Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County No. 14 L 05483
Honorable Larry G. Axelrood Judge Presiding.
JUSTICE ELLIS delivered the judgment of the court, with
opinion. Presiding Justice Burke and Justice McBride
concurred in the judgment and opinion.
1 While exercising at a health club called Fitness 19 under
the supervision of one of the club's personal trainers,
plaintiff, Maria Papadakis, slipped and fell off an unsecured
piece of equipment known as a plyometric step. She sued the
health club, its corporate affiliate (collectively, the
Fitness 19 Defendants), and the personal trainer, Chad Drake,
for negligence and willful and wanton conduct. She also sued
the Fitness 19 Defendants under a theory of respondeat
superior for the conduct of their employee, Drake.
2 The trial court dismissed the direct claims of willful and
wanton conduct against the Fitness 19 Defendants but left
intact the willful-and-wanton allegations against the
personal trainer, Drake. That ruling is not challenged on
3 The trial court later entered summary judgment on all
negligence claims, based on a waiver-of-liability clause in a
contract plaintiff signed with the health club. To the trial
court's thinking, that left standing only a single count:
the direct claim of willful and wanton conduct against the
personal trainer, Drake, with no viable claims against the
Fitness 19 Defendants.
4 Plaintiff does not challenge the trial court's ruling
that the waiver-of-liability clause barred all negligence
claims. Plaintiff challenges only a sliver of the summary
judgment ruling. She says that the respondeat
superior counts against the Fitness 19 Defendants
(Counts 2 and 6) alleged not only the employee's
negligence but also his willful and wanton conduct. Thus,
while she does not challenge the grant of summary judgment on
Counts 2 and 6 insofar as they concerned Drake's
negligence, she claims that those counts should stand to the
extent they allege his willful and wanton acts.
5 After the grant of summary judgment below, plaintiff filed
a motion to reconsider to make this very point-that Counts 2
and 6 should be read as including willful-and-wanton
allegations and thus, to that extent, should have survived
the summary judgment ruling. The trial court did not read the
complaint the same way, writing that its summary judgment
ruling "did not address counts of willful and wanton
conduct against [the Fitness 19 Defendants] because such
counts were not pled in the second amended
complaint." (Emphasis added.)
6 Plaintiff also sought leave to file a third amended
complaint to more explicitly add allegations of willful and
wanton conduct by Drake in the respondeat superior
Counts 2 and 6. The trial court denied that motion, too.
7 On appeal, plaintiff argues that the trial court abused its
discretion in denying her leave to amend the complaint and
likewise erred in denying the motion to reconsider its entry
of summary judgment as to Counts 2 and 6. The rulings came in
different orders on different dates.
8 As a preliminary matter, the Fitness 19 Defendants
challenge our jurisdiction to hear the appeal from the order
denying plaintiff leave to file a third amended complaint. We
agree that we lack jurisdiction over that order.
9 At the time the appeal was taken, the matter was pending
(and remains pending) in the trial court, as Count 4,
directed against defendant Chad Drake, survived all the
dispositive motions. Under Illinois Supreme Court Rule 304(a)
(eff. Mar. 8, 2016), "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."
10 Ordinarily, an order denying leave to amend a complaint is
not considered a "final judgment." Ely v.
Pivar, 2018 IL App (1st) 170626, ¶ 39;
Paul H. Schwendener, Inc. v. Jupiter Electric Co.,
Inc., 358 Ill.App.3d 65, 82 (2005); Gray v.
Starkey, 41 Ill.App.3d 555, 558 (1976). But we may
review the denial of leave to amend when the plaintiff sought
to amend counts that the trial court dismissed with
prejudice. Ely, 2018 IL App (1st) 170626, ¶ 39;
Jupiter, 358 Ill.App.3d at 82. That principle has
been extended as well to denials of leave to amend certain
counts on which (as here) summary judgment was granted. See
Enblom v. Milwaukee Golf Development, 227 Ill.App.3d
623, 628 (1992) ("As a result of our determination that
we have jurisdiction over the appeal of the denial of the
motion to vacate the summary judgment, we have permitted
ourselves to comment substantively on the issue of leave to
amend due to the effect of the summary judgment on the motion
for leave to amend.").
11 But we need not decide if plaintiff could bootstrap that
denial-of-leave order onto the summary judgment order here,
because even if she could, we would lack jurisdiction over
the order denying leave to amend for a different reason: it
lacked the requisite finding under Rule 304(a) that there was
no just reason to delay enforcement from or appeal of that
order. Ill. S.Ct. R. 304(a) (eff. Mar. 8, 2016). "In the
absence of such a finding, any judgment that adjudicates
fewer than all the claims or the rights and liability of
fewer than all the parties is not enforceable or
appealable." Ill. S.Ct. R. 304(b) (eff. Mar. 8, 2016).
Even if the order denying leave was final, it was not
appealable. We thus lack jurisdiction to review it.
Ely, 2018 IL App (1st) 170626, ¶ 36
("[T]he absence of a Rule 304 ...