                                                                                FILED
                                                                               April 23, 2018
                                                                               Carla Bender
                                 2018 IL App (4th) 170169                  4th District Appellate
                                                                                 Court, IL
                   NOS. 4-17-0169, 4-17-0170, 4-17-0190, 4-17-0191 cons.

                              IN THE APPELLATE COURT

                                       OF ILLINOIS

                                   FOURTH DISTRICT


ABBY BAUMAN and DAVE ANDERSON,	                         )    Appeal from the
Cotrustees of the Fifth Amended and Restated R. Mack	   )    Circuit Court of
Brown Revocable Trust, Dated October 19, 2016, as       )    McLean County
Successor in Interest to R. Mack Brown, Deceased,       )    Nos. 10-LM-638
d/b/a Golfview Apartments,                              )         11-LM-9
                                                        )
              Plaintiffs and Counterdefendants­         )
              Appellants                                )
                                                        )
              v.   (Nos. 4-17-1069 and 4-17-0190)       )
                                                        )
                                                        )
WAYNE PATTERSON and JOAN SCHNEIDER,
                                                        )
                                                        )
              Defendants,                               )
                                                        )
(Wayne Patterson, Defendant, Counterplaintiff, and      )
Third-Party Plaintiff-Appellee; Dennis Brooks,          )
Individually, Third-Party Defendant-Appellant).         )
                                                        )
                                                        )
____________________________________________            )
ABBY BAUMAN and DAVE ANDERSON,                          )
Cotrustees of the Fifth Amended and Restated R. Mack    )
Brown Revocable Trust, Dated October 19, 2016, as       )
Successor in Interest to R. Mack Brown, Deceased,       )
d/b/a Golfview Apartments,                              )
                                                        )
              Plaintiffs and Counterdefendants­         )
              Appellants,                               )
                                                        )
              v. (Nos. 4-17-0170 and 4-17-0191)         )
                                                        )
WAYNE PATTERSON and ANY UNKNOWN                         )
OCCUPANTS,                                              )
         Defendants,                                    )
                                                            )       Honorable
                                                            )       David Butler,
 (Wayne Patterson, Defendant, Counterplaintiff, and         )       Judge Presiding.
 Third-Party Plaintiff-Appellee; Dennis Brooks,             )
 Individually, Third-Party Defendant-Appellant).            )



               PRESIDING JUSTICE HARRIS delivered the judgment of the court, with

               opinion. 

               Justice Steigmann concurred in the judgment and opinion. 

               Justice Turner dissented, with opinion.


                                            OPINION
¶1             This litigation began with actions to evict Wayne Patterson from an apartment.

Dennis Brooks filed an action as an agent of the landlord, R. Mack Brown, and Brown filed his

own action. Thus, two eviction actions against Patterson were filed in the McLean County circuit

court.

¶2             Patterson in turn filed counterclaims against Brooks and Brown, alleging they

converted his belongings while enforcing a judgment for possession of the apartment—a

judgment that, after its enforcement, was vacated because of defective service of process.

(Brown died after Patterson filed his action, and on appeal, we have allowed cotrustees of

Brown’s revocable trust, Abby Bauman and Dave Anderson, to be substituted for him.) The final

expression of the conversion claim was Patterson’s fourth amended counterclaim, which

consisted of one count against Brooks and another count against Brown.

¶3             Brooks and Brown moved for summary judgment on the fourth amended

counterclaim, and Patterson cross-moved for summary judgment. After consolidating the two

cases, the circuit court denied the motions by Brooks and Brown, and the court granted the

motion by Patterson—but only as to liability, reserving the issue of damages for a trial. Thus, it

was “deemed established” that Brooks and Brown had converted Patterson’s chattels, but the

                                               -2­
amount of damages resulting from the conversion was to be determined in a trial. 735 ILCS 5/2­

1005(d) (West 2016).

¶4             After entering the partial summary judgment in Patterson’s favor, the circuit court

granted a motion by him to voluntarily dismiss, without prejudice, his fourth amended

counterclaim. See id. § 2-1009. Consequently, the trial on damages never occurred.

¶5             Brooks and Brown (through his personal representatives, Bauman and Anderson)

appeal in the two cases, thereby generating four appeals, which we have consolidated. We

dismiss all four appeals for lack of subject-matter jurisdiction because (1) a voluntary dismissal

renders appealable only prior orders that are final in nature and (2) none of the rulings on the

cross-motions for summary judgment were final in nature.

