Scully v. AltaThera Pharmaceuticals LLC

2025 IL App (1st) 242078-U

• Court: Appellate Court of Illinois
• Decided: June 30, 2025
• Docket: 1-24-2078
• Status: Unpublished

Opinion

2025 IL App (1st) 242078-U No. 1-24-2078 Order filed June 30, 2025. First 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 ______________________________________________________________________________ JAMES SCULLY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 22 L 11440 ) ALTATHERA PHARMACEUTICALS LLC, ) The Honorable ) Catherine A. Schneider, Defendant-Appellee. ) Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.

ORDER

¶1 Held: Appeal dismissed for lack of jurisdiction where the circuit court’s dismissal of two counts in plaintiff’s second amended complaint did not constitute a final judgment.

¶2 Plaintiff James Scully filed suit against defendant AltaThera, setting forth a number of

counts seeking relief for violations under the Illinois Wage Payment and Collection Act (Wage

Act) (820 ILCS 115/1 et seq. (West 2022)), breach of contract, and quantum meruit. The circuit

court eventually dismissed the Wage Act and breach of contract counts with prejudice, but allowed No. 1-24-2078

Scully to proceed on the quantum meruit counts. Scully filed an amended complaint only alleging

the quantum meruit counts and later sought a finding, pursuant to Illinois Supreme Court Rule

304(a) (eff. Mar. 8, 2016), that the dismissal of the Wage Act and breach of contract counts was a

final, appealable judgment. The court granted Scully’s request, and he appealed.

¶3 AltaThera now asserts the lower court’s Rule 304(a) finding was improper because the

dismissal of Scully’s Wage Act and breach of contract counts was not a final judgment, since those

counts contained the same operative facts as Scully’s quantum meruit counts that are still pending

in the court below. We agree. For the following reasons, we dismiss the appeal for lack of

jurisdiction.

¶4 I. BACKGROUND

¶5 On December 27, 2024, Scully filed a complaint alleging that AtlaThera failed to fully

compensate him for work performed from December 1, 2018, through October 10, 2021, when he

worked as AltaThera’s full-time Chief Financial Officer (CFO), a fact that AtlaThera later denied

in its answer. AltaThera successfully moved to dismiss the complaint pursuant to section 2-615 of

the Code. The court dismissed the complaint without prejudice and granted Scully leave to amend

his pleadings. Scully filed a first amended complaint, but then moved for leave to file a second

amended complaint, which the court allowed.

¶6 Scully’s second amended complaint set forth five counts, all seeking compensation for his

alleged work as AltaThera’s CFO: (1) compensation owed under the Wage Act; (2) breach of

contract; (3) quantum meruit relief for compensation excluding equity; (4) quantum meruit relief

for an equity stake; and (5) reimbursement for the employer share of payroll taxes paid by Scully.

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¶7 Scully alleged that he worked as AltaThera’s full-time CFO from about December 1, 2018,

to October 10, 2021. He worked for “at least” 40 hours a week and “usually” more than 40 hours.

In early January 2019, he and AltaThera’s Chief Executive Officer entered into a verbal agreement

regarding compensation by AltaThera for Scully’s work, effective as of December 1, 2018. Their

agreement called for Scully to bill AltaThera for 32 hours of work a week in exchange for $25,000

a month, which equated to an hourly rate of about $180. Scully alleged that “[t]his verbal

agreement did not address the situation where [he] worked more than 32 hours per week.”

Nonetheless, according to Scully, AltaThera knowingly allowed him to work 40 or more hours a

week and “accepted all of the work Scully performed.” From September 2019 through February

2021, AltaThera allegedly initiated an “austerity program” whereby it paid Scully for less than 32

hours a week, regardless of how many hours Scully worked. Scully also claimed that, from March

2021 through October 2021, AltaThera paid him a temporary rate of $18,750 a month while

negotiating an employment contract with him. Scully alleged that he resigned from his position as

“full-time CFO of AltaThera,” effective October 11, 2021.

