                                  2018 IL App (1st) 170626

                                       No. 1-17-0626

                                  Order filed May 24, 2018 

                                                                                  Fourth Division
______________________________________________________________________________

                                    IN THE

                        APPELLATE COURT OF ILLINOIS

                                FIRST DISTRICT

______________________________________________________________________________

PETER SMITH ELY, as Executor and Successor Trustee        )
of the MSA Trust; THE MSB TRUST; THE CADE                 )
FAMILY TRUST; and THE MARY CADE SMITH                     )
TRUST; PETER SMITH ELY, as Successor Trustee of           )
the Mary Cade Smith Declaration of Trust of 1985;         )    Appeal from the
PETER SMITH ELY; BRUCE GRAHAM ELY; SUSAN                  )    Circuit Court of
BURCH; KAREN ANDERSON DAVIS; STEVEN J.                    )    Cook County
ANDERSON; and STANLEY G. CADE,                            )
                                                          )
         Plaintiffs-Appellants                            )
                                                          )
    v.                                                    )
                                                          )    No. 15L8387
RUTH PIVAR, DLA PIPER, LLP, UNGARETTI &                   )
HARRIS, QUARLES AND BRADY, LLP, ROBERT                    )
WILNEFF, CBIZ MHM, LLC, MAYER HOFFMAN                     )
MCCAIN, P.C., and WILLIAM PAUL ROGERS                     )
                                                          )
         Defendants                                       )    Honorable
                                                          )    Brigid M. McGrath,
(Quarles and Brady, LLP,                                  )    Judge Presiding.
                                                          )
         Defendant-Appellee).                             )
                                                          )
                                                          )



         PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion.
         Justices McBride and Gordon concurred in the judgment and opinion.
No. 1-17-0626

                                            OPINION


¶1     On August 17, 2015, plaintiffs filed a complaint in the circuit court of Cook County

naming, among others, Ruth Pivar and Quarles and Brady, LLP (Quarles and Brady) as

defendants. Quarles and Brady filed a motion to dismiss and, in response, plaintiffs filed an

amended complaint. The allegations in plaintiffs’ first amended complaint (FAC) related to five

trusts that were created in 1966 by Wilmuth and Carroll Cade. Plaintiffs are the current executor

of the trusts and the beneficiaries of at least one of the five trusts. Mary Cade Smith was an

initial beneficiary of each of the five trusts. The gravamen of plaintiffs’ first amended complaint

relates to misconduct by Philip Rootberg, the initial trustee of the five trusts; Robert Wilneff,

who became the trustee of the five trusts in 2001; Pivar, who was retained as counsel for the

trusts in 2001; and Cade Smith. Plaintiffs alleged in the complaint that prior to Cade Smith’s

death in 2014, Wilneff, Pivar, Cade Smith, and defendant William Paul Rogers improperly

disbursed the trusts’ assets through promissory notes and gifts to Cade Smith. Plaintiffs

contended that the entirety of the trusts’ assets were disbursed to Cade Smith by 2009, before the

other beneficiaries were ever informed of their beneficiary status.

¶2     Specifically, with regard to Pivar, plaintiffs contended, inter alia, that she failed to

disclose the breaches of fiduciary duty by Rootberg and Wilneff, that she failed to advise the

other trust beneficiaries of their beneficiary status, that she represented Cade Smith to the

detriment of the trusts’ other beneficiaries, and that she made false representations regarding the

trusts in Cade Smith’s will. Plaintiffs contended that Pivar joined Quarles and Brady in 2013,

and that the law firm was, therefore, vicariously liable for her misconduct. As such, plaintiffs

alleged claims of legal malpractice (count II), breach of fiduciary duty (count III), and

conspiracy (count V) against Quarles and Brady.