¶6                                      I. BACKGROUND

¶7                          A. McLean County Case No. 10-LM-638

¶8             In September 2010, in McLean County case No. 10-LM-638, Dennis Brooks, as

the agent of R. Mack Brown, the owner of Golfview Apartments, filed a civil complaint against

Wayne Patterson and Joan Schneider. (Brooks was represented by counsel.) The complaint was

pursuant to the Forcible Entry and Detainer Act (735 ILCS 5/9-101 to 9-321 (West 2010)), and it

sought (1) possession of an apartment leased to Patterson and (2) overdue rent.

¶9             Patterson filed an answer, affirmative defenses, and a counterclaim. The

counterclaim, which alleged conversion, was against Brown and also against Brooks,

“individually and as [the] agent for” Brown. In substance, it was a counterclaim against Brown

combined with a third-party complaint against Brooks in his individual capacity.

¶ 10           Brooks voluntarily dismissed his complaint, but Patterson’s counterclaim

remained pending.



                                                -3­
¶ 11           R. Mack Brown died on February 8, 2017. On June 15, 2017, we granted a motion

to substitute Brown with Abby Bauman and Dave Anderson in their capacities as cotrustees of

the Fifth Amended and Restated R. Mack Brown Revocable Trust, Dated October 19, 2016. The

caption in these consolidated appeals originally listed the trust as a party, but because a trust is a

fiduciary relationship rather than a legal person (see National City Bank of Michigan/Illinois v.

Northern Illinois University, 353 Ill. App. 3d 282, 288 (2004); Dennet v. Kuenzli, 936 P.2d 219,

228 (Idaho Ct. App. 1997)) and because a relationship cannot be a party to an appeal, the

cotrustees, Bauman and Anderson, are now listed as parties in lieu of the trust. We also have

changed the caption to reflect that Brooks is sued only in his individual capacity since we have

ordered that Bauman and Anderson, rather than Brooks, will serve as Brown’s personal

representatives. So, Bauman and Anderson are sued in their representative capacities, and

Brooks is sued in his individual capacity.

¶ 12                           B. McLean County Case No. 11-LM-9

¶ 13           In McLean County case No. 11-LM-9, Brown, the landlord, filed an eviction

action against Patterson and unknown occupants. This case was substantially identical to

McLean County case No. 10-LM-638 except that Brown, rather than Brooks, was the plaintiff.

The complaint was pursuant to the Forcible Entry and Detainer Act, and Brown sought

possession of the same apartment.

¶ 14           Again, Patterson filed an answer, affirmative defenses, and a counterclaim against

Brown and Brooks for conversion. As in the other case, the conversion was allegedly of

Patterson’s personal property that remained in the apartment when Brown took possession of the

apartment pursuant to a judgment.




                                                 -4­
¶ 15           In August 2011, the trial court resolved Brown’s complaint against Patterson by

granting Brown possession of the apartment, but Patterson’s counterclaim remained pending.

¶ 16                        C. Proceedings in the Consolidated Cases

¶ 17           In May 2011, the circuit court consolidated the two cases.

¶ 18           Patterson filed a fourth amended counterclaim against Brown and Brooks. It

consisted of two counts, both of which alleged conversion. Count I was against Brown, and

count II was against Brooks.

¶ 19           After discovery, Brown and Brooks each moved for summary judgment on the

counts against them, and Patterson cross-moved for summary judgment on those counts. On

August 12, 2015, the circuit court denied the motions by Brown and Brooks but, on the issue of

liability alone, granted Patterson’s motion, leaving the issue of damages to be determined in a

trial. On January 6, 2016, the court denied motions by Brown and Brooks to reconsider or, more

precisely, vacate the summary judgment rulings.

¶ 20           On January 17, 2017, pursuant to section 2-1009 of the Code of Civil Procedure

(Code) (735 ILCS 5/2-1009 (West 2016)), the circuit court granted a motion by Patterson to

voluntarily dismiss, without prejudice, his fourth amended counterclaim. Consequently, a trial on

damages never occurred. No claims remained pending after the voluntary dismissal. These

appeals followed.

¶ 21           In case No. 4-17-0169, Brooks appeals (1) the denial of his motion for summary

judgment on the fourth amended counterclaim and the partial granting of Patterson’s cross-

motion for summary judgment (the order of August 12, 2015), (2) the denial of Brooks’s motion

to reconsider the rulings on the cross-motions for summary judgment (the order of January 6,




                                               -5­
2016), and (3) the granting of Patterson’s motion to voluntarily dismiss his fourth amended

counterclaim (the order of January 17, 2017).

