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12/28/95 SUSAN ELKINS v. STEPHEN HUCKELBERRY

December 28, 1995

SUSAN ELKINS, PETITIONER AND COUNTER-RESPONDENT-APPELLEE,
v.
STEPHEN HUCKELBERRY, RESPONDENT AND COUNTER-PETITIONER-APPELLANT.



Appeal from the Circuit Court of Johnson County. No. 93-F-19. Honorable James R. Williamson, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Rarick and Chapman, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Petitioner/counterrespondent, Susan Elkins (hereinafter petitioner), filed an action in the circuit court of Johnson County on August 27, 1993, seeking a judicial determination that respondent/counterpetitioner, Stephen Huckelberry (hereinafter respondent), was the father of her child and an order requiring respondent to pay, inter alia, child support, expenses associated with pregnancy and delivery, and costs associated with the instant litigation, as well as to provide health insurance coverage for the child. On October 27, 1993, respondent filed a response and a countercomplaint alleging misrepresentation as an affirmative defense. Specifically, respondent alleged:

"a. Prior to engaging in sexual relationship with the Petitioner, Respondent inquired regarding what kind or kinds of birth control would be appropriate.

b. Petitioner intentionally misrepresented to Respondent that no contraception was necessary because the petitioner was sterile.

c. Respondent reasonably relied upon the misrepresentation to his detriment and his parentage, if any, was caused in part by the subject misrepresentation and reliance thereon."

On June 29, 1994, petitioner filed a motion for summary judgment with regard to respondent's affirmative defense and countercomplaint. In this cause, respondent appeals from the order of the circuit court granting partial summary judgment in favor of petitioner on respondent's affirmative defense and countercomplaint. Respondent contends (1) that the trial court erred in granting petitioner's motion for summary judgment on respondent's affirmative defense and countercomplaint because genuine issues of material fact appear in the pleadings and by affidavit, and (2) that sound consideration of jurisprudence and provisions in the Illinois Constitution require granting the relief requested by respondent in his affirmative defense and countercomplaint.

Before we address the contentions raised by respondent, we must first consider the contention raised by petitioner that we are without jurisdiction to hear this appeal. Petitioner contends that the circuit court's entry of summary judgment on respondent's affirmative defense and countercomplaint is not an order appealable pursuant to Supreme Court Rule 304 (155 Ill. 2d R. 304). We agree.

Supreme Court Rule 304 provides, in pertinent part:

"Rule 304. Appeals from Final Judgments That Do Not Dispose of an Entire Proceeding

(a) Judgments As To Fewer Than All Parties or Claims - Necessity for Special Finding. If multiple parties or 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 parties or 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. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on motion of any party. The time for filing a notice of appeal shall be as provided in Rule 303. In computing the time provided in Rule 303 for filing the notice of appeal, the entry of the required finding shall be treated as the date of the entry of final judgment. In the absence of such a finding, any judgment that adjudicates fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." (Emphasis added.) (155 Ill. 2d R. 304(a).)

Although Rule 304(a) permits appeals from orders which do not dispose of an entire proceeding, the mere presence of Rule 304(a) language cannot make a nonfinal order final and appealable. ( Hicks v. Weaver (1994), 255 Ill. App. 3d 650, 652, 627 N.E.2d 751, 753, 194 Ill. Dec. 414; Coryell v. Village of La Grange (1993), 245 Ill. App. 3d 1, 5, 614 N.E.2d 148, 151, 185 Ill. Dec. 14.) In the present case, the circuit court's August 8, 1994, order, granting summary judgment in favor of petitioner on the affirmative defense and countercomplaint filed by respondent, included Rule 304(a) language that no just reason existed to delay enforcement or appeal of the judgment. Nevertheless, the fact that the summary judgment order contained the requisite 304(a) language does not lead to the inexorable conclusion that it is an appealable order.

In People ex rel. Block v. Darm (1994), 267 Ill. App. 3d 354, 642 N.E.2d 863, 204 Ill. Dec. 962, our colleagues on the Third District Appellate Court addressed an issue similar to the one presently before us. In Block, the Illinois Department of Public Aid, on behalf of the petitioner, filed a motion to dismiss the appeal on the basis that, because the trial court's order finding the respondent to be the father of the petitioner's twin daughters and ordering him to pay child support ...


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