Zanayed v. Mufarreh

2024 IL App (1st) 230331-U

• Court: Appellate Court of Illinois
• Decided: February 16, 2024
• Docket: 1-23-0331
• Status: Unpublished

Opinion

2024 IL App (1st) 230331-U No. 1-23-0331 Order filed February 16, 2024 Fifth 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 ______________________________________________________________________________

AKRAM ZANAYED, INDIVIDUALLY AND ) DERIVATIVELY ON BEHALF OF PROTÉGÉ ) INVESTMENTS INCORPORATED, AN ILLINOIS ) CORPORATION, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of ) Cook County. v. ) ) No. 20 CH 05869 MICHAEL P. MUFARREH, INDIVIDUALLY, BAMCO ) CONSTRUCTION, LLC, AN ILLINOIS LIMITED ) Honorable LIABILITY COMPANY, AND PROTÉGÉ ) Caroline Kate Moreland, INVESTMENTS, INCORPORATED, AN ILLINOIS ) Judge Presiding. CORPORATION AS A NOMINAL DEFENDANT, ) ) Defendants-Appellants. )

JUSTICE LYLE delivered the judgment of the court. Justice Mikva concurred in the judgment. Justice Mitchell dissented, with opinion.

ORDER

¶1 Held: We affirm the judgment of the circuit court over defendant’s contention that the circuit court lacked jurisdiction to enter an order enforcing the settlement agreement. No. 1-23-0331

¶2 This appeal arises following the circuit court’s entry of an order enforcing the settlement

agreement between plaintiff, Akram Zanayed, and defendant, Michael Mufarreh. Mr. Zanayed and

Mr. Mufarreh owned and operated a corporation that managed rental properties. Mr. Zanayed filed

suit against Mr. Mufarreh alleging that he was improperly funneling funds from their jointly owned

corporation to a company owned by Mr. Mufarreh. The parties eventually settled and the circuit

court dismissed the action without prejudice, instructing the parties to provide status updates on

the performance of the settlement terms.

¶3 More than 30 days after the dismissal, Mr. Zanayed filed a motion in the circuit court to

enforce the settlement agreement. Mr. Mufarreh contended that the circuit court lacked jurisdiction

to enforce the settlement agreement where it did not intend to retain jurisdiction and simply

dismissed the case. The court found that it had jurisdiction to enforce the settlement agreement,

found that Mr. Mufarreh was in breach, and ordered that Mr. Zanayed did not have to send

payments to Mr. Mufarreh pursuant to the agreement until Mr. Mufarreh fulfilled his obligation to

transfer real property.

¶4 On appeal, Mr. Mufarreh contends that the court erred in finding that it retained jurisdiction

to enforce the settlement agreement where the court’s dismissal order did not reflect an intent to

retain jurisdiction. Mr. Mufarreh also asserts that the court did not have jurisdiction because the

settlement agreement involved third parties who did not submit to the court’s jurisdiction. For the

reasons that follow, we affirm the judgment of the circuit court.

¶5 I. BACKGROUND

¶6 Mr. Zanayed filed a complaint for injunctive and other relief on September 15, 2020.

According to the complaint, Protégé Investments Incorporated (Protégé) owned and managed

rental properties in the Chicago area. The management of Protégé was controlled by Mr. Zanayed,

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Mr. Mufarreh, and Khalil Barbari. Mr. Mufarreh was also a member of BAMCO Construction,

LLC (BAMCO), a Chicago-based construction company. Mr. Mufarreh contracted BAMCO to

make repairs to certain Protégé properties. Mr. Zanayed alleged that, at Mr. Mufarreh’s direction,

BAMCO overcharged Protégé for the repairs and Mr. Mufarreh facilitated Protégé’s payments to

BAMCO.

¶7 Mr. Zanayed further alleged that after Mr. Mufarreh was removed as an officer of Protégé,

he began “looting” Protégé’s bank accounts and locked the other officers out of Protégé’s

management software. Mr. Zanayed raised claims of violations of the Illinois Business

Corporation Act of 1983, conversion, breach of fiduciary duty, and unjust enrichment.

¶8 After further pleadings, on June 3, 2022, the parties entered into a settlement agreement.

