FIRST DIVISION

										October 27, 2003

No. 1-02-1193

MARY DJIKAS,					)	Appeal from the

							)	Circuit Court of

		Plaintiff-Appellee,			)	Cook County.

							)

v.							)	No. 00 CH 1015

							)

JOHN GRAFFT,					)	Honorable

							)	Julia Nowicki,

		Defendant-Appellant.			)	Judge Presiding.

	JUSTICE GORDON delivered the opinion of the court:

	The instant cause of action arose from a lease between plaintiff Mary Djikas and defendant

John Grafft, which included an option to purchase.  Plaintiff brought an action for a declaratory

judgment and specific performance to enforce the option, which was granted by the trial court. 

The trial court subsequently granted plaintiff's petition for further relief, requiring defendant to

satisfy a mortgage on the property before transfer.  Over two months later, defendant presented

an oral motion in the trial court requesting a final and appealable order, which the court granted. 

Defendant now appeals the final and appealable order.  We dismiss defendant's appeal for lack of

subject matter jurisdiction.

BACKGROUND

	In October 1996, the home of plaintiff's son, Paul, was sold for delinquent taxes.  Shortly

thereafter, Paul entered into an agreement with defendant, whereby defendant purchased the tax

deed for the home from the tax purchaser and acquired title.  Defendant then obtained a mortgage on the property from a mortgagee referred to as "BNC Mortgage."1  Upon acquiring title to the home, defendant entered into a lease with Paul's mother, plaintiff Mary Djikas.  Although Paul

negotiated the terms of the lease and stated that he would be the person who actually paid the

rent, plaintiff signed the lease as lessee.  The lease provided that Paul would live in the home and

pay rent at a rate of $7,575.80 for the first month and $977.49 plus taxes and insurance, for a

total of $2,135, each month thereafter.  It also included an option to purchase the home for

$79,931.98 in addition to the cost of renovations to be calculated pursuant to paragraph 33 of the

lease.  Paragraph 33 provided that plaintiff must pay 110% of the cost of any renovations paid for

by defendant as well as a 25% oversight fee for such renovations at an annual interest rate of

18%.  The lease commenced on April 1, 1997, and expired March 31, 1998.

	In December 1997 or January 1998, the parties entered into negotiations regarding

plaintiff's purchase of the home from defendant.  In February 1998, plaintiff's attorney wrote

defendant a letter acknowledging a prior conversation during which defendant agreed to extend

the current lease one month, until April, 30, 1998, and agreed to grant plaintiff a new five-year

lease with an option to purchase at "any time during the lease term, with the rental to be

determined by [defendant]."  The letter further provided that defendant was willing to help

plaintiff obtain a loan to repair and purchase the home.  A new five-year lease was never reduced

to writing.

	According to the trial testimony, defendant and plaintiff began repairs on the home in

March 1998, in order to enable plaintiff to obtain a mortgage to purchase the property, and, in December 1998, defendant referred plaintiff to a mortgage broker to aid her in obtaining a

mortgage.  In February 1999, defendant sent a letter to plaintiff informing her that the purchase

price of the home would be $250,000.  Discussions regarding the purchase price ensued over the

next couple of months.  In March, defendant paid off the BNC mortgage and obtained a $280,000

mortgage on the property from mortgagee "Washington Mutual,"2 for which he began making monthly mortgage payments.  One month later, plaintiff's attorney sent defendant a letter, which

was introduced into evidence, announcing plaintiff's exercise of the option to purchase, and

offering a purchase price of $165,637.23.  Defendant rejected plaintiff's tender, responding that

the original lease and option had expired on April 30, 1998, as no new lease had been drafted.

	In January 2000, plaintiff filed her first complaint for declaratory relief and specific

performance of the lease, and in March or April of that year, defendant sent plaintiff a notice that

the rent would be increased to $5,735 per month.  Plaintiff continued paying $2,135 a month

through November 2000, at which time she ceased paying rent altogether.  At that time,

defendant began paying the taxes and insurance on the home.

