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SECOND DIVISION
March 20, 2001

1-00-0890

JUSTICE GORDON delivered the opinion of the court:

Plaintiff Emmanuel Ikpoh (Ikpoh) appeals from the judgement of the circuitcourt of Cook County upholding the administrative action in part and remandingcertain dispositive issues back to the Illinois Department of ProfessionalRegulation (the Department) for further proceedings. We dismiss this appeal forlack of subject matter jurisdiction since the order of the circuit court cannotbe deemed final and appealable where dispositive matters were remanded forfurther hearing and consideration by the Department.

BACKGROUND

The following facts are not in dispute. On July 30, 1990, Ikpoh was foundguilty in the circuit court of DuPage County of aggravated criminal sexual abuseand a judgement of conviction on that charge was entered on November 6, 1990.Ikpoh's medical license was suspended on August 2, 1990, and revoked in 1991. OnFebruary 15, 1996, Ikpoh filed a "Petition for Restoration" with theDepartment asking that his medical license be restored. In his petition, Ikpohstated that he had not been arrested or convicted since his license was revoked.An administrative law judge with the Department held a hearing on the petitionon October 16, 1996.

On August 26, 1997, after the hearing on his petition, Ikpoh was arrested inBartlett, Illinois, for failing to register as a sex offender as required bylaw. He was indicted on this charge on September 12, 1997.

On September, 11, 1997, the Director of the Illinois Department ofProfessional Regulation (the Director) granted the petition for restoration,subject to several conditions. Then on September 19, 1997, the Chief ofProsecutions for the Department filed with the Department a "Motion toSupplement Record and Vacate Order" (motion to vacate). The motion tovacate set forth Ikpoh's arrest and indictment for failing to register as a sexoffender and consequently asked that the order of September 11, 1997, bevacated. On that same day, the Director vacated the order of September 11, 1997,and remanded the matter to the administrative law judge to supplement the recordwith this additional evidence. The administrative law judge recommended thatIkpoh's petition for restoration be denied and on August 5, 1998, the petitionwas denied by the Director.

On September 9, 1998, Ikpoh filed a "Complaint for AdministrativeReview" with the circuit court of Cook County. Ikpoh asked that the ordersof September 19, 1997, and August 5, 1998, be vacated and that the court findthe order of September 11, 1997, to be valid.

On February 15, 2000, the circuit court issued an order. The court found thatthe September 11, 1997, order was not a final administrative order, and thateven if it were final, the Department was authorized to vacate it under theDepartment's rules. The court said that it could not, however, determine if theAugust 5, 1998, order was entered against the manifest weight of the evidence.The court thus remanded to the administrative agency to determine how theDepartment's knowledge of Ikpoh's arrest was acquired; whether the arrest wasthe result of any activity attributable to the Department; whether there wascollusion surrounding the arrest and why Ikpoh was initially arrested. The courtalso remanded to determine if several technical errors were prejudicial to Ikpoh.These included that an affidavit was not attached to the Department's motion tovacate and insufficient notice to Ikpoh of the "Motion to Supplement theRecord and Vacate Order." In its order the circuit court made a Rule 304(a)finding that there was no just cause to delay enforcement or appeal from theorder. On appeal, the appellant contends that the September 11, 1997, order wasa final administrative order; that the Department was not authorized to vacatethat order; that the motion to vacate was predicated on matters which aroseafter the petition was filed and therefore should have been brought as part of anew proceeding against Ikpoh; and that the September 19, 1997, order wasimproperly granted because the motion to vacate did not have an affidavitattached and because it was granted in a manner which violated both due processand the Administrative Procedure Act.

ANALYSIS

The Department first argues that this court lacks jurisdiction of the subjectmatter over this cause by reason of the fact that the February 15, 2000, orderfrom which Ikpoh appeals did not have the requisite finality. The Departmentcontends that the order of February 15, 2000, is not final because in that orderthe circuit court remanded this cause to the Department for an evidentiaryhearing. Ikpoh argues that the order is final because the circuit court made afinding pursuant to Rule 304(a) (155 Ill. 2d R. 304(a)) that it was a final andappealable order and because there were three distinct claims before the circuitcourt, two of which were resolved by the February 15, 2000, order and are thusappealable under Rule 304(a). We agree with the Department.

