Richardson v. DiCiaula

2022 IL App (1st) 210513, 204 N.E.3d 904, 461 Ill. Dec. 568

• Court: Appellate Court of Illinois
• Decided: February 10, 2022
• Docket: 1-21-0513
• Status: Published

Opinion

2022 IL App (1st) 210513

FIRST DISTRICT SIXTH DIVISION February 10, 2022

No. 1-21-0513

DEBRA RICHARDSON, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) No. 19 L 14329 LENETTE L. RENIER DICIAULA, DVM, Individually, ) and PORTAGE PARK ANIMAL HOSPITAL & ) DENTAL CLINIC, P.C., an Illinois Corporation, ) Honorable ) Ronald Bartkowicz, Defendants-Appellees. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Oden Johnson concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Debra Richardson, appeals the trial court’s order denying her petition for leave to

amend her complaint to add a count alleging consumer fraud. On appeal, plaintiff contends that

the court erred in denying her leave to amend because it considered only the advertising of

defendant Portage Park Animal Hospital & Dental Clinic, P.C. (Portage Park), and not its conduct,

in its determination. For the reasons that follow, we find that we lack jurisdiction to consider this

appeal.

¶2 I. JURISDICTION

¶3 Plaintiff filed a motion for leave to amend her complaint on August 12, 2020, and the trial

court allowed the filing of an amended complaint as to counts I, II, III, and V. The court, however

denied leave to amend to add count IV, alleging consumer fraud. Plaintiff filed a motion to

reconsider, which the trial court denied on April 21, 2021. The trial court’s order contained No. 1-21-0513

language pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), finding “no just

reason for delaying appeal of this Order.” Plaintiff filed her notice of appeal on May 5, 2021.

¶4 II. BACKGROUND

¶5 In 2015, plaintiff became the registered owner of Tigger, a now five-year-old gray tabby

male cat. Plaintiff paid for Tigger to be microchipped, and the microchip was registered via

PetLink. Tigger lived with plaintiff and her other cats in her apartment along with plaintiff’s

daughter Jessica Baniamin and Jessica’s boyfriend, Justin Griggs.

¶6 Although Jessica and Griggs ended their relationship in July 2018, Griggs continued to live

at the residence with plaintiff and Jessica. In September 2018, without plaintiff’s consent, Griggs

used plaintiff’s computer to access her PetLink account and change Tigger’s ownership from

plaintiff to himself. Plaintiff became aware of the unauthorized change in November 2018, and

Tigger’s ownership was changed back to plaintiff. A “do not transfer” designation was also placed

on the microchip registration for Tigger.

¶7 Griggs moved out of plaintiff’s residence on December 16, 2018, with help from his friends

and family. Soon after they left, plaintiff and Jessica noticed that Tigger was missing. Jessica

contacted Griggs and accused him of taking Tigger, which he denied. Plaintiff filed a lost/stolen

report for Tigger with the microchip company and with the police. Plaintiff also informed Tigger’s

veterinarian at Forest Glen Animal Hospital that she believed Tigger had been stolen. A lock was

placed on Tigger’s account at the hospital.

¶8 Days later, Griggs admitted to Jessica that he had Tigger and that he wanted Tigger’s

ownership to be in his name. On or around January 16, 2019, Griggs acknowledged that he was

living at his mother’s house, but he refused to return Tigger. Unable to settle the matter amongst

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themselves, plaintiff filed a lawsuit on February 21, 2019, to have Tigger returned to her. Plaintiff

prevailed in her suit, and Tigger was returned to plaintiff.

¶9 While the suit was pending, plaintiff discovered that Griggs had brought Tigger to

defendant Portage Park on January 28, 2019, to remove his microchip. Portage Park apparently

performed the surgery without scanning the microchip or checking the registration database. As a

result, Tigger was subjected to unnecessary surgery.

