Failure To Designate Amount Of Attorney Fee Award Deprives Appellate Jurisdiction For Interlocutory Appeal

The City of West Chicago passed a zoning ordinance that banned certain billboards. Lamar Whiteco Outdoor Corporation sued the city, claiming the ordinance was unconstitutional. Lamar and the city eventually settled: an injunction was entered prohibiting the city from enforcing the ordinance against Lamar, and Lamar withdrew the lawsuit.

Lamar then filed a petition for its attorney fees. The trial court ruled that Lamar was entitled to the fees. But the court did not state how much money Lamar should get. The city asked the court to reconsider the ruling. The court refused to reconsider, and also ordered under Illinois Supreme Court Rule 304(a) [no just reason to delay enforcement or appeal of final judgments as to one or more but fewer than all of the parties or claims] that its order allowing the attorney fees was a final and appealable interlocutory order.

The city appealed. But Lamar argued the appellate court did not have jurisdiction to hear the appeal. Lamar maintained that Rule 304(a) did not give the appellate court a basis to consider the appeal.

The Second District Illinois Appellate Court agreed with Lamar and dismissed the appeal for lack of jurisdiction. The appellate court ruled that an order is not appealable under Rule 304(a) just because a trial court says so. There still must be a final judgment. This is how the appellate court explained it:

The inclusion of a Rule 304(a) finding in an order does not transform a nonfinal order into a final and appealable order … Rule 304(a) language applies only to cases involving multiple claims, multiple parties, or both, and in those cases, it can be used to sever a final order as to one claim or party from other claims or parties … The trial court’s use of Rule 304(a) language in an order does not affect its finality … Here, the parties settled all claims except the one for attorney fees and costs, and the City does not appeal any matter but the one that remains undetermined. The City does not wish to appeal any final order by severing it from the still pending claim for attorney fees and costs, and therefore, the Rule 304(a) finding is completely superfluous.

The whole opinion, Lamar Whiteco Outdoor Corp. v. City of West Chicago, No 2-08-0020 (10/8/09), is available here.