In In re Estate of York, 2015 IL App (1st) 132830, the Illinois Appellate Court, First District, cautioned litigants to “adhere to 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.” Id. ¶ 1.  The court ultimately took the case on the appellant’s brief alone, dismissed the appeal for lack of jurisdiction, and remanded for further proceedings. Id. ¶¶ 48-51. 

The appeal arose out of a proceeding administering an estate. The executor of the estate of Mary York sought through a citation to recover assets to recover the balance of a loan that York had made to Rosemary Mulryan, her former law partner. In re Estate of York, 2015 IL App (1st) 132830, ¶10. Mulryan moved to dismiss the citation (id. ¶ 11), and the circuit court granted the motion “with prejudice” with respect to counts I through IV relating to the loan (id. ¶ 13). The court dismissed all other counts “without prejudice” and with leave to replead.  Id. ¶ 13. The executor filed a notice of appeal. Id. ¶ 14. Mulryan did not file a response brief, so the appellate court entered an order taking the case for consideration on the executor’s brief alone. Id. ¶ 15. After the appellate court entered that order, Mulryan moved for an extension of time and for leave to file a motion to dismiss for lack of jurisdiction, which the court took with the case. Id.

The appellate court first rejected Mulryan’s argument that the appellate court lacked jurisdiction under Illinois Supreme Court Rule 304(b)(1) (eff. Feb. 26, 2010), which permits an interlocutory appeal as of right without the special finding required for appeals under Rule 304(a), when the appeal is from “a judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party.” In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 18-20. The court explained that Rule 304(b)(1) applies to orders that finally resolve an ultimate right, and held that the dismissal with prejudice of counts I through IV relating to the loan finally determined the estate’s right to that money. Id. ¶¶ 21-24. Thus, that part of the dismissal order was immediately appealable under Rule 304(b)(1). Id. ¶ 25.

The appellate court then addressed Mulryan’s failure to timely file a response brief or motion for extension of time. In re Estate of York, 2015 IL App (1st) 132830, ¶ 25. Mulryan asserted that she had felt it was unnecessary to file these because the lack of jurisdiction was “obvious” (id. ¶¶ 2, 25), but after the court entered its order taking the case on the executor’s brief alone, Mulryan then moved to dismiss for lack of jurisdiction and sought leave to file a response brief (id. ¶ 25). The court held that Mulryan had caused unnecessary delay in the disposition of the case, denied her motion for extension of time, and followed its prior order to proceed on the executor’s brief alone. Id.

Next, the appellate court considered whether the notice of appeal conferred appellate jurisdiction--an issue that the parties did not raise. In re Estate of York, 2015 IL App (1st) 132830, ¶ 27. The court explained that the executor’s notice of appeal specifically stated that the executor appealed only from the dismissal of count II. Id. ¶¶ 31, 36. Because a notice of appeals confers jurisdiction to consider only the judgment or parts of the judgment specified in the notice of appeal, the appellate court had jurisdiction only over the portion of the judgment dismissing count II. Id. ¶¶ 32-37. As the court explained, the notice of appeal was “highly specific,” and sought relief only from the ruling dismissing “count II *** with prejudice, pursuant to section 2-615.” Id. ¶ 27. Yet, the executor presented no argument on appeal with respect to count II; instead, the executor’s brief argued for reversal of the dismissal of count I. Id. ¶¶ 28, 30, 39. The court held that because the notice of appeal was solely from the ruling dismissing count II, it lacked jurisdiction to review the dismissal of count I. Id. ¶ 40.

The executor’s brief also challenged the circuit court’s ruling with respect to a motion to strike Mulryan’s affidavit in support of her section 2-619 motion. In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 28, 42. The appellate court concluded that it lacked jurisdiction to review the ruling on the motion to strike the affidavit as well. Id. ¶¶ 44-46. The court reiterated that the executor appealed only from the section 2-615 dismissal of count II. Id. ¶ 43. The ruling concerning the affidavit therefore could be reviewed only if it was a “step in the procedural progression leading to the dismissal of count II with prejudice.” Id. But it was not, because affidavits are considered only in connection with section 2-619 dismissals, and the circuit court did not consider the affidavit in its dismissal ruling. Id. ¶¶ 44-45. Because the executor raised no issue that the appellate court had jurisdiction to review, the court dismissed the appeal. In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 46, 49. The court remanded the case because the circuit court had allowed the executor to replead the other counts. Id. ¶ 50.

