2025 IL App (1st) 232508-U No. 1-23-2508 Order filed March 19, 2025 Third 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 ______________________________________________________________________________ ROBERT BRONSTEIN, Individually and as Independent ) Appeal from the Administrator of the Estate of Nathan Bronstein, a Minor, ) Circuit Court of Deceased; and ROSELLENE BRONSTEIN, Individually ) Cook County. and as Next Friend of M.B. and S.B., Minors, ) ) Plaintiffs, ) ) v. ) ) LATIN SCHOOL OF CHICAGO, RANDALL DUNN, ) No. 22 L 3763, KRISTINE VAN OGDEN, BRIDGET HENNESSEY, ) cons. with 23 CH 5308 JANE KNOCHE, ANNELISE KRANZ, DAVID KOO, ) SHELLEY GREENWOOD, and THOMAS ) HAGERMAN, ) ) Defendants. ) _______________________________________________ ) ) ROBERT BRONSTEIN, and ROSELLENE ) No. 23 CH 5308, BRONSTEIN, ) cons. into 22 L 3763 ) Plaintiffs-Appellants, ) ) v. ) ) No. 1-23-2508
LATIN SCHOOL OF CHICAGO, ) Honorable ) Scott D. McKenna, Defendant-Appellee. ) Judge, presiding.
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court. Justices Reyes and Martin concurred in the judgment.
ORDER
¶1 Held: We dismiss this appeal for lack of jurisdiction because neither of the two orders that plaintiffs challenge on appeal is an appealable final judgment.
¶2 The circuit court consolidated plaintiffs’ declaratory judgment action from the court’s
chancery division (case No. 23 CH 5308) into plaintiffs’ action already pending in the law division
(case No. 22 L 3763), which alleged a variety of tort and fraud claims. Thereafter, the court granted
the amended motion of defendant Latin School of Chicago (Latin School) to dismiss the
declaratory judgment action with prejudice.
¶3 On appeal, plaintiffs Robert and Rosellene Bronstein argue that the circuit court (1) erred
by dismissing their declaratory judgment action for mootness, and (2) abused its discretion by
consolidating the declaratory judgment and law division actions.
¶4 For the reasons that follow, we dismiss this appeal for lack of jurisdiction. 1
¶5 I. BACKGROUND
¶6 In January 2022, plaintiffs’ 15-year-old son died by suicide, approximately 30 days after
he voluntarily withdrew from the defendant Latin School. In April 2022, plaintiffs Robert
Bronstein, individually and as the administrator of his deceased son’s estate, and Rosellene
Bronstein, individually and as next friend of her two other children, filed in the circuit court’s law
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order. -2- No. 1-23-2508
division a complaint alleging a wrongful death action and various tort and fraud claims against the
Latin School, six individuals affiliated with the Latin School as administrators, counselors, or
teachers (collectively, the Latin Defendants), and three parents of minors who attended the Latin
School as students (collectively, the Minor and Parent Defendants). Relevant to this appeal,
plaintiffs also alleged in that complaint a breach of contract claim against the Latin School in count
VI, relying on various sections of the school’s handbook as allegedly giving rise to certain duties.
¶7 The circuit court stayed discovery in the law division action and struck all previously issued
written discovery pending the parties’ attempts to settle. Specifically, all defendants who had been
served in the law division action advised the court in July 2022 that they would file motions to
dismiss attacking the legal sufficiency of plaintiffs’ complaint, and the court stayed discovery until
the later of August 1, 2022, or until the time that the remaining defendants appeared or were
required to appear. On August 9, 2022, all proceedings in the law division action were stayed until
October 4, 2022, while plaintiffs and the Latin School pursued mediation. The mediation was not
successful and defendants filed their respective motions to dismiss plaintiffs’ complaint. In
response, plaintiffs requested leave to and filed their first amended complaint in November 2022.
