You can’t appeal yet . . . The trial court may want to kick you again

In a case involving a minor’s personal injury claim arising from an automobile accident, the driver’s insurance company retained a law firm to “facilitate” settlement of the claim. The guardian ad litem recommended that the court disapprove the proposed settlement. The GAL filed a petition for fees to be assessed against the insurance company’s law firm for time incurred in proceedings related to the proposed settlement. The firm argued that it should not be required to pay any of the GAL’s fees.

The trial court entered an order on November 2, 2011, directing the firm to pay GAL fees of $1,450. The firm filed a motion to vacate the order on November 28, 2011. The firm’s attorney who appeared at the hearing on the motion to vacate asked whether she had leave to “take this matter up, certify a question relative to whether or not we should be assessed the fees for the” GAL. However, the firm did not advise the trial court that it would not pay and seek to be held in “friendly contempt.” The order entered on November 28 states that the November 2 order is “final and appealable.” The record does not include any certified question pursuant to Supreme Court Rule 308.

The firm appealed the November 2 order on December 22, 2011, while the underlying case continued in the trial court. The basis of appellate jurisdiction stated in the firm’s appellate brief is Illinois Supreme Court Rule 304(a).

The appellate court concluded that the November 2 order was not final and, as such, not appealable even with a Rule 304(a) finding in that it “did not absolutely and finally determine the rights of the firm because the firm could be ordered to pay additional GAL fees or other costs due to the ongoing nature of the pending petition.” The court dismissed the appeal as premature.

In re Estate of Rosinski, 2012 IL App (3d) 110942.