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¶3      Quarles and Brady filed a motion to dismiss the claims against it in plaintiffs’ FAC

pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West

2014)). The court granted that motion with prejudice with regard to plaintiffs’ claim for legal

malpractice, but without prejudice for plaintiffs’ claims for breach of fiduciary duty and

conspiracy. The court held, however, that plaintiffs would be required to seek leave of court

before repleading its claims for breach of fiduciary duty and conspiracy against Quarles and

Brady. Plaintiffs filed a motion for leave to amend the complaint, and attached a proposed

second amended complaint (SAC), which included a single claim against Quarles and Brady for

breach of fiduciary duty. The circuit court denied plaintiffs’ motion for leave to amend, and

found that there was “no just reason to delay enforcement or appeal of this order pursuant to

Rule 304(a) [(Ill. S. Ct. R. 304 (eff. Mar. 8, 2016))].”

¶4      On appeal, plaintiffs contend that the court abused its discretion in denying their motion

to file the amended claim against Quarles and Brady where the proposed SAC cured the defects

of the prior pleading. Plaintiffs also contend that the court erred in granting Quarles and Brady’s

motion to dismiss the claims against it in the FAC. For the reasons that follow, we find that we

lack jurisdiction to consider plaintiffs’ claims regarding the dismissal of the FAC and the circuit

court’s order denying plaintiffs leave to file an amended complaint.

¶5                                       I. BACKGROUND

¶6                              A. Plaintiffs’ First Amended Complaint 1

¶7      In their FAC, plaintiffs contended that, in 1966, five trusts were created with Rootberg as

the initial trustee. Cade Smith was named the initial beneficiary in each of the trusts. With the


        1
          Because the issues on appeal concern only plaintiffs’ FAC and SAC, we will not discuss
plaintiffs’ original complaint.

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exception of one of the five trusts, each trust had at least one additional initial beneficiary.

Plaintiffs asserted that by 1989, Cade Smith, with the assistance of Rootberg, began taking

disbursements from the trusts without any notification to the other beneficiaries. Cade Smith

continued receiving disbursements from the trust through 2001 when Rootberg retained Pivar as

counsel. Plaintiff contended that, after being retained as counsel, Pivar knew that Cade Smith

was receiving disbursements from the trusts, knew or should have known of the additional

beneficiaries, and knew or should have known that the additional beneficiaries had not been

informed of their beneficiary status. Despite this knowledge, Pivar did not notify any of the

additional beneficiaries of Cade Smith’s receipt of disbursements from the trusts or of their

beneficiary status.

¶8     Later in 2001, Wilneff succeeded Rootberg as trustee. From 2003 to 2009, Cade Smith

received more than $1.6 million from the trust. By 2009, the trusts’ assets had been exhausted.

During this period, neither Wilneff nor Pivar informed any of the other beneficiaries of their

rights, or of Cade Smith’s receipt of disbursements. In 2007, Pivar drafted a will for Cade Smith,

which included an in terrorem clause, which excluded from the trusts any beneficiary who

challenged the conduct of the trustees. Plaintiffs alleged that Pivar joined Quarles and Brady as

“of counsel” in 2013. On May 1, 2014, Cade Smith passed away.

¶9     In their allegation for legal malpractice against Quarles and Brady, plaintiffs contended

that Pivar—as an attorney for each of the five trusts and as an agent, employee, partner, or

apparent agent of Quarles and Brady—had a duty to the beneficiaries. Plaintiffs contended that

Pivar breached that duty by failing to disclose the breaches of fiduciary duty by Rootberg and

Wilneff, failing to advise the additional beneficiaries of their beneficiary status under the trusts,

putting the interests of herself and Quarles and Brady ahead of the interests of the additional


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beneficiaries, and falsely claiming that the other initial beneficiaries knew of the trusts and their

beneficiary status. Plaintiffs contended that one or more of these breaches “were made, and

perpetuated through December 23, 2014, so as to fraudulently conceal from the beneficiaries”

their causes of action relating to the breaches. Plaintiffs contended that as a “direct and

proximate result” of Pivar’s breach of duty as an agent of Quarles and Brady, the trusts and the

beneficiaries had been deprived the benefits of their status in an amount in excess of $2.8

million.