¶8 In his Wage Act count, Scully alleged that, as an “employee” of AltaThera under the Wage

Act, he was owed $327,047.69 in wages for the unpaid work he performed from December 2018

through October 10, 2021, i.e., the hours of work exceeding 32 hours a week. He also alleged he

was entitled to compensation for the reductions in pay AltaThera made during the alleged

“austerity program” and employment contract negotiations. In his breach of contract count, Scully

alleged that he and AltaThera entered into a contract, which AltaThera breached by not paying

him the agreed hourly rate of $180.29 for each hour he worked.

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¶9 AltaThera moved to dismiss Scully’s second amended complaint pursuant to section 2-615

of the Code. On December 8, 2023, after briefing on the motion, the circuit court granted

AltaThera’s dismissal motion. The court dismissed with prejudice Scully’s Wage Act, breach of

contract, and tax counts. It found in part that Scully failed to allege that AltaThera agreed to pay

him for more than 32 hours of work a week. The court also dismissed Scully’s two quantum meruit

counts without prejudice, allowing Scully leave to amend them.

¶ 10 On January 8, 2024, Scully moved to reconsider the court’s dismissal. On May 2, 2024,

the court denied the motion as to Scully’s Wage Act, breach of contract, and tax counts, but granted

the motion as to his quantum meruit counts.

¶ 11 On May 9, 2024, Scully filed a third amended complaint, restating his two quantum meruit

counts but omitting all other counts alleged in the second amended complaint. He again stated the

facts in his second amended complaint regarding his work provided as a “full-time CFO” for

AltaThera from December 1, 2018, through October 10, 2021. For his first quantum meruit count,

Scully alleged he was entitled to compensation for “non-gratuitously performed services” as CFO

to AltaThera’s benefit, which AltaThera accepted. He sought $326,952 in damages, calculated by

multiplying a $180 hourly rate by the amount of hours worked without compensation. For his

second quantum meruit count, Scully alleged that he was also entitled to $406,233, the alleged fair

cash value of an equity stake in AltaThera that he claimed was owed to him.

¶ 12 On May 31, 2024, while Scully’s third amended complaint was pending, Scully filed a

notice of appeal. We dismissed the appeal for lack of jurisdiction. Scully v. AltaThera

Pharmaceuticals, No. 1-24-1182 (Aug. 9, 2024) (dispositional order dismissing the appeal for lack

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of this court’s jurisdiction). In the meantime, AltaThera had filed an answer to Scully’s third

amended complaint.

¶ 13 On July 30, 2024, Scully moved for a Rule 304(a) finding there was no just reason for

delaying either enforcement or appeal or both of the circuit court’s dismissal of his second

amended complaint’s Wage Act and breach of contract counts. AltaThera filed a response, arguing

that the court’s dismissal wasn’t a final judgment as to a definite and separate part of litigation, as

the dismissed counts from Scully’s second amended complaint shared the same operative facts as

the remaining quantum meruit counts.

¶ 14 On September 18, 2024, the circuit court granted Scully’s request for a Rule 304(a) finding,

and he appealed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, Scully raises a number of issues regarding the merits of his Wage Act and

breach of contract counts. AltaThera, however, argues that the circuit court’s Rule 304(a) finding

was improper because the dismissal of the Wage Act and breach of contract counts was not a final,

appealable judgment. AltaThera also asserts that Scully forfeited any challenge to the dismissal of

those counts by filing his third amended complaint without incorporating or referencing the counts.

See Bonhomme v. St. James, 2012 IL 112393, ¶ 17 (“[A] party who files an amended pleading

waives any objection to the trial court’s ruling on the former complaints.” (Internal quotation

marks omitted.)). Before proceeding to the merits, we must first determine whether we have

jurisdiction over this appeal. See O’Gara v. O’Gara, 2022 IL App (1st) 210013, ¶ 29 (reviewing

court has a duty to determine its jurisdiction before addressing the merits of the parties’

arguments).

