Stanila v. Joe

2020 IL App (1st) 191890

No. 1-19-1890

Second Division

December 22, 2020

____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

____________________________________________________________________________

) Appeal from the

IVAN STANILA, ) Circuit Court of

) Cook County.

Plaintiff-Appellee, )

)

v. ) No. 19 M1 701301

)

HARVEY JOE and UNKNOWN )

OCCUPANTS, ) Honorable

) Alison C. Conlon

Defendants ) Judge, presiding.

)

(Harvey Joe, Defendant-Appellant). )

____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion.

Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment

with opinion.

OPINION

¶1 Defendant, Harvey Joe, 1 appeals from the circuit court’s order denying his motion to

reconsider an eviction judgment. On appeal, defendant contends that the circuit court erred in

(1) finding that defendant did not timely raise the issue that his counsel lacked authority to enter

1

Defendant’s notice of appeal states that his name is Harvey Joe and that he “was incorrectly sued

as JOE HARVEY.” Plaintiff’s response brief also includes this correction. Therefore, we follow the

notice of appeal and adopt this correction.

No. 1-19-1890

into an agreed eviction order and (2) denying defendant an evidentiary hearing as to that issue. For

the following reasons, this appeal is dismissed for lack of jurisdiction and plaintiff’s request for

sanctions is denied.

¶2 I. BACKGROUND

¶3 On January 24, 2019, plaintiff, Ivan Stanila, filed an eviction suit against defendant in

connection with a single-family home located in the 8600 block of South Indiana Avenue in

Chicago, Illinois (the property). On April 3, 2019, the parties, through their respective counsels,

executed an agreed eviction order whereby defendant would vacate the property by May 14, 2019.

Later that month, on April 30, 2019, defendant filed motions to quash service and strike the agreed

eviction order on the grounds that “plaintiff fraudulently presented [the] case to the court as a

nonpayment of rent case when it wasn’t” and that defendant’s counsel exceeded his authority by

agreeing to the order instead of contesting the “validity of the forcible [detainer] case.” A hearing

on the motions was held on May 10, 2019, with only defendant’s counsel present. After the

hearing, the circuit court denied defendant’s motion to quash service but granted the motion to

strike the eviction order.

¶4 On May 17, 2019, plaintiff filed a motion to reconsider the court’s May 10, 2019, order

striking the agreed eviction order. Plaintiff argued that his counsel did not receive notice of the

hearing and, therefore, the court “was not fully apprised of the facts in this matter or [p]laintiff’s

arguments against the motion, and that it was error to vacate the agreed order of eviction.” Plaintiff

further argued that there was no fraudulent misrepresentation as “there was never any issue

concerning unpaid rent” but rather, plaintiff was “seeking only possession of [the property].” On

May 30, 2019, defendant filed two motions to dismiss pursuant to section 2-619 of the Code of

Civil Procedure (Code) (735 ILCS 5/2-619 (West 2018)), asserting that plaintiff’s complaint

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No. 1-19-1890

should be dismissed with prejudice because it “improperly nam[ed]” defendant and plaintiff did

not have the legal capacity to sue. On May 31, 2019, the circuit court ordered that defendant “shall

file a response to [plaintiff’s motion to reconsider] no later than June 14, 2019,” and plaintiff “shall

file any reply no later than June 21, 2019.” A hearing date of June 25, 2019, was scheduled on

plaintiff’s motion. Defendant did not file a response. After the June 25, 2019, hearing, the circuit

court granted plaintiff’s motion to reconsider; vacated its May 10, 2019, order; and entered a

separate eviction order providing a new date for vacating the property. 2

¶5 On July 10, 2019, defendant refiled his motions to dismiss plaintiff’s complaint with

prejudice pursuant to section 2-619 of the Code (id.), arguing that plaintiff improperly named him

as “Joe Harvey” instead of “Harvey Joe” and that plaintiff was not the owner of the property. In

response, plaintiff argued that the motions to dismiss were untimely and had “no basis in law.” On

July 25, 2019, defendant filed a motion labeled as a “motion to vacate order.” The first page of the

motion stated that defendant was moving the court “to [v]acate the [o]rder of [p]ossession entered

on June 25, 2019.” The “background” section of the motion stated that “[p]laintiff alleges in its

[c]omplaint that it has a forcible detainer action against the [d]efendant Joe Harvey.” The

“summary of the argument” section provided that plaintiff’s “order of possession should be

vacated because [p]laintiff altered the name of the defendant on the order.” The “argument”

section, however, included assertions that plaintiff did not have “capacity to sue” because

“according to the Cook County Recorder of Deeds, the owner of [the property] is Is Construction

Inc. from the latest deed that was recorded.” The motion further provided the standard of review

governing dismissals under section 2-619. The motion stated that the “[c]omplaint must be

2

The record on appeal does not contain any transcripts or report of the proceedings except for the

September 3, 2019, hearing.

