Articles Posted in Illinois Supreme Court Rules

Illinoisappellatelawyerblog was born to worry. And opinions like Estate of York feed that congenital behavior.

The First District Illinois Appellate Court woke us to attention with its first words. “The case before us serves as a cautionary tale to litigants to adhere to Illinois Supreme Court Rule appellate filing deadlines, to timely file requests for extensions of time with good cause shown, and to specify all grounds of appeal in the notice of appeal.”

Dread always follows that kind of lead. Here’s what happened.

York and Mulryan were law firm partners. York loaned Mulryan $60,000. Mulryan made a few repayments, but stopped when York died. Mulryan claimed the loan converted to a gift when York died. Mulryan also took $5,000 out of the law firm.

York’s estate wanted the money back, and eventually filed a citation to recover assets against Mulryan. Mulryan asked the trial court to dismiss the citation. The trial court dismissed four of the claims with prejudice (can’t re-plead them) and three of the claims without prejudice (can fix and re-plead them).

The Estate appealed, and filed a supporting brief. But Mulryan did not respond. Two weeks after the appellate court ruled it would consider the Estate’s appeal without a response, Mulryan asked the appellate court for an extension of time to file and to allow her to ask for dismissal of the appeal for lack of jurisdiction.

Mulryan filed her request to dismiss the appeal for lack of jurisdiction, but the appellate court denied it. The trial court’s dismissal of four claims with prejudice tipped the analysis in the Estate’s favor. “The dismissal was with prejudice, and so it was a final determination of the estate’s right to the money in question, based on either fiduciary duty or fraud. Thus, the facts of this case and the dismissal order are squarely within Rule 304(b)(1) [Allowing immediate appeal of a final order in a probate case, even before the entire case is finished] as an immediately appealable order.”

Mulryan’s predicament worsened. The Estate asked the appellate court not to consider Mulryan’s principal brief because it was filed late, without good cause. The appellate court agreed, and rejected Mulryan’s argument that she didn’t need to file a brief because the lack of jurisdiction for the Estate’s appeal was “clear.”

Here’s how the court disposed of that position. “We agree with the executor’s argument that Mulryan has caused unnecessary delay in the disposition of this case on appeal and so we deny her motion for extension of time. Given Mulryan’s failure to file any response to the executor’s appellate brief and disregard for mandated appellate deadlines, we abide by our prior order and proceed based on the executor’s brief only.”

But the Estate had even bigger problems. The Estate’s Notice of Appeal was deficient, and did not invoke the court’s jurisdiction. The Notice of Appeal asked for reversal of the trial court’s dismissal of Count II, but the Estate’s brief argued for reversal of Count I. The mistake was fatal. Count I was most important to the Estate, but the appellate court would not consider reversing the trial court because Count I was omitted from the Notice of Appeal.

The appellate court also refused to consider reversing the dismissal of Count II. The Notice of Appeal gave notice of an appeal from the dismissal of Count II, but the Estate only briefed the Count I dismissal.

Mulryan submitted an affidavit to the trial court to support her request to dismiss the Estate’s complaint. The Estate asked the trial court to dismiss the affidavit because, it argued, the affidavit did not comply with Illinois rules.

Half of the Estate’s brief was devoted to reversing the trial court’s affidavit-ruling. But the appellate court refused to consider it because:

  • the Estate did not reference it in the Notice of Appeal, and
  • the trial court’s ruling was not a step in the procedural progression toward the dismissal; “The ruling on the motion to strike Mulryan’s affidavit could not have been a step in the procedural progression leading to the section 2-615 dismissal of count II, because  consideration of affidavits is not allowed in ruling on section 2-615 dismissals.”

So let’s review what happened in this case. First, Mulryan’s request to file a late brief was denied because she did not follow the rules, and her observation that appellate jurisdiction “clearly” was lacking fell on deaf ears.

But Mulryan won the war because the Estate did not draft a proper Notice of Appeal. The appellate court not consider the Estate’s most important issues because the deficient Notice Of Appeal did not provide fair notice that those things were being appealed.

Read the whole opinion, In re Estate of York, 2015 IL App (1st) 132830, by clicking here.

Daewoo International paid American Metals Trading $14.5 million for pig iron. But American Metals didn’t deliver, so Daewoo started an arbitration proceeding. In support of the arbitration, Daewoo got an order of attachment against American from a New York trial court. To support the attachment — i.e., trace where the money went — the New York court allowed Daewoo to obtain discovery and to depose American’s directors and officers, four brothers led by Luis Monteiro.