This complaint omitted the previously filed breach of contract claim but raised a claim for breach
of fiduciary duty in count V, once again relying on the school’s handbook as allegedly giving rise
to duties. Also in November 2022, plaintiffs served written discovery requests on the Latin
Defendants, seeking documents that would be part of the school files that plaintiffs would later
seek in their declaratory relief action.
¶8 In December 2022, the circuit court struck all previously served discovery requests and
subpoenas in the law division action. The court’s order provided that plaintiffs or defendants could
file any motions with respect to initiating discovery before the February 17, 2023 status date.
-3- No. 1-23-2508
Plaintiffs, however, did not seek leave to initiate any discovery before the circuit court by that
status date.
¶9 The Latin Defendants were to answer or otherwise plead to the first amended complaint on
February 10, 2023. However, plaintiffs moved to dismiss one of the individual Minor and Parent
Defendants. The court struck the deadline to answer or otherwise plead and ordered plaintiffs to
file an amended complaint by February 7, 2023. Plaintiffs were subsequently granted four
extensions of time to file their second amended complaint while they pursued settlement
discussions with certain Minor and Parent Defendants. Plaintiffs were granted a final extension to
file their second amended complaint by July 14, 2023.
¶ 10 Meanwhile, on April 6, 2023, while discovery was stayed in the law division action and
before plaintiffs filed their second amended complaint, plaintiffs requested that the Latin School
release to plaintiffs certain counseling records that are protected under the Mental Health and
Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq. (West 2022)), and the
school files of their previously enrolled children pursuant to a provision in the school handbook.
Plaintiffs asserted that they were entitled to these records under the handbook that was in place
during the semester that their children attended the Latin School. The Handbook provides:
“Parental Access to School Files
The school keeps cumulative files on all students while they attend Latin. The files
contain copies of all grade reports, progress reports, standardized test scores,
correspondence involving the student, the original copy of the student’s application, notes
from teachers, the student’s disciplinary records, and other miscellaneous records and
papers. Parents/guardians who wish to examine their child’s folder should call the division
director for an appointment ***.” -4- No. 1-23-2508
¶ 11 On April 27, 2023, the Latin School provided plaintiffs with the requested counseling
records. However, the Latin School declined to produce the school files. The Latin School
specifically disputed that the handbook created enforceable contractual rights and denied any other
legal or contractual obligation to provide access to the school files to parents of former students
who withdrew from the Latin School more than one year prior to the request and who were suing
the Latin School. The Latin School asserted that any threatened legal action relating to the school
files would be “judge shopping” to avoid the stay of discovery entered by the circuit court in the
law division action.
¶ 12 In June 2023, plaintiffs Robert and Rosellene Bronstein filed a separate action against the
Latin School in the circuit court’s chancery division, case No. 23 CH 5308, seeking a declaratory
judgment and specific performance to compel examination of their children’s school files.
Plaintiffs sought a declaration that they have an unconditional right to access and review their
children’s school files held by the Latin School. They also sought specific performance enjoining
the Latin School from withholding their children’s school files and directing the Latin School to
allow plaintiffs to access those school files in accordance with the Latin School’s handbook.
Plaintiffs alleged that the handbook created either a perpetual contractual obligation or
unconditional promise to provide parental access to students’ school files.
¶ 13 On June 20, 2023, the Latin School offered to make the school files available for
examination, without waiving its position that it was not contractually obligated to provide access.
On June 21, 2023, despite the stay of discovery, plaintiffs insisted that they had the right to not
only examine the school files but also to take screenshots of the same. On July 6, 2023, plaintiffs
viewed the school files that the Latin School provided for their inspection at their attorney’s office
for more than six hours.
-5- No. 1-23-2508
¶ 14 In July 2023, the Latin School moved the court to consolidate the declaratory judgment
action and the law division action into a consolidated action in the law division for all purposes.
On August 9, 2023, after briefing, the court granted the Latin School’s motion and consolidated
the declaratory judgment action into the law division action.
