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Appellate Court Date: 2020.07.09
12:09:05 -05'00'
Mayle v. Urban Realty Works, LLC, 2020 IL App (1st) 191018
Appellate Court KEN MAYLE, ANTONIO CLARK, TONY SISILLIANO,
Caption ZACHARY BLEWS, and PHIL BOBROFF, Plaintiffs-Appellants, v.
URBAN REALTY WORKS, LLC; 660 LAKE LLC; DEMETRIOS
KOULIOUFAS; HARRY KOULIOUFAS; IRENE KOULIOUFAS;
ANTHONY ROUCHES; ERIC JOHNSTONE; and BAY-RON
PARKER, Defendants-Appellees.
District & No. First District, Fourth Division
No. 1-19-1018
Filed March 26, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 17-L-6322; the
Review Hon. Thomas R. Mulroy Jr., Judge, presiding.
Judgment Appeal dismissed.
Counsel on Joan M. Fenstermaker and Nicholas Bailey, of Joan M. Fenstermaker,
Appeal P.C., of Chicago, for appellants.
Robert T. Metz, of Law Offices of Mark E. Edison P.C., of Oak Brook,
for appellees Urban Realty Works, LLC, and Anthony Rouches.
Kurt H. Feuer, of Evanston, for appellee Eric Johnstone.
Marc D. Sherman, of Marc D. Sherman & Colleagues, P.C., of
Lincolnwood, for appellees Demetrios Koulioufas, Harry Koulioufas,
and Irene Koulioufas.
No brief filed for other appellees.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the
court, with opinion.
Justices Lampkin and Burke concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from the dismissal of plaintiffs’ 11-count complaint against
defendants as a result of plaintiffs’ eviction from an apartment building. The trial court
dismissed six counts of the complaint, arising under the Residential Landlord and Tenant
Ordinance (RLTO) (Chicago Municipal Code § 5-12-010 et seq. (amended Mar. 31, 2004)),
based on the statute of limitations. The trial court subsequently dismissed the remaining five
counts of the complaint for failure to state a cause of action. Plaintiffs appeal, and for the
reasons that follow, we dismiss the appeal for lack of jurisdiction.
¶2 BACKGROUND
¶3 On June 22, 2017, plaintiffs Ken Mayle, Antonio Clark, Tony Sisilliano, Zachary Blews,
and Phil Bobroff filed an 11-count complaint against defendants Urban Realty Works, LLC
(Urban Realty Works); 660 Lake, LLC (660 Lake); Demetrios Koulioufas, Harry Koulioufas, 1
Irene Koulioufas, Anthony Rouches, Eric Johnstone, and Bay-Ron Parker. The complaint
alleged that, in September 2012, plaintiffs moved into an apartment on Lake Street in Chicago,
which was owned by Chicago Title Land Trust Company as trustee under trust number
1090074 dated June 23, 1987. According to the complaint, defendants Demetrios Koulioufas,
Harry Koulioufas, and Irene Koulioufas (collectively, the Koulioufas defendants) were the
beneficiaries of the trust. On August 8, 2013, the trust conveyed ownership of the apartment
to defendant 660 Lake. Prior to the sale, and in contemplation of the sale, the Koulioufas
defendants engaged Urban Realty Works to manage the premises “and to remove Plaintiffs
from the Premises so that the Premises would be vacant at the time of sale.” The complaint
alleged that defendants Rouches, Johnstone, and Parker “acted in furtherance of the plan to
remove Plaintiffs from the Premises so that the Premises would be vacant at the time of sale.”
¶4 The complaint alleged that, on July 31, 2013, Urban Realty Works and Parker served a
five-day notice on “ ‘Josh and all occupants’ ” 2 of the apartment; the complaint alleged that
1
The complaint originally named as a defendant “Henry” Koulioufas, but it was amended on its
face on November 27, 2017, to correct the first name of this defendant to “Harry” Koulioufas.
2
None of the plaintiffs is named Josh.
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“[d]efendants, individually or through their agents,” unlawfully entered the premises to serve
plaintiff Clark with the notice. Prior to receiving the notice, plaintiffs paid $1600 per month to
defendant Demetrios Koulioufas.