Daewoo believed it could serve subpoenas on American and Monteiro in Illinois. So Daewoo filed a petition in an Illinois court to ask for the subpoenas.  Forty-eight days after the court allowed the subpoenas, Monteiro asked the court to quash them. He argued that Daewoo did not comply with Illinois Supreme Court Rule 204(b), the rule that permits an Illinois court to allow discovery in a case from another jurisdiction. The Illinois trial court refused, and ordered Monteiro’s deposition to proceed.

Litigation over the validity of the New York and Illinois trial courts’ discovery orders continued. After Monteiro ran out of options, he filed a notice of appeal in Illinois. On appeal, Monteiro continued to argue that Daewoo did not comply with Rule 204(b).

But the First District Illinois Appellate Court dismissed Monteiro’s appeal for lack of appellate jurisdiction. The court ruled:

  • the order allowing the subpoenas to issue was a final judgment
  • Montiero could appeal the judgment within 30 days, or toll the time to appeal by asking the trial court to quash the subpoenas or to reconsider the judgment, also within 30 days
  • But Monteiro’s motion to quash was made 48 days after the judgment, too late to toll the time to appeal
  • Monteiro’s Notice of Appeal was filed long after the 30-day deadline, so there was no appellate jurisdiction and the appellate court did not have the power to rule on Monteiro’s Rule 204(b) argument.

The wrinkle in this case was failing to see the trial court’s discovery order as a final judgment. Normally, a trial court’s discovery order is not a judgment nor immediately appealable. This case was different because Daewoo’s entire case was filed to get the discovery order. This is how the appellate court explained it:

In the case at bar, the [Illinois] circuit court issued an order granting discovery, pursuant to Rule 204(b), on January 29, 2013. … Since the only action in Illinois was the petition filed by Daewoo on January 28, 2013, to obtain discovery from and depose Monteiro and others in Illinois pursuant to Rule 204(b), the January 29, 2013 order was the final judgment in the Illinois proceeding.

Click here to read the whole case, Daewoo International v. Monteiro, 2014 Ill App (1st) 140573 (12/12/14).

William Huber filed a lawsuit to dissolve the American Accounting Association. The Association asked the trial court to dismiss the lawsuit, which it did.

Huber appealed. He mailed his Notice of Appeal to the court, but it arrived two days after the 30-day deadline.

That would have been okay had Huber included an affidavit (required of a non-lawyer) or certificate (required of a lawyer) of mailing with the Notice of Appeal. But Huber did not. He argued that a postmark on the envelope, dated two days before the 30-day deadline expired, was sufficient proof of mailing within the time required.

But the Illinois Supreme Court ruled that Huber’s so-called postmark was not a postmark at all. This is what the supreme court said:

What plaintiff identifies as a “postmark,” appearing in the upper right hand corner of the envelope, is actually a postage label from an Automated Postal Center (APC). An APC is a self-service kiosk, generally located in post office lobbies, that allows customers to mail letters and packages, buy postage, look up ZIP Codes, and access other postal services, such as “USPS Tracking,” and certified mail. …  The postage label at issue here reveals on its face that it was dispensed at an “APC.” An “APC label does not constitute an official U.S. postmark.”

The APC label shows only a “Date of sale” of “04/03/13.” [Two days before the deadline.) The date of sale is not necessarily the date plaintiff placed the envelope in the mail and the post office took custody of it. … Thus … the APC label at best indicates that plaintiff may have mailed his notice of appeal on April 3, 2013. The APC label does not establish that plaintiff, in fact, did so.

The late Notice of Appeal deprived the appellate court of jurisdiction, so the supreme court affirmed dismissal of Huber’s appeal.  Here’s the link to the supreme court’s opinion in Huber v. American Accounting Association, 2014 IL 117293 (11/20/14).

The Illinois Supreme Court did not decide whether a postmark would suffice in lieu of an affidavit or a certificate. But take a look at IRMO Sheth, an appellate court opinion explained three postings below. The Sheth court certainly falls in the camp that a postmark alone does not meet the Illinois Supreme Court Rules.

Anita and Sushil Sheth got divorced. Sushil was custodian on several of the couple’s two children’s financial accounts. Anita asked the trial court to remove Sushil as custodian. The trial court did so, and also denied Sushil’s reconsideration request.

Sushil appealed. He apparently mailed the notice of appeal within the 30-day jurisdictional requirement. But his “Certificate of Service” was not notarized. The court received Sushil’s notice of appeal after the 30 days passed.

