text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vernon CHAPMAN, Defendant-Appellant.
    No. 1-16-3045
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    Opinion Filed: April 27, 2018
    James E. Chadd, Patricia Mysza, and Jessica D. Ware, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Brian K. Hodes, Assistant State's Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The defendant, Vernon Chapman, appeals from an order of the circuit court entered on October 13, 2016, dismissing his amended petition under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2014) ), which sought relief from a judgment of conviction entered against him on July 14, 2008, based upon his plea of guilty to one count of criminal drug conspiracy ( 720 ILCS 570/405.1(a) (West 2006) ). For the reasons which follow, we vacate the circuit court's order of October 13, 2006, for want of jurisdiction and remand the matter for further proceedings.

¶ 2 The defendant pled guilty to a single count of criminal drug conspiracy and was sentenced to six years' imprisonment, including a period of mandatory supervised release. Thereafter, the defendant filed a petition under the Act seeking relief from his conviction and sentence. On February 13, 2014, the circuit court entered an order dismissing that petition based on a finding that the defendant lacked standing. The defendant appealed, and on February 5, 2016, this court issued its order, reversing the circuit court's order dismissing the defendant's petition and remanding the matter for first-stage proceedings under the Act. People v. Chapman , 2016 IL App (1st) 140724-U, 2016 WL 483196. On April 18, 2016, the defendant filed an amended petition under the Act.

¶ 3 Our mandate in Chapman was filed with the clerk of the circuit court on October 18, 2016. On October 13, 2016, five days prior to the filing of our mandate, the circuit court summarily dismissed the defendant's amended petition. The defendant filed the instant appeal, challenging that order on jurisdictional grounds.

¶ 4 When a timely notice of appeal has been filed, the jurisdiction of the appellate court attaches and the circuit court is divested of jurisdiction. People v. Perry , 2014 IL App (1st) 122584, ¶ 13, 387 Ill.Dec. 732, 23 N.E.3d 424. The judgment of the appellate court becomes final when entered. However, it is the filing of the mandate that reinvests jurisdiction in the circuit court. Hickey v. Riera , 332 Ill. App. 3d 532, 543, 266 Ill.Dec. 223, 774 N.E.2d 1 (2001). After the filing of a notice of appeal and prior to the filing of the appellate court's mandate, the circuit court lacks jurisdiction to enter any order of substance in the cause. Brownlow v. Richards , 328 Ill. App. 3d 833, 836-37, 263 Ill.Dec. 31, 767 N.E.2d 482 (2002). An order entered by the circuit court in the absence of jurisdiction is void. People v. Davis , 156 Ill. 2d 149, 155, 189 Ill.Dec. 49, 619 N.E.2d 750 (1993).

¶ 5 In this case, the circuit court entered its order summarily dismissing the defendant's amended petition for post-conviction relief five days prior to the filing of this court's mandate in Chapman. The order is therefore void for want of jurisdiction and must be vacated. The State has conceded the issue and also requests that we vacate the circuit court's order of October 13, 2016, and remand the matter back to the circuit court.

¶ 6 The parties disagree, however, on the procedure to be followed by the circuit court on remand. The defendant argues that we should remand the matter to the circuit court with directions to conduct a second-stage proceeding under the Act (see 725 ILCS 5/122-5 (West 2016) ) on his amended petition. He contends that more than 90 days have passed since the filing of the amended petition, and as a consequence, it must be advanced to the second stage with the appointment of counsel. The State argues that the matter should be remanded for a first-stage proceeding as this court ordered in Chapman , 2016 IL App (1st) 140724-U, ¶ 20. The State reasons that the 90-day period provided for consideration of the defendant's amended petition (see 725 ILCS 5/122-2.1 (West 2016) ) never expired from the date that the circuit court was reinvested with jurisdiction over this matter on October 18, 2016, and the filing of the defendant's notice of appeal on November 4, 2016. We agree with the State.