¶ 10 On December 19, 2019, plaintiff filed a suit against defendant Lenette Renier DiCiaula,

DVM, and Portage Park, alleging professional malpractice (count I), conversion (count II),

common law fraud and concealment (count III), claims under the Humane Care for Animals Act

(510 ILCS 70/3 (West 2018)) (count IV), gross negligence (count V), and respondeat superior

against Portage Park (count VI). Defendants filed a motion to dismiss plaintiff’s complaint

pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615,

2-619 (West 2018)). On July 16, 2020, the trial court granted the motion to dismiss as to counts II,

III, and IV. The court’s order also directed defendants to answer counts I, IV, and VI, and a case

management conference was set for September 25, 2020.

¶ 11 On August 12, 2020, plaintiff filed a motion for leave to file an amendment to her complaint

pursuant to section 2-616 of the Code (id. § 2-616). In her motion, plaintiff sought to rename count

II “Professional Malpractice” and to replead count III from common law fraud to trespass to chattel

and count IV from humane care of animals to consumer fraud. In its January 19, 2021, order, the

trial court allowed the amended filing as to counts II and III but denied the amendment as to count

IV. The trial court noted that plaintiff was alleging a private right of action for deceptive

advertisement in count IV and to properly plead proximate cause in such an action, plaintiff “must

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allege that she in some manner was deceived.” The court found that plaintiff “does not allege she

was deceived prior to the chip removal,” which occurred on January 28, 2019. Rather, plaintiff

first became aware of the removal after she filed suit against Griggs on February 21, 2019. The

court concluded that plaintiff “has not adequately plead an action for deceptive advertisement, and

these facts foreclose Plaintiff from alleging she was deceived by the Defendant.” The court’s order

also directed defendants to answer plaintiff’s amended complaint on or before February 11, 2021,

and instructed both parties to “comply with Discovery Requests on or before March 12, 2021.”

¶ 12 On January 25, 2021, plaintiff filed her first amended complaint with the allowed

amendments. On February 16, 2021, plaintiff filed a motion to reconsider the court’s judgment to

deny amendment of count IV, alleging that the court misapplied existing law to the facts of the

case. The trial court denied the motion to reconsider. In its written order, the court noted that

plaintiff’s claim of consumer fraud alleged that Portage Park “refus[ed] to scan Tigger’s microchip

‘to avoid seeking approval from Tigger’s rightful owner before performing the microchip removal

and collecting payment from the unauthorized service from [Griggs.]’ ” However,

“Portage Park’s website does not explicitly state that Portage Park automatically scans all

microchips when an [sic] pet is brought into their practices. Rather, the website touts the

benefits of such microchips for identifying lost pets that have been found and brought in

for identification. The website suggests that Portage Park scans microchips upon the

request of a client. *** Therefore, Portage Park’s failure to scan Tigger’s microchip prior

to its removal does not, in and of itself, constitute a deceptive act.”

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The trial court also reiterated its prior finding that plaintiff failed to allege that she relied on Portage

Park’s deceptive advertising prior to the microchip’s removal. The court’s order stated that

pursuant to Rule 304(a), there was “no just reason for delaying appeal of this Order.”

¶ 13 Plaintiff filed this appeal.

¶ 14 III. ANALYSIS

¶ 15 Plaintiff challenges the trial court’s denial of her motion to amend count IV. But first, we

must consider defendants’ contention that we lack jurisdiction to consider plaintiff’s appeal.

Generally, appellate courts have jurisdiction to review only final orders. D’Agostino v. Lynch, 382

Ill. App. 3d 639, 641 (2008). Plaintiff asserts that this court has jurisdiction pursuant to Rule

304(a), which provides that “an appeal 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 for delaying either enforcement or appeal or both.” Ill. S. Ct. R 304(a)

(eff. Mar. 8, 2016). Here, the trial court added Rule 304(a) language to its written order.

Defendants, however, contend that the trial court’s denial of plaintiff’s motion to amend was not

a final order.