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No. 1-19-1890

dismissed with prejudice” because “[p]laintiff’s complaint is based on a forcible entry and detainer

act and they are not the proper [p]laintiff.” The motion to vacate requested that the court “grant

[defendant’s] motion to dismiss the [c]omplaint in its entirety with prejudice.” On July 26, 2019,

the circuit court struck defendant’s section 2-619 motions as untimely.

¶6 On August 16, 2019, defendant filed a motion styled “Defendant’s Motion to Amend

Motion to Vacate and Defendant’s Motion to Reconsider.” The motion sought to amend the July

25 “motion to vacate order” to recharacterize it as a “[m]otion to [r]econsider the June 25, 2019

order.” The August 16 motion argued that the court should reconsider its June 25 order because

(1) defense counsel did not have authority to enter into an agreed eviction order, (2) plaintiff

improperly named him as “Joe Harvey,” and (3) plaintiff did not have “capacity to sue.” At the

hearing on the motion to reconsider, the circuit court agreed with plaintiff’s counsel that there was

a “serious timeliness problem” as it was already “September.” With respect to defendant’s

argument that his initial counsel acted without authority in entering the agreed eviction order, the

court noted that after nearly five months of litigation, it “had yet to receive a motion that properly

tees up that argument.” After the hearing, on September 3, 2019, the circuit court denied

defendant’s motion and ordered that “no further motions attacking the eviction order [be] filed in

the case.” 3 Defendant then filed his notice of appeal on September 18, 2019.

¶7 II. ANALYSIS

¶8 On appeal, defendant contends that the circuit court erred by (1) finding that the issue of

whether defense counsel had authority to enter into the agreed order was not raised in a timely

3

The time stamp on the order reflects that it was entered on August 3, 2019. Defendant filed a

motion to correct the record to reflect an order date of September 3, 2019, which the circuit court granted.

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No. 1-19-1890

manner and (2) denying defendant the opportunity to have an evidentiary hearing with regards to

that issue.

¶9 A. Jurisdiction

¶ 10 As a preliminary matter, we must address our jurisdiction over the instant appeal. In his

opening brief, defendant’s jurisdictional statement provides that this court has jurisdiction pursuant

to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017). Even so,

we have an independent duty to evaluate our jurisdiction. People v. Lewis, 234 Ill. 2d 32, 36-37

(2009).

¶ 11 Generally, “[e]very final judgment of a circuit court in a civil case is appealable as of right.”

Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). “A judgment or order is ‘final’ if it disposes of the rights of

the parties, either on the entire case or on some definite and separate part of the controversy.”

Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 502 (1997). The filing of a notice

of appeal “ ‘is the jurisdictional step which initiates appellate review.’ ” People v. Smith, 228 Ill.

2d 95, 104 (2008) (quoting Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6,

7 (1998)).

¶ 12 To confer jurisdiction on this court, a notice of appeal must generally be filed within 30

days after the entry of the final judgment from which the appeal is taken. Ill. S. Ct. R. 303(a)(1)

(eff. July 1, 2017). However, if a timely postjudgment motion is filed, the time in which to file a

notice of appeal is tolled and the appealing party must then file a notice of appeal “within 30 days

after the entry of the order disposing of the last pending postjudgment motion directed against that

judgment or order.” Id. “[A]n untimely motion, or one not directed against the judgment, neither

stays the judgment nor extends the time for appeal.” Sears v. Sears, 85 Ill. 2d 253, 259 (1981).

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No. 1-19-1890

When a notice of appeal is untimely, this court lacks jurisdiction and must dismiss the appeal. Won

v. Grant Park 2, L.L.C., 2013 IL App (1st) 122523, ¶ 20.

¶ 13 Where, as here, a civil case is decided without a jury, section 2-1203(a) of the Code

provides that a party may file a postjudgment motion “within 30 days after the entry of the

judgment or within any further time the court may allow within the 30 days or any extensions

thereof.” 735 ILCS 5/2-1203(a) (West 2018). In order to toll the time to appeal, the postjudgment

motion must seek “a rehearing, or a retrial, or modification of the judgment or to vacate the

judgment or *** other relief.” Id. The “other relief” referred to in section 2-1203 must be similar

in nature to the other forms of relief enumerated in that section. R&G, Inc. v. Midwest Region

Foundation for Fair Contracting, Inc., 351 Ill. App. 3d 318, 321 (2004). If a party files a

postjudgment motion more than 30 days after the entry of final judgment, the motion will not toll

the time for filing a notice of appeal. In re Application of the County Treasurer, 214 Ill. 2d 253,

261 (2005); Ill. S. Ct. R. 303 (eff. July 1, 2017).