Recommended Citation: Myriam Z. Kasper, First District Serves a “Cautionary Tale To Litigants” Regarding Filing Deadlines and Specifying Grounds of Appeal In the Notice of Appeal, The Brief, (June 19, 2015).

The Association recently updated Cases Pending, a resource that provides ALA members with up-to-date information on matters (civil, criminal and attorney discipline) pending before the Illinois Supreme Court. The updated edition provides information on cases pending before the state's high court through June 5, 2015. Complete access to Cases Pending is complimentary with ALA membership.

ALA members can access Cases Pending via the Association's website. 

On May 28, 2015, the Association gathered at the Union League Club in Chicago to host its annual roundtable luncheon honoring the Judges of the United States Court of Appeals for the Seventh Circuit. Many of the judges from the Seventh Circuit were in attendance, as well as a number of special guests, which guests included judges from the Illinois judiciary and Michael Dreeben, Deputy Solicitor General at the United States Department of Justice.

Association President Steven F. Pflaum began the festivities by offering welcoming remarks, as ALA members and guests enjoyed lunch. Attendees had the unique opportunity to sit at a table with an individual Seventh Circuit judge, and were able to engage in casual conversation as well as inquire about practice pointers. 

Thereafter, Chief Judge Diane P. Wood along with Judges Diane S. Sykes and David F. Hamilton participated in a panel discussion. President Pflaum moderated the discussion, which addressed how appellate attorneys can focus issues on appeal. Chief Judge Wood noted that this was a "painful part" of appellate practice and urged appellate practitioners to take a careful look at what occurred at the trial court and the standard of review. Judge Sykes reiterated Chief Judge Wood's suggestion to look at the standard of review, which Judge Sykes noted is often decisive, and also encouraged attorneys to consider whether a trial court error was "an error of consequence." Judge Hamiliton offered the helpful reminder that attorneys on appeal should make sure that the any objection was preserved.

The panel discussed a number of other topics, including how many issues should typically be raised on appeal. The panel agreed that three to five issues should be the "rule of thumb."  Judge Hamilton noted that the district court judges are "usually good" and unlikely to make 10 to 12 errors, and Judge Sykes later quipped, "nine grounds for reversal usually means none." The panel also offered tips for oral argument from both the appellants' and appellee's perspective. Chief Judge Wood noted that, if the district court wrote a sound opinion, "don't overlook this gift."

The ALA thanks the judges of the Seventh Circuit for an enjoyable and informative luncheon, as well as the many guests who attended.

In People v. Moore, 2015 IL App (5th) 130125, Sammy Moore was charged with aggravated battery after striking a corrections officer at the Pinckneyville Correctional Center. The trial court held a preliminary hearing 31 days after the charges were filed against Moore. Moore, acting pro se, objected to the timeliness of the hearing, arguing that the incident occurred on March 2,2007; he was arrested and booked on March 2, 2007; but charges were not brought until August 23, 2007; and the September 24, 2007, hearing date was beyond the 30-day statutory period. The court held the preliminary hearing anyway and found probable cause.

Moore waived his right to a jury trial and agreed to a stipulated bench trial on November 12, 2008. The court informed Moore that, if he was found guilty of aggravated battery, it would sentence him to two years in the Department of Corrections, to run consecutive to the term that he was already serving. The court found Moore guilty and imposed the sentenced that it had indicated.