"The law is well established that unless specifically authorized by therules of [the supreme] court, the appellate court has no jurisdiction to reviewjudgments, orders or decrees which are not final." Department of CentralManagement Services v. American Federation of State, County and MunicipalEmployees, 182 Ill. 2d 234, 238, 695 N.E.2d 444, 446 (1998). Supreme CourtRule 304(a) provides in part that:

"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgement 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." 155 Ill. 2d R. 304(a).

"An order is final and appealable if it terminates the litigationbetween the parties on the merits or disposes of the rights of the parties,either on the entire controversy or a separate part thereof." R.W.Dunteman Company v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159, 692 N.E.2d306, 310 (1998). "The ultimate question to be decided in each case iswhether the judgement fully and finally disposes of the rights of the parties tothe cause so that no material controverted issue remains to be determined."Wilkey v. Illinois Racing Board, 96 Ill. 2d 245, 249, 449 N.E.2d 843, 844(1983).

Our supreme court applies the standard for finality of decisions of theappellate court to a circuit court's review of administrative decisions. Wilkey,96 Ill. 2d at 250, 449 N.E.2d at 845. "[W]here a cause is remanded for anew trial or other further proceedings involving disputed questions of law orfact, the judgment of the Appellate Court is not of a final character." Wilkey,96 Ill. 2d at 249-51, 449 N.E.2d at 844-45. "If, upon remandment, the trialcourt has only to enter a judgment or decree in accordance with the directionsof the reviewing court, or to conduct further proceedings on uncontrovertedincidental matters, then, irrespective of the remanding clause in the judgmentorder, the judgment of the Appellate Court is final and reviewable." Wilkey,96 Ill. 2d 249, 449 N.E.2d 844.

The appellate court has thus stated that if "the court remands the cause[to the administrative agency] for a new hearing, the rights of the parties havenot yet been fully and finally adjudicated." Lippert v. State PropertyTax Appeal Board, 273 Ill. App. 3d 150, 153, 652 N.E.2d 461, 463 (1995);accord Page v. City of Chicago, 299 Ill. App. 3d 450, 457, 701 N.E.2d218, 223 (1998). As this court has noted,

"Where the circuit court has the power to remand an agency decision for further hearings or proceedings, we feel that jurisdiction must necessarily remain with the circuit court until after disposition of these further matters. Only after the circuit court has examined the results of these additional proceedings will we recognize its subsequent order as being final and appealable." Mitrenga v. Martin, 110 Ill. App. 3d 1006, 1008, 443 N.E.2d 268, 270 (1982).

Accord Lippert, 273 Ill. App. 3d at 154, 652 N.E.2d 464.

This reasoning is supported by an analysis of Supreme Court Rule 306. 166Ill. 2d R. 306. Rule 306(a)(6) provides that a party may petition for leave toappeal to the appellate court "from an order of the circuit court whichremands the proceedings for a hearing de novo before an administrativeagency." 166 Ill. 2d R. 306(a). Under Rule 306(b) any such petition must beaccompanied by a supporting record and the opponent has the right to file atimely answer and a supplemental supporting record. 166 Ill. 2d R. 306(b). Thusunder Rule 306(a)(6), an appeal from an order which remands a matter back to theadministrative agency is not appealable as a matter of right from a final order,but is interlocutory and requiring a petition for leave to appeal which thiscourt may grant or deny at its discretion. Cf. In re Marriage ofLeopando, 96 Ill. 2d 114, 118, 449 N.E.2d 137, 139 (1983) (custody ordersnot final and appealable under Rule 304(a) where Rule 306(a), provided that suchorders were interlocutory and for such orders to be appealed upon allowance of apetition for leave to appeal).