The settlement agreement provided that it was entered by and among Khalil Barbari, Mr. Mufarreh,

Joseph Ortinau, Mr. Zanayed, Protégé, BAMCO, and numerous other parties who are not parties

to this lawsuit. The settlement agreement resolved disputes among the parties in four separate

lawsuits and one arbitration proceeding. The agreement provided for payments among the parties,

including payments from Mr. Zanayed to Mr. Mufarreh and Mr. Ortinau, and required Mr.

Mufarreh and Mr. Ortinau to divest themselves of their interest in Protégé and resign from their

positions. The agreement also required Mr. Mufarreh to transfer his interest in certain real property

to Mr. Zanayed and Protégé.

¶9 Following the settlement agreement, the trial court entered a written order dismissing the

case without prejudice on June 21, 2022:

“This case coming before the Court by agreement of the parties, the parties having

resolved all allegations, claims and defenses in this case pursuant to a settlement

(“Settlement”), and the Court fully advised, IT IS HEREBY ORDERED:

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Pursuant to the Settlement, this action, including all claims and defenses alleged by

the parties, is hereby dismissed in its entirety without prejudice. The parties shall jointly

advise the Court when certain of the Settlement terms have been performed, at which point,

as provided for by the Settlement, the dismissal of this action shall become a dismissal with

prejudice.”

¶ 10 On December 1, 2022, Mr. Zanayed filed a motion to enforce the settlement agreement.

Mr. Zanayed alleged that under the terms of the settlement agreement, he and Protégé were

required to make certain payments to Mr. Mufarreh and Joseph Ortinau. Mr. Zanayed represented

that he and Protégé had made all of the required payments to date. He maintained, however, that

Mr. Mufarreh and Mr. Ortinau had failed to transfer real property to Protégé as required by the

agreement. Mr. Zanayed contended that the transfer was necessary so that Protégé could refinance

or sell the property to pay its obligations to Mr. Mufarreh and Mr. Ortinau. Mr. Zanayed asked the

court to enforce the settlement agreement by requiring Mr. Mufarreh and Mr. Ortinau to make

certain payments to third parties or by allowing Protégé and Mr. Zanayed to pay those obligations

and deduct the amount paid from their balance under the settlement agreement. Mr. Zanayed also

asked for an extension for his time to make payments pursuant to the settlement agreement and

asked the court to order Mr. Mufarreh and Mr. Ortinau to reimburse Protégé for certain expenses

incurred based on their failure to comply with the terms of the settlement agreement.

¶ 11 Mr. Mufarreh moved to dismiss the motion to enforce the settlement agreement for lack of

jurisdiction. Mr. Mufarreh argued that the court lacked jurisdiction over the entities who were

parties to the settlement agreement, but were not parties to the original action between Mr. Zanayed

and Mr. Mufarreh, including Mr. Ortinau. Mr. Mufarreh maintained that these parties were not

before the circuit court and never had been, and permitting the court to rewrite the settlement

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agreement as Mr. Zanayed requested would “strip the third party entities” of their rights under the

agreement. Mr. Mufarreh asserted that the court declined to retain jurisdiction over the settlement

agreement by not explicitly stating in its dismissal order that it intended to retain jurisdiction.

¶ 12 In a written order, the circuit court found that it retained jurisdiction to enforce the terms

of the settlement agreement. In reaching that determination, the court found that while presiding

over three of the underlying litigations, it allowed several continuances for status on the settlement

negotiations. The court acknowledged that its dismissal order did not address the issue of

jurisdiction, but found that the order directed the parties to advise the court about certain terms of

the settlement, which contemplated future conduct. The court reasoned, relying on W.R. Grace &

Co. v. Beker Industries, Inc., 128 Ill. App. 3d 215 (1984) and McGoey v. Brace, 2022 IL App (1st)

210322, that “where an order contemplates future conduct, it may be inferred that the Court

intended to retain jurisdiction to enforce settlement terms.” The court noted that in his prayer for

relief, Mr. Zanayed sought to enforce the settlement agreement, which was directly contemplated

by the court’s dismissal order.