¶ 7 By statute, the circuit court is required to examine a post-conviction petition within 90 days of its filing and docketing. 725 ILCS 5/122-2.1(a) (West 2016). It is during this period that the petition may be dismissed if the circuit court determines it to be frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2016). If a post-conviction petition is not dismissed within that 90-day period, it must be advanced to the second stage with the appointment of counsel. People v. Boclair , 202 Ill. 2d 89, 100, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002). The circuit court lacks the statutory authority to summarily dismiss a post-conviction petition after the expiration of the 90-day period. People v. Brooks , 221 Ill. 2d 381, 389, 303 Ill.Dec. 161, 851 N.E.2d 59 (2006).

¶ 8 In this case, the defendant's amended petition was filed on April 18, 2016, and the 90-day period would have expired on July 17, 2016. However, the circuit court had no jurisdiction over the matter for that entire period due to the pendency of the defendant's earlier appeal and could not, therefore, examine or enter any order on the defendant's amended petition. To accept the defendant's argument would eviscerate the circuit court's ability to dismiss post-conviction petitions which are frivolous or patently without merit. A defendant could circumvent the circuit court's ability to summarily dismiss a meritless post-conviction petition by filing the petition at a time when the circuit court had no jurisdiction to address it due to the pendency of the defendant's direct appeal. We believe, therefore, that only the period of time during which the circuit court has jurisdiction to examine a post-conviction petition and enter an order thereon shall be considered in computing the 90-day dispositional period set forth in section 122-2.1(a) of the Act.

¶ 9 The circuit court was reinvested with jurisdiction over this case on October 18, 2016, and again divested of jurisdiction on November 4, 2016, when the defendant filed his notice of appeal from the October 13, 2016, order. As a consequence, the circuit court only possessed jurisdiction over the defendant's amended post-conviction petition for a period of 17 days. We conclude, therefore, that 73 days remain in the 90-day period within which the circuit court is required to examine the defendant's amended petition and enter an order thereon.

¶ 10 Based upon the foregoing analysis, we vacate the circuit court's order of October 13, 2016, and remand this matter for first-stage proceedings under the Act on the defendant's amended petition.

¶ 11 Vacated and remanded.

Justices Cunningham and Connors concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Glenn ROBINSON, Defendant-Appellant.
    No. 1-15-3319
    Appellate Court of Illinois, First District, Second Division.
    Opinion filed May 8, 2018
    James E. Chadd, Patricia Mysza, and Jonathan Pilsner, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins, Douglas P. Harvath, and Tasha-Marie Kelly, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 Two police officers saw a masked man committing an armed robbery and tried to stop him. The man opened fire on the officers, who responded in kind and chased him for several blocks. Along the way, the man fired shots at other police officers. At the end of the chase, discarded beside a house, the police found a handgun and a mask. Nearby, defendant Glenn Robinson lay with bullet wounds. A jury convicted Robinson of several counts of attempted first degree murder.

¶ 2 Robinson argues that a state ballistics expert laid an insufficient foundation for her expert opinion linking several cartridge casings found along the masked man's route to the handgun found near Robinson. But any weakness in that testimony could have been brought out on cross-examination, and goes to the weight of the evidence, not its admissibility. Robinson also challenges his sentence as a habitual criminal, arguing that his earlier convictions for armed robbery consist of elements different than the current armed robbery statute. We reject this as overly formalistic and affirm the conviction and sentence.

¶ 3 BACKGROUND

¶ 4 Around 3 a.m. on September 4, 2012, two police officers, Cecil Phillips and Shantell Clinton, were driving in unmarked squad car near the corner of State Street and 75th Street, when they saw two men standing in front of an electronics store. One man, wearing a mask and a dark hooded sweatshirt, pointed a gun at the other man. Phillips and Clinton stopped, got out, announced they were police officers, and directed the armed man to drop his weapon. Instead, the man turned and fired multiple times at Phillips and Clinton. The officers took cover behind the squad car and returned fire. The armed man ran north on State Street, and Phillips ran after him. Clinton used her police radio to report the shots, and drove north in pursuit.