¶ 14 Plaintiff urges that our jurisdiction to hear this appeal is lacking. Relying on Won, 2013 IL

App (1st) 122523, plaintiff argues that because defendant’s motion for reconsideration of the

circuit court’s June 25, 2019, judgment order was not filed until August 16, 2019, more than 30

days after the judgment order, the motion for reconsideration was untimely and likewise

defendant’s notice of appeal. In an attempt to defeat plaintiff’s jurisdictional challenge, defendant

counters that “[t]he [m]otion was filed on July 25, 2019,” an “[o]rder was entered on July 26,

2019,” and the time to appeal began to “run from the date that order was entered.” Therefore,

defendant argues that “the motion for reconsideration, which was filed on August 16, 2019, was

clearly timely filed and preserved [d]efendant’s right to appeal.” In essence, defendant contends

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No. 1-19-1890

that the filing of his motion for reconsideration of the court’s ruling on his motion to vacate and a

decision on that motion had the effect of tolling the time for filing a notice of appeal.

¶ 15 Initially, we note that the record belies defendant’s account of the procedural history in this

case. The record shows that the circuit court ruled solely on defendant’s motions to dismiss on

July 26 and did not rule on defendant’s “motion to vacate.” The court’s final ruling on the “motion

to vacate” did not come until later, on September 3, 2019. Further, because there was no ruling on

the “motion to vacate” on July 26, there was no basis for a motion for reconsideration of that ruling,

even a proper one, which even a cursory reading of the August 16 motion demonstrates that it was

not. See Liceaga v. Baez, 2019 IL App (1st) 181170, ¶ 25 (purpose of a motion for reconsideration

is to bring to the court’s attention (1) newly discovered evidence, (2) changes in the law, or

(3) errors in the trial court’s application of existing law).

¶ 16 Defendant’s August 16 motion for reconsideration, which sought to recharacterize the

“motion to vacate,” was a second, and redundant, motion purportedly directed against the circuit

court’s June 25, 2019, judgment order. However, a second postjudgment motion has no tolling

effect. See Ill. S. Ct. R. 303(a)(2) (eff. July 1, 2017) (“No request for reconsideration of a ruling

on a postjudgment motion will toll the running of the time within which a notice of appeal must

be filed under this rule.”). In fact, supreme court rules permit only one postjudgment motion

directed at a judgment order that is otherwise final. See id. A “second post-judgment motion which

is filed beyond 30 days after entry of the final order, and which attacks the same judgment, neither

extends the time for filing the appeal nor continues the jurisdiction of the court.” Holloway v.

Kroger Co., 253 Ill. App. 3d 944, 947 (1993). Incidentally, had the court ruled on the “motion to

vacate” on July 26, as defendant erroneously states, and because the motion for reconsideration

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No. 1-19-1890

had no tolling effect, his September notice of appeal would have far exceeded the 30 days

mandated by the rules.

¶ 17 A motion tolls the time for filing a notice of appeal and qualifies as a proper postjudgment

motion if it requests one or more of the types of relief authorized in section 2-1203 of the Code.

See Hanna v. American National Bank & Trust Co. of Chicago, 176 Ill. App. 3d 938, 943 (1988);

Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). “Among the types of relief specified in section 2-1203

is a motion to vacate the judgment being attacked.” Hanna, 176 Ill. App. 3d at 943; see 735 ILCS

5/2-1203(a) (West 2018). Defendant filed his “motion to vacate” the judgment on July 25, 2019,

within 30 days of the court’s June 25, 2019, final judgment order. Clearly, defendant’s July 25,

2019, motion, which on its face, was of the type contemplated by the Code and was timely filed.

¶ 18 However, in order to toll the time for filing an appeal, Rule 303(a)(1) has a further

requirement for postjudgment motions, that being that the motion be directed against the judgment

being attacked. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017); see also In re Estate of Russell, 372 Ill.