¶ 13 Following a hearing on the motion to enforce where Mr. Zanayed testified, the court found

that there was no dispute that Mr. Mufarreh had breached the terms of the settlement agreement

by failing to transfer the real property to Mr. Zanayed. The court noted that Mr. Zanayed had also

breached the settlement agreement by failing to pay Mr. Mufarreh and Mr. Ortinau the amounts

due, but found that this was not a defense to Mr. Mufarreh’s breach because Mr. Zanayed could

not make the payments without the transfer of the real property. The court allowed an extension

of the deadline for Mr. Zanayed to pay Mr. Mufarreh the amount owed so that Mr. Mufarreh could

transfer his interest in the real property to Mr. Zanayed and Protégé. The court determined that this

extension of time did not constitute a change to the terms of the settlement agreement. The court

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stayed Mr. Zanayed’s obligation to pay Mr. Mufarreh the remaining amount until the real property

was transferred and sold.

¶ 14 The court reiterated its oral ruling in a written order finding that Protégé and Mr. Zanayed’s

obligation to make payments under the settlement agreement were stayed until the real property

was transferred to Protégé and Protégé had a reasonable opportunity to sell or refinance the

property. The court set the matter for status on the issue of the transfer of the real property and

continued the issues of indemnity and attorney fees to the next status date.

¶ 15 Following the court’s order, Mr. Mufarreh filed an interlocutory appeal to this court

pursuant to Illinois Supreme Court Rule 307(a) (eff. Nov. 1, 2017).

¶ 16 II. ANALYSIS

¶ 17 On appeal, Mr. Mufarreh contends that the trial court erred in finding that it retained

jurisdiction to enforce the settlement agreement. He maintains that when the trial court dismissed

the case, it entered a “garden variety” dismissal order and did not intend to retain jurisdiction to

enforce the settlement agreement. He asserts that the settlement agreement concerns 25 other

parties who were not subject to the court’s jurisdiction and the record is devoid of any evidence to

support the court’s finding of jurisdiction.

¶ 18 A. Jurisdiction

¶ 19 Before we can address the merits of this appeal, we must first determine whether we have

jurisdiction to do so. Mr. Mufarreh filed his notice of appeal pursuant to Illinois Supreme Court

Rule 307(a) and in his brief clarifies his assertion that we have jurisdiction pursuant to Rule

307(a)(1). Rule 307 concerns interlocutory appeals as of right and subsection (a)(1) provides that

a party may appeal to this court from an order of court “granting, modifying, refusing, dissolving,

or refusing to dissolve or modify an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2017).

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¶ 20 In his appellee brief, Mr. Zanayed responds that the order appealed from is not an

injunction. He maintains that the order simply declares the rights and obligations of the parties

under the settlement agreement. Specifically, Mr. Zanayed asserts that the trial court found that

under the agreement, Mr. Mufarreh did not have the right to prevent Mr. Zanayed from fulfilling

his obligation to pay by withholding his performance of his obligation to convey the real property.

Mr. Zanayed contends that we therefore lack jurisdiction because the order was not a final order,

the court did not enter a Rule 304(a) finding, and was not an appealable interlocutory order because

it only declared the rights of the parties under the agreement.

¶ 21 In his reply brief, Mr. Mufarreh contends that trial court’s order was an injunction because

it stayed Mr. Zanayed’s obligation to pay Mr. Mufarreh.

¶ 22 An injunction is a “ ‘prohibitive, equitable remedy issued or granted by a court at the suit

of a party complainant, directed to a party defendant in the action, or to a party made a defendant

for that purpose, forbidding the latter to do some act.’ ” People v. Reynolds, 274 Ill. App. 3d 696,

698 (1995) (quoting Black’s Law Dictionary 705 (5th ed.1979)). Stated another way, an injunction

is “ ‘a judicial process, by which a party is required to do a particular thing, or to refrain from

doing a particular thing, according to the exigency of the writ, the most common sort of which

operate as a restraint upon the party in the exercise of his real or supposed rights.’ ” In re A Minor,

127 Ill. 2d 247, 261 (1989) (quoting Wangelin v. Goe, 50 Ill. 459, 463 (1869)). To determine

whether an order is an injunction, we consider its substance, rather than its form. TIG Insurance

Co. v. Canel, 389 Ill. App. 3d 366, 371 (2009). Illinois courts have a policy of broadly construing

the meaning of the term “injunction.” In re A Minor, 127 Ill. 2d at 261.