¶ 10    In contending that Quarles and Brady breached its fiduciary duty, plaintiffs contended

that Pivar—as attorney for each of the five trusts and an agent or employee of Quarles and

Brady—owed a fiduciary duty to the trusts and the intended beneficiaries. Plaintiffs contended

that Pivar drafted a will for Cade Smith that included an in terrorem clause, which dissuaded the

beneficiaries from challenging the actions of the trustees and also treated any beneficiary who

did raise a challenge as having predeceased Cade Smith, which was a breach of her fiduciary

duty.

¶ 11    Finally, plaintiffs alleged a count of conspiracy, contending that all defendants worked in

concert to conceal from plaintiffs that they were the beneficiaries of the trusts and had a right to

disbursements therefrom. Plaintiffs contended that Rogers, Pivar, and Wilneff discussed and

agreed upon a course of conduct to conceal their improper disbursements to protect defendants

from liability. Plaintiffs contended that Pivar knowingly acted in furtherance of that agreement

by failing to disclose Rootberg’s breach of fiduciary duty, failing to disclose Wilneff’s breach of

fiduciary duty, failing to advise the additional beneficiaries of their status as beneficiaries, falsely

claiming that the other initial beneficiaries knew about the trusts, and failing to notify the

additional beneficiaries after Cade Smith’s death about the will and trusts. Plaintiffs contended


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No. 1-17-0626

that defendants undertook these illegal acts in furtherance of their conspiracy to conceal their

wrongdoing from plaintiffs.

¶ 12                          B. Quarles And Brady Motion to Dismiss

¶ 13   Quarles and Brady filed a motion to dismiss plaintiffs’ complaint pursuant to section 2­

615 of the Code. Quarles and Brady contended that plaintiffs failed to sufficiently allege facts

establishing that an attorney-client relationship existed to support plaintiffs’ claim for legal

malpractice. Quarles and Brady contended that plaintiffs’ complaint alleged that Pivar did not

join Quarles and Brady until 2013, years after any of the alleged misconduct took place. Quarles

and Brady asserted that, in any event, Pivar’s representation of the trusts did not create an

attorney-client relationship between her and the trusts’ beneficiaries. Quarles and Brady further

contended that there were no facts alleging that any plaintiff had established an attorney-client

relationship with the firm.

¶ 14   Quarles and Brady also contended that plaintiffs’ claim for legal malpractice should be

dismissed because plaintiffs failed to allege facts of any conduct by Pivar that breached a duty to

plaintiffs after she joined Quarles and Brady in 2013. Quarles and Brady noted that plaintiffs

sought to hold Quarles and Brady vicariously liable for Pivar’s conduct because she was an agent

of the firm, but plaintiffs failed to allege any conduct by Pivar that breached any duty after she

joined the firm. Quarles and Brady finally contended that the court should dismiss plaintiffs’

claim for legal malpractice because plaintiffs failed to plead any facts showing that Pivar’s

conduct after she joined Quarles and Brady proximately caused plaintiffs any harm. Quarles and

Brady noted that plaintiffs contended that Pivar’s misconduct took place between 2003 and 2009,

and thus, any injury took place at least four years prior to Pivar joining Quarles and Brady.




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¶ 15   Quarles and Brady further contended that plaintiffs’ claim for breach of fiduciary duty

should be dismissed because it was duplicative of the allegations raised in support of the claim

for legal malpractice. Quarles and Brady asserted that both claims relied on the same set of

operative facts and, in such a case, the claim for breach of fiduciary duty should be dismissed.

¶ 16   Finally, Quarles and Brady contended that plaintiffs failed to properly allege a claim for

conspiracy against Quarles and Brady. Quarles and Brady asserted that under Illinois law, a

conspiracy cannot exist between a principal and its agent. Quarles and Brady also asserted that

plaintiffs failed to allege specific facts in support of its claim for civil conspiracy. Quarles and

Brady contended that plaintiffs failed to allege any facts suggesting that any of the

coconspirators agreed to commit a wrongful or unlawful act. Quarles and Brady contended that

the circuit court should, therefore, dismiss plaintiffs’ claims against Quarles and Brady.

