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FIRST DIVISION       
September 9, 2002       

Terry Davis and several corporations he controlled filed acomplaint against Michael Loftus, Donald Engel, and the partnersin the law firm of Gottlieb & Schwartz, alleging that Loftus andEngel committed legal malpractice in connection with a realestate transaction. Two counts of the complaint sounded innegligence, while two other counts repeated the same allegationsas breach of a contract to provide competent legalrepresentation. The trial court struck the contract counts andpart of the damages claimed in the negligence counts. The courtalso dismissed a claim against the income partners of Gottlieb &Schwartz. The court held that income partners did not qualify aspartners, and therefore they did not share liability for the actsof partners and employees of the law firm. Davis appeals fromthe rulings.

We find that we lack jurisdiction to decide the appeal fromthe dismissal of the contract counts, because the counts onlyrestate the allegations of the negligence counts that remainbefore the trial court. The judgment striking the contractcounts does not dispose of any entire claim. For similarreasons, we lack jurisdiction to decide the appeal from the orderstriking part of the claim for damages in the negligence count. We agree with the trial court's holding that the income partnersof Gottlieb & Schwartz are employees, not partners, of the lawfirm, and therefore they do not bear liability for the acts ofother partners and employees of the law firm. However, therecord on appeal does not adequately show that all of thedefendants the trial court dismissed from the case served asincome partners and not equity partners. Therefore, we dismisspart of the appeal, affirm in part, and reverse in part.

In 1992 Davis needed new financing for a large real estatedevelopment in Tinley Park. He hired Engel and Loftus, ofGottlieb & Schwartz, to represent him in negotiations withpotential investors. In February 1993 Davis and ThrushDevelopment Company signed an agreement for a joint venture todevelop the property. In exchange for an ownership interest inthe development, Thrush promised to meet the immediate financingneeds of the development and, amongst other things, pay Davis$780,000. Davis and Thrush set March 3, 1993, as the date forclosing on the transfer of an ownership interest in thedevelopment.

On March 2, 1993, Thrush sent Engel and Loftus a stack ofdocuments related to the closing. Davis signed the closingdocuments on March 4, 1993.

In April 1995 Davis wrote to Engel, seeking to discuss legalstrategies for obtaining the amounts Thrush promised to pay. Engel, by letter dated June 19, 1995, demanded payment fromThrush. Engel wrote:

"Pursuant to *** the Agreement dated February 5, 1993,*** Thrush Development was obligated, among otherthings, to pay to Mr. Davis the sum of $780,000 on thedate of closing ***. As you know, no portion of the$780,000 which has been due to my client for more than2 years has yet been paid."

Thrush denied that it owed any payment to Davis. Davis suedThrush in 1995, seeking performance of the duties outlined in theFebruary 1993 agreement. Thrush denied liability.

In July 1997 Davis sued Engel, Loftus, and all equity andincome partners of Gottlieb & Schwartz, in the case now beforethe court. Davis alleged that between March 2, 1993, and March4, 1993, he, Engel and Loftus discovered that the documentsThrush prepared for the closing lacked some of the importantprovisions Thrush accepted in the February 1993 agreement. Engeland Loftus advised Davis that the February agreement fully boundThrush. Davis executed the documents in reliance on this advice. Another attorney later advised Davis that Engel and Loftus mighthave provided inadequate assistance and advice in the course ofthe transaction with Thrush. Davis claimed that Engel and Loftusviolated their duty "to document fully and accurately theparties' rights and obligations *** and to close the transactionsin a manner that preserved *** [Davis's] contractual rightsagainst Thrush." He alleged that he suffered damages becauseEngel and Loftus failed to advise him to file a vendor's lien onthe property under development.

Davis also alleged, in paragraphs 71 through 76 of count Iof the third amended complaint, that he would suffer furtherdamages if his lawsuit against Thrush did not succeed. If Thrushdid not have legally binding obligations under the February 1993agreement, including an obligation to pay Davis $780,000, thenEngel and Loftus "breached their duty of care *** by failing toprovide adequate documentation of Thrush's obligations *** at andafter the Thrush closing on March 3 and 4, 1993." The legalmalpractice caused Davis damages including the $780,000 loss,unless Davis recovers the $780,000 in the litigation againstThrush. Davis added that he suffered further damages in the formof attorney fees incurred in filing the lawsuit against Thrush.

