¶1concurring in part and dissenting in part:
¶2I agree that the appeal in this case should be dismissed because this court lacks jurisdiction due to the lack of a final order. However, I disagree with the decision to allow attorney fees to the defendant in this cause.
¶3The defendant in this cause requested fees on this appeal on the basis that the plaintiff had filed a frivolous appeal. Neither party to this appeal bothered to verify the existence of this court’s jurisdiction even though a jurisdictional statement is required in every appeal. (134 Ill. 2d R. 341(e)(4)(ii).) Instead, this court on its own motion raised the question of jurisdiction. This fact distinguishes Kennedy v. Miller (1990), 197 Ill. App. 3d 785, from the case at bar for in Kennedy the appellee filed a motion to dismiss the appeal and sought sanctions based upon a lack of appellate jurisdiction.
¶4It is certainly appropriate under Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)) to impose sanctions where a frivolous appeal has been filed. However, to reward sanctions to the defendant in this cause, who failed to raise a clear lack of jurisdiction, would be condoning an inattention to our supreme court rules and an invitation to allow practitioners to be rewarded for time and money spent on an appeal he should have known would ultimately be dismissed.
¶5Furthermore, since defendant failed to recognize the absence of appellate jurisdiction in this appeal, how will the sanctions for fees and expenses be determined? Defendant’s brief makes no reference to the analysis required by Supreme Court Rule 375(b).