Ely v. Pivar
107 N.E.3d 323
Ill. App. Ct.2018Background
- Five trusts created in 1966 named Mary Cade Smith as an initial beneficiary; other beneficiaries were not informed of their status. Trustees Rootberg and later Wilneff allegedly authorized disbursements to Cade Smith that exhausted trust assets by 2009.
- Ruth Pivar served as counsel to the trusts (retained in 2001) and later became "of counsel" to Quarles and Brady in 2013; plaintiffs allege Pivar concealed breaches, drafted an in terrorem clause in Cade Smith’s will, and failed to notify other beneficiaries.
- Plaintiffs sued multiple defendants (including Quarles and Brady) alleging legal malpractice, breach of fiduciary duty, and conspiracy related to concealment and wrongful disbursements.
- Quarles and Brady moved to dismiss under section 2-615. The circuit court dismissed the legal-malpractice count with prejudice and dismissed breach-of-fiduciary-duty and conspiracy counts without prejudice (ordering leave of court to replead).
- Plaintiffs sought leave to amend and submitted a proposed second amended complaint alleging breach of fiduciary duty against Quarles and Brady; the circuit court denied leave and added a Rule 304(a) finding.
- On appeal the appellate court concluded it lacked jurisdiction to review the June 21, 2016 dismissal (no Rule 304(a) finding in that order) and therefore also lacked jurisdiction to review the later order denying leave to amend; appeal was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the June 21, 2016 order dismissing counts in the FAC is appealable under Ill. S. Ct. R. 304(a) | The FAC was properly dismissed and is reviewable on appeal | The dismissal disposed of fewer than all claims/parties and lacked a Rule 304(a) finding, so it is not appealable | Not appealable: court lacked jurisdiction because the June 21 order omitted Rule 304(a) language for the dismissed-but-not-all claims |
| Whether the February 6, 2017 order denying leave to amend is appealable | Denial cured defects; Rule 304(a) language in the denial makes it appealable | Denial of leave to amend is ordinarily nonfinal; a subsequent Rule 304(a) finding cannot cure jurisdictional defects in the earlier dismissal | Not appealable: denial of leave to amend cannot be reviewed because the underlying dismissal was nonappealable; appellate court lacks jurisdiction |
| Whether defendant is estopped from asserting lack of jurisdiction because it requested Rule 304(a) language at the hearing | Quarles and Brady induced the court to add 304(a) language and should be estopped from contesting appellate jurisdiction | Jurisdictional defects cannot be waived or conferred by estoppel or invited error | Rejected: jurisdiction cannot be created by consent or estoppel; appellate court still lacks jurisdiction |
Key Cases Cited
- Matson v. Department of Human Rights, 322 Ill. App. 3d 932 (Ill. App. Ct.) (Rule 304(a) governs appeals from partial final judgments in multi-claim/multi-party suits)
- Paul H. Schwendener, Inc. v. Jupiter Electric Co., 358 Ill. App. 3d 65 (Ill. App. Ct.) (orders dismissing counts without prejudice are not appealable even if later repled; later Rule 304(a) language does not retroactively confer jurisdiction)
- Palmolive Tower Condominiums, LLC v. Simon, 409 Ill. App. 3d 539 (Ill. App. Ct.) (Rule 304(a) exists to limit piecemeal appeals while permitting discretionary early appeals)
- Marble Emporium, Inc. v. Vuksanovic, 339 Ill. App. 3d 84 (Ill. App. Ct.) (absence of Rule 304(a) language leaves judgment final but unappealable)
- Bank of Matteson v. Brown, 283 Ill. App. 3d 599 (Ill. App. Ct.) (appellate courts consistently dismiss appeals from orders disposing of fewer than all claims when no Rule 304(a) finding appears)