Mar Cement, Inc. v. Diorio Builders, Inc.

506 N.E.2d 381, 153 Ill. App. 3d 798, 106 Ill. Dec. 674, 1987 Ill. App. LEXIS 2219
CourtAppellate Court of Illinois
DecidedMarch 30, 1987
Docket2-86-0264
StatusPublished
Cited by18 cases

This text of 506 N.E.2d 381 (Mar Cement, Inc. v. Diorio Builders, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mar Cement, Inc. v. Diorio Builders, Inc., 506 N.E.2d 381, 153 Ill. App. 3d 798, 106 Ill. Dec. 674, 1987 Ill. App. LEXIS 2219 (Ill. Ct. App. 1987).

Opinion

PRESIDING JUSTICE LINDBERG

delivered the opinion of the court:

Lyons Savings and Loan Association (the receiver) appeals from an order of the circuit court of Du Page County denying receiver fees for the period after March 11, 1982. We dismiss this appeal because we do not have jurisdiction to consider it.

The receiver’s appeal is from an order entered February 19, 1986, which provided:

“1. The petition for attorneys fees is granted, but only so far as to permit attorneys fees for the period of time between March 23, 1981, the date of the appointment of Lyons as receiver, and March 11, 1982, the date of the filing of the Bankruptcy Petition.
2. Request for fees subsequent to March 11, 1982 is hereby denied.
3. The cause is hereby continued to March 24,- 1986 at 1:30 p.m. for prove up of fees before Judge Teschner.”

The receiver, on March 24, 1986, filed a motion to certify question for appeal. The receiver in that motion stated, inter alia:

“a. The Order of February 19, 1986, is a final Judgment as to LYONS-’ claim for Receiver fees incurred after March 11, 1982;
b. The Order of February 19, 1986 does not allow LYONS an appeal under Rule 304(b);
c. The Order of February 19, 1986 does not allow LYONS an appeal under Rule 307 ***.”

The receiver requested that the court find that “there is no just reason for delaying enforcement or appeal” of the February 19, 1986, order. (See 103 Ill. 2d R. 304(a).) Alternatively, if the February 19, 1986, order was found not to be a final judgment as to fewer than all of the receiver’s claims, the receiver requested that the circuit court certify a question for interlocutory appeal. See 87 Ill. 2d R. 308(a).

On March 11, 1986, the circuit court, “pursuant to the agreement between counsel,” continued the cause to March 24, 1986, for a hearing on the motion to certify question for appeal. The receiver on March 20, 1986, filed a notice of appeal from the February 19, 1986, order. The court entered an order on March 24, 1986, which stated, inter alia:

“A) Hearing [sic] on fees granted as to those amounts previously found due and owing by the court, by orders entered June 1, 1982 in the amount of $4929.50, and bankruptcy order of Oct. 8, 1985, in the amount of $5119.93 for expenses in case #8283245
B) Court certifies order of February 19, 1986 to be final and appealable as of February 19,1986 *** [.]”

Neither party has raised the issue of this court’s jurisdiction to decide this appeal. Even though not raised by a party, prior to deciding the merits of an appeal, an appellate court has the duty to determine whether the appeal has been properly taken so as to invoke its jurisdiction. (In re Custody of Jedynak (1984), 123 Ill. App. 3d 185, 186, 462 N.E.2d 908, 909.) We therefore will consider whether this appeal was properly taken. We conclude that the order appealed from was not final, that the appeal is not a proper appeal from an interlocutory order, and that we therefore lack jurisdiction of this appeal.

This court has jurisdiction to review only a final judgment or order unless there is some basis for an interlocutory appeal. (Myers v. Myers (1977), 51 Ill. App. 3d 830, 837, 366 N.E.2d 1114, 1121.) The order at bar denied in part the receiver’s claim for fees. Such an interlocutory order is not appealable as of right (87 Ill. 2d R. 307(a)) or on petition for leave to appeal to this court (87 Ill. 2d R. 306(a)). The trial court never found that “the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” and the receiver never applied for leave to appeal in this court, so the requirements for appealing an interlocutory order not otherwise appealable were not met. (87 Ill. 2d R. 308.) It is, thus, apparent that this court does not have jurisdiction of the matter at bar as an interlocutory appeal.

