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Cole v. Hoogendoorn

October 26, 2001

MARILYN COLE, PLAINTIFF-APPELLANT,
v.
HOOGENDOORN, TALBOT, DAVIDS, GODFREY AND MILLIGAN AND BRUCE J. VAN HEUKELEM, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice O'mara Frossard

UNPUBLISHED

Appeal from the Circuit Court of Cook County Honorable John G. Laurie, Judge Presiding.

Plaintiff Marilyn Cole appeals pro se from a trial court order striking her second amended complaint against defendants Hoogendoorn, Talbot, Davids, Godfrey, and Milligan (Hoogendoorn, Talbot), a law firm, and Bruce J. Van Heukelem, a partner at Hoogendoorn, Talbot. Plaintiff also appeals from the subsequent denial of her motion to reconsider that order.

This case arises from a dispute over defendants' billing of plaintiff for legal services performed on her behalf. In her pro se second amended complaint, plaintiff alleged common law fraud, breach of fiduciary duty, legal malpractice, and constructive fraud against defendants. Defendants filed a motion to strike and dismiss plaintiff's second amended complaint, contending that plaintiff failed to plead sufficient facts to sustain any cause of action.

On October 3, 2000, the trial court granted defendants' motion to strike and dismiss plaintiff's second amended complaint. The court ordered:

"(1) Plaintiffs' Second Amended Complaint is stricken in its entirety.

(2) Plaintiff is granted 14 days, to October 17, 2000, to file a Third Amended Complaint limited to a breach of contract claim."

Defendant subsequently filed a motion to reconsider the trial court's order striking her second amended complaint. In her motion, plaintiff stated she was electing to stand on her second amended complaint. On December 14, 2000, the trial court denied plaintiff's motion to reconsider and told plaintiff during the hearing on the motion that "[y]our case is not dismissed with prejudice, not at all." However, the court's written order stated that "[p]ursuant to Supreme Court Rule 304(a) *** the Court finds that no just reason exists to delay the enforcement of or appeal from this order."

On appeal, plaintiff asserts this court has jurisdiction over her appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) and contends that her second amended complaint stated valid causes of action against defendants for common law fraud, breach of fiduciary duty, legal malpractice, and constructive fraud. Defendants respond that the appeal should be dismissed because there has never been a final and appealable order that would provide this court with jurisdiction over the appeal.

The finality of an order is determined by an examination of the substance as opposed to the form of that order. Gutenkauf v. Gutenkauf, 69 Ill. App. 3d 871, 873 (1979). Appellate jurisdiction is limited to review of final judgments unless an order falls within a statutory or supreme court exception. Pekin Insurance Co. v. Benson, 306 Ill. App. 3d 367, 375 (1999). Normally an order striking or dismissing a complaint is not final and therefore not appealable unless its language indicates the litigation is terminated and the plaintiff will not be permitted to replead. Ben Kozloff, Inc. v. Leahy, 149 Ill. App. 3d 504, 506 (1986). Even if a plaintiff subsequently elects to stand on his or her complaint, an order striking or dismissing a complaint is not final until the trial court enters an order dismissing the suit. Wick Building Systems, Inc. v. Bunning, 107 Ill. App. 3d 61, 62-63 (1982).

In Hicks v. Weaver, 255 Ill. App. 3d 650, 651 (1994), plaintiff sued her landlord for damages arising from injuries she incurred when she slipped on a patch of snow and ice on her landlord's property. Defendant moved to dismiss her second amended complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)), for the failure to state a cause of action. The court granted the motion to dismiss and in its order stated there was no just reason to delay enforcement or appeal of the order. The court further indicated that "Plaintiff shall have 21 days to amend complaint and defendants 14 days to respond." Hicks, 255 Ill. App. 3d at 652. On appeal, the court found that the order of the trial court did not fix, determine, or dispose of the rights of the parties, but instead allowed for additional pleadings. The court held that the order allowing for amendment of the complaint was not a final order and dismissed the appeal for lack of jurisdiction. Hicks, 255 Ill. App. 3d at 652-53.

Similarly, in this case, the order of the trial court does not fix, determine, or dispose of the rights of the parties. The order allows additional pleadings. It is not a judgment ordering dismissal, but an order calling for amendment within 14 days. The trial court's order striking plaintiff's second amended complaint expressly granted plaintiff the right to file a third amended complaint. This order entered October 3, 2000, gave plaintiff leave to file an amended complaint and did not dismiss the suit with prejudice; therefore, it is not a final judgment. Hicks, 255 Ill. App. 3d at 652.

On December 14, 2000, plaintiff argued her motion to reconsider. During that hearing the plaintiff correctly requested that the court enter an order dismissing her entire suit so she could proceed in the appellate court:

"PLAINTIFF: No. My complaint is just fine the way it is and you just don't agree with that, then let the appellate court make a decision. If they ...


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