Opinion
No. 1-14-3863
09-30-2015
RUTA ZENTIKIENE, Plaintiff-Appellant, v. AMERIKOS LIETUVIS CORPORATION, BRONIUS ABRUTIS, and KAMILE NEMEIKAITE AGUIRRE, Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. 13 L 9298 Honorable John P. Callahan, Judge Presiding. PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices Gordon and Palmer concurred in the judgment.
ORDER
¶ 1 Held: Appeal dismissed for lack of jurisdiction where defendants' request for attorney fees had not been addressed by the circuit court. ¶ 2 Plaintiff Ruta Zentikiene (plaintiff) appeals the dismissal with prejudice of her nine-count second amended complaint alleging defamation per se, defamation per quod, and false light against defendants Amerikos Lietuvis Corporation, Bronius Abrutis, and Kamile Nemeikaite Aguirre (collectively defendants). Plaintiff asserts that the circuit court erred in holding her to a heightened pleading standard and finding she did not allege actual malice. For the reasons that follow, we dismiss this appeal for lack of jurisdiction.
We have spelled the parties' names as they appear in the notice of appeal. --------
¶ 3 BACKGROUND
¶ 4 Initially, we note that the record does not contain any reports of proceedings. The common law record reveals the following relevant information. ¶ 5 On August 19, 2013, plaintiff filed a two-count complaint alleging defamation per se and intentional infliction of emotional distress based on an article published in Amerikos Lietuvis, a Lithuanian-language newspaper. A certified translation of the article, which plaintiff asserted was entitled "Lured by the Offer of the Supposed Bride," was attached to the complaint. Plaintiff alleged the article described her relationship with her former husband Ricardas Becius (Becius) and falsely imputed that she provided false information to police, embezzled funds, and used Becius' credit card when unauthorized to do so. She further alleged that defendants "knowingly made fabricated and malicious statements to the public about Plaintiff with the intent to cause and/or inflict severe emotional distress." ¶ 6 Plaintiff was subsequently granted leave to amend her complaint on November 19, 2013. The first amended complaint, filed December 3, 2013, corrected a statutory citation and changed the title of the article to "The Outcome of a Fictitious Marriage-Financial Collapse and Nights in Detention." ¶ 7 On December 6, 2013, defendants filed a motion to dismiss the amended complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2012)). On March 28, 2014, after the matter was fully briefed and argued, the circuit court granted defendants' motion. In so ordering, the circuit court dismissed the intentional infliction of emotional distress count with prejudice and granted plaintiff leave to file a second amended complaint for defamation. On April 30, 2014, plaintiff filed her second amended complaint alleging three counts each of defamation per se, defamation per quod, and false light against each defendant. ¶ 8 On June 13, 2014, defendants filed a motion to dismiss plaintiff's second amended complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)) arguing that plaintiff had failed to set forth facts required to plead and prove malice or falsity. Defendants prayed that plaintiff's second amended complaint be dismissed with prejudice and that "this [c]ourt grant an award of attorneys' [sic] fees in [d]efendants' favor." ¶ 9 On September 29, 2014, the circuit court, after considering the briefs and hearing argument on the matter, granted defendants' motion. The circuit court found plaintiff failed to allege facts supporting actual malice and that plaintiff would not be able to allege sufficient facts regarding actual malice on repleading. The circuit court, therefore, dismissed the second amended complaint with prejudice. ¶ 10 Thirty-two days later, on October 31, 2014, plaintiff filed a motion to reconsider in which she asserted that the circuit court applied the wrong pleading standard to her second amended complaint. After hearing arguments from counsel, on November 19, 2014, the circuit court denied plaintiff's motion to reconsider. The order does not indicate the basis for the denial of the motion. On December 19, 2014, plaintiff filed her notice of appeal.
¶ 11 ANALYSIS
¶ 12 On appeal, plaintiff contends this court is vested with jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994). Defendants failed to address the matter of jurisdiction. See Ill. S. Ct. R. 341(i) (eff. Feb. 6, 2013) (a jurisdictional statement "need not be included except to the extent that the presentation by the appellant is deemed unsatisfactory."). We have an independent obligation to consider our jurisdiction and to dismiss when jurisdiction is lacking. Quaid v. Baxter Healthcare Corp., 392 Ill. App. 3d 757, 765 (2009). Jurisdiction is conferred upon the appellate court only through the timely filing of a notice of appeal. Berg v. Allied Security, Inc., 193 Ill. 2d 186, 189 (2000). Unless the appealing party has properly filed a notice of appeal, a reviewing court lacks jurisdiction over the appeal and must dismiss it. In re Estate of York, 2015 IL App (1st) 132830, ¶ 34. ¶ 13 "To vest the appellate court with jurisdiction a party must file a notice of appeal within 30 days after entry of the judgment appealed from, or within 30 days after entry of an order disposing of a timely post-[judgment] motion." (Emphasis added.) Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 538 (1984); see also Ill. S. Ct. R. 303(a)(1) (eff. June 4, 2008). Section 2-1203(a) of the Code requires that a postjudgment motion be filed within 30 days of the judgment. 