A final judgment is appealable as of right but most litigators know that judgment as to fewer than all of the parties or claims is not appealable without a “Rule 304 finding” that there is no just reason for delaying either enforcement or appeal.
So then Rule 304 transforms a non-final and non-appealable judgment into a final and appealable judgment, right? Wrong.
Failing to recognize this wrinkle in Illinois procedure can cost both the lawyer and the client tens of thousands of dollars and months of unnecessary delay. A lawyer who does not master these issues may find himself spending hundreds of hours and tens of thousands of dollars briefing an appeal that never should have happened only to have the appellate court dismiss the case for lack of jurisdiction.
Rule 304 provides a mechanism for a party to appeal certain judgments that adjudicate less than the entire controversy but mandates that “an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims.” Ill. Sup. Ct. R. 304. Rules 301 and 304 create an inconsistency where certain final judgments, although appealable as of right, must also must contain the Rule 304 certification to be deemed appealable. The finality of a judgment against fewer than all parties or claims is further complicated because “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. Sup. Ct. R. 304.
This creates a situation where the underlying judgment is “subject to revision at any time” yet it must also be a “final judgment” in order to fall within the scope of Rule 304. This begs the question: how does Rule 304 affect finality of judgments? Illinois courts have clearly and concisely stated that Rule 304 has nothing to do with the finality of a judgment, but only is speaks to the enforceability and appealability of an already final order.
“A judgment is final if it disposes of the rights of the parties, either on the entire controversy or a separate branch of it.” Deckard v. Joiner, 44 Ill. 2d 412 (1970) cert denied, 400 U.S. 941. “An order which is not final is still not appealable. This is true even if the trial court enters a finding that there is no just reason for delay. The trial court’s finding can make a final order appealable but it cannot make a non-final order final and thus appealable.” Chicago Title & Trust Co. v. Guaranty Bank & Trust Co., 59 Ill. App. 3d 362 (1st Dist. 1978). “The absence of a Rule 304 finding in a judgment – for whatever reason – leaves the judgment final but unenforceable and unappealable.” Bank of Matteson v. Brown, 283 Ill. App. 3d 599, 603 (1st Dist. 1996).
The crux of these decisions and the decisions they cite is that the trial court cannot unilaterally create appellate jurisdiction by embossing a non-final order with Rule 304 language. For example, the denial of a motion to dismiss that includes Rule 304(a) language that there is no just reason for delaying enforcement or appeal is not a final appealable order. See Jursich v. Arlington Heights Federal Sav. & Loan Asso., 83 Ill. App. 3d 352 (2d Dist. 1980) (dismissing for lack of jurisdiction).
Rule 304 does not change the nature of the underlying order.
It merely allows for certain types of final judgments to be appealed or enforced before the entire controversy is terminated. Thus, we have a situation in Illinois where Rule 304 language is necessary but insufficient to allow a trial court order to be appealed or enforced.
Rule 304 does not concern itself with the finality of judgments, it is concerned only with appealability and enforceability. This has serious implications for calculation of judgment interest and time as well as appellate jurisdiction which can end up costing an unknowing litigators hundreds of hours and the unknowing litigant tens of thousands of dollars.