Schultz v. Beaucoup Township Road District

2021 IL App (5th) 200119-U

• Court: Appellate Court of Illinois
• Decided: January 22, 2021
• Docket: 5-20-0119
• Status: Unpublished

Opinion

NOTICE 2021 IL App (5th) 200119-U NOTICE Decision filed 01/22/21 The text This order was filed under of this decision may be NO. 5-20-0119 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for Rehearing or the disposition of IN THE limited circumstances allowed under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

SHIRLEY SCHULTZ, Individually and as Trustee) Appeal from the of the Leroy Schultz Revocable Trust, and LARRY ) Circuit Court of SCHULTZ, ) Washington County. ) Plaintiffs-Appellants, ) v. ) No. 19-L-11 ) BEAUCOUP TOWNSHIP ROAD DISTRICT, ) WASHINGTON COUNTY, ILLINOIS, ) Honorable ) Julia R. Gomric, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________

PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Moore and Wharton concurred in the judgment.

ORDER

¶1 Held: The appellate court lacks jurisdiction over an appeal from an order dismissing the plaintiffs’ complaint where the dismissal order did not resolve the defendant’s request for attorney fees made in the motion to dismiss.

¶2 The plaintiffs, Shirley Schultz, individually and as trustee of the Leroy Schultz

Revocable Trust, and Larry Schultz, brought an action against the defendant, Beaucoup

Township Road District, alleging breach of a settlement agreement and trespass. The

circuit court granted the defendant’s motion to dismiss the plaintiffs’ complaint on

1 res judicata grounds, and the plaintiffs now appeal. For the following reasons, we dismiss

the plaintiffs’ appeal for lack of appellate jurisdiction.

¶3 BACKGROUND

¶4 Coplaintiff Shirley Schultz, individually and as trustee of the Leroy Schultz

Revocable Trust, owns real estate (Schultz property) in Washington County, Illinois. The

Schultz property is bounded on two sides (north and west) by a township road that is

commonly known as Arizona Road. The defendant is tasked with the upkeep of Arizona

Road and has an easement along the north and west property lines of the Schultz property

for purposes of maintaining the road. Arizona Road curves at the northwest corner of the

Schultz property. Initially, the road turned at a 90-degree angle at the north-west corner of

the Schultz property. Over time, however, the 90-degree turn became a curve that

encroached on the Schultz property.

¶5 On December 2, 2013, Shirley Schultz filed the first of two lawsuits against the

defendant stemming from the movement of the curve on Arizona Road. The first complaint

(13-MR-11) was a two-count complaint against the defendant alleging ejectment and

trespass. On January 16, 2017, the plaintiffs 1 and the defendant entered into a mutual

release and settlement agreement (settlement agreement) to resolve this dispute.

¶6 The settlement agreement required the defendant to shift the location of a curve on

Arizona Road as reflected on a sketch attached to the settlement agreement. The settlement

1 Only Shirley Schultz, individually and as the trustee of the Leroy Schultz Revocable Trust, filed the initial complaint against the defendant. However, coplaintiff in the present case, Larry Schultz, also signed the settlement agreement as one of the property’s “landowners.” 2 agreement also required the defendant to purchase and deliver three concrete stone right-

of-way markers to Shirley and pay for half of the survey costs incurred to establish the

appropriate location for the curve. The settlement agreement required Shirley to dismiss

her lawsuit with prejudice.

¶7 By March 2018, the defendant believed that it had completed all its obligations

under the settlement agreement. Shirley, however, refused to dismiss her lawsuit.

Therefore, on March 19, 2018, in the original lawsuit (13-MR-11), the defendant filed a

motion to enforce the settlement agreement asking the court to dismiss Shirley’s lawsuit

with prejudice and to order Shirley to pay its attorney fees and costs incurred in bringing

the motion. In her response to the defendant’s motion, Shirley disputed the defendant’s

claim that it had complied with the terms of the settlement agreement. She maintained that

the defendant had not undertaken and/or had not satisfactorily completed the tasks it was

required to perform under the agreement.