App. 3d 591, 594 (2007) (an appeal can be timely only if it is filed within 30 days of the resolution

of both a timely and a proper motion directed against the final judgment). Thus, although we have

determined that defendant’s July 25, 2019, “motion to vacate” was of the type contemplated by

the rule, and was filed within 30 days of the circuit court’s June 25, 2019, judgment order, and his

September 18, 2019, notice of appeal was filed within 30 days of the court’s September 3, 2019,

order denying that motion, we must yet determine whether defendant’s July 25, 2019, “motion to

vacate” was a proper postjudgment motion, meaning one directed against the judgment. 4 Our

4

On September 3, 2019, the circuit court denied “Defendant’s Motion to Amend the Motion to

Vacate and Defendant’s Motion to Reconsider.” Essentially, the motion sought to recharacterize the July

25, 2019, “Motion to Vacate” as a motion for reconsideration. As such, our reference to the “motion to

vacate” refers to defendant’s July 25, 2019, motion to vacate.

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resolution of this issue is guided by our supreme court’s decision in Kingbrook, Inc. v. Pupurs,

202 Ill. 2d 24 (2002).

¶ 19 In Kingbrook, our supreme court considered the degree of specificity that must be included

in a motion to reconsider for such a motion to qualify as a postjudgment motion. Id. at 25-26. The

motion at issue in Kingbrook was titled “ ‘Motion for Reconsideration’ ” and the body consisted

of one sentence in which the plaintiff requested “ ‘the Court to reconsider its decision granting

severing [sic] judgment in favor of the Defendants.’ ” Id. at 26-27. Although the motion consisted

of a single sentence, the court held that the motion was sufficient for purposes of tolling the time

for filing a notice of appeal. Id. at 26-27, 31. In its final ruling, the supreme court held that neither

the plain language of the Code nor the supreme court rules require that a postjudgment motion (in

a case decided without a jury) contain any detail or argument. Id. at 31. As such, under Kingbrook,

a single sentence would suffice if it requests the appropriate type of relief. See Muirfield Village-

Vernon Hills, LLC v. K. Reinke, Jr., & Co., 349 Ill. App. 3d 178, 186 (2004) (“Under Kingbrook,

a motion that does no more than request to strike or vacate the ‘with prejudice’ portion of the order

would be sufficient to toll the 30-day time period in which to file a notice of appeal.”).

¶ 20 Although defendant’s motion here was labeled as a “motion to vacate order,” requested the

court vacate the June 25 order of possession, and the “summary of the argument” section consisted

of a single sentence stating that plaintiff’s “order of possession should be vacated because

[p]laintiff altered the name of the defendant on the order,” the motion appears to challenge the

complaint. For example, in the “argument” section of the motion, defendant argued that plaintiff

did not have “capacity to sue” because the recent recorded deed indicated a different owner. The

motion provided the standard of review for dismissals under section 2-619 of the Code, which

governs motions to dismiss a complaint. The motion also stated that the “[c]omplaint must be

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dismissed with prejudice” because “[p]laintiff’s complaint is based on a forcible entry and detainer

act and they are not the proper [p]laintiff.” Finally, the motion requested that the court “grant

[defendant’s] motion to dismiss the [c]omplaint in its entirety with prejudice.”

¶ 21 This case presents a unique issue from Kingbrook—what happens when a party presents a

motion with some detail, but the motion substantively is directed toward and requests relief in the

form of dismissing a complaint. The issue here is similar to that in Heiden v. DNA Diagnostics

Center, Inc., 396 Ill. App. 3d 135 (2009). There, this court found plaintiff’s motion was not a

proper postjudgment motion because, “[a]lthough the caption and the prayer for relief ***

request[ed] reconsideration, the substance of the motion [only requested] clarification” of the

court’s final order. Id. at 141. Thus, the court found that the motion was not directed against the

judgment for purposes of section 2-1203 and did not toll the time to appeal. Id. at 140-41.

¶ 22 In Shutkas Electric, Inc. v. Ford Motor Co., 366 Ill. App. 3d 76, 81 (2006), another post-

Kingsbrook case, the caption of the motion in question requested modification, but the body of the

motion sought relief in the form of adding a party plaintiff and leave to file a second amended

complaint. This court dismissed the motion because the substance of the motion lacked a form of

section 2-1203 relief. Id. at 81-82. In doing so, this court noted that “[t]he nature of a motion is

determined by its substance rather than its caption.” (Internal quotation marks omitted.) Id. at 81.

