By Kimberly Glasford
Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court, First District
Appellate practitioners who want to avoid sanctions under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994) should consult the First District’s decision in Oruta v. Biomat USA, Inc., 2017 IL App (1st) 152789, which provides a good example of what not to do. The decision also reminds practitioners of a potential resource for combating obnoxious litigants.
On January 14, 2013, the circuit court dismissed with prejudice plaintiff Oruta’s pro se claims against defendant Biomat USA, Inc. In September 2015, however, the plaintiff moved to file a service of summons against the defendant. The court denied that motion on September 29, 2015, noting that the court had dismissed the plaintiff’s claims against the defendant 32 months earlier. The plaintiff immediately filed a notice of appeal and filed an amended notice on May 20, 2016. Both notices of appeal, as well as the plaintiff’s appellate brief, stated that the circuit court entered a final judgment years earlier on January 23, 2012. That being said, the notice of appeal identified the 2015 order as the judgment being appealed.
The reviewing court found the plaintiff failed to demonstrate that the court had jurisdiction to entertain his appeal. If a final judgment was entered in 2012, the 2015 notice of appeal was filed well after the requisite 30-day filing period set forth by Illinois Supreme Court Rule 303(a) (eff. Jan. 1, 2015). Similarly, the plaintiff’s brief set forth no basis for the reviewing court to exercise jurisdiction over the 2013 order. Furthermore, the 2015 order was not appealable, as a final judgment was allegedly entered in 2012. Accordingly, the court agreed with the defendant’s sole contention that the appeal should be dismissed for lack of jurisdiction. Yet, the reviewing court found more was required.
Rule 375(b) authorizes a reviewing court to impose sanctions against a party or his attorney after determining that an appeal or other action is frivolous, not in good faith or primarily taken for an improper purpose. Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). Additionally, the court can impose sanctions on its own motion. Id. An appeal is generally frivolous where not arguably warranted by law and not grounded in fact. Id. Moreover, harassment, the needless inflation of costs and unnecessary delay constitute improper purposes. Id.Sanctions are within the court’s discretion and may be imposed against pro se litigants under egregious circumstances. Oruta, 2017 IL App (1st) 152789, ¶ 11.
The reviewing court observed that the pro se plaintiff was a serial filer of frivolous appeals, having filed at least seven others, and had repeatedly crossed the line. In an opinion filed the year before, the court had described the plaintiff’s prior improper appeals “so that issues do not repeat themselves,” thereby suggesting that the plaintiff may suffer future consequences for repeating his mistakes. Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 4. Clearly, the plaintiff did not learn his lesson. The reviewing court gave the plaintiff 30 days to show cause why sanctions should not be imposed. The court considered barring the plaintiff from further filings without prior leave of court. Justice Lampkin concurred only in the judgment.
While it remains to be seen whether the plaintiff will be sanctioned, unscrupulous lay persons and practitioners beware: appellate practice is no game.