¶ 17                               C. The Circuit Court’s Ruling

¶ 18   After a hearing on June 21, 2016, the court dismissed plaintiffs’ claim for legal

malpractice against Quarles and Brady with prejudice. The court dismissed without prejudice

plaintiffs’ claims for breach of fiduciary duty and conspiracy, but held that plaintiffs must seek

leave of court before refiling those claims.

¶ 19                           D. Plaintiffs’ Second Amended Complaint

¶ 20   Following the circuit court’s ruling, plaintiffs filed a motion for leave to amend the

complaint, and attached a proposed SAC. In the proposed SAC, plaintiffs realleged several of

their claims against the other defendants, but asserted a single claim against Quarles and Brady

for breach of fiduciary duty. Plaintiffs contended that as an attorney of the trusts, Pivar—an

agent, employee, partner, or apparent agent of Quarles and Brady—owed a fiduciary duty to the

trusts and the intended beneficiaries of those trusts. Plaintiffs asserted that Pivar breached her

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No. 1-17-0626

fiduciary duty by failing disclose the prior breaches of fiduciary duty by Rootberg and Wilneff,

putting her interests and the interests of Quarles and Brady ahead of the interests of the plaintiffs,

and failing to notify the beneficiaries after Cade Smith’s death of her will and the trusts.

Plaintiffs maintained that “one or more” of these breaches were made “and perpetuated through

December 23, 2014,” so as to fraudulently conceal from the trusts’ beneficiaries that they had a

cause of action against Wilneff, Rootberg, and the other defendants.

¶ 21            E. Quarles and Brady’s Response to Plaintiffs’ Motion for Leave to Amend

¶ 22   Quarles and Brady filed a response to plaintiffs’ motion for leave to amend in which it

contended that plaintiff had failed to state of cause of action demonstrating that Quarles and

Brady was vicariously liable for the actions of Pivar, its former agent. Quarles and Brady

asserted that plaintiffs’ claim for breach of fiduciary duty in the SAC merely restated the same

allegations contained in plaintiffs’ claim for legal malpractice in the FAC. Quarles and Brady

also contended that plaintiffs failed to allege any new facts to demonstrate that Pivar’s conduct

while employed by Quarles and Brady proximately caused them any harm. Quarles and Brady

noted that all of the factual allegations supporting this claim occurred years before Pivar was

associated with Quarles and Brady.

¶ 23                               F. The Circuit Court’s Ruling

¶ 24   After a hearing on February 6, 2017, the court denied plaintiffs’ motion for leave to

amend and found that there was “no just reason to delay enforcement or appeal of this order

pursuant to Rule 304(a).” Plaintiffs now appeal.

¶ 25                                       II. ANALYSIS

¶ 26   On appeal, plaintiffs contend that the circuit court abused its discretion in denying them

leave to file the amended complaint against Quarles and Brady. Plaintiffs assert that the amended

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count directly addressed the court’s dismissal for failure to state a claim, by alleging the


necessary elements for a breach of fiduciary duty. In the alternative, plaintiffs contend that the


court erred in granting Quarles and Brady motion to dismiss the FAC. Plaintiffs maintain that the


allegations in the FAC properly stated a cause of action against Quarles and Brady and had 


sufficient factual support. 


¶ 27                                       A. Jurisdiction


¶ 28   Initially, we observe that Quarles and Brady contends that we lack the jurisdiction to 


consider this appeal. Quarles and Brady asserts that we lack jurisdiction to review the court’s


order of February 6, 2017, denying plaintiffs leave to file an amended claim for breach of


fiduciary duty, because an order denying leave to amend is not a final judgment conferring this


court with jurisdiction to review the order under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 


2016). Quarles and Brady also asserts that we lack jurisdiction to review the circuit court’s order


of June 21, 2016, granting its motion to dismiss plaintiff’s FAC because the court did not enter a


Rule 304(a) finding to make the order appealable. Quarles and Brady maintains that we cannot


review the dismissal of the claim for legal malpractice even though it was dismissed with


prejudice because there was no specific Rule 304(a) finding. Quarles and Brady also maintains


that we may not review the dismissal of the plaintiffs claims for conspiracy or breach of


fiduciary duty because those claims were dismissed without prejudice, which is not a final


judgment, and there was no Rule 304(a) finding. 