¶5 Count I of the complaint was against all defendants and alleged that defendants violated
section 5-12-060 of the RLTO (Chicago Municipal Code § 5-12-060 (amended Nov. 6, 1991))
by making an unlawful entry into the apartment.
¶6 Counts II through VI were by each plaintiff against all defendants, and all alleged that
defendants violated section 5-12-160 of the RLTO (Chicago Municipal Code § 5-12-160
(amended Nov. 6, 1991)), which prohibited a landlord from interrupting a tenant’s occupancy
without authority of law. Counts II through VI alleged that, after service of the five-day notice,
between August 6 and August 21, 2013, defendants “individually or through their agents”
unlawfully entered the apartment and removed and disposed of plaintiffs’ personal property.
¶7 Counts VII through XI were by each plaintiff against all defendants and alleged conversion
of personal property. Each count alleged that the named plaintiff had an absolute and
unconditional right to possession of the property; that he had demanded possession of the
property; and that defendants wrongfully assumed control, dominion, and ownership of the
property. Each count also alleged that the actions of defendants were done with malicious
intent.
¶8 Attached to the complaint was a copy of a document titled “Landlord’s Five Day Notice,”
which was directed to “Josh and all occupants” and ordered the termination of the tenancy as
of August 7, 2013. The notice was dated July 31, 2013, and contains an “affidavit of service”
signed by defendant Parker, who was listed as the property manager, which stated that he
served the notice on that date; the notice purports to be notarized, with a signature on a notary
line, but bears no notary stamp, and no date is written into the space above the notary’s
signature line. Also attached to the complaint were copies of several canceled checks to
defendants Demetrios Koulioufas and Harry Koulioufas, which were each for $1600, many of
which contained the word “rent” on the memo line. Finally, attached to the complaint were
itemized lists of personal items allegedly converted by defendants.
¶9 On October 23, 2017, defendant Rouches filed a motion to dismiss counts I through VI of
the complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-
619 (West 2016)), claiming that the building in which plaintiffs allegedly lived was
commercial, not residential, meaning that the RLTO did not apply, and further claiming that
plaintiffs’ claims under the RLTO were time-barred.
¶ 10 On November 15, 2017, defendant Johnstone filed a combined motion to dismiss the
complaint pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2016)), seeking
dismissal of counts I though IV under section 2-619 and of counts VII through XI under section
2-615 (735 ILCS 5/2-615 (West 2016)). With respect to counts I through VI, like Rouches,
Johnstone claimed that the counts based on the RLTO were time-barred. With respect to counts
VII through XI, Johnstone claimed that none of the counts contained specific allegations that
would subject him to liability for conversion. Instead, Johnstone argued that “each Plaintiff
has merely alleged conclusory legal boilerplate in support of their conversion claims, and not
a single specific factual allegation as to Defendant Johnstone.”
¶ 11 On November 30, 2017, the Koulioufas defendants filed a combined motion to dismiss the
complaint pursuant to section 2-619.1 of the Code, claiming that counts I through VI should
be dismissed under section 2-619 because they were time-barred and that the entire complaint
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should be dismissed under section 2-615 for failure to plead sufficient facts to support any of
plaintiffs’ causes of action.
¶ 12 On January 17, 2018, the trial court entered an order dismissing counts I through VI with
prejudice based on the statute of limitations. The court further struck counts VII through XI
with leave to replead them. 3
¶ 13 On March 13, 2018, plaintiffs filed an amended complaint, adding a number of factual
allegations. Counts I through VI of the amended complaint were identical to the previously
dismissed counts I through VI of the original complaint, repleaded to preserve them for appeal.
Counts VII through XI were also identical to the prior versions of those counts, other than
incorporating the additional factual allegations. The amended complaint also included the same
exhibits as the original complaint, namely, the “Landlord’s Five Day Notice,” the canceled
checks, and the lists of personal property.
¶ 14 On April 11, 2018, defendant Johnstone filed a motion to dismiss the amended complaint
pursuant to section 2-615 of the Code, claiming that the allegations of the complaint directed
at him merely set forth conduct that was consistent with the usual, lawful conduct of the agent
for the purchaser of a property and that plaintiffs had failed to set forth any allegations that
would subject him to liability.