¶ 23 In contrast, declaratory judgments are statutory in nature and section 2-701 of the Illinois

Code of Civil Procedure provides that:

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“The court may, in cases of actual controversy, make binding declarations of rights,

having the force of final judgments, whether or not any consequential relief is or could be

claimed, including the determination, at the instance of anyone interested in the

controversy, of the construction of any statute, municipal ordinance, or other governmental

regulation, or of any deed, will, contract or other written instrument, and a declaration of

the rights of the parties interested.” 735 ILCS 5/2-701(a) (West 2022).

A declaratory judgment allows “the court to take hold of a controversy one step sooner than

normally—that is, after the dispute has arisen, but before steps are taken which give rise to claims

for damages or other relief. The parties to the dispute can then learn the consequences of their

action before acting.” (Internal quotation marks omitted). Beahringer v. Page, 204 Ill. 2d 363, 372-

73 (2003) (quoting Kaske v. City of Rockford, 96 Ill. 2d 298, 306 (1983)). “The declaratory

judgment procedure was designed to settle and fix rights before there has been an irrevocable

change in the position of the parties that will jeopardize their respective claims of right.” First of

America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 174 (1995)).

¶ 24 In this case, the trial court’s order was not a declaratory judgment. The court did not merely

declare the rights of the parties, but specifically found that both parties had breached the settlement

agreement, which gave rise to claims for damages or other relief. The court therefore ordered Mr.

Mufarreh to transfer the real property to Mr. Zanayed and determined that Mr. Zanayed did not

have to pay Mr. Mufarreh until after the transfer had been completed, thus staying his obligation

to pay. A court’s order has the effect of an injunction where it requires a party to transfer real

property. In re Marriage of Roman-Kroczek and Kroczek, 2021 IL App (1st) 210613, ¶ 18.

Similarly, the portion of the order staying Mr. Zanayed’s obligation to pay was an injunction

because it directed him to refrain from doing a particular thing. In re A Minor, 127 Ill. 2d at 261.

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It also infringed on Mr. Mufarreh’s “right” to receive payments under the agreement. Id.

Accordingly, we find that we have jurisdiction to consider the merits of this appeal under Rule

307(a)(1).

¶ 25 B. The Trial Court’s Jurisdiction

¶ 26 Turning to the merits, Mr. Mufarreh contends that the trial court erred in finding that it had

jurisdiction to enforce the settlement agreement. He asserts that the trial court did not have the

authority to enter an order that affected the rights of third parties who were not parties to the

underlying litigation, such as Mr. Ortinau. He maintains that the trial court’s dismissal without

prejudice terminated the litigation between the parties and if Mr. Zanayed sought to enforce the

terms of the agreement, he should have done so by initiating a new lawsuit.

¶ 27 1. Standard of Review

¶ 28 At the outset, we observe that the parties disagree as to the standard of review to be applied

in this case. Mr. Mufarreh contends that the issue of whether a trial court retained jurisdiction to

enforce the terms of the settlement agreement is a question of law, which we review de novo. Mr.

Zanayed asserts, however, that we should apply an abuse of discretion standard of review because

the issue is the trial court’s interpretation of its own order.

¶ 29 We agree with Mr. Zanayed. The question raised in this case is whether the trial court

intended to retain jurisdiction to enforce the settlement agreement by its order of June 21, 2022.

The trial court is in the best position to interpret its own orders and we will not reverse a court’s

interpretation of its own order unless the record shows an abuse of discretion. Board of Trustees

of Community College District No. 508 v. Rosewell, 262 Ill. App. 3d 938, 965 (1992). “Even if the

orders are unclear on review, deference to the court’s interpretation of its order is warranted.” Id.

An abuse of discretion occurs when the trial court’s decision is arbitrary, fanciful, or unreasonable

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or where no reasonable person would take the view adopted by the trial court. Seymour v. Collins,

2015 IL 118432, ¶ 41.

¶ 30 2. The Trial Court’s Intent

¶ 31 Mr. Mufarreh’s assertion that the trial court did not retain jurisdiction to enforce the terms

of the settlement agreement rests on three primary arguments: (1) There were multiple parties to

the settlement agreement who were not part of the underlying litigation, and the trial court lacked

personal jurisdiction over those parties to enter an order affecting their rights under the settlement

agreement; (2) The court’s dismissal order does not show that the court intended to retain

jurisdiction after dismissal; and (3) the record does not contain evidence of the trial court’s intent

to retain jurisdiction.