¶ 29                            1. Illinois Supreme Court Rule 304(a)


¶ 30   Generally, an appeal may be taken only after the circuit court has resolved all claims


against all parties to a cause of action. State Farm Fire & Casualty Co. v. John J. Rickhoff Sheet


Metal Co., 394 Ill. App. 3d 548, 556 (2009). However, Rule 304(a) governs appeals from final


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judgments that do not dispose of the entire proceeding in matters where there are multiple parties

or claims. Matson v. Department of Human Rights, 322 Ill. App. 3d 932, 937 (2001). Under Rule

304(a):

                  “If multiple parties or multiple claims for relief are involved in an action, 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. *** In the absence of such

          a finding, any judgment that adjudicates fewer than all the claims or the rights and

          liabilities of fewer than all the parties is not enforceable or appealable and is subject to

          revision at any time before the entry of a judgment adjudicating all the claims, rights, and

          liabilities of all the parties.” Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).

Rule 304(a) is intended to permit an appeal to be taken before the final disposition of the case

only where the circuit court considers immediate appeal appropriate. Matson, 322 Ill. App. 3d at

937. The decision to enter a Rule 304(a) finding is within the discretion of the trial court.

Fremont Compensation Insurance Co. v. Ace-Chicago Great Dane Corp., 304 Ill. App. 3d 734,

740 (1999).

¶ 31                               2. Circuit Court’s Order Dismissing FAC

¶ 32      We first address whether we have jurisdiction to consider plaintiffs’ claims regarding the

court’s order of June 21, 2016, granting Quarles and Brady’s motion to dismiss the claims

against it in the FAC. In granting Quarles and Brady’s motion, the court dismissed plaintiffs’

legal malpractice claim with prejudice, but dismissed without prejudice plaintiffs’ claims for

breach of fiduciary duty and conspiracy. The court stated that plaintiffs would have to seek leave

of court before attempting to replead these claims. Plaintiffs FAC consisted of several other

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claims and parties that were not addressed in Quarles and Brady’s motion. The court’s judgment,

therefore, disposed of some of the claims in an action involving multiple parties and claims, but

did not dispose of all the claims. Thus, Rule 304(a) was applicable, but the court did not enter the

judgment with a specific Rule 304(a) finding. “In the absence of such a finding, any judgment

that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties

is not enforceable or appealable.” Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Requiring the circuit

court to make a specific Rule 304(a) finding “allows a circuit court to limit piecemeal appeals yet

still allow early appeals when, in its discretion, doing so ‘would have the effect of expediting the

resolution of the controversy, would be fair to the parties, and would conserve judicial

resources.’ ” Palmolive Tower Condominiums, LLC v. Simon, 409 Ill. App. 3d 539, 544 (2011)

(quoting Matson, 322 Ill. App. 3d at 938).

¶ 33   We find Paul H. Schwendener, Inc. v. Jupiter Electric Co., 358 Ill. App. 3d 65 (2005),

cited by Quarles and Brady, instructive on the issue before us. In Jupiter, plaintiff Schwendener

filed an action against Jupiter Electric Company and other defendants regarding Jupiter’s failure

to perform on two construction contracts. Id. at 68. “During the course of litigation, the trial

court entered several orders dismissing various counts of Schwendener’s first, third, and fourth

amended complaints pursuant to section 2-615 of the Code *** (735 ILCS 5/2-615 (West 1998)),

granting summary judgment on count VI of its fifth amended complaint, and denying

Schwendener leave to file certain counts of the fifth amended complaint.” Jupiter, 358 Ill. App.

3d at 68. In the circuit court’s final order of the trial, the court found that there was no just reason

to delay enforcement or appeal of its orders pursuant to Rule 304(a). Id. at 70. On appeal,

Schwendener sought review of counts from his complaints that were dismissed without prejudice

and later repled in subsequent complaints. Id. at 73. This court found that it lacked jurisdiction to


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consider these contentions because an order dismissing an action “without prejudice” is not a

final judgment subject to appeal under Rule 304(a). Id. The court’s decision was not altered by

the fact that the circuit court included Rule 304(a) language in its order. Id.