¶ 15 The Latin School then filed an amended motion to dismiss plaintiffs’ complaint for
declaratory judgment, arguing that the action was moot and barred by the absolute litigation
privilege. In support of this motion, the Latin School provided an affidavit of completeness
pursuant to Illinois Supreme Court Rule 214 (eff. July 1, 2018), signed by Ryan Allen, the assistant
head of school, on September 27, 2023. The Allen affidavit provided that “the documents labeled
NB000001-NB000398 and SB000001-000288 contain the Latin School of Chicago’s “School
File” for Nate Bronstein and S.B. respectively as defined in Latin School of Chicago’s 2021-2022
Student/Family Handbook in effect at the time of the students’ enrollment at Latin School of
Chicago.” The Latin School also provided an affidavit of attorney Matthew Karsakow, who
attested that the Latin School had provided the school files to plaintiffs for inspection at plaintiffs’
attorney’s office on July 6, 2023, for more than six hours.
¶ 16 Plaintiffs opposed the amended motion to dismiss and sought discovery pursuant to Illinois
Supreme Court Rule 191(b) (eff. Jan. 4, 2013), with supporting affidavits, because they believed
documents were missing from the school files and the Latin School’s supporting affidavits
presented no factual basis demonstrating that its witnesses had personal knowledge of the school
files. The circuit court denied plaintiffs’ motion for Rule 191 discovery and directed them to
instead address the alleged incompetence of the Latin School’s affidavits in substantive briefing.
-6- No. 1-23-2508
¶ 17 After full briefing, on November 20, 2023, the circuit court dismissed plaintiffs’ complaint
for declaratory judgment, with prejudice, “for the reasons stated on the record.” At that hearing,
the court reasoned as follows.
“Within that contract, it simply allows a right of access, and I do agree with that. And
access was provided. Now, that access is not defined, but certainly what was provided,
which is a six-hour review of the *** file *** pursuant to the handbook, certainly does
qualify as access. I can’t see that there was any breach of that agreement as signed by the
plaintiffs in this case. So, you know, *** eventually *** the school files such as it is [are]
going to be tendered at some point and it’s going to be done within the confines of the
discovery of this case at the appropriate time. I don’t think *** a chancery case asking for
performance of production of things that I believe the Latin School’s already done is the
appropriate venue. And, again, I think it is moot, so it will be dismissed with prejudice.”
¶ 18 Plaintiffs appealed, arguing that the circuit court erred by dismissing their declaratory
judgment action as moot where (1) the court did not define the scope of the Latin School’s
contractual obligation to allow plaintiffs access to their children’s school files, (2) no witness of
the Latin School affirmatively stated that the children’s complete school files had been shared with
plaintiffs, (3) the parties’ conflicting affidavits regarding plaintiffs’ access to the school files
demonstrated disputed issues of material fact regarding the Latin School’s satisfaction of its
contractual obligations to plaintiffs, and (4) the contract language indicates that copies of the
school files are available to third parties such as colleges and universities. Plaintiffs also argue that
the court abused its discretion by consolidating their declaratory judgment action with their
previously filed law division action because the two actions did not involve the same issues, acts,
-7- No. 1-23-2508
events, and evidence, there was no risk of inconsistent rulings, and consolidation prejudiced
plaintiffs’ substantial rights.
¶ 19 The Latin School responds that plaintiffs’ declaratory judgment action was an attempt to
avoid the stay of discovery in the law division action, and the declaratory judgment action was
properly consolidated and then dismissed as moot after plaintiffs were granted the ability to
examine the school files for over six hours. The Latin School argues that if this court determines
that any aspect of plaintiffs’ declaratory judgment action is not moot, this court should nevertheless
affirm the dismissal of that action based on the absolute litigation privilege. Specifically, the Latin
School argues that the absolute litigation privilege applies because any action by the Latin School
to withhold the school files or allow access to the school files for examination after the law division
action was filed and while a stay of discovery was in place pertains to the law division action.