¶ 15 On April 16, 2018, the Koulioufas defendants filed a combined motion to dismiss counts
VII through XI of the amended complaint, claiming that those counts should be dismissed
under section 2-615 because they failed to plead specific allegations of ultimate fact for each
element of a conversion claim. The Koulioufas defendants further claimed that counts VII
through XI should be dismissed under section 2-619 because plaintiffs failed to plead that an
agency relationship existed that would subject the Koulioufas defendants to liability.
¶ 16 Attached to the Koulioufas defendants’ motion to dismiss, in support of their section 2-619
motion, were the affidavits of the three Koulioufas defendants, in which they averred that they
never retained defendant Urban Realty Works in connection with the property; they never
engaged or asked defendants Rouches, Johnstone, or Parker to deal in any way with any person
at the property; they never asked anyone to serve any notices concerning the property; and they
never removed any personal property from the property and never asked anyone to do so. The
Koulioufas defendants further averred that plaintiffs never informed any of them that plaintiffs’
personal property had been taken and never made a demand for the return of any such property.
¶ 17 On April 23, 2018, defendant Rouches filed a combined motion to dismiss the amended
complaint, claiming that counts VII through XI should be dismissed pursuant to section 2-615
of the Code because any specific allegations directed at Rouches merely described conduct
that was consistent with the usual, lawful manner of a real estate sale and the allegations related
to the alleged removal of plaintiffs’ personal property were vague and insufficient to impose
liability on Rouches.
3
We note that the trial court’s order indicated that one of the motions before it was Rouches’s
“Motion to Dismiss (2-619.1).” However, as set forth above, Rouches did not, in fact, file a combined
motion to dismiss the complaint but filed a motion to dismiss counts I through VI solely under section
2-619. Rouches did not seek to dismiss counts VII through XI but instead filed an answer to those
counts. However, as plaintiffs amended their complaint twice as a result of the court’s order and it is
counts VII through XI of the second amended complaint at issue on appeal, we have no need to consider
the impact of any error in dismissing counts VII through XI with respect to all defendants.
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¶ 18 On June 27, 2018, the trial court entered an order granting the motions to dismiss based on
section 2-615 but granted plaintiffs leave to file an amended complaint.
¶ 19 On September 20, 2018, plaintiffs filed a second amended complaint, adding additional
factual allegations. The second amended complaint alleged that in August 2009, plaintiff
Bobroff began renting the apartment, which was a “residential loft-style second floor
apartment,” from defendant Harry Koulioufas pursuant to an oral month-to-month tenancy;
plaintiff Bobroff paid defendant Harry Koulioufas $500 as a security deposit. In 2012, the other
four plaintiffs moved into the apartment, each paying a $500 security deposit. During their
tenancy, plaintiffs would collect their mail and pay rent to defendant Harry Koulioufas at the
restaurant on the ground floor of the building next door, which was owned by defendants
Demetrios and Harry Koulioufas. The restaurant closed in May 2013, and plaintiffs observed
a note posted on the door to the restaurant directing them to pay their rent to defendant
Demetrios Koulioufas, which they did.
¶ 20 The second amended complaint alleged that, in June 2013, plaintiffs noticed defendants
Rouches and Johnstone at the building in which the apartment was located. They advised
plaintiff Bobroff that defendant Harry Koulioufas “was ‘gone,’ that the Property had been sold
and that Plaintiffs had ‘had a good run, but it’s over.’ ” They also advised plaintiff Bobroff that
plaintiffs would be required to vacate the apartment by August 1, 2013. Plaintiffs informed
defendants Rouches and Johnstone that they needed more time to vacate the apartment.
Defendants Rouches and Johnstone also asked plaintiffs to allow architects into the apartment,
which plaintiffs permitted.
¶ 21 The second amended complaint alleged that, in July and August 2013, defendants Rouches,
Johnstone, and Parker had meetings in the closed restaurant with several of the plaintiffs
individually. During those meetings, defendants Rouches and Johnstone “made vague offers
to Plaintiffs about offering assistance to Plaintiffs to move.” They stated that they would not
offer plaintiffs any money but would provide them with movers; defendants Rouches and
Johnstone told plaintiff Bobroff that “ ‘August 1st is our key date.’ ” Plaintiffs did not reach
any agreements with defendants Rouches and Johnstone during those meetings, and defendants
Rouches and Johnstone told plaintiff Bobroff that “ ‘[w]e hire people that professionally do
this,’ ” meaning having plaintiffs removed from the apartment. On the day of his meeting,
plaintiff Bobroff asked defendant Johnstone for a business card; defendant Johnstone replied
by falsely asserting that he worked for “RPM Assets.”