¶ 34   Here, the circuit court dismissed plaintiffs’ claim for breach of fiduciary duty without

prejudice and granted plaintiffs the opportunity to replead that count with leave of court. The

court did not include Rule 304(a) language in its order dismissing the count in plaintiffs’ FAC.

Thus, this was not an appealable order pursuant to Rule 304(a). Id.; Ill. S. Ct. R. 304(a) (eff. Mar.

8, 2016). Although plaintiffs later sought to replead this count in their SAC amended complaint,

as this court found in Jupiter, we lack jurisdiction to consider counts dismissed without prejudice

in previous complaints even where those counts are later repled in subsequent complaints.

Jupiter, 358 Ill. App. 3d at 73.

¶ 35   Similarly, the circuit court dismissed plaintiffs’ claim for conspiracy without prejudice,

and granted plaintiffs the opportunity to replead that count with leave of court. As discussed, this

dismissal did not include a Rule 304(a) finding and was without prejudice. Accordingly, this was

not an appealable order pursuant to Rule 304(a). Id.; Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).

Thus, the court’s orders dismissing plaintiffs’ claims for breach of fiduciary duty and conspiracy

were not final orders subject to Rule 304(a), and we lack jurisdiction to consider plaintiffs’

arguments regarding those counts on appeal. Jupiter, 358 Ill. App. 3d at 82 (citing Branch v.

European Autohaus, Ltd., 97 Ill. App. 3d 949, 952 (1981)).

¶ 36   Although the court dismissed plaintiffs’ count for legal malpractice with prejudice, which

is a final order, the court did not enter the requisite Rule 304(a) finding making the dismissal of

that count final and appealable. Id. “Reviewing courts in Illinois have consistently dismissed

appeals from orders that disposed of fewer than all the parties or claims yet lacked a finding that


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there was no just reason to delay enforcement or appeal” in accordance with Rule 304(a). Bank

of Matteson v. Brown, 283 Ill. App. 3d 599, 603 (1996). “ ‘[T]he absence of a Rule 304 finding

in a judgment—for whatever reason—leaves the judgment final but unenforceable and

unappealable.’ ” (Internal quotation marks omitted.) Marble Emporium, Inc. v. Vuksanovic, 339

Ill. App. 3d 84, 90 (2003) (quoting Bank of Matteson, 283 Ill. App. 3d at 603).

¶ 37   The fact that the trial court entered a Rule 304(a) finding on the order entered on

February 6, 2017, denying plaintiffs’ leave to amend, does not alter our decision. D’Attomo v.

Baumbeck, 2015 IL App (2d) 140865, ¶ 27; see also Marble Emporium, 339 Ill. App. 3d at 91

(holding that the appellate court lacked jurisdiction under Rule 304(a) where the circuit court’s

order did not include Rule 304(a) language even where the court subsequently entered an order

“purporting to add the missing Rule 304(a) language”); Jupiter, 358 Ill. App. 3d at 82 (finding

that where the circuit court’s initial order, dismissing some counts of the complaint with

prejudice and other counts of the complaint without prejudice with leave to amend, did not

include Rule 304(a) language, the court’s subsequent order denying leave to amend, which did

include Rule 304(a) language, did not confer jurisdiction to review the initial order). Thus, we

find that we lack jurisdiction to consider plaintiffs’ contentions regarding the court’s order of

June 21, 2016, granting Quarles and Brady’s motion to dismiss the FAC.

