By Stephen Soltanzadeh
Associate, Ancel Glink
The Illinois Appellate Court, Second District, recently held in Hartney v. Bevis, 2018 IL App (2d) 170165, that an involuntary dismissal of a prior appeal for failure to file a brief had a preclusive effect on a subsequent appeal that involved the same issue raised in the dismissed appeal.
In Hartney, plaintiff obtained a monetary judgment against defendant, and defendant appealed in an appeal docketed as No. 2-15-0005. In a separate action, plaintiff sought enforcement, including an order requiring the sale of stock owned by defendant, with the proceeds to go toward satisfying the judgment. Defendant argued that the stock was exempt under 735 ILCS 5/12-1001(b), but the circuit court held that the stock was to be sold, with the exemption applying to any proceeds from the sale, not the stock itself. Defendant appealed that order as well, and that appeal was docketed as No. 2-15-0929. Hartney, 2018 IL App (2d) 170165, ¶¶ 1-5.
In December 2015, with appeal No. 2-15-0929 pending, the appellate court affirmed the underlying judgment in appeal No. 2-15-0005. In January 2016, the circuit court stayed the sale of stock. It later lifted that stay in August 2016, and the stock was sold to plaintiff at auction in October 2016 for $1.00. Meanwhile, in July 2016, the appellate court dismissed appeal No. 2-15-0929 for defendant’s failure to file a brief. Id. ¶ 6.
In November 2016, defendant moved the circuit court for an order applying defendant’s statutory exemption to the stock, not to the proceeds from its court-ordered sale. The circuit court ultimately denied the motion in January 2017 and held that the exemption applied to the proceeds from the sale, but not the stock, and declined to void the sale of stock. Defendant appealed. Id. ¶¶ 7-8.
The appellate court held that its prior dismissal of appeal No. 2-15-0929 on the ground that defendant failed to file a brief precluded defendant from appealing the circuit court’s January 2017 order. The court explained that whereas, generally, a voluntary dismissal will not have preclusive effect on a subsequent appeal, an involuntary dismissal will have preclusive effect so long as the dismissal is based on “a defect in the appeal proceedings . . . attributable to appellant,” (id. ¶¶ 12-13 (quoting 50 C.J.S. Judgments, § 984 (2015))), meaning “where the appellant fails to properly conduct the appeal of an otherwise appealable order.” Id. ¶ 13. The court concluded that the involuntary dismissal based on defendant’s failure to file a brief qualified as a dismissal based on a defect attributable to defendant and, therefore, had preclusive effect. Id. ¶ 16. It further determined that defendant was raising the same substantive issue in the appeal before the court as he had raised in appeal No. 2-15-0929, and, therefore, held that the appeal was barred by that prior appeal’s dismissal.