¶ 22 The second amended complaint alleges that, during his meeting, defendant Parker told
plaintiff Mayle that any discussions about his being able to remain in the apartment needed to
take place with defendant Johnstone. Defendant Parker later told plaintiff Mayle that he had
discussed the situation with defendants Johnstone and Rouches and they had decided to evict
plaintiffs.
¶ 23 The second amended complaint alleged that, on July 31, 2013, defendants Urban Realty
Works and Parker served a “Landlord’s Five Day Notice” on “ ‘Josh and all occupants’ ” of
the apartment; defendant Rouches was present when the notice was delivered. However, no
one named “Josh” resided in the apartment, and plaintiffs did not know anyone named “Josh.”
On the same day, plaintiffs Clark and Sisilliano observed defendant Parker break down the
front door of the apartment. Also on July 31, 2013, “Defendants moved several people who
were strangers to Plaintiffs,” including defendant Parker, into the apartment. The people
moving into the apartment told plaintiff Mayle that they were being paid by defendant
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Johnstone. Shortly thereafter, defendant Johnstone came to the property and told plaintiff
Mayle that Mayle “had to ‘get out’ of the Apartment.”
¶ 24 The second amended complaint alleged that on August 2, 2013, plaintiff Mayle sent an e-
mail to the e-mail address posted on the door of the restaurant next door, asking for information
about what was happening at the apartment, asking that a broken lock be repaired, and asking
whether an eviction lawsuit had been filed against any of the plaintiffs. The next day, plaintiff
Mayle received a response providing: “ ‘You guys are fine for right now. We need access to
the building. I’ll get the locks fixed. We’ll figure something out with you guys. We aren’t
going to start any work on the building this month. Maybe to do some repairs. I’ll be in touch
with you in a few days. What is your phone number?’ ” Plaintiff Mayle responded the next day
with his phone number.
¶ 25 The second amended complaint alleged that on August 6, 2013, plaintiff Bobroff returned
to the apartment to find that “Defendants” had caused his personal belongings to be removed
from the apartment and left out in the rain. “Defendants” also caused the steel door dividing
plaintiff Bobroff’s portion of the apartment from the rest of the space to be locked and placed
a mechanical device on the door to prevent it from being opened. The second amended
complaint alleged that defendant Parker “and his associates physically prevented Plaintiffs
from having full access to the Apartment.” On the same day, defendant Rouches called plaintiff
Mayle at least four times. The next day, defendant also sent plaintiff Mayle several text
messages.
¶ 26 The second amended complaint alleged that on August 9, 2013, defendant Rouches sent
plaintiff Mayle a text message indicating that the locks would be changed and asking whether
“ ‘almost everyone [was] out.’ ” On the same day, “[d]efendants” caused all of the personal
property in the apartment belonging to plaintiff Blews to be removed from the apartment and
thrown into the garbage. On August 10, 2013, “Defendants” caused the locks to the apartment
door to be changed and refused to provide keys to plaintiffs. On the same day, plaintiff Mayle
sent defendant Rouches a text message asking for defendant Parker’s phone number, saying
that he had observed Parker changing the lock and Parker had not left a key. Defendant
Rouches responded by providing plaintiff Mayle defendant Parker’s phone number the next
day. On August 11, 2013, plaintiff Mayle hired a locksmith to attempt to regain access to the
apartment, but defendant Parker’s “associates” prevented the locksmith from attempting to
access the apartment.
¶ 27 The second amended complaint alleged that on August 9, 2013, the trust that owned the
property conveyed ownership of the property to defendant 660 Lake and that, at the time the
majority of plaintiffs’ personal property was removed, the trust still held legal title to the
property. The second amended complaint alleged that, on information and belief, defendant
Johnstone was a member and the registered agent of defendant 660 Lake. The second amended
complaint further alleged that, on information and belief, defendant Rouches was the manager
and a member of defendant Urban Realty Works. The amended complaint alleged that
defendants Rouches, Johnstone, and Parker “acted in furtherance of the plan to remove
Plaintiffs from the Apartment so that the Apartment would be vacant.” Finally, the amended
complaint alleged that on August 22, 2013, “Defendants” caused plaintiffs’ remaining personal
property to be removed from the apartment and thrown into the garbage.