¶ 20 II. ANALYSIS
¶ 21 As a preliminary matter, plaintiffs ask this court to strike or disregard portions of the Latin
School’s statement of facts because it includes editorialized arguments as lead-ins to purported
facts, in violation of Illinois Supreme Court Rule 341(h)(6), (i) (eff. Oct. 1, 2020).
¶ 22 When a party’s brief improperly includes argument, conclusions, or inappropriate record
citations, the appellate court may, in its discretion, strike or disregard those portions. See
Merrifield v. Illinois State Police Merit Board, 294 Ill. App. 3d 520, 527 (1997). “Where violations
of supreme court rules are not so flagrant as to hinder or preclude review, the striking of a brief in
whole or in part may be unwarranted.” Id. We find that the challenged portions of the Latin
School’s statement of facts are not so misleading as to hinder our analysis. We will therefore not
strike portions of the Latin School’s statement of facts, but we will disregard those portions that
violate Rule 341(h)(6), (i). -8- No. 1-23-2508
¶ 23 The dispositive issue on appeal is the Latin School’s April 2024 motion to dismiss
plaintiffs’ appeal for lack of jurisdiction, which this court ordered would be taken with the case.
The Latin School argues that plaintiffs’ appeal should be dismissed because neither the circuit
court’s November 2023 dismissal order nor the August 2023 consolidation order is an appealable
final judgment. Specifically, the Latin School states that the August 2023 consolidation order,
which consolidated the declaratory judgment action into the law division action for all purposes
where the two actions involved the same parties and arose out of the same events, is not a judgment
or a final order in any respect and is therefore not appealable. Furthermore, the November 2023
dismissal order, which dismissed plaintiffs’ declaratory judgment complaint with prejudice, is a
judgment as to fewer than all of the parties and claims in the consolidated action and is not
appealable because the order does not contain the requisite finding that there is no just reason to
delay appeal as required by Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).
¶ 24 Appeals from final judgments are permitted to parties as a matter of right. Ill. S. Ct. R. 301
(eff. Feb. 1, 1994). In determining whether an order is a final order, courts consider whether the
order “terminates the litigation between the parties on the merits or disposes of the rights of the
parties either on the entire controversy or on a separate part thereof.” In re Alexis H., 335 Ill. App.
3d 1009, 1012 (2002). A “final judgment” is one that “fixes absolutely the rights of the parties”
such that “the only thing remaining is to proceed with the execution of the judgment.” Id.
¶ 25 However, when a judgment disposes of only some claims against a party, or only claims
against one party while claims against other parties remain pending, appeals are governed by
Illinois Supreme Court Rule 304(a), which provides in pertinent part:
“(a) Judgments As to Fewer Than All Parties or Claims—Necessity for Special
Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal -9- No. 1-23-2508
may be taken from a final judgment as to one or more but fewer than all of the parties or
claims only if the trial court has made an express written finding that there is no just reason
to delay either enforcement or appeal or both. 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.
*** In the absence of such a finding, any judgment that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties is not enforceable or
appealable and is subject to revision at any time before the entry of a judgment adjudicating
all the claims, rights, and liabilities of the parties.” Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).
“[A]bsent [a Rule 304(a) finding], if an order finally resolves one claim against one party, but
other claims and/or other parties remain pending, an appeal from the final order must wait until
the other matters have been resolved.” State Farm Fire & Casualty Co. v. John J. Rickhoff Sheet
Metal Co., 394 Ill. App. 3d 548, 556 (2009). Plaintiffs do not dispute that a Rule 304(a) finding
was not made by the circuit court in the November 2023 dismissal order. In fact, the circuit court
expressly stated that it would not include Rule 304(a) language in the order.
¶ 26 Plaintiffs, in their individual capacities, filed a third amended complaint in the law division
action which contained four counts against the Latin School that were pending at the time of the
November 2023 order. Plaintiffs also alleged other claims in their representative capacity against
the Latin School and against several Latin School employees and other parties that remained
pending when the complaint for declaratory relief was dismissed with prejudice. Because
plaintiffs’ claims remained pending against the Latin School and other defendants, the November
2023 order is not an appealable order without a Rule 304(a) finding.
