Dunne v. Op2mize Energy LLC

• Court: Appellate Court of Illinois
• Decided: March 31, 2026
• Docket: 1-24-1861
• Status: Unpublished

Opinion

2026 IL App (1st) 241861-U

FIRST DISTRICT SECOND DIVISION March 31, 2026

No. 1-24-1861

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). __________________________________________________________________________

JAMES DUNNE, ) ) Appeal from the Circuit Court Plaintiff-Appellant, ) of Cook County, Illinois ) vs. ) No. 2023 L 7243 ) OP2MIZE ENERGY LLC, OP2MIZE LLC, and ) Hon. Eve M. Reilly, GEOFFREY KASSELMAN, ) Judge Presiding ) Defendants-Appellees. ) __________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Van Tine and Justice D.B. Walker in the judgment.

ORDER

¶1 Held: Appeal dismissed. Dismissal of count was final judgment but was not appealable absent proper Rule 304(a) findings.

¶2 Plaintiff James Dunne was hired as an independent contractor to perform commissioned

sales work for defendant, a company that sells gas and electricity products. When defendant

allegedly refused to pay plaintiff commissions to which he was entitled, he sued defendant and

related entities and individuals. (The details are irrelevant to our disposition.) Count 3 of the first

amended complaint alleged a violation of the Illinois Sales Representative Act, 820 ILCS

120/0.01, et seq. (West 2024).

¶3 Defendants moved to dismiss all counts. The circuit court dismissed count 3 with 1-24-1861

prejudice but did not dismiss counts 1 or 2 and dismissed counts 4, 5, and 6 in part. The order

entered by the court did not contain any language required by Illinois Supreme Court Rule

304(a) (eff. Mar. 8, 2016) to file an interlocutory appeal.

¶4 Plaintiff wanted to immediately appeal the dismissal of counts 3 and 6, so he asked for

that Rule 304(a) language in a subsequent order. He filed a written “Motion for leave to file

interlocutory appeal pursuant to Illinois Supreme Court Rule 304(a).” In his prayer for relief, he

asked for an order “making an express written finding that there is no just reason for delaying

appeal of the Court’s August 8, 2024 Order dismissing with prejudice Counts III and VI” of the

amended complaint.

¶5 The court granted the motion, but its order did not contain the Rule 304(a) findings that

plaintiff recited in his prayer for relief. The order, drafted by plaintiff’s counsel, read: “Plaintiff’s

Motion for Leave to File Interlocutory Appeal is granted only as to Count III, Plaintiff’s Illinois

Sales Representative Act claim.”

¶6 As we explain below, we agree with defendants that this language is insufficient to confer

appellate jurisdiction. We thus dismiss the appeal.

¶7 Subject to exceptions not relevant here, a party may appeal a judgment only after the

circuit court has resolved all claims against all parties in a lawsuit. Ill. S. Ct. R. 304(a) (eff. Mar.

8, 2016); Ely v. Pivar, 2018 IL App (1st) 170626, ¶ 30. A party may appeal a final judgment as

to one but not all claims, or as to one but not all parties, “only if the trial court has made an

express written finding that there is no just reason for delaying either enforcement or appeal or

both.” Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016); see Ely, 2018 IL App (1st) 170626, ¶ 30; In re

Estate of Cerami, 2018 IL App (1st) 172073, ¶ 32.

¶8 Plaintiff here recognized as much. When the initial order dismissing count 3 with

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prejudice did not contain the express language quoted above from Rule 304(a), he asked the

court for that language. He was perfectly within his rights to do so. See Ill. S. Ct. R. 304(a) (eff.

Mar. 8, 2016) (express 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.”).

¶9 Unfortunately, the court order that counsel drafted did not contain the express finding

required by Rule 304(a)—“that there is no just reason for delaying either enforcement or appeal

or both” of that final judgment. Id.

¶ 10 It is essential that the court’s language indicate that there is no just reason to delay

enforcement of or appeal from the order in question. It is not enough that the order characterizes

itself as “final and appealable.” Shelter Mutual Insurance Co. v. Flynn, 2020 IL App (1st)

191123, ¶ 35; In re Marriage of Sanchez and Sanchez-Ortega, 2018 IL App (1st) 171075, ¶ 27;

Shared Imaging, LLC v. Hamer, 2017 IL App (1st) 152817, ¶ 21; Palmolive Tower

Condominiums, LLC v. Simon, 409 Ill. App. 3d 539, 544 (1st Dist. 2011). It is not enough that

the order specifically cites Rule 304(a). In re Marriage of Morgan, 2019 IL App (3d) 180560, ¶

13 (“Rule 304(a) is not unduly burdensome, and simply mentioning appealability while vaguely

referencing Rule 304 ‘and other applicable rules’ does not confer appellate jurisdiction.”).

¶ 11 Here, the language did not even go as far as the insufficient language in those other cases.

The order does not mention appealability or Rule 304(a). Again, it simply provides that

“Plaintiff’s Motion for Leave to File Interlocutory Appeal is granted only as to Count III,

Plaintiff’s Illinois Sales Representative Act claim.” Plaintiff did not require leave to file an

interlocutory appeal, nor did the circuit court have the authority to grant him leave. His only

jurisdictional hook was an express written finding by the circuit court that there was no just

reason to delay enforceability of or appeal from the final judgment he wanted to appeal. Ill. S.

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Ct. R. 304(a) (eff. Mar. 8, 2016). He did not obtain those findings from the circuit court.

¶ 12 Plaintiff devotes most of his time on the jurisdictional issue arguing that the dismissal of

count 3 was a final judgment. That is undeniably true. See Dubina v. Mesirow Realty

Development, Inc., 178 Ill. 2d 496, 502 (1997) (dismissal of count with prejudice is final

judgment, though not necessarily appealable at that time). But “final” and “appealable” are two

different things; a judgment may be “final” but not yet “appealable.” Id. at 502-03. Indeed, Rule

304(a) does not even enter the discussion unless the judgment is final in the first instance, as the

rule itself states. See Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016) (allowing appeal “from a final

judgment as to one or more but fewer than all of the parties or claims”). Finality is not the

problem here; appealability is.

¶ 13 Though the judgment dismissing count 3 with prejudice was a final judgment, it was not

yet appealable, given the pendency of other claims in the underlying case, absent proper Rule

304(a) findings from the circuit court. The subsequent order granting plaintiff leave to file an

interlocutory appeal was not a proper substitute for the required Rule 304(a) findings. We have

no choice but to dismiss the appeal for lack of jurisdiction.

¶ 14 Appeal dismissed.