MOUNT VERNON – Madison County Associate Judge Martin Mengarelli improperly granted former embezzler Ricki Jones an appeal in a tax dispute with former wife Dorothy Boos, Fifth District judges decided on Aug. 11. 

They ruled that they lacked jurisdiction because the order on appeal wasn’t final. 

Mengarelli relied on Illinois Supreme Court Rule 304(a), which authorizes an appeal from a final judgment that doesn’t dispose of an entire proceeding. 

A judge who invokes the rule must find that there is no just reason for delaying enforcement, appeal, or both, and Mengarelli adopted that finding. 

Fifth District Justice David Overstreet wrote, “Although the circuit court in this case made the written finding required by Rule 304(a), its finding is not dispositive.” 

“If the order is not final, inclusion of the special finding in the circuit court’s order cannot confer appellate jurisdiction,” he wrote. 

Justices Thomas Welch and John Barberis concurred. 

Prior to 2009, Ricki Jones owned a contracting company. 

BP Amoco paid his company to remedy contamination in Wood River, and he embezzled the money without performing the work.

In January 2009, he pleaded guilty of evading almost $5 million in taxes. 

By the time of his sentencing, he had paid $2.4 million in restitution to BP Amoco and $1.2 million to the Internal Revenue Service. 

Dorothy’s tax liability remained an open question, because she filed a protest with IRS as an innocent spouse. 

The protest complicated divorce proceedings that Ricki had initiated in 2007. 

They settled enough of their differences to reach a dissolution agreement that associate judge Ellar Duff approved in April 2009. 

In September 2009, Duff wrote that each party intended to pay half of the joint tax liability upon resolution of the protest. 

She wrote that her order should not be deemed a waiver of Dorothy’s claim that the tax liability was not her responsibility. 

Ricki spent a year in prison. 

In 2013, IRS issued deficiency notices to both. 

Dorothy petitioned the United States Tax Court for relief. 

In 2014, the tax court approved an agreement among Ricki, Dorothy, and IRS. 

It provided that there would be no fraud penalties, and that Dorothy was not entitled to relief as an innocent spouse. 

In 2015, Ricki returned to Madison County family court and petitioned for adjudication of indirect civil contempt against Dorothy. 

Duff had retired, and the case had passed to Mengarelli. 

Ricki claimed Dorothy owed him about $1.5 million in federal taxes, about $260,000 in Illinois taxes, and additional amounts to be determined. 

His former wife, as Dorothy Boos, answered that they each paid IRS $1,609,906.65, amounting to $3,219,813.29. 

She argued that the total underpayment with interest was $2,678,531.22, leaving an overpayment of $541,282.07. 

She claimed Ricki should reimburse her for half that amount, $270,641.04. 

In July 2016, Mengarelli held Ricki liable for the fraud penalty. 

He held both Ricki and Dorothy liable for the tax liability as reflected in the tax court’s order. 

He set a case management conference in three months, but never held it. 

On Aug. 29, Ricki filed an appeal notice. 

Dorothy moved to strike it on Sept. 12, arguing that issues intertwined with the order should be adjudicated before any appeal. 

Mengarelli invoked Rule 304(a) on Nov. 2, finding no reason to delay an appeal. 

Dorothy didn’t challenge Fifth District jurisdiction, but that didn’t prevent the Fifth District from examining its jurisdiction. 

Overstreet wrote that the Illinois Constitution grants the Supreme Court a right to provide by rule for appeals to appellate courts from other than final judgments. 

He quoted a 2016 Supreme Court decision, Blumenthal v. Brewer, that, “Accordingly, absent a Supreme Court rule, the appellate court is without jurisdiction to review judgments, orders, or decrees that are not final.” 

He wrote that under Blumenthal, for purposes of Rule 304(a), a judgment must terminate litigation on the merits so that, if affirmed, the trial court only has to proceed with execution of judgment. 

He quoted from Blumenthal that, “While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.” 

He wrote that Mengarelli didn’t dispose of a claim separate from remaining claims, but disposed only of an issue ancillary to the remaining claim. 

“The circuit court’s order did not allocate the tax amounts and penalties due or calculate credit to the parties for amounts paid,” Overstreet wrote. 

“The circuit court’s order served only to narrow the criteria applicable to that decision.” 

David Fahrenkamp represents Ricki Jones.

Erin Riley, Wendy McIntyre, Michael Donovan, Lawrence Weltman, and Joseph Martineau represent Dorothy Boos.

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