In count II, Davis alleged that Engel and Loftus agreed torepresent him in the Thrush litigation in exchange for payment ofattorney fees.

"[Engel and Loftus] impliedly agreed to exercise thatduty of care prevailing in the legal field ***.Defendants were obligated to document fully andaccurately the parties' rights and obligations and toclose the transactions in a manner [that] preserved anddid not waive [Davis's] contractual rights againstThrush."

Davis alleged that Engel and Loftus "breached their contract with[Davis] in the manner and fashion described" in the first count.

Count III is not at issue in this appeal. Davis repeatedall of count I as count IV of the complaint, but in count IV headded all of the partners in Gottlieb & Schwartz as defendants,arguing that all shared liability for the malpractice of Loftusand Engel. Count V similarly alleged that all partners inGottlieb & Schwartz shared liability for the breach of theunwritten contract to provide legal services for Davis.

By order dated May 10, 2000, the trial court struck withprejudice counts II and V, the contract counts, as needlessduplication of the malpractice counts. The court also struck,with prejudice, the damages claimed in paragraphs 71 through 76of the first count, because Davis admitted that he would sufferno such damages if he won all the relief he sought in his lawsuitagainst Thrush. The ruling permitted the lawsuit to proceed onDavis's other claims for damages from the legal malpractice. Thecourt expressly found no just reason to delay appeal of thedismissals of counts II and V and the dismissal of the damageclaim in paragraphs 71 through 76 of the complaint. Davis fileda timely notice of appeal. The case has docket number 1-00-1772.

One of the partners named as a defendant, Anthony Frink,filed a motion to dismiss count IV against him because he did notqualify as a "partner" in Gottlieb & Schwartz for purposes ofvicarious liability. Frink attached a copy of Gottlieb &Schwartz' partnership agreement listing Frink, Jay Tarshis, RoyBernstein, and others not named in the complaint, as "IncomePartners." According to the agreement, the firm paid each incomepartner "a fixed level of compensation determined on an annualbasis by the Executive Committee," plus a bonus. The agreementexpressly added: "Income Partners will not share in PartnershipNet Profit or Loss."

Each income partner made a "capital contribution" of $10,000to the firm. If an income partner withdrew from the firm, orupon dissolution of the firm, the firm would return the $10,000capital contribution to the income partner, without anyadjustment for the growth or profits of the firm from the time ofthe capital contribution. Income partners also had no votingrights and were not eligible to serve on the executive committee.

Jerold Lavin, Dennis Waldon and Carlos Rizowy moved to joinin Frink's motion. All three alleged, without supportingdocuments, that they were income partners.

The trial court on May 30, 2000, joined all defendants itidentified as income partners for consideration of Frink's motionto dismiss. The court granted the motion and said:

"The defendants hereby dismissed from Count IV(Vicarious Liability) are: Anthony Frink, Keith R.Abrams, Roy L. Bernstein, Donald F. Engel, Daniel V.Kinsella, David C. Kluever, Jerold Lavin, P. MichaelLoftus, David G. Mueller, Carlos G. Rizowy, Sally H.Saltzberg, Jay P. Tarshis and Dennis C. Waldon."

The court again expressly found no just reason to delay appealfrom the order. Davis filed a timely notice of appeal. The caseis docket number 1-00-2197. We consolidated Davis's appeals.

Before we address the appeals on the merits, we must firstdetermine the extent of our jurisdiction over the appeals. Davisargues that we have jurisdiction to decide both appeals underSupreme Court Rule 304(a). 155 Ill. 2d R. 304(a). Rule 304authorizes this court to hear an appeal from "a final judgment asto one or more but fewer than all of the parties or claims" (155Ill. 2d R. 304(a)) if the trial court expressly finds no reasonto delay enforcement or appeal from the judgment.

"[T]he fact that the trial court made a findingpursuant to Rule 304(a) does not necessarily mean thatthe order was final and appealable if the order was notin fact final. *** An order is final and appealable ifit terminates the litigation between the parties on themerits or disposes of the rights of the parties, eitheron the entire controversy or a separate part thereof. [Citations.]

*** Where the bases of recovery for separatecounts are different, and where the trial court makesthe requisite finding, the dismissal of a count isappealable because it disposes of a distinct cause ofaction. [Citation.] However, it is well settled thatthe statement of a single claim in several ways doesnot warrant a separate appeal." Viirre v. ZayreStores, Inc., 212 Ill. App. 3d 505, 511-12 (1991).

