                                          2019 IL App (3d) 180560

                                 Opinion filed May 29, 2019
     _____________________________________________________________________________

                                                 IN THE

                                    APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2019

     In re MARRIAGE OF                      )     Appeal from the Circuit Court
                                            )     of the 12th Judicial Circuit,
     GERI T. MORGAN, n/k/a Geri T. Fox,     )     Will County, Illinois.
                                            )
           Petitioner-Appellee,             )
                                            )     Appeal No. 3-18-0560
           and                              )     Circuit No. 14-D-2051
                                            )
     MICHAEL S. MORGAN,                     )
                                            )     Honorable Elizabeth D. Hoskins Dow,
           Respondent-Appellant.            )     Judge, Presiding.
     _____________________________________________________________________________

            PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justices Carter and McDade concurred in the judgment and opinion.

                                                OPINION

¶1          Respondent-Appellant, Michael Morgan, filed a motion for substitution of Judge David

     Garcia for cause pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-

     1001(a)(3) (West 2016)). Judge Elizabeth D. Hoskins Dow heard arguments on Michael’s

     motion. She denied Michael’s motion in a written order, stating the “ruling is appealable

     pursuant to Supreme Court Rule 304 and other applicable rules.” Michael appeals, claiming

     appellate jurisdiction under Illinois Supreme Court Rule 304 (eff. Mar. 8, 2016). We dismiss the

     appeal for a lack of jurisdiction.

¶2                                           BACKGROUND
¶3          This is the second appeal in this matter. See In re Marriage of Morgan, 2018 IL App (3d)

     170021-U. As such, we only provide a limited background in this case as the only issue on

     appeal pertains to removal of a judge for cause. See 735 ILCS 5/2-1001(a)(3) (West 2016).

¶4          The parties married in February 1995. On December 9, 2014, appellee, Geri T. Morgan,

     now known as Geri T. Fox, filed a petition for dissolution of marriage. The parties had three

     children and entered into an agreed allocation judgment in May 2015. On November 20, 2015,

     the court entered a judgment for dissolution of marriage.

¶5          On June 20, 2018, a hearing was held before Judge Garcia regarding numerous pending

     motions; specifically, a motion for an in-camera interview of the parties’ 17-year-old daughter

     and a motion for modification of allocation judgment. The court ordered the parties to mediation

     during the hearing. The exchange complained of on appeal followed.

                           “THE COURT: And I was looking at the judgment, and

                    the—the judgment this morning, and this was by agreement, right,

                    the allocation judgment?

                           MS. BURKHEAD [(APPELLEE’S COUNSEL)]: Yes.

                           THE COURT: Yeah. So[,] I don’t see any reason why we

                    would change it if it was by agreement. I mean, you’re pursuing

                    justice—they weren’t pursuing justice when you put in this

                    judgment?

                           MR. MAZZONE [(APPELLANT’S COUNSEL)]: Judge,

                    when the judgment was put in, the parties hadn’t [sic] much

                    experience exchanging visitation and it’s been difficult now. You




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know, part of that judgment gives her the right to have the final

say.

         THE COURT: Okay. Which most judgments do.

         ***

         THE COURT: Well, have mediation and we’ll go on from

there.

         MR. MAZZONE: All right, Judge. I think you want to

listen to this stuff.

         THE COURT: Oh, I will listen to it.

         MR. MAZZONE: But if you are telling me you are not

going to change it, then I am not sure—do I have to talk louder?

         THE COURT: Well, I tend not to change agreements by

couples because it’s inconvenient to one of the couples the way

they agreed to.

         MR. MAZZONE: Okay. But the agreement was May of

2015, Judge. It’s 2018 now. There is a lot of things that have

happened between these parties since then that you should take

notice of.

         THE COURT: Neither have grown up yet. That’s what’s

happened. Not the kids.

         MR. MAZZONE: That could very well be.

         THE COURT: The kids are growing up, but the couples

aren’t. So[,] let’s go to mediation and see where it goes.

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                           MR. MAZZONE: All right. We’ll do that, and then we’ll

                    come back here and figure out all the rest of these motions. We

                    will not be able to resolve all these strikings [sic] and dismissals

                    and things like that.

                           THE COURT: They can argue this judgment that’s already

                    in place and spend the rest of their money that they have left doing

                    it. You know, people do that in here, so I am not going to stop

                    them. So go ahead. Set it for mediation.

                           MR. MAZZONE: All right, Judge. We will do that.”

¶6          Michael filed a motion to substitute Judge Garcia for cause. Judge Dow heard arguments

     on the motion. Mr. Mazzone argued that the statements made by Judge Garcia constituted actual

     prejudice. Judge Dow reviewed the matter in light of In re Marriage of O’Brien, 2011 IL

     109039, and found no actual prejudice. She also found that Judge Garcia had not reached the

     merits of Michael’s motion during the hearing. She stated in open court that Mr. Mazzone was

     more than welcome to have “308(a) language” in the order showing his right to appeal. The

     written order denying the motion stated, “this ruling is appealable pursuant to Supreme Court

     Rule 304 and other applicable rules.” Michael appeals. Appellee did not file a brief.

¶7                                              ANALYSIS

¶8          On appeal, Michael argues the comment by Judge Garcia that he “tend[s]” to keep

     mutually agreed upon allocation judgments in place if “it only inconveniences one party” shows

     actual prejudice. Additionally, he argues that Judge Garcia’s comments were based on an

     extrajudicial source and therefore were prejudicial.




