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Papadakis v. Fitness 19 IL 116, LLC

Court of Appeals of Illinois, First District, Fourth Division

June 28, 2018

MARIA PAPADAKIS, Plaintiff-Appellant,
v.
FITNESS 19 IL 116, LLC, d/b/a Fitness 19; F-19 HOLDINGS, LLC, d/b/a Fitness 19; and CHAD DRAKE, Defendants-Appellees.

          Appeal 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.

          OPINION

          ELLIS JUSTICE

         ¶ 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 appeal.

         ¶ 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." (Emphasis added.)

         ¶ 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, ΒΆ 36 ("[T]he absence of a Rule 304 ...


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