¶ 32 We will first address Mr. Mufarreh’s second and third contentions. “As there exists a strong

policy in favor of settlement and the resulting avoidance of costly and time-consuming litigation,

courts retain inherent power to enforce settlement agreements reached in litigation pending before

them.” Security Pacific Financial Services v. Jefferson, 259 Ill. App. 3d 914, 919 (1994). “The

court’s jurisdiction to enforce a settlement agreement does not depend on the use of ‘magic words’

to retain jurisdiction.” McGoey, 2022 IL App (1st) 210322, ¶ 21. Instead, we look to the trial

court’s intent. Id.

¶ 33 In this case, the court did not expressly state in its dismissal order that it retained

jurisdiction to enforce the agreement. The record shows, however, that the trial court continued

the underlying litigation on several occasions for status on the settlement negotiations. Further, the

court dismissed the action “[p]ursuant to the Settlement.” In doing so, “the trial court expressly

made the dismissal contingent on the terms of the agreement,” which “incorporated the agreement

into the order.” Director of Insurance ex rel. State v. A & A Midwest Rebuilders, Inc., 383 Ill. App.

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3d 721, 725 (2008). The order also expressly contemplated “future conduct” in that it directed the

parties to jointly advise the court of when certain settlement terms had been performed. As the trial

court recognized in finding that it retained jurisdiction, “where an order contemplates future

conduct, it may be inferred that the court retained jurisdiction to enforce it.” Id. at 723. In addition,

because the judgment contemplated future performance by the parties, the court was entitled to

retain jurisdiction to enforce the order after the lapse of the 30-day period. Brigando v. Republic

Steel Corp., 180 Ill. App. 3d 1016, 1020 (1989) (citing Village of Gilberts v. Holiday Park Corp.,

150 Ill. App. 3d 932 (1986); Adam–Martin Construction Co. v. Brandon Partnership, 135 Ill. App.

3d 324 (1985)).

¶ 34 The record also shows that Mr. Zanayed had partly fulfilled his obligations under the

agreement, but Mr. Mufarreh had declined to perform his. This court has found that the “the circuit

court was empowered to entertain enforcement proceedings after the dismissal of a lawsuit by

entry of a consent decree under which the parties to the agreement contemplated further

performance of certain acts and had partly performed them, but one of the parties declined to fulfill

his performance as agreed.” W.R. Grace, 128 Ill. App. 3d at 219 (citing Comet Casualty Co. v.

Schneider, 98 Ill. App. 3d 786 (1981)). In such circumstances, the trial court’s orders do not

constitute an improper alteration, modification or vacation of the decree, but solely relate to its

enforcement. Comet, 98 Ill. App. 3d at 791-92. Although the trial court loses jurisdiction to amend

a judgment after 30 days from entry, it retains indefinite jurisdiction to enforce the judgment.” In

re Marriage of Allen, 343 Ill. App. 3d 410, 412 (2003).

¶ 35 We find the cases of Brigando and Kempa v. Murphy, 260 Ill. App. 3d 701 (1994), cited

by Mr. Mufarreh, distinguishable. In both cases, this court was presented with the question of

whether a trial court had retained jurisdiction to enforce a settlement agreement. In Brigando, the

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parties reached a settlement and the trial court entered a “form dismissal” consisting of

“generalized language.” Brigando, 180 Ill. App. 3d at 1017. The order provided:

“This cause coming to be heard upon the regular call of cases for pre-trial, and it

appearing to the court that the said cause has been settled by agreement of the parties.

IT IS HEREBY ORDERED, adjudged and decreed that the above entitled cause be

and the same is hereby dismissed with prejudice—and without costs.” Id. at 1017-18.

Nine months later, the plaintiff brought a motion to “enforce” the trial court’s dismissal order

contending that the third-party defendant had failed to pay him as required under the settlement

agreement. Id. at 1018. After a hearing, the trial court entered an order that its dismissal order

should be “ ‘enforced’ ” against the parties. Id. After the third-party defendant still refused to pay

the plaintiff, the plaintiff filed a second motion to enforce the dismissal order. Id. The third-party

defendant argued that he had not paid anything because the court’s dismissal order did not order

him to pay anything. Id. The trial court disagreed, finding that the terms of the settlement

agreement were undisputed, again ordered the third-party defendant to pay the plaintiff, and

specifically incorporated language into its order ordering the third-party defendant to pay. Id. at

1018-19.