The First District Illinois Appellate Court dismissed Sushil’s appeal. The court ruled that it did not have jurisdiction to consider Sushil’s arguments because Sushil did not submit proper proof — that is, a notarized Proof of Service — that the notice of appeal had been mailed within the 30-day deadline  So even though Sushil’s proof of service included all of the required information, his appeal was dismissed for lack of a notary public’s stamp.

Here’s how the court explained it:

[T]here was no certificate by an attorney or affidavit by a nonattorney as required by [Illinois Supreme Court] Rule 12(b)(3). While Sushil submitted a “Certificate of Service,” that document was not notarized, meaning that it cannot be considered an affidavit. Our supreme court has stated that “Illinois courts have defined the term [‘affidavit’] in consistent fashion for over 100 years,” and that “an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits.” . . .  Here, since Sushil’s “Certificate of Service” was not sworn to before an authorized person, it cannot be considered an affidavit and, therefore, Sushil has not complied with Rule 12(b)(3)’s requirement that proof of mailing be in the form of a certificate by an attorney or an affidavit of a nonattorney.

Read the whole case, IRMO Sheth, 2014 IL App (1st) 132611, by clicking here. 

After he was injured in an accident, Juan Zamora sued his employer, Newsboy Delivery Systems, and two individuals, Cherie and Richard Payne. Zamora claimed their negligence caused the accident.

The trial court dismissed Newsboy because Zamora’s claim against his employer was barred by the Illinois Worker’s Compensation Act. The dismissal order included a finding under Illinois Supreme Court Rule 304(a) [no just reason to delay enforcement or appeal of the order]. Zamora asked the court to reconsider the dismissal. That request for reconsideration extended the time he had to appeal [30 days from the ruling on the reconsideration request]. Zamora’s request for reconsideration was denied.

The Paynes filed a third-party complaint for contribution against Newsboy. About two years later that complaint was dismissed. Zamora got a second Rule 304(a) finding, and after the rest of the claims were dismissed, Zamora appealed the two year-old order that dismissed his claim against Newsboy.

The Second District Illinois Appellate Court dismissed Zamora’s appeal for lack of appellate jurisdiction because:

Once a court has made a Rule 304(a) finding, it is not necessary for the court to make another such finding when it denies a motion to reconsider … This is because the denial of a motion to reconsider is not a judgment and is not appealable in itself.

So Zamora had to appeal within 30 days of the denial of his reconsideration request. He blew that deadline, and the second Rule 304(a) finding was irrelevant.

Read the whole case, Zamora v Montiel, 2013 IL App (2d) 130579, by clicking here.

The Westin North Shore is a hotel in the northern suburbs of Chicago. The hotel was used as collateral for a multimillion dollar loan to the hotel owner. Five Mile Capital Westin had a subordinate interest in the loan. After the owner defaulted on his payments, Berkadia National Mortgage was named as special servicer of the hotel.

Berkadia got an offer to buy the hotel. But because the market for hotel properties fell, the offer did not cover the amount of the loan. If Berkadia accepted the offer, Five Mile Capital would be left with big losses.

So Five Mile Capital sued Berkadia, and asked the trial court for an injunction to stop the sale. Five Mile also recorded a lis pendens [formal notice that property title is disputed] on the property. Berkadia asked the trial court to dismiss the complaint and to lift the lis pendens. The trial court refused to dismiss the complaint, but did quash the lis pendens. The trial court also treated plaintiff’s position as a request for a preliminary injunction against the sale of the property. Then the trial court denied the preliminary injunction.

Five Mile appealed the denial of the preliminary injunction and the order quashing the lis pendens. Five Mile went to the appellate court under the rule allowing appeals of preliminary injunctions even before there is a ruling on the entire case. [Illinois Supreme Court Rule 307 allows appeals of certain interlocutory orders, including denials of preliminary injunctions.] So the first question was: Did the appellate court have jurisdiction to review the order that quashed the lis pendens? It would, if the order to quash were a preliminary injunction; it would not if the order to quash were a more typical interlocutory order.

The First District Illinois Appellate Court ruled it did not have jurisdiction to review the order to quash before the entire case was final because quashing a lis pendens is not a preliminary injunction. Here’s how the appellate court explained it.

As with an order quashing a discovery subpoena, an order quashing a lis pendens is simply an administrative order that deals with how the case proceeds before the court, and it can be issued by any court without resorting to its equitable powers. It then follows that, similarly to a discovery order, an order quashing a lis pendens is not an interlocutory order that is appealable under Rule 307(a)(1). We accordingly lack jurisdiction over that portion of the circuit court’s order.

In the end, the trial court’s ruling denying the preliminary injunction [not preventing the sale] was affirmed. Read the whole opinion, Five Mile Capital Westin v. Bekadia Commercial Mortgage, 2012 IL App (1st) 122812 (12/24/12), by clicking here.