¶ 22           In case No. 4-17-0170, Brooks appeals the same three orders. It is a duplicate

notice of appeal because the circuit court entered the orders in the two consolidated cases.

¶ 23           In case No. 4-17-0190, Bauman and Anderson appeal (1) the order denying their

motion for summary judgment on the fourth amended counterclaim and partially granting

Patterson’s cross-motion for a summary judgment (the order of August 12, 2015), (2) the order

denying Bauman’s and Anderson’s motion to reconsider the rulings on the cross-motions for

summary judgment (the order of January 6, 2016).

¶ 24           In case No. 4-17-0191, Bauman and Anderson appeal the same two orders, which

the trial court entered in the two consolidated cases.

¶ 25                                      II. ANALYSIS

¶ 26           Patterson does not dispute our jurisdiction over these appeals. Even so, we have

an independent duty to make sure we have jurisdiction and to dismiss the appeals if we lack

jurisdiction. See Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984).

¶ 27           Patterson voluntarily dismissed his fourth amended counterclaim, and in their

statements of jurisdiction, Brooks, Bauman, and Anderson argue that the voluntary dismissal of a

lawsuit renders immediately appealable all prior orders that were not otherwise appealable at the

time they were entered. In support of that argument, they cite Hudson v. City of Chicago, 228 Ill.

2d 462, 468 (2008), and Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503-04

(1997).

¶ 28           Both of those cases are distinguishable because the prior orders in those cases

were final in nature whereas the prior orders in the present cases were not final in nature.



                                                -6­
¶ 29           We first examine Hudson. In that case, the plaintiffs brought a tort action against

the City of Chicago and some of its employees in the fire department. Hudson, 228 Ill. 2d at 464.

The complaint consisted of two counts: count I, which alleged negligence, and count II, which

alleged willful and wanton misconduct. Id. The circuit court granted the defendants’ motion to

dismiss count I with prejudice, pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2­

619(a)(9) (West 2000)), on the ground that the city and its employees had immunity under

section 3.150 of the Emergency Medical Services (EMS) Systems Act (210 ILCS 50/3.150

(West 2000)). Hudson, 228 Ill. 2d at 464-65. Then, pursuant to section 2-1009 of the Code (735

ILCS 5/2-1009 (West 2000)), the plaintiffs voluntarily dismissed the remaining count, count II.

Later, the plaintiffs refiled their action, pleading only one count, the same count of willful and

wanton misconduct. Hudson, 228 Ill. 2d at 465. The circuit court granted a motion by the

defendants to dismiss the refiled action as barred by res judicata. Id. The supreme court agreed

with that ruling. The voluntary dismissal had “terminated [the litigation] in its entirety[,] and all

final orders [had] bec[o]me immediately appealable.” (Emphasis added.) Id. at 468. The

dismissal of count I, the negligence count, was a final order, and because the plaintiffs

voluntarily dismissed count II, thereby ending the case, the rule against claim-splitting now

prevented them from subverting that finality by refiling count II, which, with its allegations of

willful and wanton misconduct, arose out of the same set of operative facts as the negligence

count and could have been litigated at the same time as the negligence count. Id. at 473-74.

¶ 30           The other case, Dubina, likewise turned on the finality of the orders entered

before the voluntary dismissal. The final orders in Dubina were the dismissal, with prejudice, of

contribution claims between settling defendants. Dubina, 178 Ill. 2d at 503. Absent a finding

pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 1, 1994), the dismissal of the



                                                 -7­
contribution claims, though final, was not immediately appealable. Dubina, 178 Ill. 2d at 503.

Later, however, when the plaintiffs voluntarily dismissed their action, the dismissal of the

contribution claims became appealable. “The order of voluntary dismissal, because it disposed of

all matters pending before the circuit court, rendered all orders which were final in nature, but

which were not previously appealable, immediately final and appealable.” (Emphasis added.) Id.

¶ 31           Taking our lead from Hudson and Dubina, we must determine whether the orders

appealed in the present cases were “final in nature.” Id.; see also Hudson, 228 Ill. 2d at 468.

Brooks, Bauman, and Anderson appeal (1) the denial of their motions for summary judgment on

Patterson’s fourth amended counterclaim and (2) the partial granting of Patterson’s cross-motion

for summary judgment. (Brooks also appeals the granting of Patterson’s motion for a voluntary

dismissal, but he makes no argument on that issue.) We begin with the denial of the motions by

Brooks and Brown for summary judgment. (We will treat Bauman and Anderson as

interchangeable with Brown.) Unlike dismissals with prejudice (Hudson, 228 Ill. 2d at 473;

Dubina, 178 Ill. 2d at 503), “[t]he denial of a summary judgment motion is not a final order ***.