The court gave the following admonishment, in pertinent part, to Moore after being sentenced:

            “In order to appeal this sentence you must first file in this trial court within 30 days of today's date a written motion to withdraw your consent to the stipulated bench trial and give me a very good reason for allowing me to do so. If that motion is denied you still have 30 days from the date of that denial to file your written appeal in the Appellate Court in Mt. Vernon. You must first file a notice of appeal in the Office of the Circuit Court here in Perry County…."  

The defendant stated that he understood the instructions.

On January 11, 2013, more than four years after he was convicted and sentenced, Moore filed a pro se petition entitled “Petition for Leave to File An Untimely Post Trial Motion And Notice of Appeal,” seeking leave to file an untimely notice of appeal “on the ground that it was not due to his culpable negligence that the documents were not timely filed.” Moore explained in his petition that he had intended to appeal the denial of his pro se motion to dismiss related to the preliminary hearing issue and that he thought that defense counsel had filed a posttrial motion and notice of appeal, but only later learned that defense counsel failed to do so. Moore also filed a motion to dismiss based on the preliminary hearing issue and a notice of appeal seeking to appeal the court’s September 24, 2007, order denying his previously filed motion to dismiss.

The trial court denied Moore’s petitions, finding that "[d]efendant cannot merely make vague or conclusory assertions but must clearly demonstrate his diligent efforts to uncover matters he now claims entitle him to relief" (citing People v. Gunartt, 327 Ill. App. 3d 550 (2002)). The court held that Moore did not do so and therefore was not entitled to relief. The court dismissed the petition but granted Moore leave to refile it within 30 days, with a showing that the delay in the late filing was not due to his culpable negligence, that is, he "must allege facts showing the delay was not due to his negligent or reckless disregard of the time constraints and other circumstances of filing a timely post-conviction relief petition." Moore, 2015 IL App (5th) 130125, ¶ 13.

Moore filed a motion to reconsider, arguing that Gunartt applied only to post-conviction petitions. Moore argued that his filings should not have been characterized as a post-conviction petition and that they should have been reviewed under Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013). The court denied the motion to reconsider, stating that it had characterized Moore’s filings as a post-conviction petition because the it did not have jurisdiction to consider a posttrial motion filed more than 30 days after the entry of judgment and sentence on November 12, 2008. Moore appealed.

On appeal, Moore conceded that his petition for leave to file an untimely posttrial motion and notice of appeal was filed well beyond 30 days after judgment was entered, but he argued that the court nonetheless still had jurisdiction to consider his petition because he was not properly advised of his appeal rights. The appellate court disagreed.

The appellate court began by noting that Illinois Supreme Court Rule 605 (eff. Oct. 1, 2001) sets forth the admonishments regarding the right to appeal that a criminal defendant is to receive after judgment and sentence. Moore, 2015 IL App (5th) 130125, ¶ 21 (citing People v. Henderson, 217 Ill. 2d 449, 455 (2005)). Defendants who have been found guilty following a trial are to be given admonishments pursuant to Rule 605(a), while those who have pleaded guilty should be given admonishments pursuant to Rule 605(b) and (c). Id. If stipulated evidence is introduced and the trial court finds the defendant guilty based on that evidence, the defendant is considered to have been found guilty, rather than pleading guilty, and he should be admonished under Rule 605(a). Moore, 2015 IL App (5th) 130125, ¶ 22 (citing  People v. Horton, 143 Ill. 2d 11, 20-22 (1991)). However, if the defendant stipulates that the evidence presented at the stipulated bench trial is sufficient to convict, the stipulated bench trial is “tantamount to a guilty plea,” and the defendant should be admonished pursuant to Rule 605(b) and (c). Id. 

Moore did not stipulate that the evidence given at trial would be sufficient to convict. Therefore, he should have been admonished pursuant to 605(a). Instead, the trial court gave him a modified admonishment under Rule 605(b) and (c) when it “told the defendant that prior to appealing, and within 30 days, he must first file a ‘written motion to withdraw [his] consent to the stipulated bench trial.’ ” Moore, 2015 IL App (5th) 130125, ¶ 25. Moore argued that “the admonition exception adopted by the supreme court in People v. Foster, 171 Ill. 2d 469 (1996), should be applied to appeals from faulty Rule 605(a) admonitions so that the appellate court can reach the merits of an appeal.” Id. ¶ 26.