¶ 16 It is well established that an order denying leave to file an amended complaint is not a final

judgment, notwithstanding the inclusion of Rule 304(a) language. See Enblom v. Milwaukee Golf

Development, 227 Ill. App. 3d 623, 627-28 (1992) (finding that “[w]ere this matter before us solely

on the question of the propriety of the denial of leave to file an amended third-party complaint, we

would be without jurisdiction since such a denial would not constitute” a final judgment); Ely v.

Pivar, 2018 IL App (1st) 170626, ¶¶ 39-40 (finding that an order denying leave to file a second

amended complaint is not a final and appealable order for purposes of Rule 304(a)). “ ‘The fact

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that an order contains [Rule 304(a)] language does not make an otherwise nonfinal order

appealable.’ ” Enblom, 227 Ill. App. 3d at 628 (quoting Metzger v. Fitzsimmons, 175 Ill. App. 3d

674, 675 (1988)); Paul H. Schwendener, Inc. v. Jupiter Electric Co., 358 Ill. App. 3d 65, 82 (2005)

(stating that “[o]rdinarily, an order denying leave to file an amended complaint does not constitute

a final judgment notwithstanding a court’s Rule 304(a) finding”).

¶ 17 Nonetheless, we may review the trial court’s denial of leave to amend if we have

jurisdiction over the underlying order dismissing the counts that plaintiff sought to amend. Jupiter,

358 Ill. App. 3d at 82. Here, the trial court had previously dismissed counts II, III, and IV of

plaintiff’s complaint in an order entered on July 16, 2020. Plaintiff subsequently filed a motion to

amend her complaint, seeking to amend counts II, III, and IV. The trial court allowed amendment

of counts II and III, although it denied plaintiff’s request to amend count IV. The court’s decision

to grant leave to amend indicates that the prior dismissal was not a final disposition of the case.

Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578, 585 (2003). Therefore, the July 16,

2020, order “cannot be considered a final order.” See id. As such, we lack jurisdiction to review

the trial court’s July 16, 2020, order that dismissed counts II, III, and IV of plaintiff’s complaint.

Since we do not have jurisdiction over the trial court’s dismissal order, we lack jurisdiction to

consider this appeal. Ely, 2018 IL App (1st) 170626, ¶ 41.

¶ 18 Plaintiff argues, however, that the trial court’s order denying plaintiff’s proposed

amendment of count IV was based on a “legal deficiency,” and therefore, it was a final judgment.

As support, she cites Schal Bovis, Inc. v. Casualty Insurance Co., 314 Ill. App. 3d 562, 567-68

(1999). Schal Bovis involved the dismissal of several counts of the complaint without prejudice.

This court found that “the effect of a dismissal order is determined by its substance, and not by the

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incantation of any particular magic words.” Id. at 568. The court determined that the dismissal

“without prejudice” was a final order because the dismissal was based on a perceived legal

deficiency—that plaintiffs sustained no damages and thus lacked standing to sue. Id. The ultimate

issue was “finally decided by the trial court.” Id. As such, the mere words “without prejudice” on

the order did not deprive the appellate court of jurisdiction under Rule 304(a). Id.

¶ 19 Schal Bovis involved an appeal from the trial court’s dismissal order, and the issue was

whether the dismissal was, in substance, with or without prejudice. Here, plaintiff is not appealing

the court’s dismissal of count IV of her complaint. Rather, she is challenging the trial court’s denial

of leave to amend count IV to assert a consumer fraud claim. As discussed above, we may have

jurisdiction over plaintiff’s appeal if we have jurisdiction to review the underlying July 16, 2020,

dismissal order. However, we lack jurisdiction to consider that order. Thus, we lack jurisdiction to

consider this appeal.

¶ 20 IV. CONCLUSION

¶ 21 For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.

¶ 22 Appeal dismissed.

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Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-L-14329; the Hon. Ronald Bartkowicz, Judge, presiding.

Attorneys Anna Morrison-Ricordati, of AMR Law Group, LLC, of for Chicago, for appellant. Appellant:

Attorneys Julie A. Teuscher and Lynsey A. Stewart, of Cassiday Schade for LLP, of Chicago, for appellees. Appellee:

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