS, LLC, ) Honorable ) Lynn Weaver Boyle, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE VAN TINE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.

ORDER

¶1 Held: We dismiss this appeal for lack of jurisdiction because the order from which defendant appeals is not a final order.

¶2 Defendant 401 NSS, LLC (NSS) appeals from the circuit court’s denial of summary

judgment. Because the circuit court’s denial of summary judgment was not a final order, we lack

jurisdiction over this appeal and dismiss it.

¶3 This case arises from a dispute regarding the rental rate for a parking garage in downtown

Chicago. Plaintiff BCSP 330 North Wabash Property, LLC (BCSP) owns a hotel and office tower No. 1-25-0425

at 330 North Wabash Avenue and leases from NSS a parking garage at 401 North State Street.

Parking garage rent is 5.5% of the appraised value of the property on which the parking garage

sits. Appraiser Patricia McGarr valued the property at $24.6 million and NSS set rent based on that

valuation. In this declaratory judgment action, BCSP seeks (1) a finding that McGarr’s appraisal

was fundamentally mistaken because she based it on a hypothetical development of the property

that the City would never approve, (2) a finding that NSS materially breached the lease by

requiring BCSP to pay higher rent based on McGarr’s mistaken appraisal, (3) reimbursement for

the excess rent BCSP paid, and (4) attorney fees.

¶4 The circuit court initially granted NSS summary judgment. On appeal, this court reversed

and remanded, finding that there was a genuine issue of material fact as to whether McGarr’s

appraisal was fundamentally mistaken. BCSP 330 North Wabash Property, LLC v. 401 NSS, LLC,

2024 IL App (1st) 230542-U, ¶¶ 39-40. On remand, NSS again moved for summary judgment,

arguing that McGarr’s appraisal was correct based on a letter from the Chicago Zoning

Administrator that confirmed certain assumptions McGarr used.

¶5 On February 7, 2025, the circuit court denied NSS’s motion for summary judgment, finding

that McGarr’s appraisal was fundamentally mistaken as a matter of law. The court ordered the

parties to submit briefs “addressing their respective position[s] as to the next procedural steps to

be taken in this action,” and set a hearing for March 19, 2025.

¶6 On March 6, 2025, NSS filed a notice of appeal challenging the circuit court’s February 7,

2025, order.

¶7 On March 10, 2025, the court paused briefing on the next procedural steps and set a status

hearing on mediation for April 30, 2025.

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¶8 On March 17, 2025, a foreclosure receiver, who was appointed in a separate foreclosure

case that Wells Fargo Bank filed against BCSP, filed a motion to intervene in this case pursuant

to section 2-408 of the Code of Civil Procedure (735 ILCS 5/2-408 (West 2024)). On March 26,

2025, the court entered and continued the receiver’s motion to June 18, 2025, but allowed the

receiver to participate in mediation.

¶9 NSS appeals pursuant to Illinois Supreme Court Rule 303(a), which governs appeals from

final judgments of the circuit court. See Ill. S. Ct. R. 303(a) (eff. Jul. 1, 2017). NSS contends that

the circuit court’s February 7, 2025, order was a final order. BCSP maintains that it was not;

therefore, we lack jurisdiction over this appeal. We agree with BCSP.

¶ 10 This court has jurisdiction only to review final orders. Hawes v. Luhr Brothers, Inc., 212

Ill. 2d 93, 106 (2004) (“Unless specifically authorized by supreme court rules, the appellate court

has no jurisdiction to review judgments, orders, or decrees that are not final.”). “An order is final

and appealable if it terminates the litigation between the parties on the merits or disposes of the

rights of the parties, either on the entire controversy or a separate part thereof.” (Internal quotation

marks omitted.) In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008). “Because the denial of

summary judgment leaves a case still pending and undecided, it cannot be a final order.” (Emphasis

in original.) Mashal v. City of Chicago, 2012 IL 112341, ¶ 57.

¶ 11 The circuit court’s February 7, 2025, order denied NSS’s motion for summary judgment.

Therefore, it was not a final or appealable order. See id. Because the record makes clear that the

court and the parties contemplated further proceedings after February 7, 2025, the court’s order

regarding McGarr’s appraisal was not a final judgment appealable as of right under Illinois

Supreme Court Rule 301 (eff. Feb. 1, 1994). “Judgment is not final, nor immediately appealable,

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where the court reserves an issue for further consideration or otherwise manifests an intention to

retain jurisdiction for the entry of a further order.” Djikas v. Grafft, 344 Ill. App. 3d 1, 8 (2003).

The February 7, 2025, order set briefing and a status hearing to determine the next procedural

steps. In addition, it appears that the parties agreed to mediation. The matter of the foreclosure

receiver’s intervention remains pending as well. There is no basis for concluding that the February

7, 2025, order was final or appealable.

¶ 12 NSS contends that the February 7, 2025, order was final because it resolved the only

remaining issue: whether McGarr’s valuation of the subject property was fundamentally mistaken.

The circuit court did resolve that issue, finding that McGarr’s appraisal was fundamentally

mistaken. However, the court has not yet determined the legal effects of that finding. As BCSP’s

brief puts it, there is an “unresolved question of how the Circuit Court’s finding in the S[ummary]

J[udgment] Order will ultimately impact the parties’ rights and obligations under the Lease.” The

circuit court was clearly considering the legal effects of its finding that McGarr’s valuation was

fundamentally mistaken and requested further input from the parties on that issue. But NSS’s

decision to immediately appeal deprived the circuit court of the opportunity to reach a conclusion

and enter a final and appealable judgment.

¶ 13 Contrary to NSS’s contention, the circuit court has not yet issued a “binding declaration of

the parties’ rights.” Rather, the court has resolved only one of several issues that BCSP’s complaint

raised. The circuit court has not yet determined whether NSS materially breached the lease by

setting rent based on McGarr’s mistaken appraisal. In addition, the circuit court has not yet

determined the damages and attorney fees, if any, to which BCSP is entitled. The circuit court has

not entered judgment in BCSP’s favor or against NSS. “A judgment is final if it determines the

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litigation on the merits so that, if affirmed, the only thing remaining is to proceed with execution

of the judgment,” and that is not the case here. (Internal quotation marks omitted.) See Djikas, 334

Ill. App. 3d at 8.

¶ 14 NSS’s reply brief claims that “[r]ather than simply deny NSS’s motion, the [circuit] [c]ourt

took the extra step of granting summary judgment for BCSP on the same arguments [the appellate]

court ruled insufficient.” (Emphasis in original.). We are uncertain what this means, but we are

certain that the circuit court did not grant summary judgment in BCSP’s favor at any point.

Accordingly, we lack jurisdiction over this case and must dismiss it. See Johnson v. Armstrong,

2022 IL 127942, ¶¶ 19-20 (the appellate court has no jurisdiction over nonfinal orders).

¶ 15 For these reasons, we dismiss the appeal for lack of jurisdiction.

¶ 16 Dismissed.

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