Divided appellate court districts

Justices differ on immediate appeals in declaratory judgments

On Appeal

Gino Divito and John Fitzgerald

Gino L. DiVito is a founding partner of Tabet DiVito & Rothstein and a retired justice of the Illinois Appellate Court. His practice is concentrated in trial and appellate advocacy in all types of cases, primarily commercial and complex civil litigation.

John M. Fitzgerald is a partner at Tabet DiVito & Rothstein. He focuses on appellate advocacy and complex civil litigation.

Complaints often request a declaratory judgment on a particular issue in addition to other claims and other requests for relief.

If the circuit court issues a declaratory judgment in the middle of a lawsuit, but leaves open other claims and other issues, is that declaratory judgment immediately appealable even in the absence of an Illinois Supreme Court Rule 304(a) finding? The 2nd District Illinois Appellate Court faced precisely that issue in In re Marriage of Heinrich, 2014 IL App (2d) 121333 (March 19).

This procedural issue provoked an intense and very consequential debate concerning the nature of declaratory judgments and the Supreme Court rules governing appeals.

The relevant procedural facts are straightforward. On April 8, 2011, a Kane County Circuit Court judge granted the petitioner’s request for a declaratory judgment that a premarital agreement was valid and enforceable. That was not the only issue in the case, and the litigation proceeded with respect to the other issues and claims.

Just short of 18 months after the circuit court issued its declaratory judgment, the respondent moved for reconsideration of the declaratory judgment order. On Oct. 31, 2012, the circuit court denied the motion for reconsideration, and the judge also made a Rule 304(a) finding that there was no just reason to delay enforcement or appeal, or both, of its earlier declaratory judgment order. The respondent appealed.

Although the petitioner-appellee did not raise the issue, the appellate court prefaced its analysis by addressing whether it had jurisdiction to hear the appeal. In an opinion by Justice Ann Jorgensen, the appellate court found that it had jurisdiction to hear the appeal because the April 8, 2011, declaratory judgment order was not appealable until the circuit court made a Rule 304(a) finding on Oct. 31, 2012.

While declaratory judgments have the force of final judgments, the appellate court explained, “our jurisdiction encompasses only orders that are final and appealable.” The declaratory judgment order may have been final in April 2011, but it was not appealable until October 2012 when the circuit court rendered its Rule 304(a) finding. The lengthly delay was of “no import because a Rule 304(a) finding may be made at any time.”

The appellate court noted that an opinion issued by the 1st District in Pritza v. Village of Lansing, 405 Ill. App. 3d 634 (2010), reached a seemingly opposite conclusion.

The court stated that it disagreed with Pritza, at least insofar as applied to marital dissolution actions.

The court observed that Pritza was not a marital dissolution case and stated: “In a dissolution context, we disagree with Pritza that a declaratory judgment order is final and appealable when entered. Although finality might attach to a declaratory judgment order on the date it is entered, that order is not appealable in a dissolution context absent Rule 304(a) language.”

The Heinrich opinion did not explain why the analysis of whether a declaratory judgment is immediately appealable should depend on whether the lawsuit is a marital dissolution action or another type of litigation.

Justice Susan Hutchinson dissented on the jurisdictional issue, arguing that the “majority’s holding today promotes uncertainty over certainty” and “directly undermines the spirit and the intent of the declaratory judgment statute.”

Hutchinson reasoned that the declaratory judgment statute is intended to allow a court “to take hold of a controversy one step sooner than normal” and that the long delay in Heinrich between the circuit court’s declaratory judgment order and the respondent’s attempt to appeal from it undermined that purpose.

In Hutchinson’s view, a declaratory judgment order is final under Supreme Court Rule 303. When a declaratory judgment order does not dispose of all issues and claims in a lawsuit, Hutchinson wrote, the declaratory judgment order is nonetheless immediately appealable under Supreme Court Rule 304(b).

In short, there now is a district split within the Illinois Appellate Court — and even disagreement within a particular district — on the issue of whether declaratory judgments that do not resolve all issues and claims in a lawsuit are immediately appealable in the absence of a Rule 304(a) finding.

Any uncertainty resulting from this split of authority should be a matter of serious concern.