Condo Owner’s Interlocutory Appeal Dismissed For Incomplete Rule 304(a) Finding

Marc and Mary Simon bought a condominium from Palmolive Tower Condominium before Palmolive finished constructing the building. The Simons were unhappy with Palmolive’s performance, and refused to release the money being held in escrow for Palmolive. So Palmolive sued the Simons, and the Simons counterclaimed for breach of contract and fraud.

Palmolive asked the trial court for judgment on the pleadings on its own multi-count complaint, and to dismiss the Simons’s counterclaim. The trial court dismissed the counterclaims, and stated its order was “a final and appealable order there being no just reason to delay enforcement or appeal.” Later the trial court gave judgment on the pleadings in favor of Palmolive on the first of several counts of its complaint. The remaining counts of Palmolive’s complaint were left standing. The court’s judgment said it was “final and appealable.”

The Simons appealed from both orders. The parties agreed the appellate court had jurisdiction over the order giving Palmolive judgment on the pleadings. But the court thought otherwise and dismissed that part of the Simons’s appeal. Here’s why.

Here, the defendants seek to appeal an order that resolved only one count of the plaintiff’s multi-count complaint and therefore unquestionably resolved fewer than all of the claims between the parties. Accordingly, under [Illinois Supreme Court] Rule 304(a) the order was not appealable unless it was accompanied by the circuit court’s express written finding that there was “no just reason for delaying either enforcement or appeal or both.” For their stance that the circuit court’s April 10 order [giving Palmolive judgment on the pleadings on one of its claims] is appealable, the parties cite the court’s statement that the order was “final and appealable.” That order, however, contains no reference either to Rule 304(a), to the justness of delaying enforcement or appealability, or to the propriety of immediate appeal.

The rationale underlying Rule 304(a) is that it allows appeals to be taken before the final disposition of a case where the circuit court considers an immediate appeal to be appropriate … Thus, Rule 304(a) allows a circuit court to limit piecemeal appeals yet still allow early appeals when, in its discretion, doing so “would have the effect of expediting the resolution of the controversy, would be fair to the parties, and would conserve judicial resources.” … A circuit court’s declaration that an order is “final and appealable,” without reference to the justness of delay, or even reference to immediate appealability, evinces no application of the discretion Rule 304(a) contemplates … Instead, absent some other indication from the record that the court intended to invoke Rule 304(a) … a circuit court’s declaration that an order is “final and appealable” amounts to nothing more than a non-binding interpretation.

The First District Illinois Appellate Court acknowledged that a Rule 304(a) finding does not have to exactly mirror the rule, but the circumstances do have to reflect the desirability of an interlocutory appeal. The lesson is: To assure your interlocutory order is appealable, and to avoid being a test case, make sure the Rule 304(a) finding states there is no just reason for delaying enforcement or appeal” of the order. Read the whole case, Palmolive Tower Condominiums v. Simon, Nos. 1-10-0427, 1348 (5/16/11).