¶ 27 Furthermore, the August 2023 consolidation order is not a final order because it did not fix
“absolutely and finally the rights of the parties in the lawsuit” or determine “the litigation on the - 10 - No. 1-23-2508
merits so that, if affirmed, the only thing remaining is to proceed with the execution of judgment.”
In re Rogan M., 2014 IL App (1st) 132765, ¶ 9. Nor is a consolidation order an interlocutory order
that is appealable under the Illinois Supreme Court Rules. See, e.g., Ill. S. Ct. Rule 307 (eff. Nov.
1, 2017). Absent an express written Rule 304(a) finding by the circuit court that there is no just
reason to delay enforcement or appeal, this court lacks jurisdiction over plaintiffs’ appeal of the
November 2023 dismissal order and the August 2023 consolidation order.
¶ 28 Plaintiffs contend that the consolidation and dismissal orders are final and appealable
because the court’s consolidation did not merge the chancery and law division actions into one
action; rather, the chancery action aways maintained its separate identity with a separate complaint
and separate track before the circuit court. Plaintiffs also contend that, after the consolidation order
and before the dismissal order, the court severed the declaratory judgment action from the law
division action because the court determined that the two actions needed to be maintained
separately.
¶ 29 First, we address plaintiffs’ argument that the challenged August and November 2023
orders are final and appealable because their declaratory judgment action always maintained its
distinct identity despite its consolidation with the law division case. Plaintiffs claim that the parties
and the circuit court treated the cases as “a consolidation of the Chancery Action with (and not
into) the Law Division Action.” Plaintiffs also claim that because the case captions in court filings
and orders after consolidation used the words “consolidated with” as opposed to “consolidated
into,” that these two actions were not merged into one action.
¶ 30 Plaintiffs’ argument is not persuasive. It ignores the plain language of the circuit court’s
written order consolidating the declaratory judgment and law division actions “into [case No. 22
L 3763],” i.e., the law division action. Contrary to plaintiffs’ assertion that the two actions were - 11 - No. 1-23-2508
kept separate, the circuit court, in granting defendant’s motion to consolidate, stated that the
“chancery matter is to proceed under the law division number and the matter of the chancery filing
to be cancelled.” The record establishes that the circuit court and the parties followed this order.
¶ 31 Section 2-1006 of the Code of Civil Procedure (735 ILCS 5/2-1006 (West 2022)) provides
that “[a]n action may be severed, and actions pending in the same court may be consolidated, as
an aid to convenience, whenever it can be done without prejudice to a substantial right.”
Consolidation is proper when the cases are of the same nature, arise from the same act or event,
involve the same or like issues, and depend largely upon the same evidence. In re Joseph J., 2020
IL App (1st) 190305, ¶ 26. Consolidation of actions is also appropriate when there are common
questions of law and fact. Clore v. Fredman, 59 Ill. 2d 20, 28 (1974). We note that
“Illinois courts have recognized three distinct forms of consolidation: (1) where
several actions are pending involving the same subject matter, the court may stay the
proceedings in all but one of the cases and determine whether the disposition of one action
may settle the others; (2) where several actions involve an inquiry into the same event in
its general aspects, the actions may be tied together, but with separate docket entries,
verdicts, and judgment, the consolidation being limited to a joint trial; and (3) where
several actions are pending which might have been brought as a single action, the cases
may be merged into one action, thereby losing their individual identity, to be disposed of
as one suit.” Busch v. Mison, 385 Ill. App. 3d 620, 624 (2008).
¶ 32 Our review of the record indicates that the consolidation comes within the third category.
“To determine whether a particular consolidation was for disposition, the test is whether the cases
might have been the subject of a single proceeding or could have been brought as one action.”
