{ "id": 570543, "name": "MARILYN COLE, Plaintiff-Appellant, v. HOOGENDOORN, TALBOT, DAVIDS, GODFREY AND MILLIGAN et al., Defendants-Appellees", "name_abbreviation": "Cole v. Hoogendoorn, Talbot, Davids, Godfrey & Milligan", "decision_date": "2001-10-26", "docket_number": "No. 1\u201401\u20140226", "first_page": "1152", "last_page": "1157", "citations": [ { "type": "official", "cite": "325 Ill. App. 3d 1152" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "37 Ill. App. 3d 797", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2714535 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0797-01" ] }, { "cite": "53 Ill. App. 3d 1019", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3392398 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/1019-01" ] }, { "cite": "68 Ill. App. 3d 552", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3306074 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0552-01" ] }, { "cite": "171 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3618801 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "821" }, { "page": "820" }, { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0818-01" ] }, { "cite": "77 Ill. App. 2d 315", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2570337 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-2d/77/0315-01" ] }, { "cite": "80 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3232851 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0915-01" ] }, { "cite": "151 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3541723 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0873-01" ] }, { "cite": "184 Ill. App. 3d 545", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2638347 ], "year": 1989, "pin_cites": [ { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0545-01" ] }, { "cite": "167 Ill. 2d 88", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222784 ], "year": 1995, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0088-01" ] }, { "cite": "255 Ill. App. 3d 650", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2987645 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "651" }, { "page": "652" }, { "page": "652-53" }, { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/255/0650-01" ] }, { "cite": "107 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3022361 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "62-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0061-01" ] }, { "cite": "149 Ill. App. 3d 504", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3461475 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0504-01" ] }, { "cite": "306 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336038 ], "year": 1999, "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0367-01" ] }, { "cite": "69 Ill. App. 3d 871", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3238327 ], "year": 1979, "pin_cites": [ { "page": "873" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0871-01" ] } ], "analysis": { "cardinality": 545, "char_count": 11884, "ocr_confidence": 0.77, "pagerank": { "raw": 1.1910256827166792e-07, "percentile": 0.5914182641536244 }, "sha256": "f8200117045691ce734f6ac769eda856fde9d03edd2d9e3f458059f65e1bb2da", "simhash": "1:553f5c86794cade4", "word_count": 1985 }, "last_updated": "2023-07-14T19:13:10.268443+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARILYN COLE, Plaintiff-Appellant, v. HOOGENDOORN, TALBOT, DAVIDS, GODFREY AND MILLIGAN et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE O\u2019MARA FROSSARD\ndelivered the opinion of the court:\nPlaintiff Marilyn Cole appeals pro se from a trial court order striking her second amended complaint against defendants Hoogendoorn, Talbot, Davids, Godfrey, and Milligan (Hoogendoorn, Talbot), a law firm, and Bruce J. Van Heukelem, a partner at Hoogendoorn, Talbot. Plaintiff also appeals from the subsequent denial of her motion to reconsider that order.\nThis case arises from a dispute over defendants\u2019 billing of plaintiff for legal services performed on her behalf. In her pro se second amended complaint, plaintiff alleged common law fraud, breach of fiduciary duty, legal malpractice, and constructive fraud against defendants. Defendants filed a motion to strike and dismiss plaintiff\u2019s second amended complaint, contending that plaintiff failed to plead sufficient facts to sustain any cause of action.\nOn October 3, 2000, the trial court granted defendants\u2019 motion to strike and dismiss plaintiffs second amended complaint. The court ordered:\n\u201c(1) Plaintiffs\u2019 Second Amended Complaint is stricken in its entirety.\n(2) Plaintiff is granted 14 days, to October 17, 2000, to file a Third Amended Complaint limited to a breach of contract claim.\u201d\nPlaintiff subsequently filed a motion to reconsider the trial court\u2019s order striking her second amended complaint. In her motion, plaintiff stated she was electing to stand on her second amended complaint. On December 14, 2000, the trial court denied plaintiff\u2019s motion to reconsider and told plaintiff during the hearing on the motion that \u201c[y]our case is not dismissed with prejudice, not at all.\u201d However, the court\u2019s written order stated that \u201c[plursuant to Supreme Court Rule 304(a) *** the Court finds that no just reason exists to delay the enforcement of or appeal from this order.