¶ 36 On appeal, the third-party defendant contended, inter alia, that the trial court did not have

jurisdiction to enter either order “enforcing” its dismissal order. Id. at 1019. This court recognized

that a trial court generally has 30 days after entering a final judgment order to amend, modify,

rehear, retry, vacate, or grant other relief. Id. at 1020. The court noted that there were exceptions

to this general rule, such as where the trial court entered a consent judgment or where the judgment

“contemplates or orders future performance by the parties.” Id.

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¶ 37 In determining whether the trial court had jurisdiction to enter the enforcement orders, this

court first looked to the “scope” of the dismissal order. Id. The Brigando court determined that the

scope of the order was limited solely to the dismissal of the claims and there were no “special

circumstances” that could have extended the court’s jurisdiction to “enforce” the order. Id. at 1021.

The court observed that the order did not include any terms of the alleged oral settlement

agreement, and only referenced the settlement agreement to note the reason for the dismissal. Id.

The court determined that the trial court simply intended to “dispose of the litigation between the

parties, and nothing in that order or in the record suggests that the court intended to do otherwise.”

Id. The court concluded that the trial court therefore lost jurisdiction over the matter 30 days after

the entry of the dismissal order and did not have jurisdiction to enter the enforcement orders. Id.

¶ 38 Mr. Mufarreh contends that like the dismissal order in Brigando, the trial court in this case

solely intended to dispose of the litigation and nothing more. In contrast to the dismissal order in

Brigando, however, the dismissal order in this case contemplated future conduct by the parties,

specifically with regard to the settlement agreement. The order directed the parties to advise the

court about the performance of certain terms under the settlement agreement and provided that the

court’s dismissal without prejudice would become a dismissal with prejudice when those terms

were completed, “as provided for by the Settlement.” Although we observe, under Illinois

precedent, that there is no procedural effect to the trial court’s use of the phrases “with prejudice”

or “without prejudice” in terms of finality of the court’s judgment (see, e.g., Schal Bovis, Inc. v.

Casualty Insurance Co., 314 Ill. App. 3d 562, 568 (1999)), such a distinction may be meaningful

in determining the trial court’s intent. In this case, the court’s choice of language in its order

reflected its intent was not simply to dismiss the action and nothing more. The court instead

intended to oversee the parties’ compliance with the agreement. Nonetheless, we urge the trial

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court to not rely on the distinction between dismissals “with prejudice” and “without prejudice”

where such language is not dispositive under Illinois law, even if it is under federal law. See A &

A Midwest Rebuilders, Inc., 383 Ill. App. 3d at 726.

¶ 39 Similar to Brigando, , in Kempa, the trial court’s dismissal order stated:

“ ‘This cause coming on to be heard on this date upon the Stipulation for Dismissal

with prejudice filed herein by the above plaintiff[s] and above named defendant[s], and the

Court having examined said Stipulation and being fully advised in the premises, finds that

this cause of action has been fully compromised and settled and the parties have stipulated

and agreed to dismissal of the complaint with prejudice, and that the court further finds that

all costs have been paid.

IT IS THEREFORE ORDERED that the complaint of plaintiff[s] against the

defendant[s] be and the same is hereby dismissed with prejudice.' ” Kempa, 260 Ill. App.

3d at 703.

The Kempa court relied on Brigando in finding that the trial court failed to retain jurisdiction to

enforce the terms of the settlement agreement where the dismissal order neither incorporated the

terms of the settlement agreement, ordered future conduct, or specifically retained jurisdiction. Id.

at 705-06. The Kempa court concluded that, “[a]s in Brigando, nothing in the record suggests that

the court intended to do anything other than terminate the litigation between the parties.” Id. at

706.

¶ 40 As discussed, the trial court’s order in this case ordered future conduct related to the

settlement agreement and it is apparent that the court did not solely intend to terminate the litigation

between the parties. The court’s dismissal order shows contemplation of overseeing the parties’

compliance with the settlement terms.