	On April 5, 2001, plaintiff filed her third amended complaint in the circuit court and it is

that amended complaint which now frames the issues for appeal.  The complaint alleged the

existence of a lease and option to purchase, the terms of which were contained in the original

lease signed by the parties in April 1997.  Pursuant to these terms, cCount I of the complaint

requested a declaratory judgment construing the lease and option to purchase, particularly the

above- mentioned paragraph 33, in order to establish the purchase price of the property, as well as a declaration of the correct purchase price.  Count II prayed for specific performance of the

preexisting written lease, thereby enabling the sale and transfer of the property.  On April 16,

2001, defendant filed an answer and counterclaim, which denied the existence of a lease and

option to purchase, as the alleged lease had expired April 30, 1998.  Defendant further prayed for

unpaid rent, which had been withheld since November 2000.

	A bench trial commenced on May 1, 2001, and was continued a number of times over the

next several months.  On September 20, 2001, the trial court entered the following written order:

	"1.  On plaintiff's action for declaratory judgment, the court declares the purchase

price under the contract to be $158,734.60.

	2.  On defendant's counterclaim for rent, judgment is entered for the defendant in

the amount of $21,350 representing rent due through September, 2001.

	3.  The contract shall be performed by adding the rent due to the purchase price.

	4.  Rent shall continue to accrue at $2,135 per month due on the first day of the

month.

	5.  Plaintiff shall tender the purchase price on or before November 5, 2001, closing

to occur within a reasonable time thereafter."

Neither party filed any post-judgment motions to reconsider, vacate or modify.

	On November 1, 2001, plaintiff filed a "petition for further relief" alleging that she

attempted to tender the previously declared purchase price to defendant, but that defendant

refused to satisfy an outstanding $270,000 mortgage lien held by Washington Mutual before

transferring the property.  The petition argued that defendant's theory, that he need not convey title to the property clear of the mortgage lien, was inconsistent with the court's previous

declaration of rights.  Plaintiff requested further relief by way of a declaration requiring defendant

to satisfy the $270,000 mortgage prior to accepting the purchase price.  On December 3, 2001,

the court entered the following written order:

		"1.  Defendant shall communicate with Plaintiff's counsel to arrange a

closing on a date and time that is at the earliest possible convenience of the parties

and no later than February 1, 2002.

		2.  At the closing, Defendant shall convey fee simple title to the premises

via quit claim deed subject only to the encumbrances specified in paragraph 5, sub-

sections (a) through (i) of the Rider.

		3.  The closing shall otherwise proceed in accordance with the terms of the

	Rider and the declaratory judgment that has been rendered by this Court.

		4.  Plaintiff shall not be responsible for rent accruing after October 31,

2001, but Plaintiff shall be responsible for real estate taxes accruing after October

31, 2001.

		5.  Plaintiff's request for sanctions is denied."

Again, no postjudgment motions were filed.

	On February 4, 2002, plaintiff filed a petition for rule to show cause why defendant should

not be held in contempt of court for willfully violating the orders of the court.  Plaintiff alleged

she was ready, willing and able to proceed to closing, but that defendant refused to close the 

ordered transaction by the required date.  Plaintiff requested that defendant be held in contempt and that punitive and coercive sanctions be imposed.  On February 15, 2002, the parties appeared

before the circuit court on plaintiff's petition for rule to show cause and, according to the court's

order, it appears as though defendant made an oral "motion for entry of final and appealable

order," although no written motion has been provided in the record.  Plaintiff's response to the

motion has been provided, however, and it denied the need for a final and appealable order

because, it argued, the September 20, 2001, order was final and appealable.  After hearing

argument on the motions (a transcript of which has not been provided in the record), the court

entered the following order on March 26, 2002:

	"1.  Judgment is entered as follows:

		A.)  On plaintiff's action for declaratory judgment, the court declares the

purchase price under the contract to be $158,734.60.

		B.)  On defendant's counterclaim for rent, judgment is entered for

defendant in the amount of $21,350 representing rent due through

September, 2001.

		C.)  The contract shall be performed by adding the rent due to the purchase

price.

			D.)  Rent shall continue to accrue at $2,135 per month, due on the first day

of the month.

			E.)  At the closing, defendant shall convey fee simple title to the premises

via quit-claim deed subject only to the encumbrances specific in paragraph

5, sub-sections (a) through (i) of the Rider.