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¶ 17 Generally, appellate courts have jurisdiction to review only final orders. Richardson v.

DiCiaula, 2022 IL App (1st) 210513, ¶ 15. “A final judgment fixes absolutely and finally the rights

of the parties in the lawsuit; it determines the litigation on the merits so that, if affirmed, the only

thing remaining is to proceed with the execution of the judgment.” Henyard v. Municipal Officers

of Village of Dolton, 2022 IL App (1st) 220898, ¶ 21.

¶ 18 Here, the circuit court entered a Rule 304(a) finding that the dismissal of Scully’s Wage

Act and breach of contract counts was a final, appealable order. Rule 304(a) states:

“[i]f *** multiple claims for relief are involved in an action, an appeal may be taken from

a final judgment as to one or more but fewer than all of the *** 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.” Id.

The purpose of this rule is to “discourage piecemeal appeals in the absence of a just reason and to

remove the uncertainty which existed when a final judgment was entered on fewer than all of the

matter in controversy.” (Internal quotation marks omitted.) In re Marriage of Gutman, 232 Ill. 2d

145, 151 (2008). Rule 304(a), however, applies only to final judgments. Blumenthal v. Brewer,

2016 IL 118781, ¶ 24. That is, a special finding under Rule 304(a) cannot confer jurisdiction on a

nonfinal order. Id. For an order to be final under Rule 304(a), it “must be final in the sense that it

disposes of the rights of the parties, either upon the entire controversy or upon some definite and

separate part thereof.” Id. ¶ 25.

¶ 19 With that in mind, we must determine whether the dismissal of Scully’s Wage Act and

breach of contract counts constituted a final judgment, given that Scully had two quantum meruit

counts still pending before the circuit court. The disposition of a count in a complaint is not final,

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where the disposed count “seeks relief based on the same operative facts as those forming the basis

for a surviving count.” American Advisors Group v. Williams, 2022 IL App (1st) 210734, ¶ 17. In

those circumstances, “[p]ermitting a separate appeal *** would require the appellate court to

relearn, inefficiently, the same set of facts when the case returns for a second appeal following

final judgment on all of the claims.” Id. Further, in permitting a separate appeal, the appellate court

would “address facts still at issue in the claims remaining before the trial court, compromising the

trial court’s position as the primary fact finder.” Davis v. Loftus, 334 Ill. App. 3d 761, 767 (2002).

The question of whether a court has jurisdiction over an appeal in the Rule 304(a) context presents

a question of law, which we review de novo. See, e.g., In re Marriage of Arjmand, 2024 IL

129155, ¶ 20; In re Marriage of Crecos, 2021 IL 126192, ¶ 11; Shelter Mutual Insurance Co. v.

Flynn, 2020 IL App (1st) 191123, ¶ 31. 1

¶ 20 Here, there is no doubt that Scully’s Wage Act and breach of contract counts concerned

the same operative facts as the surviving quantum meruit counts still pending in the circuit court.

Specifically, the dismissed and surviving counts all sought the same relief, i.e., compensation for

allegedly unpaid work that Scully performed for AltaThera from December 1, 2018, through

October 10, 2021. Each count was also premised on essentially the same central (and disputed)

factual allegations, i.e., that Scully worked full-time as a CFO for Alta-Thera, that AltaThera didn’t

pay him the full value of his services, and that AltaThera was obligated to compensate Scully. In

other words, the dismissed and surviving counts all essentially advanced different analytical

1 We note that a number of appellate court cases have applied the abuse of discretion standard applies when reviewing a circuit court’s decision to grant Rule 304(a) language. See, e.g., Hobson v. Alexian Brothers—AHS Midwest Region Health Co., 2025 IL App (1st) 232469, ¶ 23; American Advisors Group v. Williams, 2022 IL App (1st) 210734, ¶ 10; AT&T v. Lyons and Pinner Electric Co., Inc., 2014 IL App (2d) 130577, ¶ 24. Regardless of the applicable standard of review, however, our conclusion that we lack jurisdiction would remain the same.

