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Ikpoh v. Zollar

March 20, 2001

EMMANUEL IKPOH, PLAINTIFF-APPELLANT,
v.
NIKKI ZOLLAR, MEDICAL DISCIPLINARY BOARD, PATRICIA DANIELS AND THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Gordon

Appeal from the Circuit Court of Cook County Honorable Ellis E. Reid, Judge Presiding.

Plaintiff Emmanuel Ikpoh (Ikpoh) appeals from the judgment of the circuit court of Cook County upholding the administrative action in part and remanding certain dispositive issues back to the Illinois Department of Professional Regulation (the Department) for further proceedings. We dismiss this appeal for lack of subject matter jurisdiction since the order of the circuit court cannot be deemed final and appealable where dispositive matters were remanded for further hearing and consideration by the Department.

BACKGROUND

The following facts are not in dispute. On July 30, 1990, Ikpoh was found guilty in the circuit court of DuPage County of aggravated criminal sexual abuse and a judgment of conviction on that charge was entered on November 6, 1990. Ikpoh's medical license was suspended on August 2, 1990, and revoked in 1991. On February 15, 1996, Ikpoh filed a "Petition for Restoration" with the Department asking that his medical license be restored. In his petition, Ikpoh stated that he had not been arrested or convicted since his license was revoked. An administrative law judge with the Department held a hearing on the petition on October 16, 1996.

On August 26, 1997, after the hearing on his petition, Ikpoh was arrested in Bartlett, Illinois, for failing to register as a sex offender as required by law. He was indicted on this charge on September 12, 1997.

On September, 11, 1997, the Director of the Illinois Department of Professional Regulation (the Director) granted the petition for restoration, subject to several conditions. Then on September 19, 1997, the Chief of Prosecutions for the Department filed with the Department a "Motion to Supplement Record and Vacate Order" (motion to vacate). The motion to vacate set forth Ikpoh's arrest and indictment for failing to register as a sex offender and consequently asked that the order of September 11, 1997, be vacated. On that same day, the Director vacated the order of September 11, 1997, and remanded the matter to the administrative law judge to supplement the record with this additional evidence. The administrative law judge recommended that Ikpoh's petition for restoration be denied and on August 5, 1998, the petition was denied by the Director.

On September 9, 1998, Ikpoh filed a "Complaint for Administrative Review" with the circuit court of Cook County. Ikpoh asked that the orders of September 19, 1997, and August 5, 1998, be vacated and that the court find the order of September 11, 1997, to be valid.

On February 15, 2000, the circuit court issued an order. The court found that the September 11, 1997, order was not a final administrative order, and that even if it were final, the Department was authorized to vacate it under the Department's rules. The court said that it could not, however, determine if the August 5, 1998, order was entered against the manifest weight of the evidence. The court thus remanded to the administrative agency to determine how the Department's knowledge of Ikpoh's arrest was acquired; whether the arrest was the result of any activity attributable to the Department; whether there was collusion surrounding the arrest and why Ikpoh was initially arrested. The court also remanded to determine if several technical errors were prejudicial to Ikpoh. These included that an affidavit was not attached to the Department's motion to vacate and insufficient notice to Ikpoh of the "Motion to Supplement the Record and Vacate Order." In its order the circuit court made a Rule 304(a) finding that there was no just cause to delay enforcement or appeal from the order. On appeal, the appellant contends that the September 11, 1997, order was a final administrative order; that the Department was not authorized to vacate that order; that the motion to vacate was predicated on matters which arose after the petition was filed and therefore should have been brought as part of a new proceeding against Ikpoh; and that the September 19, 1997, order was improperly granted because the motion to vacate did not have an affidavit attached and because it was granted in a manner which violated both due process and the Administrative Procedure Act.

ANALYSIS

The Department first argues that this court lacks jurisdiction of the subject matter over this cause by reason of the fact that the February 15, 2000, order from which Ikpoh appeals did not have the requisite finality. The Department contends that the order of February 15, 2000, is not final because in that order the circuit court remanded this cause to the Department for an evidentiary hearing. Ikpoh argues that the order is final because the circuit court made a finding pursuant to Rule 304(a) (155 Ill. 2d R. 304(a)) that it was a final and appealable order and because there were three distinct claims before the circuit court, two of which were resolved by the February 15, 2000, order and are thus appealable under Rule 304(a). We agree with the Department.

"The law is well established that unless specifically authorized by the rules of [the supreme] court, the appellate court has no jurisdiction to review judgments, orders or decrees which are not final." Department of Central Management Services v. American Federation of State, County and Municipal Employees, 182 Ill. 2d 234, 238, 695 N.E.2d 444, 446 (1998). Supreme Court Rule 304(a) provides in part that:

"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." 155 Ill. 2d R. 304(a).

"An order is final and appealable if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof." R.W. Dunteman Company v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159, 692 N.E.2d 306, 310 (1998). "The ultimate question to be decided in each case is whether the judgment fully and finally disposes of the rights of the parties to the cause so that no material controverted issue remains to be determined." Wilkey v. Illinois Racing Board, 96 Ill. 2d 245, 249, 449 N.E.2d 843, 844 (1983).

Our supreme court applies the standard for finality of decisions of the appellate court to a circuit court's review of administrative decisions. Wilkey, 96 Ill. 2d at 250, 449 N.E.2d at 845. "[W]here a cause is remanded for a new trial or other further proceedings involving disputed questions of law or fact, the judgment of the Appellate Court is not of a final character." Wilkey, 96 Ill. 2d at 249-51, 449 N.E.2d at 844-45. "If, upon remandment, the trial court has only to enter a judgment or decree in accordance with the directions of the reviewing court, or to conduct further proceedings on uncontroverted incidental matters, then, ...


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