		F.)  The closing shall otherwise proceed in accordance with the terms of

the Rider and the declaratory judgment that has been rendered by this

court.

			G.)  Plaintiff shall not be responsible for rent accruing after October 31,

2001, but plaintiff shall be responsible for real estate taxes accruing after

October 31, 2001.

		H.)  Plaintiff's request for sanctions is denied.

	2.  Defendant shall respond to Plaintiff's petition for rule to show cause on or

before April 10, 2002.

	3.  Plaintiff's petition for rule to show cause is continued for hearing on April 12,

2002, 10:00 a.m.

	4.  The court finds that there is no just reason for delaying enforcement or appeal."

On April 12, 2002, defendant filed a notice of appeal from the March 26, 2002, order. 

Subsequently, on May 7, 2002, defendant filed a motion in the circuit court to stay the judgment

pending appeal.  It appears that following a hearing on December 13, 2002, defendant was found

in contempt and sanctions were granted, although no order has been provided in the record on

appeal.

	On March 13, 2003, plaintiff filed in this court a motion to dismiss defendant's appeal for

lack of subject matter jurisdiction, contending that the trial court entered final judgment on

September 20, 2001, or, in the alternative, on December 3, 2001.  As a result, defendant's April

12, 2002, notice of appeal was untimely.  For the reasons discussed below, we agree with plaintiff that this court lacks subject matter jurisdiction to consider defendant's appeal.

ANALYSIS

	Initially, we must determine whether this court has subject matter jurisdiction to review

defendant's appeal.  To do so, we first consider the finality of the trial court's September 20 order. 

We will then consider the effect of plaintiff's motion for further relief on the finality of that order

as well as the nature of the December 3 order granting the motion.

	It is well settled that this court will not be invested with subject matter jurisdiction by a

notice of appeal which is untimely.  See Childers v. Kruse, 297 Ill. App. 3d 70, 73, 696 N.E. 2d 1253, 1255 (1998).  Under Supreme Court Rule 301, a final judgment in a civil case is

immediately appealable as of right.  155 Ill. 2d R. 301.  In this regard, Rule 303 requires that a

notice of appeal must be filed within 30 days of the final judgment appealed from or, "if a timely

post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within

30 days after the entry of the order disposing of the last pending post-judgment motion."  155 Ill.

2d R. 303(a)(1).  According to section 2-1203 of the Illinois Code of Civil Procedure, only

motions for rehearing, retrial, modification of the judgment, or vacation of the judgment qualify as

posttrial motions directed against the judgment, which extend the 30-day deadline for filing a

notice of appeal.  735 ILCS 5/2-1203 (West 2000).

	A final judgment is one that disposes of the rights of the parties with regard to the entire

controversy or a definite and separate part thereof.  Gibson v. Belvidere National Bank &and Trust Co., 326 Ill. App. 3d 45, 48, 759 N.E. 2d 991, 994 (2001).  Such a judgment is not a final determination of the rights of the parties with respect to the entire subject matter of the litigation, but only as to their rights in the particular cause of action raised in the pleadings.  Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 455, 736 N.E. 2d 179, 188-89 (2000), quoting Mutual Reserve Fund Life Ass'n v. Smith, 169 Ill. 264, 265, 48 N.E. 208, 209 (1897).  A judgment "is final if it determines the litigation on the merits so that, if affirmed, the only thing

remaining is to proceed with execution of the judgment."  In re Guzik, 249 Ill. App. 3d 95, 98, 617 N.E. 2d 1322, 1325 (1993).  Judgment is not final, nor immediately appealable, where the

court reserves an issue for further consideration or otherwise manifests an intention to retain

jurisdiction for the entry of a further order.  See In re Guzik, 249 Ill. App. 3d at 98, 617 N.E. 2d at 1325.  Except as provided under Supreme Court Rule 304(b), where an order disposes of

fewer than all of the parties or claims, an appeal may only be taken from a final judgment

regarding the disposed party or claim where the court makes a finding that there is no just reason

for delaying enforcement or appeal.  155 Ill. 2d R. 304(a), (b).  Such an appeal must be taken

within 30 days of the entry of Rule 304 findings.  155 Ill. 2d R. 304.