The Foster court explained that the admonition exception “allows the appellate court to entertain appeals in cases where the defendant did not comply with Rule 604(d)'s written-motion requirement because the trial court failed to provide Rule 605(b) admonitions.” Foster, 171 Ill. 2d at 473. The “admonition exception allows appellate courts to entertain appeals in those circumstances because if a defendant is not admonished of the necessary steps to appeal from a sentence imposed upon a plea of guilty as required by Rule 605(b), it would violate procedural due process to hold a defendant responsible for noncompliance with the strictures of Rule 604(d).” Id. 

Moore conceded that the admonition exception had not previously been extended to incorrect admonishments under Rule 605(a), but he urged the court to do so here, arguing that an incorrect 605(a) admonition provided him with unlimited time to appeal his conviction. The appellate court, however, declined, noting that the “supreme court has made it clear that the admonitions exception does not extend the time allowed for the defendant to perfect an appeal.”
 Moore, 2015 IL App (5th) 130125, ¶ 27.

The appellate court held the trial court lacked jurisdiction when Moore filed his petition for leave to file an untimely posttrial motion and notice of appeal. Relying on People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34 (2011), the court reasoned that “the admonition exception is for the appellate court to apply when the defendant files a timely notice of appeal, even though he did not comply with any conditions precedent as required by the supreme court rules.” Moore, 2015 IL App (5th) 130125, ¶ 30 (citing Skryd, 241 Ill. 2d at 42). Because there was no timely notice of appeal in Moore’s case, the admonition exception did not apply, even though Moore did not receive proper appeal admonishments. This is because the “admonition exception cannot restore jurisdiction to the circuit court after 30 days from the entry of judgment.” Id. The appellate court affirmed the trial court, concluding that it had properly dismissed Moore's motion for leave to file an untimely posttrial motion and notice of appeal where the admonition exception did not extend its jurisdiction to adjudicate the posttrial pleadings that the defendant had filed four years after judgment became final. 

Recommended Citation: Nate Nieman, Appellate Court Declines to Extend Admonition Exception For Untimely Filed Notice of Appeal in Criminal Case, The Brief, (May 31, 2015), http://applawyers-thebrief.blogspot.com.

In JPMorgan Chase Bank, N.A. v. Ontiveros, 2015 IL App (2d) 140145, the Illinois Appellate Court addressed whether a trial court lacked subject-matter jurisdiction to enter a judgment on a foreclosure and ensuing sale because the plaintiff was an unlicensed debt collector. While the opinion primarily focused on whether the trial court's order was void pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401(a) (West 2012)), the reviewing court provided a helpful reminder that successive postjudgment motions do not toll the clock to file a notice of appeal.

Procedural Background

In Ontiveros, the plaintiff brought a foreclosure complaint. The defendants appeared pro se, but did not answer. Thereafter, on November 7, 2012, the trial court entered a judgment of foreclosure, which judgment did not contain a finding of immediate appealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). 

One month later, the defendants appeared through counsel, moved to vacate the judgment of foreclosure, and claimed several defenses. The trial court denied the motion to vacate. 

On February 4, 2013, the trial court approved the confirmation of the sale. The defendants filed a timely postjugment motion seeking to vacate the confirmation. On July 5, 2013, with the motion to vacate still pending, the defendants filed a petition pursuant to section 2-1401, attacking the judgment as void. On July 16, 2013, the trial court "struck" the petition. One week later, on July 24, 2013, the trial court denied the defendants' motion to vacate but gave them leave to renotice their petition pursuant to section 2-1401, which defendants did. 

On January 29, 2014, the trial court denied the defendants' petition. Within 30 days, the defendants filed a notice of appeal, seeking review of the January 29 order, the July 16 order, and the November 7 order. 