¶ 5 Two other officers, Tiffany Ermon and Evona Earnest, sat in a marked squad car a block further north, at 74th Street and State Street, when they heard multiple gunshots. They then saw the armed man at the corner, firing his weapon southward on State Street. He turned and fired at the squad car. Ermon fired back from behind the car; Earnest fired back from the driver's side window. The man ran east on 74th Street until Ermon lost sight of him as he passed an alley between State Street and Wabash Avenue. Ermon and Earnest followed him in their squad car; Ermon saw the man running south through the yards of houses on Wabash Avenue.

¶ 6 Phillips had followed the man north on State Street, then east on 74th Street, until he reached the alley between State Street and Wabash Avenue. He heard the man trying to jump the fences between the houses. At 7418 South Wabash Avenue, Phillips jumped a fence into a gangway between two houses. On the ground, he found a bloodied black hooded sweatshirt with holes in the front and right arm sleeve, an empty Glock semiautomatic weapon, gloves, a hat, and a mask.

7 At 7422 South Wabash Avenue, Ermon saw Phillips in the alley; she then climbed a fence into yards, crossed onto Wabash Avenue, and saw a man lying on the porch at 7422 South Wabash Avenue, surrounded by other officers who had converged there. The man (Robinson) had been shot five times in the right forearm, scrotum, and abdomen.

¶ 8 Police charged Robinson with 16 counts of attempted first degree murder. The State presented the testimony of all four officers (as well as a civilian who witnessed the initial shots fired at Phillips and Clinton). None of the officers could identify the shooter since he had been wearing a mask. There were no usable fingerprints on either the handgun or its magazine, and no useful DNA on the handgun.

¶ 9 But, Robinson could not be excluded from the DNA profiles obtained from the hat and the mask. At 7411 South State Street (between 74th and 75th Streets), police found car keys belonging to a Chevy Tahoe parked on 74th Street east of State Street. Robinson was the Tahoe's registered owner; police recovered Robinson's driver's license in the center console.

¶ 10 The shootout left several dozen cartridge casings strewn along 75th, State, and 74th Streets. The State presented firearm examiner Jennifer Hanna from the Illinois State Police, who had examined the handgun found in the alley, along with the officers' guns, and the recovered cartridge casings. Just before Hanna's scheduled testimony, Robinson's counsel objected, arguing that Hanna did not have sufficient foundation for the basis of her opinions. The trial court denied this objection, stating that counsel should have requested more discovery on Hanna's methods or filed a motion in limine .

¶ 11 Hanna testified that, generally, she identifies firearms based on their "class characteristics" (common to a particular type or model of handgun) versus their "individual characteristics" (imperfections unique to a particular weapon). She test-fired each of the five handguns (four from the officers, and the one found in the gangway) and compared the results to each of the cartridge casings recovered. She opined, without detail, that 15 of the casings had been fired by the gun in the gangway, 15 casings had been fired from Phillips's gun, 8 casings had been fired from Ermon's gun, 8 casings had been fired from Earnest's gun, and 2 casings had been fired from Clinton's gun. Robinson's counsel objected to each of these opinions.

¶ 12 On cross-examination, counsel asked Hanna if she used any written criteria in making these determinations, and Hanna responded that she based the comparisons on her procedures, training, and experience. When asked if her opinions turned on her subjective judgment, Hanna again stated that she based her expert opinion on training and experience. In closing argument, defense counsel argued that Hanna had not told the jury why she thought any cartridge casing belonged to any particular handgun.

¶ 13 After his conviction, Robinson argued in his posttrial motion that the trial court erred in allowing the State to present Hanna's ballistics testimony without adequate foundation. The trial court denied the motion.

¶ 14 The State petitioned to have Robinson sentenced to natural life imprisonment as a habitual criminal, based on his 1992 and 1999 convictions for armed robbery. The trial court agreed and sentenced Robinson to natural life. Robinson moved to reconsider his sentence arguing that the State had not met its burden to prove him a habitual criminal. The trial court denied this motion.