Dowe v. Birmingham Steel Corp., 2011 IL App (1st) 091997, ¶ 22. Here, plaintiffs did allege - 12 - No. 1-23-2508
claims in the law division action based on violations of the handbook and for failing to provide
information after their son’s death. Thus, the same claims alleged in the complaint for declaratory
judgment based on the handbook and alleged failures to provide information could have been
alleged in the law division action.
¶ 33 Additional factors to be considered in determining whether matters lose their individual
identity after consolidation include whether separate docket entries continue to be used, whether
the parties are considered parties in each case, and whether the court issues single or separate
orders. See, e.g., Trilisky v. City of Chicago, 2019 IL App (1st) 182189, ¶ 22 (finding that the cases
were consolidated only for convenience and economy where the circuit court’s entering separate
orders under each case number demonstrated that the court intended to keep the matters separate);
Adoption of S.G. v. S.G., 401 Ill. App. 3d 775, 782-83 (2010) (finding that two petitions to adopt
a child maintained their separate identities despite consolidation where there were separate docket
entries in separate cases on some dates, each set of petitioners was not treated as parties in the
other case, the parties were not identical, and the court issued a dismissal order that only reflected
the arguments of one set of petitioners); Shannon v. Stookey, 59 Ill. App. 3d 573, 577 (1978)
(consolidation of cases was “solely limited to an integration of evidence at a joint trial” and did
not merge the causes into a single suit).
¶ 34 Here, after entry of the consolidation order, the circuit court, the clerk of court, and the
parties treated this matter as if the two cases were consolidated into a single action. The register of
actions shows that the declaratory judgment action was “disposed” of as of August 18, 2023, when
that case was formally transferred by the clerk of the court to the law division. The parties filed all
of their briefs relating to defendant’s amended motion to dismiss plaintiffs’ declaratory judgment
complaint under the law division case number. In fact, the only documents filed under the chancery
- 13 - No. 1-23-2508
division case number after the consolidation were plaintiffs’ notice of appeal and subsequent
filings to prepare the record on appeal. The circuit court, in granting defendant’s amended motion
to dismiss with prejudice, entered that dismissal on a single order in the law division action that
showed the consolidated case numbers in the caption and also addressed several other issues in the
law division action. The circuit court explained during its oral ruling in November 2023 that it did
not see the dismissal of the complaint for declaratory judgment as a final ruling subject to appeal
or warranting Rule 304(a) language because the Latin School was still a party to the remaining
claims in the case and discovery concerning the school files would occur at the appropriate time
in the law division case. After consolidation, all other orders relating to the declaratory judgment
action were entered either as single orders in the law division action and similarly showed both
consolidated case numbers in the caption, or as single orders in the law division action and showed
only the law division case number in the caption. The conduct of the circuit court, the clerk of the
court, and the parties after consolidation was granted for all purposes demonstrates that plaintiffs’
declaratory judgment action was consolidated into the law division action such that they became
one single action. Thus, plaintiffs’ appeal is premature without a Rule 304(a) finding because
claims were still pending against the Latin School when the circuit court entered the November
2023 dismissal order.
¶ 35 Next, we address plaintiffs’ argument that the challenged August and November 2023
orders are final and appealable because the circuit court severed the declaratory judgment
complaint from the law division action.
¶ 36 In Carter v. Chicago & Illinois Midland Railway, 119 Ill.2d 296, 307 (1988), the Illinois
Supreme Court held that a Rule 304(a) finding is necessary to perfect an appeal of a final judgment
on a group of claims separately decided. The court ruled, however, that in a case involving multiple
- 14 - No. 1-23-2508
parties or claims, if a court has not made a Rule 304(a) finding, the dismissal of a claim is
immediately appealable only if the court “clearly and unequivocally” states in its severance order
“that the claim, counterclaim or the party has indeed been severed (in the narrow sense of that
word) and that the severed claim, counterclaim or party shall proceed thereafter separate from the
other claims, counterclaims or parties to the case.” (Emphasis in original.) Id. at 307-08. In so
deciding, however, the supreme court admonished that “[t]he use of Rule 304(a) certification shall
be the rule in cases involving judgments as to fewer than all parties and claims. The perfecting of
an appeal under Rule 303(a)(1) in such cases must be the exception.” Id. at 308.