In the case at bar, the circuit court remanded the cause for further reviewby the Department, an administrative agency. The court ordered that on remandthe Department conduct a hearing to determine the circumstances surroundingIkpoh's arrest and that the result of that hearing would be dispositive as tothe restoration of Ikpoh's license. Since the cause was remanded for a hearing,the order was not final. Lippert, 273 Ill. App. 3d at 153, 652 N.E.2d at463; Page, 299 Ill. App. 3d at 457, 701 N.E.2d at 223. If Ikpoh wished toappeal from this non-final order, his recourse was to petition this court forleave to appeal under Rule 306(a)(6) and to comply with all of the proceduralrequirements under Rule 306(b), none of which he did. 166 Ill. 2d R. 306(a)(6),306(b).

Ikpoh contends that the February 15, 2000, order is final and appealablebecause the circuit court made a written finding that it was appealable pursuantto Rule 304(a). Ikpoh clearly misunderstands Illinois law on this point. Thepresence of a written finding of appealability pursuant to Rule 304(a) does notin itself make an order appealable and this court is not bound by the circuitcourt's finding of appealability. Metzger v. Fitzsimmons, 175 Ill. App.3d 674, 675, 529 N.E.2d 1179, 1180 (1988) ("The fact that an order contains*** language [stating that there is no just reason to delay enforcement orappeal] does not make an otherwise non-final order appealable").

Ikpoh next contends that this appeal is cognizable under Rule 304(a) becausethere were multiple claims before the circuit court. These include:

"[1] Whether the Department's order of September 11, 1997, was a final administrative decision, thereby terminating the Department's jurisdiction over the case or in the alternative whether the Department could vacate a final administrative decision.

[2] Whether the Department's order of September 19, 1997, was improperly entered as the result of an ex parte proceeding.

[3] Whether the denial of Dr. Ikpoh's petition for Restoration by the Department's order of August 5, 1998, was against the manifest weight of the evidence."

Ikpoh argues that each of the forgoing constitutes a distinct claim and thatthe circuit court found against him on the first two of these three putativeclaims. Ikpoh thus seeks to render the findings on these two putative claimsappealable under Rule 304(a) notwithstanding the provision under Rule 306(a)(6).We disagree.

"An order is considered final if it disposes of the rights of theparties either with respect to the entire controversy or some definite andseparate portion thereof." Arachnid, Inc. v. Beall, 210 Ill. App. 3d1096, 1103, 569 N.E.2d 1273, 1277 (1991). "It is well established that thestatement of a single claim in several ways, even by multiple counts, does notwarrant a separate appeal." Arachnid, 210 Ill. App. 3d at 1103, 569N.E.2d at 1277 (complaint containing two counts for breach of contract and onefor torturous interference with contractual rights contained only one claim);accord Rice v. Burnley, 230 Ill. App. 3d 987, 991, 596 N.E.2d 105, 107(1992); Hull v. City of Chicago, 165 Ill. App. 3d 732, 733, 520 N.E.2d720, 721 (where complaint alleged several different negligent acts and omissionsbut advanced only one theory of recovery, namely negligence, the action onlyinvolved a single claim); see also Leopando, 96 Ill. 2d at 119, 449N.E.2d at 140 (determination of child custody is not a separate claim in anaction for dissolution of marriage). "[W]here the bases for recovery underthe counts that are dismissed are different than those under the counts leftstanding, the dismissal is appealable because it disposes of a distinct cause ofaction." Heinrich v. Peabody International Corporation, 99 Ill. 2d344, 348, 459 N.E.2d 935, 938 (1984).