¶ 38                  3. Circuit Court’s Order Denying Leave to Amend

¶ 39   We next address whether we have jurisdiction to review the court’s order of February 6,

2017, denying plaintiffs leave to amend the FAC. Under the Code, the trial court may allow

amendments to the pleadings at “any time before final judgment *** on just and reasonable

terms *** in any matter, either of form or substance, in any process, pleading, bill of particulars

or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to


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be brought.” 735 ILCS 5/2-616 (West 2014). Here, in denying plaintiffs leave to file a second

amended complaint, the court found that there was “no just reason to delay enforcement or

appeal of this order pursuant to Rule 304(a).” An order or judgment is considered to be final and

appealable for purposes of Rule 304(a) if it terminates the litigation between the parties on the

merits or disposes of the rights of the parties, either with respect to the entire controversy or a

separate part thereof. Blumenthal v. Brewer, 2016 IL 118781, ¶ 23. Ordinarily, however, an order

denying leave to file an amended complaint does not constitute a final judgment. Jupiter, 358 Ill.

App. 3d at 82; see also Gray v. Starkey, 41 Ill. App. 3d 555, 558 (1976) (“Trial orders allowing

[citation] or denying [citation] leave to file an amended pleading are not final judgments.”).

¶ 40   This is the case even where the circuit court makes a specific Rule 304(a) finding, as the

court did in this case. Jupiter, 358 Ill. App. 3d at 82; Enblom v. Milwaukee Golf Development,

227 Ill. App. 3d 623, 627-28 (1992) (“Were this matter before us solely on the question of the

propriety of the denial of leave to file an amended third-party complaint, we would be without

jurisdiction since such a denial would not constitute a ‘final judgment as to one or more but

fewer than all of the parties or claims’ [citation], notwithstanding the [Rule] 304(a) language in

the order.”); see also Cinch Manufacturing Co. v. Rosewell, 255 Ill. App. 3d 37, 42 (1993)

(“[h]owever, the denial of a motion to file an amended tax objection is not final and an appeal

from such an order must be dismissed” despite the circuit court’s Rule 304(a) finding). In other

words, a court’s Rule 304(a) finding cannot transform a nonfinal and nonappealable judgment

into final and appealable one for purposes of Rule 304(a), merely by use of the operative finding.

¶ 41   As the court recognized in Jupiter, however, if we find that we have jurisdiction over the

trial court’s underlying order dismissing the counts which were sought to be amended, we may

review the order denying leave to file with respect to those counts. Jupiter, 358 Ill. App. 3d at 82


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(citing Enblom, 227 Ill. App. 3d at 628). As discussed above, however, we do not have

jurisdiction to consider the trial court’s underlying order dismissing the counts which were

sought to be amended. Thus, we lack jurisdiction to consider this appeal.

¶ 42   Plaintiffs contend, however, that Quarles and Brady should be estopped from asserting

that this court lacks jurisdiction on this basis because Quarles and Brady asked the circuit court

to enter a Rule 304(a) finding. As the record shows, during the hearing on plaintiffs’ motion for

leave to amend, Quarles and Brady’s counsel asked the court to deny the motion and “grant us

304(a) language.” The court denied plaintiffs’ motion and stated “304(a) language,” and included

the necessary Rule 304(a) language in its written order. Despite this request at the proceeding,

Quarles and Brady now contends that the court’s Rule 304(a) language was in error, and does not

confer jurisdiction on this court. Plaintiffs contend, however, that Quarles and Brady’s challenge

to this ruling should be waived under the doctrine of invited error.

¶ 43   Under the doctrine of invited error, “a party cannot complain of error which that party

induced the court to make or to which that party consented.” In re Detention of Swope, 213 Ill.

2d 210, 217 (2004). The rule of invited error is a form of procedural default “sometimes

described as estoppel.” However, it is well-settled that appellate jurisdiction cannot be conferred

by “laches, agreement, waiver or estoppel.” (Emphasis omitted.) Bernstein & Grazian, P.C. v.

Grazian & Volpe, P.C., 402 Ill. App. 3d 961, 971 (2010) (citing Physicians Insurance Exchange

v. Jennings, 316 Ill. App. 3d 443, 453 (2000)). Accordingly, we find that we do not have

jurisdiction to consider plaintiffs’ appeal.

¶ 44                                     III. CONCLUSION

¶ 45   For the reasons stated, this appeal is dismissed.

¶ 46   Appeal dismissed.

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