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Bachewicz v. American Nat'l Bk & Tr. Co.

OPINION FILED JULY 18, 1985.

ALLAN BACHEWICZ ET AL., D/B/A B & B INVESTMENT COMPANY, PLAINTIFFS-APPELLEES,

v.

AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, TRUSTEE, ET AL., DEFENDANTS (RICHARD ERLICH, GARNISHEE DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Edwin Berman, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Defendant garnishee appeals from two interlocutory orders entered by the trial court and otherwise final as to fewer than all of the parties. Only one order contained the express written finding required by Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)). Defendant contends on appeal that the special finding contained on this subsequent order, assessing against him attorney fees and costs as a condition for vacating a default judgment, also applies to a prior order denying defendant's motion to dismiss plaintiff's motion to set garnishment hearings.

We dismiss the appeal as to that order denying defendant's motion to dismiss, affirm that order assessing against defendant attorney fees and costs, vacate that order entered by this court staying the garnishment proceedings pending below, and remand for a continuation of the garnishment proceedings.

BACKGROUND

Plaintiffs, B&B Investment Company and its individual partners (B&B), recovered a judgment against defendant Statesman Limited Partnership (Statesman) in an underlying breach-of-contract action. The judgment was partially satisfied by garnishment of the assets held by Statesman. Plaintiffs further sought to satisfy its judgment by instituting garnishment proceedings against the Statesman's limited partners for the capital contributions and distributions which were paid to them. Plaintiffs alleged that these payments were actually assets of Statesman held by the six garnishee-defendants, including Richard Erlich, which should be returned in order to satisfy the partnership's debt. All six garnishee defendants have denied being in possession of any assets of Statesman, and plaintiffs have demanded a hearing on the issue, pursuant to Code of Civil Procedure section 12-711. (Ill. Rev. Stat. 1983, ch. 110, par. 12-711.) A bench trial of the garnishment issues, contesting the sufficiency of the garnishees' answers, was set as to five of the garnishee defendants, none of whom take part in the instant appeal.

The sixth garnishee defendant, appellant Erlich, moved to dismiss plaintiffs' motion for a section 12-711 hearing. That motion was denied by the trial court in an order entered November 17, 1983, an order that contained no express written finding, as required by Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)) such as to render the order final and appealable.

Defendant Erlich requested a jury trial on the garnishment issues, and such trial was scheduled for March 26, 1984. Neither defendant nor his counsel appeared at the March 26 hearing. Plaintiffs presented their case to the jury, a verdict and default judgment was entered against Erlich, and the bench trial was continued as to the other garnishee defendants represented by counsel.

Defendant Erlich moved to vacate the default judgment. In response to his motion, plaintiffs moved for attorney fees and costs incurred in preparing and trying their case to the jury. In an order entered by the trial court on May 2, 1984, defendant's motion to vacate the default judgment was granted, and the garnishment action against him was set for trial on May 7, 1984. In that same order, the court granted plaintiffs' motion for attorney fees and costs in the amount of $1,872.75, as a condition to the vacation of the default judgment. The May 2, 1984, order contained the express written finding required by Supreme Court Rule 304(a) that "there is no just reason for delaying enforcement or appeal of the judgment for fees/costs."

On May 3, 1984, defendant Erlich filed a notice of appeal, praying only for reversal of the May 2, 1984, order. On May 14, 1984, Erlich filed an amended notice of appeal, appealing from not only the order entered May 2, but also from those orders entered on November 17, 1983 (denying his motion to dismiss plaintiffs' motion for a section 12-711 hearing), and on March 26, 1984 (the default judgment entered against Erlich that was subsequently vacated).

Also on May 14, 1984, the trial court entered an order modifying the May 2 order to the extent that "the court vacates that portion of the [May 2] order which makes said order final and appealable." This order was entered some 11 days after defendant had filed his original notice of appeal.

Defendant Erlich now appeals from (1) the November 17, 1983, order, denying his motion to dismiss plaintiffs' motion for a 12-711 garnishment hearing, and (2) that portion of the May 2 order assessing against him attorney fees and costs as a condition for the vacation of the default judgment.

OPINION

The issue before us is whether either of the orders here appealed from, that of November 17, 1983, and of May 2, 1984, are final and appealable such as to give this reviewing court jurisdiction to hear these matters. Defendant, both in his brief and in open court, has conceded that the order entered by the trial court on November 17, 1983, is not in and of itself final and appealable because it did not dispose of the entire cause as to either all of the parties or all of the claims nor did it contain the express written finding required by Supreme Court Rule 304(a) that "there is no just reason for delaying enforcement or appeal." 73 Ill.2d R. 304(a).

Defendant, in asserting that the November 17 order is final and appealable, relies not on the November 17 order itself but rather on the express certifying language set forth in the May 2 order, in which the court found that "[t]here is no just reason to delay enforcement or appeal of the judgment for fees/costs." Despite the explicit limitation of this express finding as applicable only to the award of attorney fees and costs, defendant contends that ...


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