An order quashing a lis pendens is not immediately appealable

In this case involving a real estate investment gone bad, the plaintiff sought damages and an injunction to prevent the sale of the property. The plaintiff also recorded a lis pendens against the property. The defendants moved to dismiss the complaint pursuant to §2-615 of the Code of Civil Procedure and to lift the lis pendens to proceed with the sale. The circuit court denied the motion to dismiss and to lift the lis pendens, but it quashed the lis pendens. The court also treated the plaintiffs arguments at the motion hearing as an oral motion for preliminary injunction against the sale, which it denied.

The plaintiff appealed the denial of the preliminary injunction and the quashing of the lis pendens. The jurisdictional basis of the appeal was Illinois Supreme Court Rule 307(a)(1), which permits immediate appeal of interlocutory orders granting or refusing to grant an injunction. That rule unquestionably granted appellate jurisdiction over the circuit court’s denial of the injunction. But what of the ruling quashing the lis pendens?

The plaintiff argued that quashing the lis pendens had the effect of an injunction because it restrained the plaintiff from informing prospective buyers of the property about the existence of the lawsuit by way of a lis pendens. Not surprisingly, the court did not find that argument persuasive. The court next established that a lis pendens is not treated as an injunction under Illinois law. Therefore, a ruling with respect to a lis pendens does not, on its face, qualify for immediate appeal pursuant to Rule 307.

The question then becomes whether the order quashing a lis pendens is an exercise of the court’s equitable power so that it is sufficiently similar to an injunction ruling to fit within Rule 307. A lis pendens is a creature of statute and an order quashing such a filing may be issued by any court without resort to equitable powers. Thus, the appellate court concluded that an order quashing a lis pendens is “simply an administrative order” that can be issued by any court without resorting to equity. Accordingly, such an order does not fall within Rule 307(a)(1) and the appellate court was without jurisdiction to consider that portion of the appeal.

Although the appellate court ultimately found that it was without jurisdiction to hear the challenge to the order quashing the lis pendens, the plaintiff did the right thing by filing the appeal. Where an order is immediately appealable under Rule 307, the order must be appealed within 30 days or the right to appeal will be lost. Thus, where there is any legitimate doubt about whether an order qualifies for immediate appeal under Rule 307, the safe route is to file timely to preserve the right to appeal.

Five Mile Capital Westin North Shore SPE, LLC v. Berkadia Commercial Mortgage, LLC, 2012 IL App (1st) 122812.