Even the dismissal of a count may not be sufficiently final forappealability. "[W]here a party states one claim in severalcounts, the dismissal of fewer than all such counts is not afinal judgment as to [any] of the party's claims as required bySupreme Court Rule 304(a)." (Emphasis in original.) Russell v.Good Shepherd Hospital, 222 Ill. App. 3d 140, 145 (1991).

Our supreme court patterned Rule 304(a) after Rule 54(b) ofthe Federal Rules of Civil Procedure (28 Fed. R. Civ. P. 54(b)),and the two rules promote similar policies. Geier v. HamerEnterprises, Inc., 226 Ill. App. 3d 372, 378 (1992). The rulespromote judicial efficiency by discouraging piecemeal appeals(Mares v. Metzler, 87 Ill. App. 3d 881, 884 (1980)), whilepermitting early appeals when a delay may inflict a needlesshardship on a litigant (see McKibben v. Chubb, 840 F.2d 1525,1528 (10th Cir. 1988)).

In Hawthorn-Mellody Farms Dairy, Inc. v. Elgin, Joliet &Eastern Ry. Co., 18 Ill. App. 2d 154 (1958), the appellate courtheld that an order dismissing a counterclaim lacked finalitybecause a judgment after trial on the complaint might render mootall issues raised by the counterclaim. An appellate courtdecision on that appeal would waste judicial resources if thetrial court's subsequent decision gave the counterclaimant allthe relief it sought.

An appeal from the dismissal of one count of a multicountcomplaint wastes judicial resources if the plaintiff, in thedismissed count, seeks relief based on the same operative factsas those forming the basis for a surviving count. Permitting aseparate appeal in such a case would require the appellate courtto relearn, inefficiently, the same set of facts when the casereturns for a second appeal following final judgment on all ofthe claims. Jack Walters & Sons Corp. v. Morton Building, Inc.,737 F.2d 698, 702 (7th Cir. 1984); see Waters v. Reingold, 278Ill. App. 3d 647, 657 (1996), overruled on other grounds, Niccumv. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6, 8-9 (1998). Moreover, the appellate court would address factsstill at issue in the claims remaining before the trial court,compromising the trial court's position as the primary factfinder. See Metzger v. Fitzsimmons, 175 Ill. App. 3d 674, 675(1988).

Here, Davis appeals from the trial court's judgmentdismissing counts II and V of his complaint. Those countsrestate as an action for breach of contract the same facts thatformed the basis for the counts charging defendants with legalmalpractice. A cause of action for legal malpractice

"is primarily a tort action for negligence based uponan attorney's failure to exercise a reasonable degreeof skill and care in representing his client. [Citation.] Yet, the duty allegedly breached in suchan action arose out of the establishment of theattorney-client relationship by a contract for legalservices." Christison v. Jones, 83 Ill. App. 3d 334,338 (1980).

Here, as in Land v. Greenwood, 133 Ill. App. 3d 537, 541 (1985),the "action for legal malpractice is one sounding in tort whicharises out of a contract, express or implied, for legal services. With no additional allegations, the contract count is simply arestatement of the negligence count."

The facts here supporting the dismissed contract claim areidentical to the facts supporting the legal malpractice claim,which awaits trial. The relief sought in the dismissed counts isidentical to the relief sought in the surviving counts. Toaddress an appeal from the dismissed contract count on themerits, this court will need to learn all the facts that maylater come before the court on appeal from a final judgment onthe malpractice count. And full compensation for the allegedmalpractice would render any decision on the contract countsmoot. Because the contract counts only rephrase the claim statedin the malpractice counts, the judgment on the contract countsdoes not dispose of a separate and distinct claim within themeaning of Rule 304(a). Despite the inclusion of Rule 304(a)language in the order dismissing the contract counts, we lackjurisdiction to consider the appeal from the judgment dismissingcounts II and V of the complaint.

Defendants challenge our jurisdiction over the appeal fromthe order striking paragraphs 71 through 76 from count I of thecomplaint. Those paragraphs raise a claim for damages for whichDavis might receive other compensation if he wins his lawsuitagainst Thrush. Davis contends that this court has jurisdictionto consider separately the dismissal of some elements of damagessought in the legal malpractice count. The appeals court has inseveral cases refused to exercise jurisdiction over appeals fromthe dismissal of some elements of damages where the plaintiff mayrecover for other elements of damages on the same claim. See McGrew v. Heinold Commodities, Inc., 147Ill. App. 3d 104, 110(1986); Palatine National Bank v. Charles W. GreengardAssociates, Inc., 119 Ill. App. 3d 376, 381-82 (1983). Thesecases appear to apply straightforwardly the words of Rule 304(a),as the rule permits appeal only from final disposition of aclaim, and not for part of the damages sought for a single claimof wrongdoing.

