This Is Not A Pipe. This Is Not A Final, Appealable Order

The causes of action related to Respondent's allegations that Claimant had no intention of allowing him to pursue his business model. Respondent alleged that Claimant's sole aim was to induce Respondent to bring his client relationships to the firm so that Claimant could exploit those relationships. Respondent also alleged that once Claimant was successful, it tried to drive Respondent out by denying to pay Respondent origination fees.  

Michael Schwartz ("Respondent") was represented by Jonathan F. Feinstein, Esq., Tressler LLP, Chicago, Illinois until June 5, 2013. After that date, Respondent appeared pro se.

(1) had jurisdiction to review his motion to vacate; 

(2) should have found its order void due to violation of the bankruptcy stay; and 

(3) abused its discretion with respect to evidentiary rulings at trial. 

The initial question, then, is whether this was a final judgment. We find that the August 28, 2017, order was not a final, appealable order. "A judgment or order is final for purposes of appeal if it disposes of the rights of the parties, either on the entire case or on some definite and separate part of the controversy, and, if affirmed, the only task remaining for the trial court is to proceed with execution of the judgment." Brentine v. DaimlerChrysler Corp., 356 Ill. App. 3d 760, 765 (2005). ¶ 17 

The August 28, 2017, order found in favor of Tressler on the breach of contract claim and awarded Tressler $27,475.93, in damages and $536 in costs. It further ordered that Tressler was awarded attorney fees incurred in pursuing the matter. Thus, the order made a final determination on the breach of contract claim, but it did not determine the amount of attorney fees that Schwartz owed for Tressler's pursuit of the claim. The order set forth a schedule for submission of a bill of particulars, a response, and a hearing date on the attorney fees issue. 

The form judgment order that defendant appeals from has a checked box, which states "Order Final and Appealable," with no additional notations. This is insufficient to confer jurisdiction under Rule 304(a). Rule 304(a) allows an appeal from an order that fails to dispose of all claims only if the trial court has made an express written finding that there is no just reason for delaying the enforcement or appeal of the order. See id. Because the August 28 order contained no such notation, language, or express written finding, the notice of appeal was premature and does not give us jurisdiction.  

We conclude that the judgment became final the following year when the circuit court entered the January 17, 2018, order awarding Tressler $22,650 in attorney fees. This order disposed of all the rights and claims of the parties and the only task remaining was execution of the judgment. See Brentine, 356 Ill. App. 3d at 765. 

Schwartz has taken contradictory positions with respect to whether the August 28, 2017, order was the final and appealable order. In his notice of appeal and in his motion to vacate filed in the trial court, he asserted that the August 28, 2017, order was the final and appealable order. On appeal, he contends that the August 28, 2017, order became final and appealable when the trial court entered the January 17, 2018, order and retroactively rendered his notice of appeal effective. Schwartz argues that, under Illinois Supreme Court Rule 303(a)(2) (eff. July 1, 2017), his notice of appeal filed on September 27, 2017, became effective upon entry of the January 17, 2018, order. 

[S]chwartz filed what was purported to be a section 2-1301 motion attacking the August 28 order, on November 15, 2017. A Section 2-1301 motion to vacate a final order or judgment must be filed within 30 days of entry of the order. 735 ILCS 5/2-1301(e) (West 2016). However, because this was not a final judgment, this motion was not an attack on the final judgment; it was, in essence, a motion to reconsider an interlocutory order on the judgment amount that was entered in August. Schwartz also did not attempt to file this motion again when the actual final judgment was entered in January 2018. If he had done so, and the court denied the motion, the judgment then becomes final, and the notice of appeal then becomes effective. Schwartz failed to file a timely motion attacking the judgment in order to take advantage of this rule. The only way to toll the time for filing an appeal from a final judgment under Rule 303(a)(2) is to file a timely postjudgment motion attacking the final judgment that was entered in January, not August. Thus, the circuit court and this court lack jurisdiction to consider it. See Northern Illinois Gas Co. v. Midwest Mole, Inc., 199 Ill. App. 3d 109, 114 (1990) ("A post-judgment motion to vacate must be actually filed within 30 days of the entry of judgment for the trial court to have jurisdiction to consider it."). Rule 303(a)(2) requires that such postjudgment motions be "timely" filed in order to take advantage of the delayed effectiveness of a premature notice of appeal. Ill. S. Ct. R. 303(a)(2) (eff. July 1, 2017). " ‘To vest the appellate court with jurisdiction a party must file a notice of appeal within 30 days after entry of the judgment appealed from, or within 30 days after entry of an order disposing of a timely post-[judgment] - 6 - motion.' " (Emphasis in original.) Goral, 2014 IL App (1st) 133236, ¶ 20 (quoting Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 538 (1984)). 

Imagine a Court Order

Imagine the admonition in the Order that "This ORDER is FINAL and APPEALABLE"

Imagine a Check Box on that Order next to the admonition

Imagine that the Box is check to indicate "YES" as in "This ORDER is FINAL and APPEALABLE"

Next, imagine a painting of a pipe

Imagine that underneath the painting of a pipe is the admonition "THIS IS NOT A PIPE"

• FINRA
• Arbitration
• Expungement
• Attorneys Fees
• EFL
• Promissory Note
• Pro Se
• Final Order
• Appealable Order
• BrokeAndBroker
• Bill Singer