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John G. Phillips & Associates v. Brown

September 20, 2001

JOHN G. PHILLIPS & ASSOCIATES, APPELLANT
v.
JEFFREY M. BROWN, APPELLEE



The opinion of the court was delivered by: Justice Freeman

UNPUBLISHED

Docket No. 89665-Agenda 20-May 2001.

Plaintiff, the law firm of John G. Phillips & Associates (Phillips), filed suit against defendant Jeffrey Brown for intentional interference with prospective economic advantage. The circuit court of Cook County dismissed the complaint with prejudice as a sanction for discovery violations. Phillips appealed; the appellate court dismissed the appeal because the notice of appeal was untimely (No. 1-99-4078 (unpublished order)). We granted Phillips' petition for leave to appeal (177 Ill. 2d R. 315(a)), and now affirm the judgment of the appellate court.

BACKGROUND

Because of the posture of this case and the question we are called upon to decide, the allegations in the complaint are of only passing importance. In short, defendant Brown was once an associate at Phillips. He left to go to another firm, and when he did so, two clients with whom he had been working transferred their cases to the new firm, allegedly at Brown's behest.

The complaint was originally filed in 1995. On November 2, 1999, the court dismissed the entire complaint, with prejudice, as a discovery sanction. The dismissal did not contain Rule 304(a) (155 Ill. 2d R. 304(a)) language. On November 19, 1999, Phillips filed a notice of appeal from the dismissal. On December 1, 1999, Brown filed a motion for sanctions under Rule 137 (155 Ill. 2d R. 137). The trial court denied Brown's motion for sanctions on December 13, 1999, in an order which did contain Rule 304(a) language. Brown did not appeal from the denial of sanctions, and Phillips never filed a new notice of appeal.

In the appellate court Brown moved to dismiss Phillips's appeal for lack of jurisdiction. He argued that the November 19 notice of appeal was premature because of the subsequent motion for sanctions. The appellate court granted the motion, dismissing the appeal.

ANALYSIS

Before this court, the sole issue is whether the appellate court acted correctly in dismissing the appeal. The resolution of this question turns on interpretation of the rules promulgated by this court. Accordingly, our standard of review is de novo. People v. Drum, 194 Ill. 2d 485, 488 (2000) ("[t]he interpretation of a supreme court rule, like a statute, is a question of law that we review de novo"); In re Estate of Rennick, 181 Ill. 2d 395, 401 (1998).

The appellate court was correct in dismissing the appeal.

First, there can be no dispute that according to the rules of this court (155 Ill. 2d Rs. 301, 304(a)), appeals may ordinarily only be taken from final orders which dispose of every "claim"-i.e., "any right, liability or matter raised in an action." Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 465 (1990). Unless an order resolves all claims, "it must contain an express finding that there is no just reason for delaying an appeal. Otherwise, the order is not appealable." Marsh, 138 Ill. 2d at 465. See also 155 Ill. 2d R. 304(a) ("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").

Further, it is clear that motions for sanctions under our Rule 137 are "claims" in the cause of action with which they are connected. Rule 137, which permits parties to request sanctions for improper filings, explicitly provides that "[a]ll proceedings under this rule shall be brought within the civil action in which the pleading, motion or other paper referred to has been filed, and no violation or alleged violation of this rule shall give rise to a separate civil suit, but shall be considered a claim within the same civil action." (Emphases added.) 155 Ill. 2d R. 137. In this regard, filing a Rule 137 motion is the functional equivalent of adding an additional count to a complaint, or counter-claim, depending on which party files the motion.

Thus, since a motion for sanctions under Rule 137 is a "claim," and a notice of appeal cannot be filed before the trial court has disposed of all claims, a notice of appeal cannot be filed before the trial court has ruled on all Rule 137 motions. This court has already so held, in Marsh. There, we stated that "no appeal may be taken from an otherwise final judgment entered on a claim when a section 2-611 claim remains to be resolved, absent a finding pursuant to Rule 304(a) that there is no just reason to delay enforcement or appeal." Marsh, 138 Ill. 2d at 468. Section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2-611), which was at issue in Marsh, was preempted by and incorporated into Rule 137. See Marsh, 138 Ill. 2d at 467.

Had Marsh not been clear enough, we were subsequently faced with a situation nearly identical to the case at hand in Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6 (1998). There, as here, the trial court dismissed a complaint with prejudice, the plaintiff filed a notice of appeal, and the defendant subsequently filed a Rule 137 motion for sanctions. We recognized that as a general rule "[a] final order is appealable as of right, and filing a notice of appeal is the jurisdictional step which initiates appellate review." But we immediately noted that "[t]he filing of a timely motion for sanctions in the trial court, however, renders a notice of appeal from such an order premature and precludes appellate jurisdiction." Niccum, 182 Ill. 2d at 7. See also Gaynor v. Walsh, 219 Ill. App. 3d 996, 1002 (1991) (dismissing appeal for want of jurisdiction where defendant filed a Rule 137 motion after plaintiff had filed notice of appeal following denial of motion for reconsideration of summary judgment); P. Esposito, Timing the Notice of Appeal in Light of Requests for Attorneys' Fees and Costs: The Illinois Approach, 4 App. L. Rev. 55, 61-62 (1992) ("a notice of appeal filed either before or during the pendency of a timely filed Rule 137 motion is worthless in the ...


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