[Citation.] An exception exists where the parties have filed cross-motions for summary judgment

and the circuit court has granted one, disposing of all the issues in the case.” (Emphasis added.)

Fogt v. 1-800-Pack-Rat, LLC, 2017 IL App (1st) 150383, ¶ 95. When denying the motions by

Brooks and Brown for summary judgment in their favor, the circuit court granted Patterson’s

cross-motion for summary judgment—but the court granted it only partly, as to the issue of

liability. By granting Patterson’s motion only as to liability, the court did not “dispos[e] of all the

issues in the case.” Id. The issue of damages remained unresolved by the partial summary

judgment. That issue was left to potential future litigation, which would be “an entirely new and

separate action” (Dubina, 178 Ill. 2d at 504). Therefore, contrary to the exception described in



                                                 -8­
Fogt, the denial of the motions by Brooks and Brown for summary judgment in their favor was

not a final order. See Fogt, 2017 IL App (1st) 150383, ¶ 95. Although the denial of a motion for

summary judgment is regarded as final under an exception for totally dispositive rulings on

cross-motions for summary judgment, that exception has no applicability here.

¶ 32           Brooks, Bauman, and Anderson invoke another exception, which the appellate

court created in DePluzer v. Village of Winnetka, 265 Ill. App. 3d 1061 (1994). In that case, the

complaint had two counts, and as to count I, the circuit court granted the defendant’s motion for

summary judgment, but as to count II, the court denied the defendant’s motion. Id. at 1062. The

court then granted a motion by the plaintiff to voluntarily dismiss count II. Id. The plaintiff

appealed the summary judgment on count I, and the defendant cross-appealed the denial of

summary judgment on count II. Id. The plaintiff moved that the appellate court dismiss the

defendant’s appeal for lack of subject-matter jurisdiction, arguing that the denial of a summary

judgment was not a final order. Id. at 1064. While agreeing that typically this was true, the First

District held that the plaintiff’s voluntary dismissal of count II made the preceding denial of the

defendant’s motion for a summary judgment on that count final and appealable. Id. at 1064-65.

The First District reasoned as follows:

                       “Although [the plaintiff] is correct that the denial of a motion for summary

               judgment is typically not appealable, the propriety of the denial may be

               considered if the case is properly before a reviewing court from a final judgment

               and no trial or hearing has been conducted. [Citation.] In this case the order is

               final and appealable because, in addition to denying summary judgment, the trial

               court granted [the plaintiff’s] motion to voluntarily dismiss this count, making the

               order final and appealable.



                                                -9­
                       Our Illinois Supreme Court has determined that it is important that a

               defendant have the ability to appeal from an order of voluntary dismissal since,

               otherwise, such an order would never be subject to review. [Citations.]

               Consequently, the order granting [the plaintiff] a voluntary dismissal as to count

               II of his complaint is a final and appealable order, which brings before the

               reviewing court all other orders and rulings directly associated with that

               judgment, including, in this case, the denial of summary judgment. This court,

               therefore, has jurisdiction to consider the appeals.” Id.

¶ 33           For two reasons, we are unconvinced by the quoted reasoning. First, the First

District states: “[T]he propriety of the denial [of a motion for summary judgment] may be

considered if the case is properly before a reviewing court from a final judgment and no trial or

hearing has been conducted.” (Emphasis added.) However, there was no final judgment in

DePluzer. The supreme court has explained:

               “A final judgment 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. A judgment is final if it determines the litigation on the merits so

               that, if affirmed, nothing remains for the trial court to do but to proceed with its

               execution.” Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d

               221, 232-33 (2005).

By granting the motion for a voluntary dismissal without prejudice, a court does not determine

the litigation on the merits. If statutory law allowed the plaintiff in DePluzer to refile count II

within one year after voluntarily dismissing it (see 735 ILCS 5/13-217 (West 1994)), then,




                                                - 10 ­
necessarily, the voluntarily dismissal left the issues in count II unresolved and the merits of that

count undetermined.

¶ 34           Second, although the decision to grant the plaintiff’s motion for a voluntary

dismissal of count II was appealable by the defendant (see Dillie v. Bisby, 106 Ill. 2d 487, 491

(1985)), it did not follow that every order preceding the voluntary dismissal was appealable.