Barbara Kemp’s mortgage was held by EMC Mortgage Corporation. EMC filed a foreclosure action against Barbara because she defaulted on her payments. Eventually, EMC asked for and got a summary judgment foreclosure. Kemp then asked for reconsideration of the summary judgment and for a stay of the judicial sale of the property. Both were denied.

On the day the judicial sale was scheduled, Kemp made an emergency request to vacate the judgment of foreclosure and then to dismiss EMC’s complaint. Kemp’s request to vacate the judgment was made under Illinois Civil Procedure Act Rule 2-1401 [allowing final judgments to be vacated if there is new evidence and a meritorious defense]. The trial court also stayed the judicial sale of the property for 45 days. The court added Illinois Supreme Court Rule 304(a) language to its order [allowing immediate appeal of final judgments that do not dispose of the entire case].

Kemp appealed two of the trial court’s orders: the order denying her motion for reconsideration, and the order denying her motion to vacate. The Second District Illinois Appellate Court dismissed Kemp’s appeal for lack of appellate jurisdiction. The Illinois Supreme Court did the same for two reasons.

Reason I. The orders denying the reconsideration request, and denying the Rule 2-1401 request to vacate the foreclosure judgment were not final and appealable because the trial court had not approved the sale of the property nor directed distribution of it. Here’s what the Illinois Supreme Court said:

It is well settled that a judgment ordering the foreclosure of mortgage is not final and appealable until the trial court enters an order approving the sale and directing the distribution … The reason such a judgment is not final and appealable is because it does not dispose of all issues between the parties and it does not terminate the litigation … Specifically, although a judgment of foreclosure is final as to the matters it adjudicates, a judgment foreclosing a mortgage, or a lien, determines fewer than all the rights and liabilities in issue because the trial court has still to enter a subsequent order approving the foreclosure sale and directing distribution … Accordingly, it is the order confirming the sale, rather than the judgment of foreclosure, that operates as the final and appealable order in a foreclosure case.

Reason 2. “A second problem with Kemp’s appeal lies with the fact that, while a judgment of foreclosure is a final order, without Rule 304(a) language added to it, the judgment is not appealable … Kemp did not seek to make the judgment of foreclosure appealable under Rule 304(a).”

Kemp argued that the orders denying her request for reconsideration of the summary judgment and her emergency request to vacate the judgment of foreclosure were appealable because the trial court included Rule 304(a) language in those orders. But the Illinois Supreme Court rejected that argument because “the inclusion of a special finding [Rule 304(a) language] in the trial court’s order cannot confer appellate jurisdiction if the order is in fact not final.”

Finally, Kemp argued in favor of appellate jurisdiction because the orders she attacked were, she said, void. The Illinois Supreme Court called that argument “meritless.” “This legal proposition [void order rule] … does not act to confer appellate jurisdiction on a reviewing court if such jurisdiction is otherwise absent … Rather, the rule allows a party the ability to always raise the issue of whether an order is void in an appeal where appellate jurisdiction exists and the case is properly before the court of review … As we have pointed out, there is no supreme court rule that permits the appeal of the nonfinal orders that Kemp has appealed in this case.”

Read the whole opinion, EMC Mortgage Corp. v. Kemp, 2012 IL 11341 (12/28/12), by clicking here.

Brandon Wilson required surgery for a fractured femur. He had a heart attack during surgery, which resulted in brain injury from lack of oxygen. Brandon sued Edward Hospital, where the surgery was done, and the doctors who treated him there.

To win against the hospital, Brandon had to show that the doctors were the hosptal’s actual or apparent agents. The hospital argued that the doctors were neither, and asked for summary judgment. The trial court gave the hospital judgment on the actual agent theory, but, ruling a question of fact existed, denied the hospital’s request on the apparent agency theory. Brandon then voluntarily dismissed his complaint.

One year later, Brandon re-filed, alleging the apparent agency theory against the hospital. The hospital asked the trial court to dismiss the re-filed complaint, arguing that it was barred by res judicata [second lawsuit alleging the same cause of action against the same parties not allowed]. The trial court refused to dismiss the re-filed complaint. But the court certified a question for immediate appeal – i.e., whether the re-filed complaint was a violation of the rule against claim-splittting and should be barred by res judicata.