 	Generally, an order for specific performance becomes final and appealable immediately following its issuance by the court.  See Bond Drug Co. of Illinois v. Amoco Oil Co., 323 Ill. App. 3d 190, 195, 198-99, 751 N.E. 2d 586, 591, 594 (2001) (appeal considered by reviewing

court where filed within 30 days of motion to reconsider order for specific performance, but

before execution of the order); Douglas Theater Corp. v. Chicago Title &and Trust Co., 210 Ill. App. 3d 301, 307-8, 569 N.E. 2d 88, 91 (1991); Djomlija v. Urban, 107 Ill. App. 3d 960, 963, 438 N.E. 2d 558, 560-61 (1982).  After such an order for specific performance has been entered, an

appellee may file a motion to stay enforcement of the judgment pending appeal.  See, e.g., Djomlija, 107 Ill. App. 3d at 965-66, 438 N.E. 2d at 562.  Likewise, finality attaches to a declaratory judgment on the date judgment is entered, rather than on any date of enforcement

specified in the order.  See 735 ILCS 5/2-701(a) (West 2000); see also Physicians Insurance Exchange, 316 Ill. App. 3d at 452, 736 N.E. 2d at 186-87.

	There can be little question that the September 20 order in this case invoked finality

pursuant to Supreme Court Rules 301 and 303, and did not require Rule 304(a) certification.  The

order fixed absolutely the rights of the parties brought into question in each of the claims raised in

plaintiff's two-count complaint and in defendant's counterclaim.  In count I of her complaint,

plaintiff specifically requested a declaration of the purchase price of the property as calculated

under paragraph 33 of the original lease.  In accordance with this request, the court declared the

price under the contract to be $158,734.60.  Count II requested an order for specific performance

for the conveyance of the property.  In the September 20 order, the court ordered defendant to

accept tender of the purchase price by November 5, 2001, with closing to occur soon thereafter. 

In his counterclaim, defendant requested past-rent due.  In response, the court ordered the

declared purchase price increased by the rent due to defendant equaling $21,350.  The court

further provided for the continued payment of rent.  No issues raised in the pleadings were left

open or held over by the court and nothing remained except execution of the court's judgment. 

The judgment was therefore final and appealable as of the date of its entry.

	Defendant urged during oral argument before this court that an order for specific

performance, as requested in cCount II of plaintiff's complaint, does not achieve finality under

Rules 301 and 303 until after the date of its "enforcement," which in this case was November 5, 2001.  We find no case law supporting this proposition and defendant has provided us with none. 

To the contrary, as previously stated, there is ample precedent demonstrating that the requisite

finality for purposes of filing a notice of appeal is achieved when the order for specific

performance is granted and not on the arrival of the date set for its enforcement or execution.  See

generally, Bond Drug Co. of Illinois, 323 Ill. App. 3d at 198-99, 751 N.E. 2d at 594 (within 30 days of the trial court's order of specific performance, the defendant filed a motion for

reconsideration, then appealed prior to execution of the order); Douglas Theater Corp., 210 Ill. App. 3d at 308, 569 N.E. 2d at 91 (notice of appeal filed within 30 days of the modified order for

specific performance); Djomlija, 107 Ill. App. 3d at 963, 438 N.E. 2d at 560-61 (notice of appeal filed within 30 days following order for specific performance, but before execution of the order

for specific performance); see also In re Guzik, 249 Ill. App. 3d at 98, 617 N.E. 2d at 1325 (a judgment is final where it determines the cause of action on its merits and, following affirmance by

the reviewing court, the only thing remaining is its enforcement).  Therefore, it would appear that

the 30-day window for filing a notice of appeal begins to run as of the date of the order rather

than the date of enforcement, and we find no basis upon which to urge that somehow the 30 days

is tolled by the date set for enforcement in the order compelling specific enforcement. 

Consequently, a notice of appeal filed within 30 days of the order is timely and does not have to

wait to achieve finality until after the order's enforcement. 

	Likewise, finality attaches to a declaratory judgment on the date that judgment is entered. 