Several years after DePluzer, the appellate court dispelled such a misconception:

                       “An order granting a plaintiff’s motion for a voluntary dismissal is final

               and appealable by the defendants. [Citation.] But, because jurisdiction in the

               appellate court is generally limited to appeals from final judgments, the power to

               address a defendant’s appeal from a voluntary dismissal does not form the

               jurisdictional basis from which we may also address the substantive merits of

               other nonfinal orders entered by a trial court prior to the granting of a voluntary

               dismissal. [Citations.]

                       A judgment is final if it determines the litigation on the merits so that, if

               affirmed, nothing remains for the trial court to do but to proceed with its

               execution. [Citation.] When an order leaves a cause still pending and undecided, it

               is not a final order. [Citation.] Accordingly, the denial of a motion for summary

               judgment is not final. [Citation.]

                       It is true that an appeal from a final judgment draws into issue all previous

               interlocutory orders that produced the final judgment. [Citation.] But such orders

               must constitute procedural steps in the progression leading to the entry of the final

               judgment. [Citation.] The denial of summary judgment is not a procedural step to

               an order of voluntary dismissal. [Citation.] Thus, the denial here was neither a



                                                - 11 ­
               final judgment nor a procedural step to a final judgment, and it is not appealable.”

               (Internal quotation marks omitted.) Resurgence Financial, LLC v. Kelly, 376 Ill.

               App. 3d 60, 62 (2007).

While we disagree with the implicit statement of law, in the third paragraph of the quotation

from Resurgence Financial, that an order granting a motion for a voluntary dismissal is a “final

judgment” (it is not, because it is not a determination on the merits (see Big Sky, 217 Ill. 2d at

232-33)), we otherwise agree with Resurgence Financial, and we disagree with DePluzer. We

agree with Resurgence Financial that a voluntary dismissal that disposes of all remaining claims

in the case makes appealable only those orders preceding the voluntary dismissal that were “final

in nature.” Dubina, 178 Ill. 2d at 503; see also Jackson v. Victory Memorial Hospital, 387 Ill.

App. 3d 342, 352 (2008) (“While it is well settled that upon entry of a voluntary dismissal all

final orders become appealable (see Hudson, 228 Ill. 2d at 468; Dubina, 178 Ill. 2d at 503), [the

defendant] does not cite, nor have we found, any case holding that an order granting a voluntary

dismissal renders final an otherwise nonfinal order.”).

¶ 35           Such preceding orders, made appealable by the voluntary dismissal, necessarily

were interlocutory when they were entered—otherwise, nothing would have remained for the

plaintiff to voluntarily dismiss. See Commonwealth Edison Co. v. Illinois Commerce Comm’n,

368 Ill. App. 3d 734, 742 (2006) (“An interlocutory order is one that does not dispose of all of

the controversy between the parties.”). But in addition to being interlocutory, these orders had to

be final when they were entered. Dubina, 178 Ill. 2d at 503. It is possible for an order to be both

interlocutory and final. “A judgment is final for appeal purposes if it determines the litigation on

the merits or some definite part thereof” (that is, the judgment is interlocutory) “so that, if

affirmed, the only thing remaining is to proceed with the execution of the judgment.” (Emphasis



                                                - 12 ­
added.) In re Marriage of Verdung, 126 Ill. 2d 542, 553 (1989). To be made appealable by a

voluntary dismissal, the preceding order had to be final in nature, such that it would have been

eligible for a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). See

MidFirst Bank v. McNeal, 2016 IL App (1st) 150465, ¶ 25 (“While Rule 304(a) permits appeals

from orders which do not dispose of an entire proceeding, the mere inclusion of Rule 304(a)

language cannot make a nonfinal order final and appealable.”). Thus, to use some contrasting

examples, a voluntary dismissal does not make appealable the preceding denial of the

defendant’s motion to dismiss the plaintiff’s complaint (Saddle Signs, Inc. v. Adrian, 272 Ill.

App. 3d 132, 140 (1995)), but it makes appealable the dismissal of a count with prejudice

(Reagan v. Baird, 140 Ill. App. 3d 58, 61-62 (1985); Saddle Signs, 272 Ill. App. 3d at 139). The

difference is that the denial of a motion for dismissal is not final in nature (Saddle Signs, 272 Ill.

App. 3d at 135) whereas the dismissal of a count with prejudice is final in nature (Dubina, 178

Ill. 2d at 502 (“A dismissal with prejudice is usually considered a final judgment, including the

dismissal of claims in a complaint ***.”)).

