specially concurring:
After extensive (and respectful) discussion of the issues this case presents, my colleagues and I have been unable to reach agreement. On the merits, they disagree over whether this court should affirm the trial court’s order denying plaintiffs’ motion to amend their complaint. My preference is to dismiss this appeal and not reach the merits because I do not believe we have jurisdiction under Rule 304(a). However, (1) because a 1-1-1 decision of this court is untenable and (2) affirming the trial court’s judgment is closer to my preference of dismissing this appeal, I join Justice Appleton’s decision to affirm.
Justice Appleton’s decision quotes Rule 304(a), makes reference to Rice, Hull, and Brown, and then states the following:
“[W]e recognize that [the statement of] a single claim of negligence in several ways, by multiple subparagraphs, does not warrant separate appeal upon dismissal of less than all of the subparagraphs.” 364 Ill. App. 3d at 416-17.
Justice Appleton’s decision (joined on this point by Justice Cook) then goes on to explain why this analysis of Rule 304(a) does not apply to the present case. However, I disagree with the effort to distinguish the above three cases. In my judgment, those cases fully apply to this one and, based upon their holdings, we should dismiss this appeal.
Rule 304(a) provides that 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 explicit written finding that no just reason exists for declining enforcement on appeal. 134 Ill. 2d R. 304(a). At issue here is whether this case presents multiple claims or a single claim, as that term is used in Rule 304(a). For the reasons that follow, I believe this case presents a single claim of negligence, albeit pleaded in different ways.
In Hull, the plaintiff sued the city of Chicago for negligence regarding its maintenance and repair of the roadway where an automobile accident occurred. Paragraph 7 of count I of the complaint described the city’s negligent acts or omissions in 12 separate subparagraphs. Hull, 165 Ill. App. 3d at 733, 520 N.E.2d at 721. On the defendant’s motion, the trial court dismissed all but one of those subparagraphs, leaving only the subparagraph that alleged that the defendant was negligent in permitting a chunk or block of concrete to remain on the roadway’s driving lanes. The trial court then made a Rule 304(a) finding, and the plaintiff appealed. Hull, 165 Ill. App. 3d at 733, 520 N.E.2d at 721.
The appellate court dismissed the appeal, explaining as follows:
“Plaintiffs action involves a single claim of negligence against one defendant. Although paragraph 7 of plaintiffs complaint alleged various negligent acts or omissions, only one theory of recovery was advanced — negligence. The statement of a single claim in several ways, by multiple subparagraphs, does not warrant a separate appeal upon dismissal of less than all of those subparagraphs. [Citation.] Thus, the dismissal of subparagraphs (b) through (1), which left subparagraph (a) standing, did not determine the merits of a separate cause of action or terminate any litigation between the parties. The order of dismissal merely determined which allegations of negligence would be allowed to remain. The order was not final and appealable. [Citation.]
The Rule 304(a) [citation] finding *** is intended to apply only where multiple claims or parties are involved. It is not designed to permit appeals from orders that dispose of less than all of the issues in an action involving a single party and a single claim.” Hull, 165 Ill. App. 3d at 733-34, 520 N.E.2d at 721.
In Rice, the First District Appellate Court followed its earlier decision in Hull and similarly dismissed an appeal that had been brought purportedly on the basis of Rule 304(a). The Rice court explained as follows:
“As in Hull, the plaintiff here has advanced only one theory of recovery — negligence. *** While the dismissed counts and the remaining counts deal with different acts or omissions, they advance the same theory of recovery — namely, negligence — and accordingly we conclude that the dismissal of counts VII and VIII did not determine the merits of a separate claim, and therefore is not a final order.” Rice, 230 Ill. App. 3d at 992, 596 N.E.2d at 108.
In Brown, the Second District Appellate Court also followed the reasoning in Hull and dismissed the appeal purportedly brought pursuant to Rule 304(a), explaining as follows:
“Plaintiffs single-count, second amended complaint did not involve multiple claims, but only a single claim of negligence, as does the third amended complaint. While plaintiffs second amended complaint alleged various sources of a duty owed by defendant to plaintiff, it only advanced one theory of recovery, negligence. [Citing Hull, 165 Ill. App. 3d at 733, 520 N.E.2d at 721.] It is well established that the statement of a single claim in several ways, even by multiple counts, does not warrant a separate appeal.” Brown, 189 Ill. App. 3d at 770-71, 545 N.E.2d at 556.
As in the foregoing cases, this case presents a single claim of negligence couched in different terms. In December 2004, when plaintiffs sought to amend their complaint against the hospital, the complaint already alleged the hospital was responsible (under a theory of respondeat superior) for the negligent conduct of Orcutt and Tender. The proposed amendment did not change plaintiffs’ claim of negligence; instead, it merely sought to add a third actor, Greenberg, for whose negligent conduct the hospital was also supposedly responsible, again under the theory of respondeat superior. Because the complaint at issue, whether amended or not, presents a single claim of negligence, Rule 304(a) does not apply.
My distinguished colleagues conclude that Hull, Rice, and Brown are distinguishable because they do not “speak either to the facts of the instant case, the liberality with which amendments should be allowed, or the policy behind Rule 304(a).” 364 Ill. App. 3d at 417. I disagree with each of these alleged distinctions.
First, while it is true that the facts in this case differ from those in Hull, Rice, and Brown, that observation does nothing to defeat the precedential effect of those cases regarding the meaning and application of Rule 304(a) to this case. The complaint at issue here, whether amended or not, presented a single claim against the hospital — namely, negligence based upon respondeat superior. That being so, the holdings in Hull and its progeny — that the statement of a single claim does not warrant a separate appeal under Rule 304(a) when some aspect of that single claim has been dismissed — apply fully to this case.
Second, whatever “liberality” governs in amending complaints is irrelevant to whether this appeal meets the requirements of Rule 304(a), thereby permitting us to exercise jurisdiction. This court is not permitted to consider in any way the merits of the issue that a given appeal would present to us when deciding whether we have jurisdiction to hear that appeal. To hold otherwise would mean that although a given appeal does not technically meet the standards for appeal-ability set by our supreme court, we can nonetheless hear that appeal if we think the trial court judgment sought to be appealed is really, really wrong. Such a rule is not what the supreme court had in mind when it promulgated the rules governing when the Illinois Appellate Court may exercise jurisdiction.
Last, the policy considerations underlying Rule 304(a) are for the supreme court, not this court, to address. Just a few months ago, the supreme court emphasized how this court must strictly abide by its rules, writing as follows:
“As this court has repeatedly stated, *** the appellate and circuit courts of this state must enforce and abide by the rules of this court. The appellate court’s power ‘attaches only upon compliance with the rules governing appeals.’ [Citation.] ‘[N]either the trial court nor the appellate court has the “authority to excuse compliance with the filing requirements of the supreme court rules governing appeals.” ’ [Citation.] ***
*** The appellate court’s jurisdiction turns on litigants’ compliance with our rules ***.” (Emphasis in original.) People v. Lyles, 217 Ill. 2d 210, 216-17, 840 N.E.2d 1187, 1191 (2005).
Lyles should serve as a reminder that when deciding whether we have jurisdiction, we must strictly enforce and abide by the “policy considerations” the supreme court took into account when it promulgated its rules governing appellate court jurisdiction.
My colleagues may be correct that hearing this appeal now would be good policy and further the ends of justice. However, until such time as the Supreme Court of Illinois amends supreme court rules accordingly, our personal views about policy in this area simply do not matter.