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approaches for determining whether Scully was entitled to compensation from AltaThera for the

same work performed during the same period of time. See Blumenthal, 2016 IL 118781, ¶¶ 25-26

(dismissal of certain counts was not final and appealable under Rule 304(a), where the dismissed

and surviving counts all concerned the division of the value of the parties’ home and provided

different approaches for “determining how the home or its proceeds should be allocated”).

¶ 21 Scully argues that the dismissal of his Wage Act and breach of contract counts was final

and appealable because it disposed of a definite and separate part of the litigation, namely, Scully’s

counts based on the existence of an agreement between the parties. He states that his quantum

meruit claims are separate parts of litigation in that the theory of quantum meruit prohibits the

existence of an agreement. See Jameson Real Estate, LLC v. Ahmed, 2018 IL App (1st)

171534, ¶ 61 (quantum meruit “describes a cause of action seeking recovery for the reasonable

value of services nongratuitously rendered, but where no contract exists to dictate payment”

(emphasis added and internal quotation marks omitted)).

¶ 22 Yet as we have stated, regardless of whether a contract existed or not, both the dismissed

and pending counts here essentially sought the same relief, i.e., compensation for the value of

Scully’s alleged services as full-time CFO. Full compensation on the pending quantum meruit

counts would effectively render any decision on the dismissed Wage Act and breach of contract

counts moot, as Scully would have received the relief sought in the dismissed counts. Thus, we

cannot possibly find that the dismissal of the Wage Act and breach of contract counts represented

a final, appealable order on a definite and separate part of litigation. See Davis, 334 Ill. App. 3d at

767-68 (dismissal of breach of contract counts wasn’t a final, appealable judgment under Rule

304(a) where there were legal malpractice counts still pending that sought identical relief, so that

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“full compensation for the alleged malpractice would render any decision on the contract counts

moot”).

¶ 23 Moreover, the record before us, in particular AltaThera’s responsive pleadings to the third

amended complaint, reflects that AltaThera raised an issue that a contract already existed between

the parties, so that recovery based on quantum meruit wasn’t available. See Hedlund and Hanley,

LLC v. Board of Trustees of Community College District No. 508, 376 Ill. App. 3d 200, 207 (2007)

(where a contract exists between the parties, no quasi-contractual claim such as quantum meruit

can arise). Thus, the existence of a contract could still be a disputed fact in litigating Scully’s

remaining quantum meruit counts. Permitting a separate appeal on Scully’s Wage Act and breach

of contract counts would risk this court addressing facts “still at issue in the claims remaining

before the trial court,” thus “compromising the trial court’s position as the primary fact finder.”

Davis, 334 Ill. App. 3d at 767.

¶ 24 Because Scully still has counts pending before the circuit court regarding AltaThera’s

obligation to compensate him for his alleged services as full-time CFO, the dismissal of only some

of his counts seeking that relief did not absolutely and finally fix Scully’s right to recover from

AltaThera for his alleged work. As such, there is no final judgment before us. See Henyard, 2022

IL App (1st) 220898, ¶ 21 (final judgment “fixes absolutely and finally the rights of the parties in

the lawsuit”). Given that the dismissal of Scully’s Wage Act and breach of contract counts was not

actually final, the circuit court’s Rule 304(a) finding that the dismissal was final and appealable

cannot confer jurisdiction on this court. See Blumenthal, 2016 IL 118781, ¶ 24. We therefore

cannot address the merits of Scully’s appeal, and we need not address whether Scully properly

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preserved the issues for appeal after filing a third amended complaint. See Richardson, 2022 IL

App (1st) 210513, ¶ 15 (reviewing court only has jurisdiction over final orders).

¶ 25 III. CONCLUSION

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

¶ 27 Appeal dismissed.

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