¶ 36           We find that Resurgence Financial is correct in identifying finality as the criterion

of appealability with regard to any previously entered interlocutory orders when all remaining

claims are voluntarily dismissed without prejudice. This is the criterion the supreme court laid

down and by which we are bound: “The order of voluntary dismissal, because it disposed of all

matters pending before the circuit court, rendered all orders which were final in nature, but

which were not previously appealable, immediately final and appealable.” (Emphasis added.)

Dubina 178 Ill. 2d at 503; see also Hudson, 228 Ill. 2d at 468. Resurgence Financial correctly

concluded that because the denial of a motion for summary judgment lacked finality, a




                                                - 13 ­
subsequent termination of the case by a voluntary dismissal did not make the denial appealable.

See Resurgence Financial, 376 Ill. App. 3d at 62.

¶ 37           That is the germane conclusion in Resurgence Financial, and it is irrelevant

whether an order preceding the voluntary dismissal was a “procedural step” to the voluntary

dismissal. The only relevant consideration is the finality of the preceding order. Dubina, 178 Ill.

2d at 503. We observe here that the procedural-step analysis applies to a wholly different

question: the construction of a notice of appeal when the appeal is from a final judgment. “[T]he

appeal from a subsequent final judgment draws in question all prior non-final orders and rulings

which produced the judgment.” (Internal quotation marks omitted.) Burtell v. First Charter

Service Corp., 76 Ill. 2d 427, 433 (1979). In other words, a notice of appeal from a final

judgment should be liberally construed (In re Jamari R., 2017 IL App (1st) 160850, ¶ 39) to

include “prior orders that [were] a step in the procedural progression leading to the judgment

specified in the notice of appeal” (internal quotation marks omitted) (id. ¶ 41). This legal

construct is not germane to the issue of the appealability of an interlocutory order that preceded

the plaintiff’s voluntary dismissal, without prejudice, of all remaining claims. The construction

or scope of a notice of appeal is not at issue in this case. The only jurisdictionally relevant issue

is the finality of orders preceding the voluntary dismissal. Because the denial of the summary

judgment motions by Brooks and Brown was nonfinal in nature, Patterson’s voluntary dismissal

of his fourth amended counterclaim did not make the denial appealable. See Resurgence

Financial, 376 Ill. App. 3d at 62.

¶ 38           We next consider the partial summary judgment in Patterson’s favor on the issue

of liability for conversion and whether it became final and appealable by virtue of Patterson’s

voluntary dismissal of his lawsuit. Brooks relies on Home Savings & Loan Ass’n of Joliet v.



                                                - 14 ­
Samuel T. Isaacs & Associates, Inc., 99 Ill. App. 3d 795 (1981), for the following proposition:

“An order that grants partial summary judgment on liability, but does not address damages, is an

order that resolves a definite and separate part of the controversy, and therefore is final for

purposes of appeal.” Bauman and Anderson rely on Home Savings for the same proposition.

¶ 39           Granted, the appellate court held in Home Savings: “Insofar as the partial

summary judgment determined the issue of liability, a ‘definite and separate part’ of the instant

lawsuit, it is appealable.” Home Savings, 99 Ill. App. 3d at 806 (quoting Village of Niles v.

Szczesny, 13 Ill. 2d 45, 48 (1958)). Actually, though, the circuit court in Home Savings did more

than determine the issue of liability; it also awarded remedies, thereby “ ‘dispos[ing] of the rights

of the parties *** upon some definite and separate part’ ” of the controversy. Id. (quoting

Szczesny, 13 Ill. 2d at 48). In granting the partial summary judgment, the court imposed

constructive and resulting trusts, reformed loan instruments, and ordered the assignment of all

rights and title the defendants had in the loan instruments. Id. at 797. For that reason, Home

Savings is distinguishable.

¶ 40           Moreover, since deciding Home Savings, the appellate court has repeatedly

rejected the argument that a partial summary judgment on the issue of liability alone is a final

and appealable order. Morgan v. Richardson, 343 Ill. App. 3d 733, 739 (2003); Lindsey v.

Chicago Park District, 134 Ill. App. 3d 744, 747 (1985); Harold Butler Enterprises No. 662, Inc.

v. Underwriters at Lloyds, London, 100 Ill. App. 3d 681, 686 (1981).