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¶ 41 Finally, we reject Mr. Mufarreh’s contention that the trial court lacked jurisdiction to enter

an order enforcing the settlement agreement because the order affected the rights of third parties

who were not parties to the litigation between Mr. Zanayed and Mr. Mufarreh. Our supreme court

has recognized that “a party may ‘object to personal jurisdiction or improper service of process

only on behalf of himself or herself, since the objection may be waived.’ ” In re M.W., 232 Ill. 2d

408, 427 (2009) (quoting Fanslow v. Northern Trust Co., 299 Ill. App. 3d 21, 30 (1998)).

Therefore, Mr. Mufarreh cannot raise an objection challenging the trial court’s personal

jurisdictional on behalf of another party. In any event, the trial court’s order did not affect any

rights of these third parties by modifying or altering the agreement and merely ordered Mr.

Mufarreh to comply with the terms of the settlement agreement as written. Comet, 98 Ill. App. 3d

at 791-92.

¶ 42 III. CONCLUSION

¶ 43 For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 44 Affirmed.

¶ 45 PRESIDING JUSTICE MITCHELL, dissenting:

¶ 46 The disposition of this case is controlled by two bedrock jurisdictional limitations:

Rule 1: Absent an express retention of jurisdiction,1 the circuit court loses jurisdiction over a case 30 days after entry of a final judgment. See 735 ILCS 5/2-1301(e) (West 2022); Ill. Sup. Ct. R. 274 (eff. July 1, 2019); 303 (eff. July 1, 2017).

Rule 2: The circuit court lacks jurisdiction to modify a final judgment more than 30 days after entry of the judgement absent the filing of a timely post judgment motion. 735 ILCS 5/2-1202, 2-1203 (West 2022). 1 See American Society of Lubrication Engineers v. Roetheli, 249 Ill. App. 3d 1038, 1042 (1993) (explaining that a court maintains jurisdiction after 30 days only where “the court explicitly retained jurisdiction under its order dismissing the case.”); see also Brigando v. Republic Steel Corp., 180 Ill. App. 3d 1016, 1020 (1989).

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¶ 47 There was no expression in the June 21, 2022, order to retain jurisdiction for enforcement:

“Pursuant to the Settlement, this action, including all claims and defenses alleged

by the parties, is hereby dismissed in its entirety without prejudice. The parties shall jointly

advise the Court when certain of the Settlement terms have been performed, at which point

as provided by the Settlement, the dismissal of this action shall become a dismissal with

¶ 48 The June 21 order was a final order that disposed of all claims and defenses in their entirety.

The order left nothing to be done. The distinction between “with prejudice” and “without

prejudice” is meaningless in Illinois practice when it comes to measuring finality. Director of

Insurance ex rel. State v. A & A Midwest Rebuilders, Inc., 383 Ill. App. 3d 721, 722-23, 726

(2008).

¶ 49 The express temporal limitation in the June 21 order is not performance but the

modification of the dismissal from one without prejudice to one with prejudice. Again, Illinois law

is clear: 30 days after the entry of a final order, the trial court loses jurisdiction to modify that final

order absent the filing of a timely post-judgment motion. 735 ILCS 5/2-1202; 5/2-1203. That is so

even when the order is designated “without prejudice” because (unlike federal practice)2 that

designation does not affect finality. By its plain terms, the June 21 order contemplated the trial

court’s involvement for a period of no more than 30 days absent a timely post judgment motion.

2 A dismissal without prejudice in federal court renders an order nonfinal and that is how a district court retains jurisdiction to enforce a settlement. See Lynch, Inc. v. SamataMason Inc., 279 F.3d 487, 489 (7th Cir. 2002); Jessup v. Luther, 277 F.3d 926, 929 (7th Cir. 2002). That is not the rule under Illinois law. A & A Midwest Rebuilders, Inc., 383 Ill. App. 3d at 722-23, 726 (2008).

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¶ 50 In my view, the trial court lost jurisdiction over the case 30 days after entering the June 21,

2022, order and therefore could not entertain the motion to enforce brought 6 months later. Here,

the complaining party’s remedy was to file a breach of contract action for breach of the settlement

agreement or to file a petition to vacate the dismissal under section 2-1401 and seek to reinstate

the dismissed action. 735 ILCS 5/2-1401 (West Supp. 2024).

¶ 51 For these reasons, I respectfully dissent.

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