¶ 15 ANALYSIS

¶ 16 Admissibility of Ballistics Evidence

¶ 17 Robinson argues that Hanna gave insufficient foundation for her expert conclusions linking cartridge casings found at the scene to particular firearms. The parties disagree on the standard of review: Robinson contends that this is a question of law reviewed de novo , while the State argues that we should review an evidentiary issue for an abuse of discretion. Compare People v. Simmons , 2016 IL App (1st) 131300, ¶ 114, 408 Ill.Dec. 568, 66 N.E.3d 360 (abuse of discretion), with People v. Safford , 392 Ill. App. 3d 212, 221, 331 Ill.Dec. 70, 910 N.E.2d 143 (2009) (de novo ). We agree with Simmons that the weight of precedent indicates that this is an evidentiary question, left to the trial court's discretion. Simmons , 2016 IL App (1st) 131300, ¶¶ 109-113, 408 Ill.Dec. 568, 66 N.E.3d 360 (noting that Illinois Supreme Court uses abuse of discretion standard when reviewing whether expert testimony had sufficient foundation and criticizing Safford's use of de novo standard).

¶ 18 Robinson does not challenge Hanna's qualifications to testify as an expert witness in the field of ballistics identification or the general admissibility of the evidence. He focuses on whether Hanna sufficiently disclosed the reasons for her conclusions so as to establish the reliability of the underlying information. See id. ¶ 115. Robinson relies heavily on Safford , where a latent fingerprint examiner testified a defendant's fingerprint matched one found near the scene of a shooting but did not testify as to how he arrived at that conclusion. 392 Ill. App. 3d at 220-21, 331 Ill.Dec. 70, 910 N.E.2d 143. The court held that insufficient foundation prevented defense counsel from conducting meaningful cross-examination. Id. at 224, 331 Ill.Dec. 70, 910 N.E.2d 143.

¶ 19 But Safford has been heavily criticized, and characterized as an "outlier." People v. Negron , 2012 IL App (1st) 101194, ¶ 41, 368 Ill.Dec. 545, 984 N.E.2d 491 ; see also People v. Wilson , 2017 IL App (1st) 143183, ¶¶ 41-42, 416 Ill.Dec. 946, 86 N.E.3d 1231 ; Simmons , 2016 IL App (1st) 131300, ¶¶ 120-128, 408 Ill.Dec. 568, 66 N.E.3d 360. Indeed, we can find no published case following Safford's reasoning. It is the defendant's right and burden to elicit the facts underlying an expert's opinion in cross-examination. See Ill. R. Evid. 705 (eff. Jan. 1, 2011); Negron , 2012 IL App (1st) 101194, ¶ 42, 368 Ill.Dec. 545, 984 N.E.2d 491. As the trial court pointed out, defense counsel did not object to Hanna's testimony until the morning of trial and had not complained about a lack of discovery concerning the underlying facts. Defense counsel questioned Hanna about her use of written criteria as well as subjective judgment in arriving at her conclusions. But defense counsel did not ask Hanna for details on any particular cartridge casing. Defense counsel's inability (or unwillingness) to put Hanna through her paces does not make the foundation inadequate. Rather, the lack of detail in Hanna's testimony went to its weight, not its admissibility. Simmons , 2016 IL App (1st) 131300, ¶ 125, 408 Ill.Dec. 568, 66 N.E.3d 360 (firearm expert who testified about class and individual characteristics of bullets, without specifying which individual characteristics matched particular bullets, laid sufficient foundation and inadequacies affected weight of opinion, not admissibility).

¶ 20 Nonetheless, any error would be harmless. See People v. Goins , 2013 IL App (1st) 113201, ¶ 72, 376 Ill.Dec. 375, 999 N.E.2d 18 (in assessing whether error is harmless, court should ask whether harm complained of contributed to defendant's conviction). Hanna's testimony merely established that the gun found in the gangway had fired a number of the cartridge casings found in the area, an incidental part of the State's case against Robinson. The State could not link Robinson to the gun through fingerprints or DNA. The bullets found in Robinson's body constituted the strongest evidence against him (revealing Robinson as the masked man who had engaged in a shootout with police), and that evidence had nothing to do with Hanna's ballistics evidence.