The Second District Illinois Appellate Court felt the re-filed complaint was improper claim-splitting, so it reversed the trial court. Brandon then appealed to to the Illinois Supreme Court. The supreme court agreed that plaintiff could legitimately re-file the apparent agency theory. The re-filed complaint did not improperly split a claim because “actual agency” and “apparent agency” were not separate claims. There was only one claim, negligence. “Actual agency” and “apparent agency” were different elements of liability that could go toward proof of the single claim of negligence.

This case is important for the appellate practitioner because the supreme court ruled that the trial court order giving summary judgment to the hospital on “actual agency” was not a final order. If not final, then it would not be appealable even under Illinois Supreme Court Rule 304(a). [Allowing instant appeal of certain final judgments before the whole case is finished.]

Read the whole opinion, Wilson v. Edward Hospital, 2012 IL 112898 (12/13/12), by clicking here.

Elizabeth Demaret got a better job in New Jersey, so she wanted to move there from Illinois with her children. She had sole custody of her four children. James, her ex-husband, had parenting time in accord with a parenting agreement that an Illinois trial court incorporated into the divorce judgment.

Elizabeth asked the trial court for permission to move the children to New Jersey. James fought the request because he felt his time with the children would suffer and diminish. He asked the trial court to award him attorney fees he would incur fighting Elizabeth’s removal request.

The trial court denied Elizabeth’s request to move the children to New Jersey. Elizabeth appealed, but James’s fee request still was pending in the trial court. James argued that was enough to deprive the appellate court of jurisdiction to consider the appeal ― that is, (1) no appellate jurisdiction because (2) the order denying Elizabeth’s request to move the children was not final and appealable because (3) James’s fee petition still was pending in the trial court.

The appellate court acknowledged a split among the Illinois courts on whether a post-dissolution petition was:
• “a new claim within the original dissolution proceedings,” which would preclude appellate jurisdiction, or
• “a separate action from the original dissolution proceeding,” in which case appellate court jurisdiction exists upon a final resolution of that [the removal] petition under Illinois Supreme Court Rule 301 … regardless of the pendency of an unrelated petition.

The First District Illinois Appellate Court concluded “that postdissolution proceedings are generally new actions.” But that did not end the discussion. The court also ruled that James’s pending request for attorney fees was “wholly unrelated to the issues presented in [Elizabeth’s] removal petition.” So the appellate accepted jurisdiction over the case.

According to this appellate court, a split remains over whether a postdissolution petition presents a new action from the original divorce action or a new claim in an existing divorce case. In this case, Elizabeth won the battle over appellate jurisdiction. But she lost the war. The appellate court accepted jurisdiction over her appeal, then affirmed the trial court’s ruling that prevented her from moving with her children to New Jersey.

Read the whole opinion, IRMO Demaret, 2012 IL App (1st) 111916, which reviews the split of authority, by clicking here.

Arthur and Shirley Susman got divorced. The divorce judgment incorporated a marital settlement agreement, which reserved two subjects to be resolved later: (1) certain tax liabilities, and (2) allocation of certain personal property.

A few months later, Arthur asked the trial court to modify the judgment. He claimed there had been a mutual mistake of fact regarding a different tax liability. The trial court denied Arthur’s request.

Arthur appealed under Illinois Supreme Court Rule 301, which allows appeals from final judgments. But the First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Arthur’s appeal. The appellate court ruled that Arthur’s appeal of the order denying his request to modify the judgment was not appealable because other questions had been reserved by the trial court. Here’s how the appellate court explained it:

Here, the trial court did not resolve the allocation of the parties’ personal property and pre-2008 tax liabilities. Because the parties could not fully agree what they would divide and how they would divide it, the court reserved the issues for further
consideration, and the order was not enforceable in that specific regard …The court thus entered what is known as a bifurcated judgment pursuant to section 401(b) of the Illinois Marriage and Dissolution of Marriage Act … which authorizes a court to
reserve issues in a dissolution judgment for further consideration … Although the court’s actions might have been statutorily authorized, they did not result in a final, appealable order for the purposes of conferring jurisdiction on this court … This lack of finality regarding the dissolution action is evident from the record inasmuch as the parties continued to litigate the division of personal property.

Because the dissolution judgment was not final and appealable, the order disposing of Arthur’s motion to modify the judgment therefore cannot be considered “final.” … Arthur cannot seek to appeal an issue arising from the dissolution proceedings when others remain pending, and we must dismiss this appeal for lack of jurisdiction. The policy against avoiding piecemeal appeals compels the result in this case.

In passing, the appellate said Arthur could have appealed the “propriety of the [trial court’s original] bifurcated judgment.” But Arthur did not appeal that question, so the whole appeal was dismissed. Read the opinion, IRMO Susman, 2012 IL App (1st) 112068, by clicking here.