¶ 28 The second amended complaint again repleaded counts I through VI to preserve them for
appeal. As with the amended complaint, the second amended complaint also realleged the
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allegations of counts VII through XI, with the only change being the incorporation of the
additional factual allegations as set forth above.
¶ 29 On October 1, 2018, defendant Johnstone filed a motion to dismiss the second amended
complaint pursuant to section 2-615 of the Code, claiming that the second amended complaint
merely repleaded the same insufficient allegations as in the previous complaint. Defendant
Johnstone claimed that the few new allegations were vague and did not cure the defects of the
previously dismissed amended complaint.
¶ 30 On October 2, 2018, the Koulioufas defendants filed a combined motion to dismiss counts
VII through XI of the second amended complaint, claiming that the second amended complaint
failed to cure the defects of the prior pleadings and should be dismissed under section 2-615
of the Code. They also claimed that the second amended complaint should be dismissed under
section 2-619 because their affidavits showed that they were entitled to judgment as a matter
of law. In support of their section 2-619 motion, the Koulioufas defendants attached to the
motion to dismiss the same affidavits as had been attached to their prior motion to dismiss.
¶ 31 On October 9, 2018, defendant Rouches filed a combined motion to dismiss the second
amended complaint, claiming that counts VII through XI of the second amended complaint
should be dismissed under section 2-615 because they failed to allege sufficient facts to support
a cause of action.
¶ 32 On November 15, 2018, the trial court entered an order dismissing counts VII through XI
of the second amended complaint with prejudice with respect to defendants Rouches and
Johnstone and the Koulioufas defendants. On the same day, the trial court entered an order
finding defendants Urban Realty Works and 660 Lake in default for failure to appear. 4 On
February 21, 2019, plaintiffs filed a motion for a default judgment against defendants Urban
Realty Works and 660 Lake, and on February 28, 2019, the trial court entered judgment against
them with respect to each plaintiff.
¶ 33 On March 8, 2019, defendant Urban Realty Works filed its appearance and, on March 11,
2019, it filed a motion to vacate the default judgment. On the same day, it filed a combined
motion to dismiss the second amended complaint, arguing that counts VII through XI should
be dismissed under section 2-615 for failure to state a claim. On April 16, 2019, the trial court
granted defendant Urban Realty Works’ motion to vacate the default judgment and also granted
its motion to dismiss.
¶ 34 On May 15, 2019, plaintiffs filed a notice of appeal, and this appeal follows.
¶ 35 ANALYSIS
¶ 36 On appeal, plaintiffs challenge both the section 2-619 dismissal of counts I through VI of
the complaint and the section 2-615 dismissal of counts VII through XI. First, however, we
must determine our jurisdiction to consider the instant appeal. Neither party has contested the
jurisdiction of this court. However, it is our duty to determine whether we have jurisdiction,
regardless of whether the issue is raised by the parties. 5 Secura Insurance Co. v. Illinois
4
The order did not address defendant Parker, who appears to have never been served and did not
file an appearance.
5
We asked the parties to address the issue at oral argument, and both parties presented jurisdictional
arguments at that point.
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Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009) (“A reviewing court must ascertain its
jurisdiction before proceeding in a cause of action, regardless of whether either party has raised
the issue.”); A.M. Realty Western L.L.C. v. MSMC Realty, L.L.C., 2016 IL App (1st) 151087,
¶ 67 (“Although neither party raises the issue of jurisdiction, an appellate court has an
independent duty to consider whether or not it has jurisdiction to hear an appeal.”). The
question of whether we have jurisdiction over the instant appeal presents a question of law,
which we review de novo. In re Marriage of Demaret, 2012 IL App (1st) 111916, ¶ 25; In re
Marriage of Gutman, 232 Ill. 2d 145, 150 (2008). De novo consideration means we perform
the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App.
3d 564, 578 (2011).