See Physicians Insurance Exchange, 316 Ill. App. 3d at 452, 736 N.E. 2d at 186-87 (notice of appeal untimely where not filed within 30 days of issuance of declaratory order and no posttrial motions were filed).  The statute allowing for such relief provides for the finality of declaratory

judgments within its own language.  Section 2-701 of the Code states that a court may make a

binding declaration of rights, having the force of a final judgment, whether or not any

consequential relief is or could be claimed.  735 ILCS 5/2-701(a) (West 2000).  Such declarations

may include the determination of the construction of a contract or other written instrument, and a

declaration of the parties' rights.  735 ILCS 5/2-701(a) (West 2000). 

	The case of In re Guzik, 249 Ill. App. 3d 95, 617 N.E. 2d 1322 (1993), upon which defendant relies is inapposite.  In Guzik, the trial court determined that the respondent was subject to involuntary commitment due to a mental illness; however, the court continued the hearing for

involuntary admission because no social assessment report or treatment plan had been presented

at the initial hearing.  The court specifically stated it would enter a "final order" of commitment at

the next court date after the report and plan had been reviewed.  Guzik, 249 Ill. App. 3d at 96, 617 N.E. 2d at 1323.  The respondent then filed a notice of appeal after the initial hearing and

before the date set for the continuance.  In finding that it lacked jurisdiction to consider the

respondent's appeal, the reviewing court found that "the trial court's order clearly reserved issues

for further consideration and stated that it would enter a 'final order' of commitment" on a later

date.  Guzik, 249 Ill. App. 3d at 98, 617 N.E. 2d at 1325.  Therefore, the order was not final and appealable.  Guzik, 249 Ill. App. 3d at 98, 617 N.E. 2d at 1325.

	Unlike Guzik, however, the court in this case expressed no intention to retain jurisdiction over the cause of action.  The court determined the rights of the parties on all issues raised in the

pleadings.  The hearing was not continued for consideration of additional issues, nor did the court overtly indicate any intent to retain jurisdiction, as it clearly did in Guzik.  In fact, defendant's apparent assertion that there is an implicit retention of jurisdiction where an order has been

entered, but not enforced, contradicts existing case law.  As previously stated, Bond, Douglas Theater Corp., and Djomlija all provide that a notice of appeal is timely where it is filed within 30 days of an order for specific enforcement, but before execution of the order or the date set for

such execution.  The message of these cases then is that, although a circuit court always implicitly

retains jurisdiction to enforce its orders, the time gap between the order and its enforcement does

not affect the finality of the order for purposes of appealability.  See also Village of Gilberts v. Holiday Park Corp., 150 Ill. App. 3d 932, 936-37, 502 N.E. 2d 378, 380 (1986) (court had jurisdiction to enter an order more than one year after entry of the original order, which enforced

the original order, even though the original order was final and appealable).  In other words, such

retention does not toll the 30-day window within which notice of appeal must be filed.

	Therefore, because specific performance and declaratory judgments may be final and

appealable at issuance and the trial court in this case finally determined the rights of the parties as

raised in the pleadings without any indication of an intent to retain jurisdiction of the cause of

action, we conclude that the September 20 order was final and appealable.

	Defendant next asserts, as an alternative argument, that if the September 20 order was

final and appealable, plaintiff's November 1 motion for further relief was an untimely posttrial

motion over which the trial court lacked jurisdiction.  Therefore, defendant contends that the trial

court did not have subject matter jurisdiction to enter the December 3 order, which, in addition to

repeating the judgment of September 20, for the first time ordered defendant to satisfy the outstanding mortgage with Washington Mutual.  Plaintiff responds that the petition was not a

posttrial motion because it was filed pursuant to section 2-701(c) of the Code, which allows for

further relief following a declaration of rights.

	Again, section 2-701(a) of the Code provides that a declaration of rights has the force of a

final judgment whether or not consequential relief is or could be claimed.  735 ILCS 5/2-701(a)

(West 2000).  Section 2-701(c) then provides: 

			"If further relief based upon a declaration of right becomes

necessary or proper after the declaration has been made, application

may be made by petition to any court having jurisdiction for an

order directed to any party or parties whose rights have been

determined by the declaration to show cause why the further relief

should not be granted forthwith, upon reasonable notice prescribed

by the court in its order."  735 ILCS 5/2-701(c) (West 2002).