¶ 21 Habitual Criminal Sentencing

¶ 22 Robinson argues that he should not have been sentenced as a "habitual criminal" because he did not have the necessary qualifying convictions. The judge sentenced Robinson under section 5-4.5-95(a)(1) of the Unified Code of Corrections ( 730 ILCS 5/5-4.5-95(a)(1) (West 2012) ) (commonly known as the Habitual Criminal Act), which states that a defendant is a "habitual criminal" if he or she has two prior convictions for "an offense that contains the same elements as an offense now *** classified in Illinois as a Class X felony." Habitual criminals receive a term of natural life imprisonment. Id. § 5-4.5-95(a)(5).

¶ 23 In petitioning to have Robinson sentenced as a habitual criminal, the State used two convictions for armed robbery (from 1992 and 1996) as the qualifying convictions. Robinson argues that the elements of armed robbery in the 1990's and the elements for the current version of the offense differ and that the old convictions do not qualify.

¶ 24 In both 1992 and 1996, the definition of armed robbery involved committing a robbery while "he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon." 720 ILCS 5/18-2(a) (West 1996); 720 ILCS 5/18-2(a) (West 1992). At both times, armed robbery ranked as a Class X felony. 720 ILCS 5/18-2(b) (West 1996); 720 ILCS 5/18-2(b) (West 1992).

¶ 25 By 2012, the armed robbery statute had been amended and made more detailed to comport with sentencing enhancements for using a firearm. The new version listed four possibilities that converted a robbery to an armed robbery: (i) being armed with "a dangerous weapon other than a firearm," listed as a Class X felony; (ii) being armed "with a firearm," a Class X felony with a 15-year sentence enhancement; (iii) "personally discharg[ing] a firearm" during the offense, a Class X felony with a 20-year sentence enhancement; or (iv) personally discharging a firearm during the offense causing death or great bodily harm, a Class X felony with a 25-year sentencing enhancement, up to natural life. 720 ILCS 5/18-2 (West 2012).

¶ 26 Robinson argues that these new possibilities change the elements: that the State now needs to prove that a "dangerous weapon" is not a firearm or need not prove that a firearm is "dangerous." But, Illinois courts have rejected this "formalistic" interpretation of the Habitual Criminal Act, holding instead that the elements need only be "equivalent," not identical. People v. Fernandez , 2014 IL App (1st) 120508, ¶ 17, 384 Ill.Dec. 55, 16 N.E.3d 151. Robinson cites no case (and we have found none) holding that the amendments to the armed robbery statute now exclude old armed robbery convictions from habitual-criminal sentencing. For purposes of the Habitual Criminal Act, the amendment split the old element of "dangerous weapon" into two possible categories (firearm or not-firearm) but did not change the element itself.

¶ 27 In addition, Robinson's argument seems contrary to legislative intent. Armed robbery in both the early and later versions was classified as a Class X felony. Robinson has provided us with no evidence, and we have found none, indicating that the legislature wanted to remove armed robbery from the list of possible qualifying convictions for a habitual criminal. Rather, the plain language of all the relevant statutes shows a consistent intent to treat armed robbery as a serious crime.

¶ 28 Since we have determined that the trial court did not commit error, we need not address Robinson's claim under the plain error or ineffective-assistance standards.

¶ 29 Affirmed.

Justices Pucinski and Mason concurred in the judgment and opinion.


text:
    PENNYMAC CORP., Plaintiff-Appellee, v. Clarence JENKINS and Unknown Occupants, Defendants
    (Clarence Jenkins, Defendant-Appellant).
    No. 1-17-1191
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    May 11, 2018
    Margaret A. Lundhal, of Chicago, for appellant.
    Melissa E. Manning and Rebekah A. Childers, of Akerman, LLP, of Chicago, for appellee.
   JUSTICE CONNORS delivered the judgment of the court, with opinion.