\u201d\nOn appeal, plaintiff asserts this court has jurisdiction over her appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) and contends that her second amended complaint stated valid causes of action against defendants for common law fraud, breach of fiduciary duty, legal malpractice, and constructive fraud. Defendants respond that the appeal should be dismissed because there has never been a final and appealable order that would provide this court with jurisdiction over the appeal.\nThe finality of an order is determined by an examination of the substance as opposed to the form of that order. Gutenkauf v. Gutenkauf, 69 Ill. App. 3d 871, 873 (1979). Appellate jurisdiction is limited to review of final judgments unless an order falls within a statutory or supreme court exception. Pekin Insurance Co. v. Benson, 306 Ill. App. 3d 367, 375 (1999). Normally an order striking or dismissing a complaint is not final and therefore not appealable unless its language indicates the litigation is terminated and the plaintiff will not be permitted to replead. Ben Kozloff, Inc. v. Leahy, 149 Ill. App. 3d 504, 506 (1986). Even if a plaintiff subsequently elects to stand on his or her complaint, an order striking or dismissing a complaint is not final until the trial court enters an order dismissing the suit. Wick Building Systems, Inc. v. Burning, 107 Ill. App. 3d 61, 62-63 (1982).\nIn Hicks v. Weaver, 255 Ill. App. 3d 650, 651 (1994), plaintiff sued her landlord for damages arising from injuries she incurred when she slipped on a patch of snow and ice on her landlord\u2019s property. Defendant moved to dismiss her second amended complaint pursuant to section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 1992)), for the failure to state a cause of action. The court granted the motion to dismiss and in its order stated there was no just reason to delay enforcement or appeal of the order. The court further indicated that \u201cPlaintiff shall have 21 days to amend complaint and defendants 14 days to respond.\u201d Hicks, 255 Ill. App. 3d at 652. On appeal, the court found that the order of the trial court did not fix, determine, or dispose of the rights of the parties, but instead allowed for additional pleadings. The court held that the order allowing for amendment of the complaint was not a final order and dismissed the appeal for lack of jurisdiction. Hicks, 255 Ill. App. 3d at 652-53.\nSimilarly, in this case, the order of the trial court does not fix, determine, or dispose of the rights of the parties. The order allows additional pleadings. It is not a judgment ordering dismissal, but an order calling for amendment within 14 days. The trial court\u2019s order striking plaintiff\u2019s second amended complaint expressly granted plaintiff the right to file a third amended complaint. This order entered October 3, 2000, gave plaintiff leave to file an amended complaint and did not dismiss the suit with prejudice; therefore, it is not a final judgment. Hicks, 255 Ill. App. 3d at 652.\nOn December 14, 2000, plaintiff argued her motion to reconsider. During that hearing the plaintiff correctly requested that the court enter an order dismissing her entire suit so she could proceed in the appellate court:\n\u201cPLAINTIFF: No. My complaint is just fine the way it is and you just don\u2019t agree with that, then let the appellate court make a decision. If they dismiss it, that\u2019s the end of it. That\u2019s fine.\nTHE COURT: I\u2019m trying to figure out a way to do that. I don\u2019t know how\u2014\nPLAINTIFF: Dismiss the whole thing with prejudice so I can go to the appellate court. The appellate court \u2014 I do have that decision someplace here, maybe back there, the appellate court \u2014 I\u2019ve already tried doing it, they said it\u2019s too early\u2014\nTHE COURT: It wasn\u2019t final\u2014\nPLAINTIFF: \u2014 it\u2019s not a final appealable order. So dismiss it with prejudice, make it a final appealable order, let me go to the appellate court and they can make their ruling on it \u2014 on my whole Second Amended Complaint.\n* * *\nTHE COURT: The October 3rd order to strike the complaint and grant 14 days to amend the complaint is the only order that\u2019s in effect at this point in time. What I\u2019ll do is I\u2019ll give you [Rule] 304(a) language as to that order and/or this order denying your Motion to Reconsider if it\u2019s appropriate. I\u2019m not even sure that there\u2019s any basis here set out for reconsideration even in the motion itself, but the [Rule] 304(a) language will apply to the previous order.\n* * *\nPLAINTIFF: So I can go to the appellate court at this point?\nTHE COURT: I don\u2019t know what the appellate court is going to do and I don\u2019t want to mislead you into telling you the appellate\ncourt is going to accept it. I\u2019m giving you a basis to start.\n^ ^\nTHE COURT: Your case is not dismissed with prejudice, not at all.\nPLAINTIFF: It\u2019s like an interlocutory appeal, is that true?\nTHE COURT: Potentially.