¶8 On March 1, 2019, the circuit court conducted a hearing on the defendant’s motion,

considered arguments presented by the parties, and entered an order granting the

defendant’s motion to enforce the settlement agreement. The circuit court reserved the

issue of Shirley’s obligation to pay the defendant’s attorney fees. On May 24, 2019, after

further arguments from the parties, the circuit court entered an order granting the

defendant’s request for the assessment of fees and costs. Shirley appealed the circuit court’s

order, and we dismissed this appeal on November 27, 2019, for want of prosecution.

¶9 On October 15, 2019, the plaintiffs filed a new two-count complaint (19-L-11)

against the defendant alleging breach of the January 16, 2017, settlement agreement and 3 trespass. In this second complaint, the plaintiffs alleged that the defendant failed to shift

the location of the curve as required by the settlement agreement and that the defendant

constructed a ditch along Arizona Road that encroached on the Schultz property.

¶ 10 The defendant moved to dismiss the complaint pursuant to section 2-619(a)(4) of

the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4) (West 2018)), arguing that

the plaintiffs’ complaint was barred under the doctrine of res judicata. The defendant asked

the circuit court to dismiss the plaintiffs’ complaint with prejudice and to award it its

attorney fees and costs it incurred in defending the lawsuit.

¶ 11 The circuit court agreed with the defendant’s res judicata argument and, on March

5, 2020, the circuit court entered an order dismissing the complaint in cause No. 19-L-11.

The circuit court dismissed the plaintiffs’ second complaint with prejudice. The circuit

court also granted the defendant’s request for attorney fees but reserved the issue of the

amount to be determined at a later hearing to be noticed up by the defendant. The plaintiffs

immediately appealed from the circuit court’s March 5, 2020, dismissal order before the

circuit court determined the amount of the defendant’s attorney fee award.

¶ 12 ANALYSIS

¶ 13 Before considering the merits of the plaintiffs’ appeal, we must first address this

court’s appellate jurisdiction. None of the parties have raised any issues with respect to this

court’s jurisdiction. However, Illinois courts have an independent duty to consider subject

matter jurisdiction. Bradley v. City of Marion, 2015 IL App (5th) 140267, ¶ 13.

¶ 14 In general, appellate courts have jurisdiction over only final orders. Ill. Const. 1970,

art. VI, § 6; Almgren v. Rush-Presbyterian-St. Luke’s Medical Center, 162 Ill. 2d 205, 210 4 (1994). A final order is one that concludes the litigation between the parties on the merits

and disposes of all pending issues and parties. Smith v. Policemen’s Annuity & Benefit

Fund, 391 Ill. App. 3d 542, 546 (2009). In other words, the judgment is final if it decides

the litigation on the merits such that the only thing remaining is to proceed with the

execution of the judgment. Brown & Kerr, Inc. v. American Stores Properties, Inc., 306

Ill. App. 3d 1023, 1027-28 (1999).

¶ 15 In the present case, the defendant’s motion to dismiss the plaintiffs’ complaint

included a request for an award of attorney fees and costs that it incurred in defending the

plaintiffs’ claims. 2 The circuit court’s March 5, 2020, order, from which the plaintiffs

appeal, dismissed the plaintiffs’ complaint with prejudice but left the defendant’s claim for

attorney fees pending and unresolved with respect to the amount of the award. Accordingly,

the March 5, 2020, order did not conclude the litigation and dispose of all the pending

issues between the parties.

¶ 16 In determining whether an order that does not resolve a claim for attorney fees

constitutes a final, appealable order, “courts have made a distinction between a claim for

fees brought as part of the principal action and a claim made after the principal action has

been decided.” In re Estate of Kunsch, 342 Ill. App. 3d 552, 556 (2003) (citing Berger v.