¶ 37 Plaintiffs claim in their brief that we have jurisdiction pursuant to Illinois Supreme Court
Rule 301 (eff. Feb. 1, 1994), because “[t]he trial court dismissed [plaintiffs’] last remaining
claim on April 16, 2019.” However, this is not entirely accurate. Plaintiffs filed suit against
eight defendants: Urban Realty Works, 660 Lake, the three Koulioufas defendants, Rouches,
Johnstone, and Parker. The trial court dismissed counts I through VI with prejudice on January
17, 2018, based on section 2-619 of the Code. The trial court dismissed counts VII through XI
with prejudice “as to Defendants Demetrios Koulioufas, Irene Koulioufas, Harry Koulioufas,
Anthony Rouches, and Eric Johnstone” on November 15, 2018, based on section 2-615 of the
Code. The trial court entered a default judgment against defendants Urban Realty Works and
660 Lake on February 28, 2019. Finally, on April 16, 2019, the default judgment against
defendant Urban Realty Works was vacated, and counts VII through XI were dismissed under
section 2-615. Thus, as of April 16, 2019, the trial court had expressly resolved all of the claims
with respect to seven of the eight defendants. However, plaintiffs’ jurisdictional argument
overlooks their claims against defendant Parker, who was never served with process and never
filed an appearance but who nonetheless remained a named defendant throughout the instant
litigation.
¶ 38 Under Rule 304:
“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).
¶ 39 Even though Parker was not served with process and did not file an appearance, he is
considered a “party” for purposes of Rule 304’s requirements. Mares v. Metzler, 87 Ill. App.
3d 881, 885 (1980) (although not served, a named defendant remained a “party” within the
context of Rule 304); Ogden Group, Inc. v. Spivak, 92 Ill. App. 3d 932, 933-34 (1981) (same);
Zak v. Allson, 252 Ill. App. 3d 963, 965 (1993) (same). Thus, generally, in order for the
dismissal to be appealable, the trial court would have needed to make the findings required by
Rule 304(a). In the case at bar, the trial court made no such findings.
¶ 40 However, in some cases, the presence of a nonserved defendant does not render an order
unappealable, even in the absence of Rule 304(a) language. In those cases, the dismissal of the
complaint with respect to one defendant has been found to dispose of the case with respect to
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all of the unserved defendants as well. For instance, courts have found jurisdiction when the
served defendants and the nonserved defendants represented a “unified tortfeasor” such that
the dismissal order dismissed the complaint in its entirety. See, e.g., Merritt v. Randall Painting
Co., 314 Ill. App. 3d 556, 559 (2000) (nonserved defendants were allegedly agents and
employees of served defendant); Cangemi v. Advocate South Suburban Hospital, 364 Ill. App.
3d 446, 455 (2006) (nonserved defendants were agents of served defendant). Additionally,
appellate jurisdiction has been found where the trial court’s order indicated that it intended to
dismiss the complaint in its entirety as to all defendants. See, e.g., Byer Clinic & Chiropractic,
Ltd. v. State Farm Fire & Casualty Co., 2013 IL App (1st) 113038, ¶ 14 (finding that the trial
court’s “decisive word choice, ‘this case is dismissed,’ ” along with a finding that other
defendants were not properly party defendants, “is an all-encompassing dismissal order
confirming the court’s intention to dismiss the complaint in its entirety as to all named
defendants,” including the defendant who had not appeared).
¶ 41 In the case at bar, during oral argument, plaintiffs argued that such exceptions apply to
their case so that we have jurisdiction to consider the instant appeal. However, the cases relied
on by plaintiffs do not present the same type of situation as present in the case at bar. For
instance, in Merritt, we considered a negligence action against seven defendants as a result of
a window screen striking and injuring the plaintiff. Only three of the defendants were served
and appeared in the case; the other four defendants were never served and did not appear.
Merritt, 314 Ill. App. 3d at 558. The trial court granted a motion to dismiss based on the statute
of limitations, dismissing the complaint with prejudice. Merritt, 314 Ill. App. 3d at 558. On
appeal, we found it necessary to determine whether we had jurisdiction, as “[a]n argument can
be made” that the dismissal applied only to the three served defendants and not to the four
unserved defendants, in which case the dismissal order would not be appealable because it
lacked the required Rule 304(a) language. Merritt, 314 Ill. App. 3d at 558-59. Citing Towns v.