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¶9            Before we address the merits of Michael’s appeal, we must first determine whether this

       court has jurisdiction. Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 091064, ¶ 9. “A

       reviewing court must ascertain its jurisdiction before proceeding in a cause of action, and this

       duty exists regardless of whether either party has raised the issue.” Inland Commercial Property

       Management, Inc. v. HOB I Holding Corp., 2015 IL App (1st) 141051, ¶ 17. Our jurisdiction is

       limited to review of appeals from final judgments unless otherwise permitted under Illinois

       Supreme Court rules or by statute. Id. (citing In re Marriage of Verdung, 126 Ill. 2d 542, 553

       (1989)).

¶ 10          Michael contends we have jurisdiction over this appeal pursuant to Illinois Supreme

       Court Rule 304(a) (eff. Mar. 8, 2016). He also argues that “Judge Dow stated in open court her

       order was appealable pursuant to Illinois Supreme Court Rule 304(a).”

¶ 11          Illinois Supreme Court Rule 304(a) provides, in pertinent part:

                     “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.” (Emphases added.) Ill. S. Ct. R. 304(a) (eff. Mar. 8,

                     2016).

¶ 12          Judge Dow did not include the language “there is no just reason for delaying enforcement

       or appeal or both” in the order, nor was it clear she intended to invoke Rule 304(a) from the

       record. Case law concerned with requisite Rule 304(a) findings allow for the invocation of the

       rule if it is clear from the record it was the trial court’s intent. See In re Application of the

       Du Page County Collector, 152 Ill. 2d 545, 549-50 (1992). However, Judge Dow stated on the


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       record that the ruling was appealable pursuant to Rule 308(a) not Rule 304(a). Further, the

       written finding that the ruling was “appealable pursuant to Supreme Court Rule 304 and other

       applicable rules” was not an express written finding in accordance with Rule 304(a). In Lawyers

       Title Insurance Corp. v. Kneller, 172 Ill. App. 3d 210 (1988), a panel of this court found an order

       conferred appellate court jurisdiction when it stated, “ ‘pursuant to Supreme Court Rule, being

       section 304(a) ***, there is no just cause for delaying an appeal from the order entered herein on

       June 4, 1987.’ ” Id. at 212-13. The court reasoned a finding there was no just reason for delaying

       “enforcement or appeal” and specific citation to the rule itself in the order constructively fulfilled

       the technical language requirement and conferred jurisdiction. (Emphasis added.) Id. The

       majority relied on the premise that “rules governing civil procedure are to be liberally construed

       so long as the substantive rights of all parties are protected.” Id. at 213. Justice Tobias Barry

       dissented asserting, “[t]he language of Rule 304(a) is mandatory and precise, not directory or

       generic-its purpose, salutary, not cavalier. The Rule is not unduly burdensome. Accordingly, the

       Rule should be, and until today has been applied strictly.” Id. at 217 (Barry, J., dissenting); see

       also Hopkins v. Illinois Masonic Medical Center, 211 Ill. App. 3d 652, 655 (1991) (agreeing with

       Justice Barry and dismissing an appeal for lack of compliance with Rule 304(a)). Illinois

       Supreme Court Rule 304(a) was subsequently amended to reflect that trial courts do not have to

       reference both appealability and enforceability; courts need only reference one, the other, or both

       to invoke the rule. See Ill. S. Ct. R. 304(a), Commentary (Dec. 17, 1993); see also In re

       Application of the Du Page County Collector, 152 Ill. 2d 545.

¶ 13          While the jurisdictional issue in Kneller rested on the absence of the term

       “enforceability” in the order, we believe Justice Barry’s underlying logic aptly applies to the

       present case. Rule 304(a) is not unduly burdensome, and simply mentioning appealability while



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       vaguely referencing Rule 304 “and other applicable rules” does not confer appellate jurisdiction.

       See Department of Health Care & Family Services v. Cortez, 2012 IL App (2d) 120502, ¶ 8

       (order that stated certain provisions were “hereby appealable” without reference to Rule 304(a)

       or language tracking the rule did not confer appellate jurisdiction); see also Palmolive Tower

       Condominiums, LLC v. Simon, 409 Ill. App. 3d 539, 544 (2011) (“A circuit court’s declaration

       that an order is ‘final and appealable,’ without reference to the justness of delay, or even

       reference to immediate appealability, evinces no application of the discretion Rule 304(a)

       contemplates.”). The order in this matter refers to appealability but unlike Kneller does not cite

       the rule with specificity or reference justness of delay. The order goes on to give Michael carte

       blanche to employ any other supposedly applicable rules that may bestow appellate jurisdiction.

       We decline to find this constitutes a sufficient express written finding to invoke Rule 304(a).

¶ 14          Furthermore, even assuming the written finding was sufficient, it is well-settled law that

       the inclusion of Rule 304(a) language in a nonfinal order does not make the order appealable

       under supreme court rules. Inland, 2015 IL App (1st) 141051, ¶ 23. The denial of a motion for

       substitution of judge for cause is an interlocutory order and is not final for purposes of appeal. Id.

       ¶ 19 (citing In re Marriage of Nettleton, 348 Ill. App. 3d 961, 969 (2004)). The September 10,

       2018, order denying a substitution of judge would not have been a final order simply because

       304(a) language was included. See id. ¶ 24. Consequently, the denial of a motion for substitution

       of judge for cause is an interlocutory order, is not final for purposes of appeal, and cannot be

       converted into a final order by the mere inclusion of Rule 304(a) language.

¶ 15                                             CONCLUSION

¶ 16          For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.

¶ 17          Appeal dismissed.



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