Matthews, 216 Ill. App. 3d 942, 944 (1991)). Where “a proceeding for attorney fees is

within and a part of the underlying civil action, the issue must be resolved before the action

2 Article XVI of the settlement agreement provided that “in the event of a dispute regarding compliance with the terms of [the settlement agreement], the non prevailing [p]arty shall reimburse the prevailing party for all reasonable attorney fees and costs resulting therefrom.” 5 becomes appealable.” Kunsch, 342 Ill. App. 3d at 556 (citing Berger, 216 Ill. App. 3d at

944). This is true whether the fees are sought pursuant to statute, such as the entry of

sanctions, or pursuant to a contract provision (which is the basis for the attorney fee award

in the present case). F.H. Prince & Co. v. Towers Financial Corp., 266 Ill. App. 3d 977,

983 (1994).

¶ 17 As an example, in Bale v. Barnhart, 343 Ill. App. 3d 708, 711-12 (2003), the court

held that an order granting the defendant’s motion to dismiss pursuant to section 2-619 of

the Code was not a final order because it “left unresolved the issue of attorney fees—an

issue raised in the [motion to dismiss].” Likewise, in the present case, the circuit court’s

dismissal order left the defendant’s request for attorney fees pending and unresolved.

Therefore, the March 5, 2020, dismissal order is not a final and appealable order. See also

Goral v. Kulys, 2014 IL App (1st) 133236, ¶ 23 (“The trial court in this case granted

defendant’s motion to dismiss plaintiff’s complaint pursuant to section 2-619. In

defendant’s motion to dismiss, he requested attorney fees. The trial court did not rule upon

defendant’s request at the time it granted defendant’s motion to dismiss. The court’s

[dismissal] order was thus not final ***.”).

¶ 18 Under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), if a circuit court’s

order disposes of fewer than all the claims in an action, the circuit court must make an

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

before the circuit court’s decision is appealable. Without the Rule 304(a) finding, a final

order disposing of fewer than all of the claims is not an appealable order and does not

become appealable until all of the claims have been resolved. See Marsh v. Evangelical 6 Covenant Church of Hinsdale, 138 Ill. 2d 458, 465 (1990) (“[A] ‘claim’ is any right,

liability or matter raised in an action. If an order does not resolve every right, liability or

matter raised, it must contain an express finding that there is no just reason for delaying an

appeal. Otherwise, the order is not appealable.”).

¶ 19 Here, because the circuit court’s March 5, 2020, order did not resolve the

defendant’s claim for attorney fees and did not include any findings required by Rule

304(a), we do not have jurisdiction over this appeal pursuant to Rule 304(a) or 304(b). See

F.H. Prince & Co., 266 Ill. App. 3d at 983 (“A request for attorney fees is a claim within

the meaning of Supreme Court Rule 304(a)” which governs the finality of judgments).

Although the circuit court’s March 5, 2020, order indicated that the circuit court would

award attorney fees and left only the amount to be resolved, a final determination of the

amount of fees is necessary before the dismissal order is final. Without a determination of

the amount of attorney fees, the March 5, 2020, order did not constitute a final judgment

as to all claims in the case. See Home State Bank/National Ass’n v. Potokar, 249 Ill. App.

3d 127, 136-37 (1993) (“Indeed we believe that because the trial court awarded attorney

fees and costs in its order of April 15, 1991, but failed to specify their amount, the order

did not constitute a final judgment as to all claims in the case ***.”); Lamar Whiteco

Outdoor Corp. v. City of West Chicago, 395 Ill. App. 3d 501, 505 (2009) (“[T]he finding

that plaintiff is entitled to a not-yet-determined amount of attorney fees and costs is a

nonfinal order similar to a finding of liability without a determination of damages.”). For

these reasons, the plaintiffs’ appeal in the present case is hereby dismissed for lack of

appellate jurisdiction. 7 ¶ 20 CONCLUSION

¶ 21 For the foregoing reasons, we dismiss the plaintiffs’ appeal from the circuit court’s

March 5, 2020, order and remand for further proceedings.

¶ 22 Dismissed and remanded.