The cases also apply the rule the federal appellate courtsapply when the district court grants partial summary judgment onsome elements of damages. Federal rules permit partial summaryjudgment "merely to speed up the trial by eliminating what werenot deemed proper issues. *** There is no indication that it wasthe intent of the Supreme Court, in promulgating the rule, tomake such partial summary judgment final and appealable." Leonardv. Socony-Vacuum Oil Co., 130 F.2d 535, 536 (7th Cir. 1942). Thus, federal courts do not permit appeals from partial summaryjudgments dismissing part of a plaintiff's damage claim.

Davis cites one case in which the Illinois Appellate Courtreached a different conclusion. In Bloom v. Landy, 72 Ill. App.3d 383 (1979), the plaintiff sold the defendant the plaintiff'sinterest in a partnership and later sued the defendant forfailure to pay $30,000 of the agreed price. The defendantanswered that the court should reduce the purchase price. The plaintiff moved forsummary judgment and the defendant presentedevidence concerning the grounds for reducing the price. Thetrial court entered a partial summary judgment awarding the plaintiff more than $20,000, but the court held that issues offact required trial on the remainder of the plaintiff's claim. The court added Rule 304(a) language to the order grantingpartial summary judgment and the defendant appealed.

The appellate court noted that section 52 of the IllinoisCivil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 57)permitted a party to seek summary judgment for "any part of therelief sought." The court concluded that the summary judgmentfor part of the relief sought in the single claim was a final andappealable judgment. Bloom, 72 Ill. App. 3d at 398.

We decide not to follow Bloom. Rule 304(a) requires fullresolution of an entire claim, separable from claims remainingbefore the trial court, prior to appeal. The General Assembly'sdecision to call a decision regarding part of the relief sought a"summary judgment" does not establish the appealability of such ajudgment under Rule 304(a). Contrary to Bloom's reasoning, thiscourt does not have jurisdiction to hear appeals from all summaryjudgments. See Ortiz v. General Motors Acceptance Corp., 285 Ill. App. 3d 242, 244-45 (1996).

The trial court's decision striking paragraphs 71 through 76of the complaint's first count does not finally dispose of anyseparable claim in the case. Therefore, the trial court'sinclusion of Rule 304(a) language in the order had no effect. Rule 304(a) does not confer jurisdiction on this court toconsider the appeal from the nonfinal order striking theparagraphs at issue. Accordingly, we dismiss the appeal indocket number 1-00-1772.

We note that in some cases appellate resolution of an issueregarding an element of damages may materially advance a case toultimate termination of the litigation. In such cases an appealfrom a nonfinal order dismissing a count or some paragraphs froma claim for damages may use judicial resources efficiently todispose of a case. Our supreme court adopted Supreme Court Rule308 (155 Ill. 2d R. 308) as an avenue for appellate relief insuch cases. As the trial court here did not make the findingsrequisite for jurisdiction under Rule 308, we cannot assumejurisdiction over the appeal here on the basis of Rule 308.

By order dated May 30, 2000, the court granted summaryjudgment, dismissing all claims against Anthony Frink and anumber of other defendants. Davis filed a timely appeal. Because the judgment finally disposed of all claims againstseveral parties, Rule 304(a) confers jurisdiction on this courtto consider the appeal. We review the record de novo todetermine whether the court correctly entered judgment for the defendants at issue.Espinoza v. Elgin, Joliet & Eastern Ry. Co.,165 Ill. 2d 107, 113 (1995).

Section 13 of the Uniform Partnership Act (the Act) (805ILCS 205/13 (West 1992)) provides that a partnership is liablefor any wrongful act of any partner acting in the course ofpartnership business. Section 15 makes all partners liable forany such acts. 805 ILCS 205/15 (West 1992). The trial courtfound Frink and others not liable for the acts of Loftus andEngel based on its finding that the income partners of Gottlieb &Schwartz are not "partners" within the meaning of the Act.

