Phoenix Capital LLC v. Tabiti
2016 IL App (1st) 162686
Ill. App. Ct.2016Background
- Phoenix Capital sued Abayomi Tabiti; the trial court entered a default and ordered turnover of funds.
- Tabiti moved to vacate the turnover order and for an accounting; the trial court denied that motion on September 9, 2016.
- The trial court on September 9 granted Phoenix Capital’s motion for sanctions under Illinois Supreme Court Rule 137 as to Tabiti (not his attorney) but reserved determination of the fee amount.
- The court gave Phoenix Capital until October 14, 2016 to file and present a fee petition to calculate the Rule 137 sanctions.
- Tabiti filed a notice of appeal on September 12, 2016 (before the fee amount was determined); Phoenix Capital moved to dismiss the appeal as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an order granting Rule 137 sanctions but reserving the fee amount is a final, appealable order | The appeal is premature because the fee amount remains pending and the fees proceeding is part of the underlying action | The September 9 order finding grounds for sanctions is final and appealable, so the appeal may proceed | Appeal dismissed for lack of jurisdiction; the sanctions amount is part of the underlying action and must be resolved first unless Rule 304(a) language is included |
| Whether Rule 304(a) language was required to permit immediate appeal | Plaintiff argues Rule 304(a) language is required if a party intends to appeal before fees are fixed | Tabiti claimed the trial court stated the order was final in open court and no Rule 304(a) language was needed | Court found no record of any Rule 304(a) finding; absent that language, the order was not appealable |
Key Cases Cited
- Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458 (1990) (Rule 137 fee proceedings are part of the underlying action)
- Berg v. White, 357 Ill. App. 3d 496 (Ill. App. Ct. 2005) (final order requires a determination that fixes parties’ rights)
- Servio v. Paul Roberts Auto Sales, Inc., 211 Ill. App. 3d 751 (1991) (distinguishing fees that are part of the principal action from collateral fee claims)
- Berger v. Matthews, 216 Ill. App. 3d 942 (1991) (fees collateral to judgment do not affect appealability)