The order appealed from did not completely dispose of the case with respect to all claims and all parties. Therefore, Supreme Court Rule 304 governs its appealability. 103 Ill. 2d R. 304.

Rule 304(a), on “an express written finding that there is no just reason for delaying enforcement or appeal,” permits “an appeal [to] be taken from a final judgment as to one or more but fewer than all of the parties or claims” involved in an action. (103 Ill. 2d R. 304(a).) This rule is not applicable to the case at bar. Rule 304(a) applies only to judgments. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 120, 382 N.E.2d 1217, 1220.) A judgment is “a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 119, 382 N.E.2d 1217, 1219.) The order appealed is not a judgment and so not appealable under Rule 304(a).

The order of February 19, 1986, which the receiver appeals from, determined that the receiver was entitled to fees for the period between March 23, 1981, and March 11, 1982; determined that the receiver was not entitled to fees for the period after March 11, 1982; and continued the case to March 24, 1986, for prove up of the fees. This order was not a judgment, since “[i]t did not settle or finalize any rights between the parties.” (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 120, 382 N.E.2d 1217, 1220.) A preliminary matter — the periods of time during which the receiver could and could not claim fees for its services — was decided. However, the final determination of the amount of fees to which the receiver was entitled was expressly left for subsequent decision. The order at bar was thus not a judgment because it did not dispose of a separate claim between the parties. Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 120, 382 N.E.2d 1217, 1220 (an order considering and rejecting a defendant’s defense held not to dispose of a separate claim between the parties for purposes of Rule 304(a)).

Rule 304(b) provides in part:

“The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
* * *
(2) A judgment or order entered in the administration of a receivership *** which finally determines a right or status of a party and which is not appealable under Rule 307(a).” (103 Ill. 2d R. 304(b).)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Chicago v. SRB Revocable Living Trust
2023 IL App (1st) 230174-U (Appellate Court of Illinois, 2023)
Illinois Bone & Joint Institute v. Kime
920 N.E.2d 1231 (Appellate Court of Illinois, 2009)
In re Marriage of Blanchard
Appellate Court of Illinois, 1999
Robertson v. Winnebago County Forest Preserve District
301 Ill. App. 3d 520 (Appellate Court of Illinois, 1998)
Robertson v. WINNEBAGO CTY. FOREST PRESERVE DIST.
703 N.E.2d 606 (Appellate Court of Illinois, 1998)
Boozell v. Estate of Pine Top Insurance
686 N.E.2d 657 (Appellate Court of Illinois, 1997)
Waterfront Estates Development, Inc. v. City of Palos Hills
597 N.E.2d 641 (Appellate Court of Illinois, 1992)
Steel City Bank v. Village of Orland Hills
586 N.E.2d 625 (Appellate Court of Illinois, 1991)
Chicago Title & Trust Co. v. Brooklyn Bagel Boys, Inc.
584 N.E.2d 142 (Appellate Court of Illinois, 1991)
Servio v. Paul Roberts Auto Sales, Inc.
570 N.E.2d 662 (Appellate Court of Illinois, 1991)
Lynch Imports, Ltd. v. Frey
558 N.E.2d 484 (Appellate Court of Illinois, 1990)
Charter Bank v. Eckert
555 N.E.2d 1212 (Appellate Court of Illinois, 1990)
Dillard v. Kean
538 N.E.2d 914 (Appellate Court of Illinois, 1989)
Deerfield Management Co. v. Ohio Farmers Insurance
529 N.E.2d 243 (Appellate Court of Illinois, 1988)
Voss v. Lincoln Mall Management Co.
519 N.E.2d 1056 (Appellate Court of Illinois, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
506 N.E.2d 381, 153 Ill. App. 3d 798, 106 Ill. Dec. 674, 1987 Ill. App. LEXIS 2219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mar-cement-inc-v-diorio-builders-inc-illappct-1987.