                “[B]ecause jurisdiction in the appellate court is generally limited to appeals from

               final judgments, the power to address a defendant’s appeal from a voluntary

               dismissal does not form the jurisdictional basis from which we may also address

               the substantive merits of other nonfinal orders entered by a trial court prior to the



                                                - 15 ­
                granting of a voluntary dismissal.” (Internal quotation marks omitted.)

                Resurgence Financial, 376 Ill. App. 3d at 62.

A partial summary judgment on the issue of liability is one such nonfinal order, which a

subsequent voluntary dismissal of the lawsuit, without prejudice, does not make final.

¶ 41            It follows that we have subject-matter jurisdiction solely over Brooks’ appeal of

the circuit court’s order of January 17, 2017, which granted Patterson’s motion to voluntarily

dismiss his fourth amended counterclaim. We dismiss the remaining portions of Brooks’s appeal,

and we dismiss the appeals of Bauman and Anderson, for lack of subject-matter jurisdiction.

Because Brooks fails to explain how the circuit erred by granting Patterson’s motion for a

voluntary dismissal, he has forfeited the sole issue we have jurisdiction to consider. See Vancura

v. Katris, 238 Ill. 2d 352, 369 (2010). He appears to have abandoned that issue.

¶ 42                                     III. CONCLUSION

¶ 43            For the foregoing reasons, we dismiss the appeals for lack of subject-matter

jurisdiction.

¶ 44            Appeals dismissed.

¶ 45            JUSTICE TURNER, dissenting:

¶ 46            I respectfully dissent. For the reasons set forth below, I find this court has

jurisdiction to address the denial of the appellants’ motion for summary judgment.

¶ 47            I agree the denial of a summary judgment motion is ordinarily not appealable

because it is an interlocutory order. See Clark v. Children’s Memorial Hospital, 2011 IL 108656,

¶ 119. However, in Clark, 2011 IL 108656, ¶ 119, our supreme court acknowledged some

exceptions to the aforementioned rule, which permit a reviewing court to entertain an

interlocutory order denying a motion for summary judgment. The supreme court first noted it



                                                - 16 ­
had previously recognized an exception “when the parties have filed cross-motions for summary

judgment and one party’s motion is granted and the other party’s denied.” Clark, 2011 IL

108656, ¶ 119 (citing In re Estate of Funk, 221 Ill. 2d 30, 85 (2006)). That exception exists

because the order on the cross-motions disposes of all the issues in the case. Clark, 2011 IL

108656, ¶ 119 (citing Funk, 221 Ill. 2d at 85). Citing DePluzer and La Salle National Bank v.

Malik, 302 Ill. App. 3d 236, 247 (1999), the supreme court next noted “[o]ur appellate court has

similarly concluded that the propriety of the denial may be considered if the case is properly

before a reviewing court from a final judgment and no trial or hearing has been conducted.”

Clark, 2011 IL 108656, ¶ 119. The Clark case involved several interlocutory orders, including a

denial of a summary judgment motion, and culminated with the court dismissing the complaint

with prejudice. Clark, 2011 IL 108656, ¶¶ 15, 18. Our supreme court reviewed the denial of

summary judgment because the circuit court’s order disposed of all issues in the case, the

defendants had properly preserved the issue at each stage of the litigation, and it was in the

interest of judicial economy. Clark, 2011 IL 108656, ¶ 120.

¶ 48           The DePluzer case involved an appeal from the denial of a summary judgment

that was followed by the circuit court granting the plaintiff’s motion to voluntarily dismiss the

same claim at issue in the summary judgment. DePluzer, 265 Ill. App. 3d at 1062. The final

judgment in DePluzer was the voluntary dismissal order. See DePluzer, 265 Ill. App. 3d at 1065

(citing Swisher v. Duffy, 117 Ill. 2d 376, 379 (1987); Dillie, 106 Ill. 2d at 491; Kahle v. John

Deere Co., 104 Ill. 2d 302, 307 (1984)). The supreme court cases cited by the DePluzer court for

that proposition have not been overturned. In La Salle National Bank, 302 Ill. App. 3d at 246-47,

the appellate court addressed the defendants’ cross-appeal from the denial of a summary

judgment on other grounds after it reversed the circuit court’s orders barring the plaintiffs’



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experts from testifying and granting summary judgment in the defendants’ favor. Thus, the

supreme court has recognized different situations in which a denial of a summary judgment

motion can be appealed.