¶ 37 The record does not contain a written order whereby the circuit court ruled that the
declaratory judgment claim was severed from the law division claim. Nevertheless, plaintiffs cite
two occasions when the circuit court made certain comments that, according to plaintiffs, modified
the August 9, 2023, consolidation order. Plaintiffs assert that these comments establish that the
circuit court severed the declaratory judgment action from the law division action and thereby
rendered the August 9, 2003, consolidation order and the November 20, 2023, dismissal order final
and appealable orders.
¶ 38 The first occasion occurred on August 11, 2023, during a hearing held on, inter alia, the
Latin School’s motion to strike plaintiffs’ second amended complaint in the law division action.
The court struck, in part, plaintiffs’ second amended complaint and asked plaintiffs’ counsel how
much time she needed to file a third amended complaint. Plaintiffs’ counsel suggested resetting
the briefing schedule in the law division action because the briefing schedule in the consolidated
declaratory judgment action had been stricken. The following discussion occurred.
“MR. TRUCCO [(DEFENSE ATTORNEY)]: The only thing I was going to
suggest, your Honor, was rather than having—now that [where] they’re consolidated, - 15 - No. 1-23-2508
rather than having two complaints moving, if the plaintiffs are filing a third amended
complaint, those [claims from the declaratory judgment complaint] can be added to the
third amended complaint and then we’ll have one pleading.
THE COURT: That certainly makes sense as well.
MS. GOULD [(PLAINTIFFS’ ATTORNEY)]: I mean, we filed a complaint. They
moved to dismiss. They’re very different. One is a breach of contract [i.e., the declaratory
judgment claim,] based on conduct literally in April and May of this year. It’s very
different. The only similarity is that there’s the Bronsteins and Latins. So part of our issue
and concern is that one very simple issue is being mired in a much bigger tort action.
MR. FLOOD [(PLAINTIFFS’ ATTORNEY)]: If I may, your Honor, just briefly.
THE COURT: Yeah.
MR. FLOOD: I’m not part of [the declaratory judgment] contract case. Todd Flood
is not part of the contract case. So here the consolidation—how am I going to now
[proceed] with my name *** on [the] case? You know what I mean? It doesn’t make sense.
THE COURT: Yeah. I didn’t know that aspect [of it]. So with that being said, we’ll
just—I mean, all these issues, now that we’re consolidated, they’re going to be decided, so
it makes sense to keep them separate. I don’t want to commingle counsels’ obligations.”
MR. TRUCCO: Fair enough then, Judge, what I would suggest with the Court’s
permission is we will refile and frankly it will be an amended motion to dismiss, notice it
before the Court. ***
***
- 16 - No. 1-23-2508
MS. GOULD: I mean, we can work out the briefing schedule for this order if you’re
filing in seven days.
THE COURT: Let’s do that. ***.” (Emphasis added.)
¶ 39 This discussion does not support plaintiffs’ claim that the circuit court severed the
declaratory judgment action or kept it separate from the law division action. Although the court
said that “it makes sense to keep them separate,” the court was referring to having separate issues
or complaints but not separate actions in response to one of plaintiffs’ counsel’s statements that
he was “not part of” the complaint for declaratory judgment and the court did not want to
“commingle counsels’ obligations.”
¶ 40 The second occasion cited by plaintiffs in support of their claim of severance occurred on
November 20, 2023, when the circuit court granted the Latin School’s amended motion to dismiss
the declaratory judgment complaint with prejudice on the grounds that the claim was moot.
Plaintiffs’ counsel asked whether that would be a final ruling subject to appeal, and the following
discussion occurred.