The substance and not the form of a business relationshipdetermines whether the relationship qualifies as a partnership. Koestner v. Wease & Koestner Jewelers, Inc., 63Ill. App. 3d1047, 1050-51 (1978). Thus, we must decide whether theprovisions of the partnership agreement pertaining to "IncomePartners" make them partners within the meaning of the Act.

Cook v. Lauten, 1 Ill. App. 2d 255 (1954), controls ourdisposition of this appeal. In that case the plaintiff and the defendant signed an "agreement for junior partnership."Cook, 1 Ill. App. 2d at 258. The agreement named the plaintiff as themanaging partner and sole owner of the firm's assets, andestablished the defendant's compensation as a fixed annual salaryplus a bonus. While the defendant could advance money to thefirm, the firm would only return the same amount later. The defendant, as a junior partner, had no right to participate inthe firm's profits or losses. The court held:

"[T]he agreement for a 'junior partnership'negatives every one of the elements essential toconstitute a partnership relation. *** Defendant'ssalary is fixed regardless of profits or losses of thealleged partnership and plaintiff as managing partnermay by unilateral action alter defendant's share of theprofit at will. *** In short, defendant was to have nointerest in the so-called 'partnership' except hisunpaid salary and one month's bonus." Cook, 1 Ill. App.2d at 259.

Here, too, the agreement established that income partners,including Frink, received a fixed salary plus a bonus, and theincome partners took no share of the partnership's profit orloss. While income partners paid a "capital contribution" to thefirm, the firm would repay the same amount, without regard to thefirm's profit or loss from the time of the "capitalcontribution." The executive committee, like the managingpartner in Cook, set the level of compensation for all incomepartners. Moreover, the income partners had no right to vote onthe management or conduct of the partnership business. See 805ILCS 205/18(e) (West 1992). Following Cook, we find that incomepartners under Gottlieb & Schwartz' partnership agreement do notqualify as partners within the meaning of the Act, and thereforethe Act provides no basis for holding income partners liable forthe acts of Loftus and Engel.

Frink presented admissible evidence that he was an incomepartner at Gottlieb & Schwartz. That document also named RoyBernstein and Jay Tarshis as income partners. Because Davispresented no evidence that those attorneys became equity partnersin the relevant time frame, when Loftus and Engel allegedlycommitted malpractice, we affirm the trial court's decisiongranting summary judgment in favor of Frink, Bernstein and Tarshis.

However, the record on appeal includes no evidenceconcerning the status of other defendants. Davis alleged in hiscomplaint that all other defendants were partners in Gottlieb &Schwartz. Jerold Lavin, Dennis Waldon and Carlos Rizowy alleged,in their motion to join Frink's motion, that they were incomepartners. Their allegations served only to deny Davis'allegations, leaving the issue for resolution later on the basisof admissible evidence. See Cato v. Thompson, 83 Ill. App. 3d321, 323 (1980). None of the other defendants named by thecourt's order as income partners put any evidence into the recordconcerning their partnership status. Because we review therecord de novo when the trial court grants summary judgment, wemust reverse the judgments granted in favor of other defendantsand remand for the presentation of admissible evidence concerningthe partnership status of the other defendants.

We lack jurisdiction to consider the appeal from the orderdismissing the counts for breach of contract, because thosecounts only rephrase the surviving counts for legal malpractice. The judgment did not finally resolve a separate claim. We alsolack jurisdiction to consider the appeal from the order strikingparagraphs 71 through 76 of the complaint, because an orderdisallowing an element of damages does not finally resolve anyseparate claim. Under the terms of Gottlieb & Schwartz'partnership agreement, "Income Partners" lack the essentialcharacteristics of "partners" within the meaning of the Act, andtherefore the Act does not make the income partners liable forthe alleged misconduct of Loftus and Engel. The record on appealincludes sufficient grounds to affirm summary judgment in favorof Frink, Bernstein and Tarshis on count IV of the complaint. The record lacks evidence regarding other defendants, so wereverse the judgment granted in favor of Keith Abrams, DonaldEngel, Daniel Kinsella, David Kluever, Jerold Lavin, MichaelLoftus, David Mueller, Carlos Rizowy, Sally Saltzberg and DennisWaldon on count IV and remand the case for further proceedings.

No. 1-00-1772, Appeal dismissed.

No. 1-00-2197, Affirmed in part and reversed in part.

TULLY and COUSINS, JJ., concur.