The Court' s Jurisdictional Analysis

The reviewing court began its analysis by addressing the defendants' argument that their 2-1401 petition constituted a second postjudgment motion, and therefore, tolled the appeal clock for all orders. The court disagreed. 

The court noted that "it has long been the case" that a successive postjudgment motion is improper and does not toll the time to file a notice of appeal. In this case, the defendants' motion to vacate, which they timely filed after the trial court approved the confirmation of the sale, was the only motion that tolled the appeal clock. The trial court denied that motion on July 16, 2013, but the defendants did not file their notice of appeal until February 2014. Therefore, the reviewing court did not have jurisdiction to review the trial court's February 4 order confirming the sale. 

Regarding the November 7 order, the reviewing further noted that a judgment of foreclosure is not final until the trial court enters an order approving the sale and ordering distribution. As a result, absent a Rule 304(a) finding, that order did not become appealable until the trial court approved the confirmation of sale. 

The reviewing court further noted that, because the defendants filed their 2-1401 petition more than 30 days after the trial court's order confirming the sale and timely appealed after the trial court denied their petition, jurisdiction was proper for that issue. 

Recommended Citation: Charlie Ingrassia, Illinois Appellate Court Offers Reminder that Successive Postjudgment Motions do not Toll Appeal Clock, The Brief, (May 16, 2015), http://applawyers-thebrief.blogspot.com/2015/05/illinois-appellate-court-offers.html.

Cases Pending, edited by ALA Secretary Joanne R. Driscoll and Clare J. Quish, has been updated to discuss the Illinois Supreme Court’s May Term that began this week. Oral arguments are scheduled for Tuesday, Wednesday, and Thursday, May 12-14; and next Tuesday, Wednesday, and Thursday, May 19-21, 2015. A total of 24 cases will be heard – 16 civil and 8 criminal. 

Here are the civil cases with the dates of oral argument (two case excerpts are provided below the page break and Association members can access the full issue at the ALA website):

Walker v. McGuire, No. 117138 – May 13

McElwain v. Office of the Secretary of State, No. 117170—May 14

Matthews v. Chicago Transit Authority, Nos. 117638, 117713, 117728 (cons.) – May 14

Folta v. Ferro Engineering, No. 118070—May 14

Price v. Philip Morris, Inc., No. 117687 – May 19

Nelson v. Enterprise Leasing Co. of Chicago, No. 118058 – May 19

Lake Environmental, Inc. v. Arnold, No. 118110--- May 19

Commonwealth Edison Co. v. Illinois Commerce Comm'n, No. 118129—May 19

The Henderson Square Condominium Ass’n v. LAB Townhomes, L.L.C., No. 118139—May 19

The Village of Vernon Hills v. Heelan, No. 118170—May 20

Klaine v. Southern Illinois Hospital Services, No. 118217—May 20

O’Toole v. The Chicago Zoological Society, No. 118254—May 20

Gurba v. Community High School District No. 155, Nos. 118332, 118369 (cons.)—May 20

Seymour v. Collins, No. 118432—May 21

Ballard RN Center, Inc. v. Kohll’s Pharmacy and Homecare, Inc., No. 118644—May 21

Stevens v. McGuireWoods L.L.P., No. 118652—May 21 

The Court will hear several cases of interest this term, including Price v. Philip Morris and a case interpreting the Tort Immunity Act. Below are abbreviated summaries for these two cases.



PROCEDURE – SECTION 2-1401 PETITIONS


No. 117687 

Price v. Philip Morris Inc.

This case presents the issue of what criteria must be considered in determining whether to vacate a final judgment entered in 2006 after remand from a 2005 decision of the Illinois Supreme Court. In its 2005 decision, the Supreme Court reversed a $10.1 billion consumer fraud judgment on grounds of federal implied preemption, namely, that the FTC has authorized the use of “lights” descriptors for cigarettes sold by the defendant. In December 18, 2008, plaintiffs filed a petition for relief from judgment under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401), alleging that new evidence – the United States Supreme Court’s decision in Altria Group Inc. v. Good, 555 U.S. 70 (2008), decided on December 15, 2008, and the FTC’s amicus brief filed in that case, showed that the Illinois Supreme Court’s preemption analysis was flawed. The circuit court dismissed plaintiffs’ petition as untimely, but the Illinois Appellate Court, Fifth District, reversed and remanded the matter for further proceedings. Price v. Philip Morris, Inc., 2011 IL App (5th) 130017-U.