	Read in conjunction, these provisions indicate that consequential or incidental relief, not

previously requested, but based on the rights previously determined in the initial declaration, may

be claimed and obtained following the entry of a final and appealable declaratory order.  See

Burgard v. Mascoutah Lumber Co., 6 Ill. App. 2d 210, 219, 127 N.E. 2d 464, 468 (1955).  However, such a motion requesting further relief does not constitute a posttrial motion within the

meaning of Supreme Court Rule 303(a)(1) and section 2-1203 of the Code because it is not

directed against the original judgment, but is incidental to that judgment.  See, e.g., Burnidge Corp. v. Stelford, 309 Ill. App. 3d 576, 580, 723 N.E. 2d 394, 397 (2000).  Therefore, while it appears from section 2-701 that the court will retain jurisdiction to entertain a request for further

relief after the initial declaration without any time limitation, that retention of jurisdiction does not

delay or postpone the finality of the issues originally decided so as to render the original decision

nonfinal and nonappealable.  See Myers v. Mundelein College, 331 Ill. App. 3d 710, 712, 771 N.E. 2d 1113, 1114 (2002) (request for further relief in the form of monetary damages proper

even though filed approximately six months after initial declaratory judgment entered); see also

Americana Nursing Homes, Inc. v. City of Rockford, 53 Ill. App. 2d 447, 450-51, 202 N.E. 2d 671, 673-74 (1964) (trial court had jurisdiction over petition filed 14 months after the entry of a

final declaratory order where the relief sought was in furtherance of the original declaration of

rights). Accordingly, the decree in issuing the original declaratory judgment and order for specific

performance became final on September 20, and the 30-day window within which defendant was

required to appeal expired on October 20.  Nevertheless, the trial court retained jurisdiction to

consider the petition for further relief and provide the additional relief regarding payment of the

mortgage held by Washington Mutual.

	Moreover, even if the request for further relief was an untimely posttrial motion and the

circuit court lacked jurisdiction to consider the motion, defendant is precluded from arguing the

December 3 order was void.  Although we acknowledge that a petition attacking a judgment as

void may be brought at any time, the doctrine of revestment allows litigants to "revest a court ***

with both personal and subject matter jurisdiction over the particular cause after the 30-day period

following final judgment during which post-judgment motions must ordinarily be filed."  People v. Kaeding, 98 Ill. 2d 237, 240, 456 N.E. 2d 11, 14 (1983).  The elements essential to revesting the court with jurisdiction are "(1) the active participation by the parties without objection (2) in

further proceedings inconsistent with the prior order."  Ridgely v. Central Pipe Line Co., 409 Ill. 46, 50, 97 N.E. 2d 817, 821 (1951); Kaeding, 98 Ill. 2d at 241, 456 N.E. 2d at 14.  The parties' conduct is inconsistent with a prior order if the conduct reasonably can be construed as an

indication that the parties do not view the prior order as final and binding.  In re Marriage of Adamson, 308 Ill. App. 3d 759, 766, 721 N.E. 2d 166, 174 (1999).

	In this case, defendant actively participated in the proceedings regarding plaintiff's petition

for further relief.  He filed a written response to plaintiff's petition on November 13, 2001, and,

according to the transcript of the hearing, his attorney argued the merits of the petition at length

before the court on November 16, 2001.  Defendant never raised the issue of jurisdiction, neither

in his written response nor orally before the court.  Furthermore, defendant's conduct was

inconsistent with his present theory that the September 20 judgment caused the circuit court to

lose jurisdiction over the cause.  As stated, defendant participated in the proceedings and did not

object based on jurisdiction, thereby treating the September 20 order as nonfinal and

non-appealable and rendering the December 4 order controlling.  As a result, defendant's

participation in the proceedings would have served to revest the trial court with jurisdiction to

consider the petition had it lost jurisdiction prior to that time.  See Village of Gilberts, 150 Ill. App. 3d at 937, 502 N.E. 2d at 381.

