JOHN PRAITHER and MARCELLO CALIVA, Individually and on behalf of a class of similarly situated individuals, Plaintiffs-Appellants, v. NORTHBROOK BANK & TRUST COMPANY, an Illinois chartered state bank, and TAMER MOUMEN, Defendants-Appellees.
No. 1-19-2451
Appellate Court of Illinois, First District, Sixth Division
September 4, 2020
2020 IL App (1st) 192451-U
JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Mikva and Justice Cunningham concurred in the judgment.
Appeal from the Circuit Court of Cook County. No. 2018 CH 12935. Honorable Sophia Hall, Judge Presiding. NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
¶ 1 Held: Appeal dismissed for lack of jurisdiction.
¶ 2 Plaintiffs, John Praither and Marcello Cаliva, individually and on behalf of a class of similarly situated individuals, appeal the judgment of the circuit court granting defendant Northbrook Bank & Trust Company‘s (Northbrook‘s) motion to dismiss plaintiffs’ second-amended complaint pursuant to
I. BACKGROUND
¶ 3 ¶ 4 Plaintiffs invested in funds managed by Moumen. As part of his investment business, Moumen maintained three accounts аt Northbrook. Two accounts, the Crescent Ridge Volatility Fund (CRVF) and the Crescent Ridge Energy Fund (CREF), were set up to receive initial investments. The third fund, Crescent Ridge Capital Partners (CRCP), bеlonged to the partnership managing the funds, which was an entity created and controlled by Moumen. To invest in a fund, parties such as plaintiffs wired money into the CRVF or CREF.
¶ 5 Plaintiffs alleged that Moumen set up the Northbrook accounts as part of a Ponzi scheme in which he used money from new investors to pay other investors. Plaintiffs also allegеd that Moumen used the money from the CRVF and CREF for personal expenses. In March 2017, Moumen was arrested by the FBI and in October 2017, he was sentenced to ten years in prison. Hе was also ordered to pay restitution in the amount of $7,570,831.59.
¶ 6 In October 2018, plaintiffs filed a complaint against Northbrook and Moumen. The complaint alleged three сounts: count I (negligence) and count II (aiding and abetting breach of fiduciary duty) against Northbrook, and count III (unjust enrichment) against Moumen. Northbrook filed a motion to dismiss, arguing that plaintiffs failed to identify a source of duty on Northbrook‘s part toward non-customers such as plaintiffs, and no laws or regulations obligated
¶ 7 Plaintiffs subsequently filed a first-amended complaint which added a count agаinst Northbrook for breach of the FOA. The unjust enrichment count against Moumen remained. Northbrook filed a motion to dismiss the three counts against them, and the trial court grantеd the motion without prejudice, finding that plaintiffs failed to allege facts sufficient to support their claims. Plaintiffs’ claim against Moumen was not mentioned in Northbrook‘s motion to dismiss, at the hearing on the motion, or in the trial court‘s disposition.
¶ 8 Plaintiffs filed a four-count, second-amended complaint against defendants Northbrook and Moumen. Counts I-III alleged negligence, aiding and abetting breach of fiduciary duty, and violations of FOA against Northbrook. Count IV alleged a claim of unjust enrichment against Moumen. Northbrook filed a
¶ 9 At the hearing, the trial court began by stating, “This is a motion to dismiss the sеcond amended complaint, and it‘s Counts I, II, and III, and that‘s the negligence count against the bank. Count II is aiding and abetting a breach of fiduciary duty. And Count III is in aiding, abetting the violation of the [FOA].” The court continued, “The question in the complaint is the bank‘s relationship and the bank‘s knowledge about what Mr. Moumen did.” After hearing argument on
II. ANALYSIS
¶ 10 ¶ 11 Although the parties do not challenge this court‘s jurisdiction, we have an indеpendent duty to consider the issue and dismiss the appeal if jurisdiction is lacking. Palmolive Tower Condominiums v. Simon, 409 Ill. App. 3d 539, 542 (2011). Our jurisdiction is limited to review of a final judgment, which is a “determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” Flores v. Dugan, 91 Ill. 2d 108, 112 (1982). A dismissal with prejudice is usually considered a final and appealable judgment because it indicates that the plaintiff is not allowed to amend the complaint, thereby terminating the litigation. J. Eck & Son, Inc. v. Reuben H. Donnelly Corp., 188 Ill. App. 3d 1090, 1093 (1989).
¶ 12 However, where the action involves multiple рarties and multiple claims, “an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both.”
¶ 14 Notwithstanding the laсk of clarity by the trial court in not specifically including Count IV in its dismissal order, we recognize that on appeal, plaintiffs stated their belief that the trial court sua sponte dismissed count IV of their complaint. Northbrook, however, did not express agreement with plaintiff‘s position on appeal. Rather, Northbrook responded by stating, “Plaintiffs interpret the Circuit Court‘s order dismissing ‘the cause’ with prejudice as sua sponte dismissing their unjust enrichment claim against Moumen as well. Northbrook takes no position on this issue.” For the reasons stated in the order, we find that the trial court did not sua sponte dismiss count IV.
¶ 15 It is apparent from the record that the trial court did not dismiss plaintiffs’ second-amended complaint in its entirety, and count IV remained against Moumen. Although Moumen never made an appearance, he was still a named defendant within the context of
¶ 16 Regardless of whether the plaintiffs or even the trial court believed it had entered a final order, it has not, since the claim against Moumen has neither bеen ruled on nor dismissed and remains pending. If plaintiffs wish an immediate appeal, they may seek modification of the trial court‘s order to include a
III. CONCLUSION
¶ 17 ¶ 18 For the foregoing reasons, we dismiss the instant appeal for lack of jurisdiction.
¶ 19 Appeal dismissed.