On remand, plaintiffs amended their petition, relying solely on the FTC’s statements in its amicus brief in Good that the FTC believed that it had never authorized the use of “lights” descriptors. Although the circuit court found that this “new evidence” was meritorious, it denied plaintiffs’ amended petition, finding that they could not show that the outcome likely would have been different. The circuit court predicted that it was likely that the Illinois Supreme Court still would have reversed the $10.1 billion judgment but on other grounds, namely, plaintiffs’ inability to prove damages.

On appeal, the appellate court found that plaintiffs’ petition was timely, that the FTC’s statements constituted “newly discovered” evidence, that plaintiffs acted diligently to obtain that evidence, and that the Supreme Court would have reached a different conclusion on the preemption issue. The appellate court reversed the circuit court’s judgment and granted the section 2-1401 petition, holding that it exceeded its authority in predicting that the Supreme Court still would have reversed the $10.1 billion judgment. The appellate court then concluded that the effect of granting the section 2-1401 petition and vacating the circuit court’s 2006 dismissal order was to reinstate the verdict.

Appellate Court Decision: 2014 IL App (5th) 130017, 9 N.E.3d 599. Chapman, J., with Stewart and Schwarm, JJ., concurring. 

PLA Allowed: 09/24/14

Oral Argument: 05/19/15

TORT IMMUNITY ACT – PUBLIC BUSINESS

No. 118254 

O’Toole v. The Chicago Zoological Society d/b/a Brookfield Zoo

The issue in this case is whether the Brookfield Zoo (“Zoo”) is considered a “local public entity” that is entitled to the protections of the Local Government and Governmental Employees Tort Immunity Act (“Act”) (745 ILCS 10/1-206).

Plaintiff sued the Zoo for negligence after she allegedly tripped and fell on the Zoo’s premises. The Zoo filed a motion to dismiss under section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619 (a)(5)), asserting that plaintiff’s lawsuit was filed beyond the one-year statute of limitations provided for in section 8-101 of the Act (745 ILCS 10/8-101). The Zoo attached a copy of the agreement between the Chicago Zoological Society and the Forest Preserve District of Cook County (“District”), which established that the Chicago Zoological Society would maintain and operate the Zoo on public land for the public’s benefit. The circuit court granted the Zoo’s motion to dismiss with prejudice.

The Illinois Appellate Court reversed, holding that the Zoo was not a local public entity under the Act because its operations were not “tightly enmeshed with government” and, therefore, it was not engaged in “public business” that entitled it to the protections of the Act, as is required for non-profit entities under the Act. According to the court, the Zoo was not directly owned by the government, nor did the government have operational control over the business. Under the operating agreement, the District delegated control of daily operations and maintenance of the land and the collections to the Zoo. Furthermore, the Zoo was entitled to appoint its board and managers and provide their salaries, not the District. Moreover, the Zoo was not subject to regulations typical of governmental units. Therefore, the Zoo’s operations were not tightly enmeshed with government.

Appellate Court Decision: 2014 IL App (1st) 132652, 17 N.E.3d 869. Lavin, J., with Fitzgerald Smith and Epstein, JJ., concurring. 

PLA Allowed: 11/24/14 

Oral Argument: 05/20/15

Please join the Young Lawyers Section of the Chicago Bar Association at its annual All Bar Social on Wednesday, May 13, 2015, from 6:00-8:00 p.m., at Rockit Bar & Grill, 22 W. Hubbard in Chicago. Mingle and network with local legal professionals while enjoying complimentary hors d'oeuvres and drinks. The Association is cosponsoring the event with the CBA and other bar associations, including the Filipino American Lawyers Association of Chicago, the Indian American Bar Association, and the Puerto Rican Bar Association.
 