	Even if the September 20 order was not in itself final and was superceded by the

December 3 order, there would be no basis to contest the finality of the December order, which

merely reiterated the September order and provided the incidental relief sought by plaintiff.  See Kaeding, 98 Ill. 2d at 242, 456 N.E. 2d at 14 (court's order which reaffirmed original order was final where it fully adjudicated the rights of the parties).  Therefore, the 30-day period within

which to appeal the December order began upon that order's issuance and the notice of appeal

filed by defendant in March would be untimely even with respect to the December order.

	Furthermore, plaintiff's motion for a rule to show cause, which was filed in February and

requested sanctions, did not retroactively disturb the finality of the December 3 order so as to

abrogate the jurisdiction of this court over the cause of action.  See Hartford Fire Insurance Co. v. Whitehall Convalescent &and Nursing Home, Inc., 321 Ill. App. 3d 879, 887, 748 N.E. 2d 674, 681 (2001) (application for deposition cost found to be incidental to merits of underlying cause of

action and therefore could be considered by the trial court after the filing of a notice of appeal in

original cause); Physicians Insurance Exchange, 316 Ill. App. 3d at 451-52, 736 N.E. 2d at 186- 87 (motion for deposition costs, not raised in the original cause of action, was supplemental to the

merits of that action and had no bearing on the effect or finality of the original declaratory

judgment order); Mitchell v. Atwood Enterprises, Inc., 253 Ill. App. 3d 475, 478, 624 N.E. 2d 878, 881 (1993) (appellate court lacked jurisdiction over order determining collateral matter of

costs where a second notice of appeal was not filed); Town of Libertyville v. Bank of Waukegan, 152 Ill. App. 3d 1066, 1073, 504 N.E. 2d 1305, 1310 (1987) (an application for fees and costs

may be brought at any time where it is outside the issues in the underlying judgment and the

statute sets no time limit for seeking the expenses).

	Although there is seeming contrary dicta in F.H. Prince & Co. v. Towers Financial Corp., 266 Ill. App. 3d 977, 640 N.E. 2d 1313 (1994), that language should not be read to permit the revocation of this court's jurisdiction where sanctions are requested as the result of actions

occurring after a final judgment, particularly where those actions involve a party's failure to

comply with an order of performance.  In Prince, the fees requested were part of the original judgment and involved the same conduct from which that action arose.  In this case, the request

for sanctions arose out of defendant's alleged actions subsequent to both judgments wherein he

refused to comply with the court's orders.  Because the gap between the entry of a judgment and

its enforcement can be unlimited in time, to permit a cause of action that arises in relation to that

enforcement, long after judgment has been entered, to retroactively destroy this court's

jurisdiction over the original judgment would create anomalous situations.  The time lag between

the entry of an order and its enforcement can involve multiple years, by which time the original

judgment may have already been appealed and resolved.  It would be anomalous to then allow the

parties to revoke the reviewing court's jurisdiction and invalidate its decision by filing a motion for

sanctions long after finality has been achieved.  Therefore, a motion for sanctions arising out of

subsequent conduct, such as the failure to comply with a court order, cannot render the original

order nonfinal and non-appealable, and it did not do so in this case.

	Finally, although defendant argues that the trial court rejected plaintiff's contention that

the September and December orders were final and entered the final and appealable order in

March pursuant to his request, we note that the record does not contain a transcript of the hearing

on this motion.  Because it is appellant's duty to present a complete record on appeal, any doubts

arising from an incomplete record will be resolved against him.  Yazzin v. Meadox Surgimed, Inc., 224 Ill. App. 3d 288, 291, 586 N.E. 2d 533, 535 (1991).  As a result, any argument before the trial court or any reasoning given by that court as to the nonfinal nature of the previous orders

cannot be considered in this appeal.  Yazzin, 224 Ill. App. 3d at 291, 586 N.E. 2d at 535.  Even if the record were complete, it is well settled that a trial court's designation of an order as final and

appealable does not in itself render an order final and appealable, nor does it render a final order,

issued previously, nonfinal.  See In re Marriage of Hillinger, 146 Ill. App. 3d 549, 554, 497 N.E. 2d 112, 235 (1986).

CONCLUSION

	Accordingly, the cause of action is dismissed for lack of jurisdiction.

	Dismissed.

	O'MALLEY, P.J. and McBRIDEride, J. concur.