¶ 49           Clark, DePluzer, and La Salle National Bank all involved reviewing denials of

motions for summary judgment that, after review, could still result in an interlocutory order. In

La Salle National Bank, 302 Ill. App. 3d at 248, the reviewing court affirmed the denial of the

summary judgment motion on cross-appeal and remanded for further proceedings. Thus, the

reviewing court’s affirmation of the denial of summary judgment resulted in further proceedings

on the claim. Likewise, in Clark, the supreme court affirmed the judgment of the appellate court

that reversed the circuit court’s dismissal of plaintiffs’ claims for negligent infliction of

emotional distress, affirmed the denial of the summary judgment motion, and remanded for

further proceedings. Clark, 2011 IL 108656, ¶ 125. In DePluzer, 265 Ill. App. 3d at 1069, the

reviewing court reversed the circuit court’s order denying the defendant’s motion for summary

judgment and granting the plaintiff’s motion for voluntary dismissal and remanded the case to

the circuit court to enter summary judgment in the defendant’s favor on the count at issue. Thus,

in that case, the review of the interlocutory denial of summary judgment and subsequent reversal

led to a final judgment on the claim. DePluzer demonstrates why it is important for this court to

have jurisdiction of the denial of the motion for summary judgment when a voluntary motion to

dismiss is entered on the same claim. Accordingly, I disagree with the majority’s focus on

finality.

¶ 50           Moreover, I disagree with the analysis in Resurgence Financial, which stems

from Valdovinos v. Luna-Manalac Medical Center, Ltd., 307 Ill. App. 3d 528 (1999). See

Resurgence Financial, 376 Ill. App. 3d at 62. In support of its finding jurisdiction of an



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interlocutory order only arises if the interlocutory order was a procedural step in granting the

motion for voluntary dismissal, the Valdovinos decision cites Burtell, 76 Ill. 2d at 433, and

Hough v. Kalousek, 279 Ill. App. 3d 855, 863-64 (1996). Valdovinos, 307 Ill. App. 3d at 538.

Both of those cases addressed the sufficiency of the notice of appeal as to orders not specified in

the notice of appeal. See Burtell, 76 Ill. 2d at 432; Hough, 279 Ill. App. 3d at 863. The issue of

what interlocutory orders may be addressed on appeal from a voluntary dismissal is a very

different issue then whether a notice of appeal was sufficient to review an unspecified order. Any

time before a trial or hearing has begun, the plaintiff may voluntarily dismiss without prejudice

his or her cause of action for any reason. See 735 ILCS 5/2-1009(a) (West 2016). The reason is

personal to the plaintiff and does not even have to relate to the case. Thus, the “procedural step”

analysis makes little sense with a voluntary dismissal. The majority attempts to suggest

Resurgence Financial stands for the proposition only final orders can be addressed in an appeal

from a voluntary dismissal, but if that is the case, then there was no need for the “procedural

step” language. Regardless, while the “procedural step” analysis is unworkable, Resurgence

Financial does recognizes an interlocutory order may be appealable from the grant of a voluntary

dismissal.

¶ 51           I recognize Dubina was the last supreme court case to address what other orders

are appealable from the granting of a voluntary dismissal. However, the only issue before the

supreme court was the appealability of a final order. See Dubina, 178 Ill. 2d at 503 (noting the

dismissal orders the appellant sought to appeal were final where the court had dismissed the

claims with prejudice). The supreme court has yet to specifically address the appealability of

interlocutory orders from a voluntary dismissal, but the Dubina decision indicates appellate

review is not limited to just the granting of the voluntary dismissal.



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¶ 52           Last, I note that, of the cases that have dealt with the issue, the language of

DePluzer that the voluntary dismissal “brings before the reviewing court all other orders and

rulings directly associated with that judgment” best addresses the appealablity of a denial of a

summary judgment motion on a defendant’s appeal from the granting of a voluntary dismissal.

DePluzer, 265 Ill. App. 3d at 1065. It prevents a defendant from appealing an interlocutory order

related to a claim that is not part of the voluntary dismissal order but allows a defendant to

appeal a potentially dispositive interlocutory order on the claim that was voluntarily dismissed,

as shown in DePluzer. I emphasize dispositive because appellate court review of an evidentiary

ruling or a section 2-615 motion to dismiss from an appeal of the granting of a voluntary

dismissal would have no impact on any future litigation. However, a denial of a dispositive

motion, such as one for summary judgment, if overturned, would bar future litigation on the

same claim.

¶ 53           Accordingly, I would find we have jurisdiction of the denial of the appellants’

motion for summary judgment under the exception announced in DePluzer and cited by the

supreme court in Clark.




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