The three issues identified by Ikpoh do not constitute separate claims.Ikpoh's petition for restoration at the administrative level only makes oneclaim, namely that Ikpoh's right to practice medicine should be restored. Thethree issues which Ikpoh contends are separate claims are not claims at all butmerely arguments on appeal to the circuit court to support reversal of theDepartment's single order disposing of his single claim for restoration of hislicense. On review at the circuit court level, the court is without power tohear new evidence or provide relief other than that appropriate to a reviewingcourt. In this respect, the relationship between the circuit court sitting inadministrative review and the administrative agency is analogous to therelationship between a trial court in a non-administrative review proceeding andan appellate court. Schewig v. Schacht, 276 Ill. App. 3d 311, 315, 657N.E.2d 1152, 1155 (1995) (duty of appellate court in "administrative reviewcase is the same as that of the circuit court"); Biscan v. Village ofMelrose Park Board of Fire and Police Commissioners, 277 Ill. App. 3d 844,847, 661 N.E.2d 424, 427 (1996) (sole duty of circuit court "in anadministrative review action is to review administrative record to determinewhether agency's decision is against the manifest weight of the evidence").Thus it would be inappropriate to attempt to characterize arguments made onappellate review as constituting separate claims for relief other than the claiminitially raised before the administrative agency from which the appeal wastaken. Western Casualty & Surety Company v. Brochu, 105 Ill. 2d 486,500, 475 N.E.2d. 872, 879 (1985) (issues not raised in the trial court arewaived and may not be raised for the first time on appeal).

Ikpoh's reliance on Krivitskie v. Cramlett, 301 Ill. App. 3d 705, 704N.E.2d 957 (1998), is misplaced. In Krivitskie the court held that acount for willful and wanton misconduct was sufficiently distinct from a countfor negligence in the same lawsuit to permit an appeal from the dismissal of thewillful and wanton count under Rule 304(a) where the negligence count was notdismissed. The court reasoned that while the two counts were not separate causesof action, they required different elements to establish a proper claim andtherefore were sufficiently distinct to allow a Rule 304(a) appeal from thedismissal of one count.

Krivitskie is distinguishable, in that unlike the case at bar, itconsiders a situation where two different counts at the trial level, proposingdifferent theories are brought. In the case at bar, Ikpoh simply brought beforean administrative agency a petition for restoration of his license which onlycontained one claim. He only raised multiple issues on appeal to the circuitcourt as reasons for reversal on appeal. As already discussed, these reasons onappeal do not lend themselves to be characterized as separate claims under Rule304(a), so as to pass on a piecemeal basis for further review by a higher courtof review.

Likewise, Ikpoh's reliance on Heller Financial, Inc. v. Johns-ByrneCompany, 246 Ill. App. 3d 754, 617 N.E.2d 1 (1992), is similarly misplaced.In Heller Financial the court found that where the trial court entered anorder specifying the minimum amount plaintiff was owed by defendant, that orderwas final and appealable under Rule 304(a). In the facts of Heller Financialthe plaintiff sued the defendant to collect on an equipment lease. The trialcourt entered partial summary judgement for the minimum amount which theplaintiff owed the defendant and left the issue of the total recovery for thetrier of fact. On appeal, the court reasoned that while 304(a) only applied tocases with multiple claims, the case contained multiple claims which it definedas "any right, liability or matter" raised in an action. The courtreasoned that "a plaintiff could move for summary judgement on 'any part ofthe relief sought,' and that thus, the grant of partial summary judgement was afinal order for purposes of appeal." Heller Financial, 246 Ill. App.3d at 758, 617 N.E.2d at 4. The court then held that the order was final"since it clearly disposes of the rights of the parties in regard to somedefinite part of the controversy."

We have some question as to the correctness of the analysis in HellerFinancial in determining what constitutes a separate claim. See Leopando,96 Ill. 2d at 119, 449 N.E.2d at 140 (determination of child custody is not aseparate claim in an action for dissolution of marriage). However, even if wewere to agree with the analysis in Heller Financial, it would not beapplicable to these facts, or to this case, since here there was no partialadjudication of plaintiff's claim which was initiated at the administrativelevel. Rather, the entire claim for the restoration of Ikpoh's license wasdenied at the administrative level and came up on appeal to the circuit courtfor administrative review. On review, the circuit court disposed of the reasonsgiven in support of reversal by rejecting some and questioning and remanding onothers. There is no basis upon which to conclude that Rule 304(a) would permitfragmentation on further appeal of the reasons urged for review in the initialappeal, which in this case commenced in the circuit court.

For the forgoing reasons, the instant appeal is dismissed for lack ofjurisdiction.

Appeal dismissed.

COUSINS and McBRIDE, JJ., concur.