Appeal from the Circuit Court of Kane County, Illinois. No. 91-L-0091. Honorable Michael F. O'Brien, Judge, Presiding.
Released for Publication February 23, 1994.
The opinion of the court was delivered by: Inglis
PRESIDING JUSTICE INGLIS delivered the opinion of the court:
Plaintiff, Marjorie Hicks, appeals the order of the circuit court of Kane County directing her to amend the pleadings on penalty of dismissal of her second amended complaint against defendants, Fred and Shirley Weaver. For the following reasons, we dismiss this appeal for lack of jurisdiction.
The record indicates that plaintiff sued her landlord for damages arising from injuries she incurred when she slipped in a patch of snow and ice on the landlord's property. Plaintiff alleged a duty to remove snow and ice arising from an oral agreement made contemporaneous to the written lease. Plaintiff amended this complaint without leave of court to correct a scrivener's error.
Defendants moved for dismissal of the amended complaint. Pursuant to sections 2-615 and 2-619 of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, pars. 2-615, 2-619 (now 735 ILCS 5/2-615, 2-619 (West 1992))), defendants alleged the failure to file within the appropriate statute of limitations period and the failure to state a cause of action. The court denied the motion as to the statute of limitations but granted the motion as to the failure to state a cause of action and allowed plaintiff 28 days to file an amended complaint.
Plaintiff's second amended complaint alleged a duty to remove snow and ice arising from the same contemporaneous oral agreement and alternatively arising from a contract for removal with an unknown third party. Defendants moved to dismiss the second amended complaint, pursuant to section 2-615, for the failure to state a cause of action. The court denied this motion following arguments, but subsequently granted defendants' motion to reconsider. Upon reconsideration, the court granted defendants' motion to dismiss. The court ordered,
"(1) Defendant's [sic ] Motion to Reconsider is granted and defendant's [sic ] motion to dismiss is granted.
(2) The parol evidence rule controls and bars evidence of the contemporaneous oral snow removal agreement which plaintiff alleged in Second Amended Complaint.
(3) There is no just reason to delay enforcement or appeal of this order.
(4) Plaintiff shall have 21 days to amend complaint and defendants 14 days to respond."
Plaintiff then brought this appeal. We find that the order calling for amendment of the complaint was not a final order and that no appeal lies therefrom.
The first duty of the appellate court is to determine whether an issue is properly before it, even though neither party raises the issue. ( Pottorf v. Clark (1985), 134 Ill. App. 3d 349, 351, 480 N.E.2d 533.) The jurisdiction of the appellate court is limited to reviewing appeals from final judgments of the circuit courts. ( In re Marriage of Verdung (1989), 126 Ill. 2d 542, 553, 129 Ill. Dec. 53, 535 N.E.2d 818; 134 Ill. 2d R. 301.) "An order which leaves the cause still pending and undecided is not a final order." ( Pottorf, 134 Ill. App. 3d at 351.) In Pottorf, the defendants appealed the vacatur of a discovery order which purported to impose an automatic dismissal for noncompliance. The court held that a final and appealable order is one which "fixes, determines, or disposes of the parties' rights" and must be "enforceable without reference to outside sources." ( Pottorf, 134 Ill. App. 3d at 351.) The court noted that although the order purported to impose automatic dismissal, such dismissal ...