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09/01/88 Deerfield Management v. Ohio Farmers Insurance

September 1, 1988

DEERFIELD MANAGEMENT COMPANY ET AL., PLAINTIFFS AND COUNTERDEFENDANTS-APPELLANTS

v.

OHIO FARMERS INSURANCE COMPANY, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE (GEORGIA DIAMANTOPULOS, INDIV. AND D/B/A GEORGIA'S FASHIONS, DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

529 N.E.2d 243, 174 Ill. App. 3d 837, 124 Ill. Dec. 423 1988.IL.1337

Appeal from the Circuit Court of Lake County; the Hon. Alvin I. Singer, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. UNVERZAGT and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiffs-counterdefendants, Deerfield Management Company, Inc. (Deerfield), d/b/a Karcher Hotel, and Unigard Security Insurance Company (Unigard), appeal from an order of the circuit court of Lake County. The order appealed from denied plaintiffs' motion for summary judgment on their complaint for declaratory judgment and granted defendant-counterplaintiff Ohio Farmers Insurance Company's (Ohio's) motion for summary judgment on its counterclaim for declaratory judgment. We affirm in part and dismiss in part.

Prior to deciding the merits of an appeal an appellate court has the duty to determine whether the appeal has been properly taken so as to invoke its jurisdiction, even though that issue is not raised by a party. (Mar Cement, Inc. v. Diorio Builders, Inc. (1987), 153 Ill. App. 3d 798, 800, 506 N.E.2d 381, 383.) Thus, while neither party has raised the issue, we will first consider whether we have jurisdiction to decide this appeal.

As relevant to our jurisdiction, the order appealed from provides:

"This cause having come on for hearing on the motion of [Deerfield and Unigard] for Summary Judgment on their Complaint for Declaratory Judgment and for hearing on the motion of [Ohio] for Summary Judgment on its Counterclaim for Declaratory Judgment, the parties having received notice, and the Court having heard oral argument, it is hereby ordered:

1) The motion of [Deerfield and Unigard] for Summary Judgment on the Complaint for Declaratory Judgment is denied;

2) The motion of [Ohio] for Summary Judgment on the Counterclaim for Declatory [ sic ] Judgment is granted in favor of [Ohio] and against [Deerfield and Unigard].

4) This Court finds no just reason to delay enforcement or appeal of this Order."

Although contained in a single written document, it is readily apparent that the trial court was disposing of two separate motions going to two different claims. First, there was the motion for summary judgment on the complaint, which was denied. Second, there was the motion for summary judgment on the counterclaim, which was granted. At this point, the jurisdictional question is obvious.

This court, subject to exceptions for appeals from interlocutory orders specified in our supreme court's rules, is without jurisdiction to review judgments, orders, or decrees which are not final. (Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 435 N.E.2d 480, 481-82. See also Ill. Const. 1970, art. VI, § 6; 107 Ill. 2d Rules 301, 303, 304, 306 through 308.) Since none of the rules permitting interlocutory appeals applies in the case at bar (107 Ill. 2d Rules 306 through 308), this appeal must be from a final judgment for this court to have jurisdiction.

The jurisdictional problem stems from the denial of plaintiffs' motion for summary judgment on their complaint for a declaratory judgment. Our supreme court has said:

"A final judgment has been defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. [Citations.] We have also stated on many occasions that a judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. [Citations.]" (Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 435 N.E.2d 480, 482.)

An order denying a summary judgment does not terminate the litigation and so is not a final judgment. (See, e.g., La Salle National Bank v. Little Bill "33" Flavors Stores, Inc. (1967), 80 Ill. App. 2d 298, 225 N.E.2d 465; Home Indemnity Co. v. Reynolds & Co. (1962), 38 Ill. App. 2d 358, 366, 187 N.E.2d 274, 278; Jeske v. Leoris (1961), 31 Ill. App. 2d 231, 175 N.E.2d 672.) Moreover, the trial court's finding that there was "no just reason to delay enforcement or appeal" did not make the interlocutory order denying summary judgment a final judgment. In re Marriage of Lentz (1980), 79 Ill. 2d 400, 408, 403 N.E.2d 1036, 1039; Davis v. Childers (1965), 33 Ill. 2d 297, 300-01, 211 N.E.2d 364, 367; O'Donnell v. Sears, Roebuck & Co. (1979), 71 Ill. App. 3d 1, 6, 388 N.E.2d 1073, 1078; 107 Ill. 2d R. 304(a).

There are some cases in which the denial of a summary judgment is reviewable. However, those are cases on appeal from a final judgment on the claim on which summary judgment was denied.

The general rule is "that if a motion for summary judgment is improperly denied the error is not reversible for the result becomes merged in the subsequent trial." (Home Indemnity Co. v. Reynolds & Co. (1962), 38 Ill. App. 2d 358, 367, ...


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