¶ 23 These cases illustrate the principle that in determining whether a postjudgment motion is

properly directed at the judgment, we must look at the substance of the motion rather than its

caption. See Heiden, 396 Ill. App. 3d at 140; see also Shutkas Electric, Inc., 366 Ill. App. 3d at 81

(citing J.D. Marshall International, Inc. v. First National Bank of Chicago, 272 Ill. App. 3d 883,

888 (1995)). Here, defendant’s filing invited the court to treat the “motion to vacate” as a motion

to dismiss a complaint, not as a postjudgment motion directed at the final judgment. Although

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defendant’s motion was labeled as a “motion to vacate” and the introductory paragraph repeated

this request, the body of the motion clearly attacked plaintiff’s complaint rather than the court’s

June 25 final order. Defendant’s motion did not request the court to vacate its order granting

plaintiff’s motion to reconsider nor did it request the court to vacate its judgment as to the entry of

a new eviction order. Instead, the motion contained arguments for dismissal of plaintiff’s

complaint, set forth a standard of review for its dismissal, and further requested dismissal of the

complaint in its prayer for relief without referencing the circuit court’s final judgment. As such,

we find that the substance of the motion sought a different type of relief: dismissal of plaintiff’s

complaint rather than vacation of the circuit court’s final judgment. Accordingly, we find that

defendant’s motion to vacate was not a proper postjudgment motion and, thus, did not toll the time

for filing a notice of appeal. Therefore, we must dismiss this appeal for lack of jurisdiction.

¶ 24 B. Sanctions

¶ 25 Finally, we address plaintiff’s request for sanctions. See Gilkey v. Scholl, 229 Ill. App. 3d

989, 993 (1992) (noting that we still have jurisdiction to decide the question of appellate sanctions

where the appeal is dismissed for want of jurisdiction). Plaintiff argues that defendant’s “brief to

this [c]ourt is a jumbled mess of unsupported factual allegations and baseless arguments, omissions

from and misrepresentations of the record, and a failure to comply with the Supreme Court Rules

that mirrors its pleadings, arguments, and tactics in the trial court.” As such, plaintiff requests this

court to award him “attorney’s fees incurred in this matter jointly and severally against [d]efendant

and his counsel.”

¶ 26 Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) permits this court to enter sanctions

against a party if an appeal is frivolous, not taken in good faith, or taken for an improper purpose,

such as to harass or cause unnecessary delay or needless increase in litigation costs. A frivolous

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appeal is one that “would not have been brought in good faith by a reasonable, prudent attorney.”

Dreisilker Electric Motors, Inc. v. Rainbow Electric Co., 203 Ill. App. 3d 304, 312 (1990). The

purpose of Rule 375(b) is to condemn and punish a litigant’s abusive conduct. Gakuba v. Kurtz,

2015 IL App (2d) 140252, ¶ 26. The imposition of Rule 375 sanctions is left entirely to the

discretion of the reviewing court. Fields v. Lake Hillcrest Corp., 355 Ill. App. 3d 457, 466 (2002).

Dreisilker Electric Motors, Inc., 203 Ill. App. 3d at 312. The rule provides that appropriate

sanctions “may include an order to pay to the other party or parties damages, the reasonable costs

of the appeal or other action, and any other expenses necessarily incurred by the filing of the appeal

or other action, including reasonable attorney fees.” Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994).

¶ 27 Here, the circuit court record demonstrates that defendant raised the same issues repeatedly

through various filings, and each time, the court rejected his arguments. Defendant also appears to

have incorrectly stated the record to support his arguments on appeal. Further, we note that

defendant’s brief falls short of satisfying the requirements for appellate briefs as set forth in Illinois

Supreme Court Rule 341 (eff. May 25, 2018). Generally, in such cases, and absent some ability to

decide the case on the merits, we have discretion to dismiss the appeal for lack of compliance. See

Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 77. In this case, defendant’s arguments, though

perhaps without merit, are neither confusing nor difficult to understand. The arguments presented

are unsupported in law here on appeal, just as they were below. Yet, the conduct of counsel in this

case does not rise to the level of that in Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st)

130380, the case upon which plaintiff relies. And, in our reading of the briefs, we do not have an

abiding belief that defendant’s appeal was filed either to harass plaintiff or for a frivolous purpose.

Thus, we decline to impose sanctions.

¶ 28 III. CONCLUSION

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¶ 29 In sum, the record before us does not establish this court’s jurisdiction to consider

defendant’s appeal and we must, therefore, dismiss it.

¶ 30 Appeal dismissed.

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No. 1-19-1890

Cite as: Stanila v. Joe, 2020 IL App (1st) 191890

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-M1-

701301; the Hon. Alison C. Conlon, Judge, presiding.

Attorneys Philip M. Kiss, of Gurnee, for appellant.

for

Appellant:

Attorneys Kurt H. Feuer, of Evanston, for appellee.

for

Appellee:

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