The All Bar Social is a wonderful opportunity for members of all bar associations to come together in a casual environment and discuss how all of us can work together. 

We hope that you will join us on May 13th.

As any experienced appellate practitioner knows, Rule 307(a) permits an appeal as a matter of right in cases involving seven separate categories of interlocutory orders, including orders “granting, modifying, refusing, dissolving, or refusing or dissolve or modify an injunction.” Ill. S. Ct. Rule 307(a)(1). While this rule historically has been broadly interpreted, in The Raymond W. Pontarelli Trust v. Pontarelli, 2015 IL App (1st) 133138, the court held that two orders did not qualify as injunctions, and thus were not appealable under Rule 307(a)(1). Id. ¶ 1. Accordingly, the court dismissed the appeal for lack of jurisdiction. Id. ¶¶ 1, 18.

In Pontarelli, a widow and two trusts, of which she was the trustee and sole income beneficiary, brought an action against her deceased husband’s children from a prior marriage, as well as others. Plaintiffs sought various forms of relief relating to various real properties and entities in which she or the trusts had an interest. Id. ¶ 4. Defendants counterclaimed for, among other things, the removal of the wife as trustee of the trusts, as well as an accounting. Id. ¶ 6. After the trial court entered a temporary restraining order barring the wife from acting as trustee and barring the sale of two condominium units owned by the trusts, the court entered three orders: (1) an order establishing the wife’s right to receive income from the trusts during the litigation (the “income order”), (2) an order allowing defendants to lease the condominium units, but imposing restrictions on the leases and prohibiting construction on the units, and ordering an accounting for rents and expenses (the “leasing order”), and (3) an order denying defendants’ motion to dismiss. Id. ¶¶ 1, 7, 8-15, 18. Defendants appealed, and the appeals were consolidated. Id. ¶ 16.

In reviewing the income order and the leasing order for purposes of determining whether jurisdiction under Rule 307(a)(1) existed, the appellate court began its analysis with the familiar rule that a court “must look to the substance of the action, not its form” in determining what constitutes an appealable injunctive order. Id. ¶ 21. Citing the Illinois Supreme Court’s decision in In re A Minor, 127 Ill. 2d 247, 261 (1989), the court defined an injunctive order as one which requires a party to do a particular thing, or to refrain from doing a particular thing, “the most common sort of which operate as a restraint upon the party in the exercise of his real or supposed rights.” 2015 IL App (1st) 133138, ¶ 21. However, “orders properly characterized as ‘ministerial’ or ‘administrative’ are not subject to interlocutory appeal as of right because they only regulate the procedural aspects of the case before the court.” Id.

In explaining its findings that neither the income order nor the leasing order were nature injunctive, the court reasoned that those orders do not “regulate[] the parties’ conduct in their everyday activities outside the litigation, and they are a valid exercise of the court’s power under” the Trusts and Trustees Act (760 ILCS 5/1 et seq. (West 2012)). Pontarelli, 2015 IL App (1st) 133138, ¶¶ 24-25. Rejecting defendants’ argument that the fact that the income and leasing orders contained restrictions and requirements made them injunctive in nature, the court explained, “[v]irtually every order entered by a court compels a party to do or prohibits a party from doing something. But that does not make every order an injunction.” Id. ¶ 25. Rather, the court concluded, the leasing and income orders “were necessary and appropriate in the administration of the litigation” to ensure that the trusts’ operations continue during the litigation and that the wife received what she was due, particularly the income from the trusts for which it was undisputed that she was the sole beneficiary. Id. ¶ 25, 36.