735 ILCS 5/2-1203(a) (West 2014). If such a motion is timely filed it will toll the time for the notice of appeal. In re Application of the County Treasurer, 214 Ill. 2d 253, 261 (2005). If a party, however, "files a postjudgment motion more than 30 days after the entry of final judgment, the motion will not toll the time for filing a notice of appeal." Goral v. Kulys, 2014 IL App (1st) 133236, ¶ 21 (citing In re Application of the County Treasurer, 214 Ill. 2d at 261). ¶ 14 Section 2-1203, however, only applies to motions following final judgments and if the "ruling was not final, then there [is] no 30-day limit within which to file [a] motion to reconsider." Lampe v. Pawlarczyk, 314 Ill. App. 3d 455, 470 (2000). That is because "the circuit court has the inherent power to amend and revise such an order prior to final judgment." Brown v. Scotillo, 104 Ill. 2d 54, 59 (1984). Our supreme court defines a final judgment as "a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit." Flores v. Dugan, 91 Ill. 2d 108, 112 (1982). Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), however, provides that if a final judgment disposes of fewer than all of the claims in an action, it is appealable only if the trial court makes an express written finding that there is no just reason for delaying enforcement or appeal. Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 464 (1990). Without such a finding, the trial court's order is not appealable until all of the claims have been resolved. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010); Marsh, 138 Ill. 2d at 464. ¶ 15 In this case, plaintiff filed her motion to reconsider 32 days after her second amended complaint was dismissed with prejudice. Accordingly, plaintiff's motion to reconsider would be untimely, and we would lack jurisdiction to consider the matter, so long as the September 29, 2014, order was a final and appealable order. See In re Application of County Treasurer, 208 Ill. App. 3d 561, 563-64 (1990) (appeal dismissed for lack of jurisdiction where a posttrial motion was untimely filed more than four months after the final judgment was entered); Lampe v. Pawlarczyk, 314 Ill. App. 3d 455, 469-70 (2000) (appeal dismissed for lack of jurisdiction where the plaintiff's postjudgment motion was untimely filed more than 30 days after the final judgment, and hence did not toll the time for filing the notice of appeal). In considering whether the September 29, 2014, order was a final order, we find the cases of Goral and Bale v. Barnhart, 343 Ill. App. 3d 708 (2003) to be instructive. ¶ 16 In Goral, the defendant filed a motion to dismiss pursuant to section 2-619 of the Code and requested attorney fees. Goral, 2014 IL App (1st) 133236, ¶ 23. The trial court granted the motion, but did not rule upon defendant's attorney fee request. Id. Four days later, defendant filed a motion for attorney fees. Id. ¶ 21. Over 30 days after her complaint was dismissed, the plaintiff filed a motion to reconsider. Id. The trial court then denied the plaintiff's motion to reconsider and found "there was no further reason to delay an appeal from the denial of plaintiff's motion to reconsider and continued defendant's request for attorney fees." Id. Within 30 days thereafter, the plaintiff filed her notice of appeal. Id. ¶ 17 The question in Goral was whether the appellate court had jurisdiction to consider the plaintiff's appeal where the plaintiff failed to file her motion to reconsider within 30 days of the trial court's dismissal of her complaint. Id. ¶ 18. The Goral court held that it had jurisdiction. Id. ¶ 26. In so finding, the reviewing court reasoned that the order granting the motion to dismiss was not a final order because the defendant had requested attorney fees in his motion to dismiss and the order granting the motion to dismiss did not dispose of this request. Id. ¶¶ 23, 26. Although the order was not a final order, in denying the plaintiff's motion to reconsider the trial court included Rule 304(a) language, thus vesting the appellate court with jurisdiction. Id. ¶ 26. ¶ 18 In a similar vein, the reviewing court in Bale found it lacked jurisdiction to consider orders related to the dismissal of the plaintiff's complaint because the defendants requested attorney fees in their motion to dismiss and there was no Rule 304(a) finding in the order dismissing the complaint or the order denying the plaintiff's motion to reconsider. Bale, 343 Ill. App. 3d at 711-12. ¶ 19 As in Bale, defendants here requested attorney fees in their motion to dismiss. This request was not addressed by the circuit court nor was there a Rule 304(a) finding included in the pertinent orders. Accordingly, we lack jurisdiction to consider plaintiff's appeal. See id. ¶ 20 Although the defendants in both Goral and Bale subsequently filed motions for attorney fees (Goral, 2014 IL App (1st) 133236, ¶ 21; Bale, 343 Ill. App. 3d at 712) we find that the fact defendants here did not file such a motion does not affect our lack of jurisdiction. A judgment is not final unless it "resolve[s] every right, liability or matter raised." Marsh, 138 Ill. 2d at 465. The issue of attorney fees was one defendants raised in their June 13, 2014, motion to dismiss. See Bale, 343 Ill. App. 3d at 712 (finding the issue of attorney fees was raised in defendant's motion to dismiss, a pleading). Thus, this issue was raised in a pleading as part of the underlying action and not after the principal action had been decided. See id. ¶ 21 In sum, the September 29, 2014, order granted the motion to dismiss, but made no findings regarding defendants' request for attorney fees, nor did the circuit court make a finding pursuant to Rule 304(a). The November 19, 2014, order similarly did not include Rule 304(a) language. Thus, unlike the court in Goral, we do not have jurisdiction to consider the matter where neither the September 29, 2014, order nor the November 19, 2014, order denying the motion to reconsider included Rule 304(a) language.
¶ 22 CONCLUSION
¶ 23 For the foregoing reasons, we dismiss the appeal for lack of jurisdiction. ¶ 24 Dismissed.