“THE COURT: It’s not a final ruling because [the] Latin School is still in the case
with respect to this. I’m going to sever the chancery case and dismiss it.
MS. GOULD [(PLAINTIFFS’ COUNSEL)]: Okay.
THE COURT: There won’t be a [Rule] 304(a) finding. The Latin School is still a
defendant in the case. So it’s not dismissing all claims as to a particular defendant, so 304(a)
really doesn’t apply.
MS. GOULD: Okay.
THE COURT: So the clock is not running.
- 17 - No. 1-23-2508
THE COURT: At least that’s my estimation of the law.
THE COURT: If you have a different estimation, then you’re free to file any notice
that you wish, but I don’t believe—and I’m not going to ask Mr. Trucco’s [(defense
attorney)] opinion on this, but I don’t believe the clock would [start] running.” (Emphasis
added.)
The court then explained that it could not definitively answer plaintiffs’ counsel’s question because
the court could not give an advisory opinion. Then, the court concluded, “But I don’t think that—
I think it’s not a final order until this entire matter is final.”
¶ 41 Plaintiffs rely on the circuit court’s brief remark, taken out of context, about severing the
chancery case, but the court immediately thereafter explained that it would not make a Rule 304(a)
finding that the dismissal order was an appealable final judgment because claims were still pending
against the Latin School. This is not a clear and unequivocal statement in a severance order that
the declaratory judgment claim was severed from the law division action. See Carter, 119 Ill. 2d
at 307-08. In fact, the circuit court clearly indicated that its dismissal order was not an appealable
final order “until this entire matter is final.”
¶ 42 To support their assertion that a Rule 304(a) finding is not necessary here, plaintiffs cite
Nationwide Mutual Insurance Co. v. Filos, 285 Ill. App. 3d 528 (1996), where an insurer’s
declaratory judgment action was consolidated with an underlying action at law in which the
insurer’s motion for summary judgment was granted. The Nationwide court ruled that, although
the order granting summary judgment did not dispose of all claims raised in the consolidated action
and also did not contain a Rule 304(a) finding, the court nonetheless had jurisdiction to review the - 18 - No. 1-23-2508
injured employee’s appeal of the trial court’s grant of summary judgment in favor of the insurer
under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994). 285 Il. App. 3d at 532. The court
reasoned that the consolidation “was done only for convenience and economy”; the consolidation
“did not merge the causes into a single suit, or change the rights of the parties, or make those who
were parties in one suit parties in another” [Citation.]; and the law action “retained its distinct
identity.” Id.
¶ 43 Plaintiffs’ reliance on Nationwide, however, is misplaced because Nationwide relied in
1996 on Northtown Warehouse & Transportation Co. v. Transamerica Insurance Co., 111 Ill. 2d
532 (1986), which was limited by the 1988 Carter decision discussed above. Specifically,
Northtown stated that
“[w]here the plaintiff’s claim is unrelated and distinct from the counterclaim, the plaintiff’s
claim, if severed from the counterclaim, should be treated as a separate action. As such, an
appeal should be allowed from a final judgment entered in the severed action without the
finding required by Rule 304(a), just as if the case had proceeded as a single-claim action
all along.” 111 Ill. 2d at 537.
Carter, however, stated that the above language in Northtown was “too sweeping and must give
way to the holding of [Carter].” 119 Ill. 2d at 308.
¶ 44 There is no severance order here. Because there is no severance order and no order “clearly
and unequivocally” stating that the claim, counterclaim, or party has been severed and should
proceed separately from the other claims, counterclaims, or parties to the case, plaintiffs cannot
appeal without a Rule 304(a) finding and this court lacks jurisdiction over this appeal.
¶ 45 III. CONCLUSION
¶ 46 For the foregoing reasons, we dismiss plaintiffs’ appeal for lack of jurisdiction. - 19 - No. 1-23-2508
¶ 47 Appeal dismissed.
- 20 -