The court also found that none of the three orders were appealable under Rule 304(b)(1), which allows for the immediate appeal without a special finding from orders entered “in the administration of an estate, guardianship, or similar proceeding which finally determine[] a right or status of a party.” Pontarelli,2015 IL App (1st) 133138, ¶ 26 (citing Ill. S. Ct. R. 304(b)(1)). With respect to the income and leasing orders, neither order purported to “fully resolve any matters or issues regarding the rights of any of the parties, properties, or corporations at stake.” Pontarelli, 2015 IL App (1st) 133138, ¶¶ 26, 27. As for the order denying defendants’ motion to dismiss, that order, too, was not appealable under Rule 304(b)(1) because the trial court did not make any final determination regarding the wife’s capacity to act as trustee. Id. ¶¶ 29, 30. Indeed, as the trial court noted, the issue of the wife’s competence as trustee was an issue that would not be properly disposed of on the pleadings and a single affidavit, as the court “could never reach a complicated issue about somebody’s mental health condition on a 2-619 motion to dismiss.” Id. ¶ 30.

Finally, the court found that the filing of three interlocutory appeals by defendants’ counsel (including a previous appeal of the wife’s guardianship proceedings, which had also been dismissed for lack of jurisdiction) warranted the imposition of sanctions pursuant to Rule 375(b). Id. ¶¶ 32-39. Finding that the premature filing of the appeals was “not simply zealous advocacy in action,” the court characterized the appeals “frivolous,” “unjustified,” and indicative of “a lack of good faith,” among other choice words. Id. ¶¶ 34, 38-39.

Recommended Citation: Katherine A. Grosh, Illinois Appellate Court Discusses Whether Trial Court Orders Were Injunctive for Purposes of Interlocutory Appeal Under Rule 307, The Brief, (May 6, 2015), http://applawyers-thebrief.blogspot.com/2015/05/illinois-appellate-court-discusses.html.

On April 20, 2015, the Appellate Lawyers Association hosted more than 75 attorneys, Appellate Court Justices, and law professors at its Advanced Appellate Practice Seminar, which focused on a variety of legal topics for the appellate practitioner. In the first session, an esteemed panel featuring past ALA president Ted Kionka, Seminars co-chair Jonathan Loew, and ALA Vice President and former Illinois Solicitor General Michael Scodro, discussed techniques and strategies for collaborating with trial counsel or co-counsel on appellate brief writing and oral argument. Justice John Simon of the Illinois Appellate Court, First District, also presented an “insider’s view” of the collaborative writing process undertaken by a panel of Appellate Court Justices. ALA Board Member Gretchen Sperry moderated the panel. Mike Scodro also led a discussion on preparing for oral argument, particularly in the context of preparing newer attorneys for their first argument. ALA President Steve Pflaum and First District Appellate Court Justice Nathaniel Howse gave a thought-provoking presentation on legal ethics and issues that arise specifically in the context of appellate practice. First District Appellate Court Justice Margaret Stanton McBride also presented a discussion on interlocutory appeals, specifically interlocutory appeals as of right under Illinois Supreme Court Rule 307.

The seminar also featured substantive theoretical discussions of the practice of appellate law. Past ALA President J. Timothy Eaton discussed how recusals by Illinois Supreme Court Justices may affect cases pending before it. Eaton suggested that there be a mechanism by which the Supreme Court may assign an Appellate Court justice to replace a Supreme Court justice who recuses to maintain a composition of seven justices to hear cases, as is done in other states. Dr. Peter Koelling of the American Bar Association also gave a fascinating presentation on the Future of Appellate Practice, in light of advances in technology.

The ALA thanks all of the presenters and attendees for participating in the seminar. We also thank the Chicago Bar Association for hosting the event.

Yesterday, ALA Vice President Michael Scodro appeared on Chicago Tonight to discuss the oral arguments before the United States Supreme Court on the right of same-sex couples to marry. Scodro, who served as a law clerk to Justice Sandra Day O'Connor and previously served as Illinois Solicitor General, was joined by ALA member Carolyn Shapiro, who succeeded Scodro as Solicitor General and also served as a law clerk on the High Court. (Solicitor General Shapiro was the featured speaker at a recent ALA luncheon.) Two other former United States Supreme Court law clerks joined Scodro and Solicitor General Shapiro on the panel. 

Please click here to watch the thoughtful and informative discussion.