\u201d\nThe trial court\u2019s order denying plaintiffs motion to reconsider stated that, pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), there was no just reason to delay enforcement or appeal. The inclusion of this language, however, did not render this order final because the order itself, like the order striking and dismissing plaintiffs second amended complaint, did not dismiss plaintiffs suit or bar her from filing an amended complaint. \u201cIn order to have preserved the trial judge\u2019s rulings for review, it would have been necessary for plaintiff to have stood on the dismissed complaints and obtained an order dismissing the action with prejudice.\u201d Boatmen\u2019s National Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88, 99 (1995). That is exactly what plaintiff attempted to do in this case. The plaintiff during the hearing on her motion to reconsider clearly and correctly requested that the trial court enter an order dismissing her entire suit with prejudice so she could proceed in the appellate court. \u201cDismiss the whole thing with prejudice so I can go to the appellate court.\u201d The trial court erroneously rejected that request.\nMoreover, during the hearing on the motion to reconsider, the trial court denied plaintiffs motion to reconsider, yet informed plaintiff that her case was not dismissed with prejudice. That discussion was at best confusing. The Rule 304(a) language added by the trial court to the order denying plaintiffs motion to reconsider only served to escalate the confusion. Moreover, the defendants correctly objected to the Rule 304(a) language being given at that point in the process. Yet the trial court over defense objection included the language in the order entered December 14, 2000. In that order the court denied the plaintiffs motion to reconsider, allowed the order of October 3, 2000, to stand and added Rule 304(a) language.\nThe law is clear that in a case such as this where a plaintiff chooses to stand on the complaint, the order is not final or appealable until the trial court enters an order dismissing the suit. \u201cWhen a plaintiff subsequently elects to stand on his complaint rather than amend, the order striking or dismissing the complaint is not appealable until an order dismissing the action is entered.\u201d Miller v. Suburban Medical Center at Hoffman Estates, Inc., 184 Ill. App. 3d 545, 547 (1989); County of Knox v. Switzer, 151 Ill. App. 3d 873 (1987); Ben Kozloff, 149 Ill. App. 3d 504; Wick Building Systems, 107 Ill. App. 3d 61; Martin v. Marks, 80 Ill. App. 3d 915 (1980); Schoen v. Caterpillar Tractor Co., 77 Ill. App. 2d 315 (1966).\nWhere an order is not final and appealable, the trial court cannot confer appellate jurisdiction by simply stating in such order that there is no just reason for delaying enforcement or appeal. Aetna Casualty & Surety Co. v. Technam, Inc., 171 Ill. App. 3d 818, 821 (1988); Savage v. Schoenstadt, 68 Ill. App. 3d 552 (1979); Coble v. Chicago Health Club, Inc., 53 Ill. App. 3d 1019 (1977); Mexicali Club, Inc. v. Illinois Liquor Control Comm\u2019n, 37 Ill. App. 3d 797 (1976). In Aetna, the third-party plaintiff appealed an order dismissing the third-party complaint. The order gave plaintiff 14 days to file amended pleadings and indicated if no such pleadings were filed, \u201cthe order of dismissal shall be final.\u201d Aetna, 171 Ill. App. 3d at 820. The appellate court dismissed the appeal, holding that the trial court\u2019s order was insufficient to change the dismissal order into a final and appealable order. Aetna, 171 Ill. App. 3d at 821.\nIn the present case the court indicated in the order resolving the plaintiffs motion to reconsider that \u201cPursuant to Supreme court Rule 304(a), over defendants\u2019 objection, the court finds no just reason exists to delay the enforcement of or appeal from this order.\u201d That language does not change the fact that the order does not fix, determine, or dispose of the rights of the parties. That order is not a final order just because the trial court says that it is by using Rule 304(a) language.\nFor the reasons previously discussed, neither order from which plaintiff appeals is final. We are at this point without jurisdiction to address the merits of plaintiffs appeal and must therefore dismiss her appeal. We note, however, that our decision does not preclude plaintiff from filing a motion with the trial court stating her intent to stand on her second amended complaint and seeking dismissal of that complaint with prejudice. A trial court order granting such a motion would constitute a final order over which this court would potentially have jurisdiction. Pro se litigants are entitled to equal access to the courts, and the court has an obligation not to undermine that access by interjecting confusion into the process.\nAppeal dismissed.\nGALLAGHER, P.J., and O\u2019BRIEN, J., concur.", "type": "majority", "author": "JUSTICE O\u2019MARA FROSSARD" } ], "attorneys": [ "Marilyn Cole, of Schaumburg, appellant pro se.", "Hoogendoorn & Talbot, of Chicago (Kevin J. Todd, of counsel), for appellees." ], "corrections": "", "head_matter": "MARILYN COLE, Plaintiff-Appellant, v. HOOGENDOORN, TALBOT, DAVIDS, GODFREY AND MILLIGAN et al., Defendants-Appellees.\nFirst District (6th Division)\nNo. 1\u201401\u20140226\nOpinion filed October 26, 2001.\nRehearing denied November 29, 2001.\nMarilyn Cole, of Schaumburg, appellant pro se.\nHoogendoorn & Talbot, of Chicago (Kevin J. Todd, of counsel), for appellees." }, "file_name": "1152-01", "first_page_order": 1170, "last_page_order": 1175 }