Yellow Cab Co., 73 Ill. 2d 113 (1978), we found:
“In the instant case, the liability of Randall Painting Company, one of the defendants
that was served and moved for dismissal, is predicated, in part, upon the alleged acts
of its agents and employees, the four unserved defendants. Accordingly, as to the acts
alleged to have been committed by the four unserved defendants, Randall Painting
Company and those defendants constitute a unified tortfeasor. [Citation.] Furthermore,
the claims asserted against Randall Painting Company under the theory of
respondeat superior and those asserted against the four unserved defendants ‘are one
and the same’ [citation]. Under these circumstances, we interpret the trial court’s order
as a dismissal of the complaint in its entirety. Accordingly, we find we have jurisdiction
over the instant appeal under Rule 301.” Merritt, 314 Ill. App. 3d at 559.
¶ 42 In the case at bar, however, we cannot find that such an exception applies. The trial court’s
January 17, 2018, order, which provided that “the RLTO claims of Counts I through VI are
dismissed with prejudice based on the statute of limitations” could be considered the type of
“all-encompassing dismissal order” found sufficient to confer jurisdiction in Byer. However,
the other orders entered by the trial court, dismissing counts VII through XI, are all expressly
directed at particular defendants and are not “all-encompassing.” Additionally, despite
plaintiffs’ claims to the contrary, defendant Parker cannot be considered a “unified tortfeasor”
such that the exception noted in Merritt or Cangemi applies. The second amended complaint
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does not allege that defendant Parker was an agent or employee of defendants Urban Realty
Works or 660 Lake and that his conduct was done in the course of his employment or agency.
¶ 43 Plaintiffs point to several paragraphs in their second amended complaint that they claim
support an argument that defendant Parker was employed by one of the other defendants.
However, after examining these paragraphs, we cannot agree with plaintiffs’ assertion. These
paragraphs certainly allege that defendant Parker was acting in concert with some of the other
defendants. However, there is no allegation of his agency or employment by any of the other
defendants such that liability of the master would be based on liability of the servant. The
complaint alleges that defendant Johnstone was an agent of 660 Lake and that defendant
Rouches was a manager of Urban Realty Works; no such allegation appears concerning
defendant Parker. At most, the complaint alleges that “[o]n or about July 31, 2013, Defendants
moved several people who were strangers to Plaintiffs, including Defendant BAY-RON
PARKER, into the Apartment. The people moved into the Apartment told Plaintiff KEN
MAYLE that Defendant ERIC JOHNSTONE was paying them.” Despite plaintiffs’ suggestion
to the contrary, this allegation does not support plaintiffs’ conclusion that defendant Parker
was defendant Johnstone’s employee, and no such allegation appears anywhere in the second
amended complaint.
¶ 44 Moreover, the second amended complaint alleges conduct attributable to defendant Parker
alone and not to any other defendants—for instance, it alleges that Parker broke down the front
door of the apartment and that he also physically prevented plaintiffs from having full access
to the apartment. The basis for the dismissal of counts VII through XI under section 2-615 was
the insufficiency of the allegations tying defendants to the alleged conversion of plaintiffs’
personal property, a necessarily fact-specific determination, as can be seen from the fact that
each of the defendants sought dismissal separately (other than the three Koulioufas defendants,
who acted collectively). Thus, a determination that the second amended complaint failed to
state a cause of action with respect to the other defendants does not necessarily lead to the
conclusion that dismissal was warranted in defendant Parker’s case. Accordingly, a Rule
304(a) finding was necessary in order to render the trial court’s dismissal orders appealable.
Absent such a finding, we must dismiss the instant appeal for lack of jurisdiction.
¶ 45 CONCLUSION
¶ 46 The instant appeal is dismissed for lack of jurisdiction. The trial court’s orders did not
dispose of all claims against all defendants, and the claims against defendant Parker were not
of the type that would be encompassed by the trial court’s dismissal of the remainder of the
complaint such that an exception to Rule 304’s requirements would apply. Consequently, the
absence of Rule 304(a) language deprives us of the jurisdiction to consider plaintiffs’ claims
on appeal.
¶ 47 Appeal dismissed.
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