¶ 1 Defendant Clarence Jenkins (Jenkins) appeals the trial court's order granting summary judgment in favor of plaintiff Pennymac Corp. (Pennymac) in the instant forcible entry and detainer action. On appeal, Jenkins asserts that the trial court erred when it allowed Pennymac to be substituted as plaintiff and subsequently granted summary judgment because amending the complaint did not correct the defective notice of intent that listed another entity as plaintiff. We find that the trial court properly granted summary judgment and affirm.

¶ 2 I. BACKGROUND

¶ 3 This forcible entry and detainer action follows a foreclosure on the property at 1041 East 168th Street in South Holland (property). The foreclosure action was brought in Cook County circuit court under case number 09 CH 31971 against the mortgagor of the property, which was Jenkins's wife Bertina Jenkins. On January 27, 2014, an "Order Approving Report of Sale and Distribution, Confirming Sale and Order of Possession" was entered, granting possession to Bank of America, N.A., who was "the successful bidder" at the judicial sale. On April 1, 2014, a judicial sale deed was recorded with the Cook County Recorder of Deeds, conveying the property to "Citibank, N.A. as Trustee for CMLTI Asset Trust" (Citibank). On March 10, 2016, Citibank conveyed the property to Pennymac via quitclaim deed, and said deed was recorded on August 16, 2016.

¶ 4 On September 17, 2016, Jenkins was personally served at the property with a "Notice of Intent to File Forcible Entry and Detainer Action and Demand for Possession" (notice/demand). The notice/demand was dated September 8, 2016, and was signed by Matthew Gruca of "Pierce & Associates, P.C. Attorney for Plaintiff." On October 31, 2016, a complaint for foreclosure-related eviction was filed against Jenkins, with the plaintiff listed as "Citibank N.A. As Trustee for CMLTI Asset Trust." Jenkins was served with the complaint by the Cook County Sheriff's Office on November 5, 2016, and filed his appearance on November 15, 2016. Also on November 15, 2016, the original judge to whom this matter was assigned recused himself.

¶ 5 On November 22, 2016, Jenkins was granted seven days to file his answer or otherwise plead to the complaint. On November 29, 2016, Jenkins filed a motion to dismiss under section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2014) ), contending that Citibank lacked standing to sue because it had conveyed the property to Pennymac via quitclaim deed on March 10, 2016. Thereafter, Citibank filed its response to Jenkins's motion to dismiss, acknowledging that filing the instant action with Citibank listed as plaintiff was "in error." The response further stated that Citibank was also filing a motion to amend its complaint and that said amendment would cure the issue of misnomer. Citibank argued that Illinois law recognized a difference between misnomer and mistaken identity and that this case involved misnomer, which is governed by section 2-401(b) of the Code (id. § 2-401(b) ). Citibank further contended that allowing it to amend the complaint would be more efficient than requiring it to start the action anew. Also on November 29, 2016, Citibank filed a motion for leave to file amended complaint. However, the notice of motion stated that the motion would be presented in courtroom 1408, which was the courtroom of the judge who had previously recused himself from the case.

¶ 6 Recognizing its error, Citibank refiled its motion for leave to file an amended complaint on December 15, 2016, asserting that "Plaintiff's attorney inadvertently filed the Complaint naming Plaintiff owner as Citibank N.A. as Trustee for CMLTI Asset Trust" and that amending the complaint to name Pennymac, the actual owner of the property, would not cause any prejudice to Jenkins. Jenkins did not file a response to the motion to amend.

¶ 7 On December 20, 2016, the court ordered as follows: "Defendant's Motion to Dismiss is denied. Plaintiff's Motion for Leave to File Amended Complaint is granted. Plaintiff is granted leave to file Amended Complaint instanter. Defendant is granted through [January 4, 2017,] to answer or otherwise plead." It is unclear whether the court heard oral argument on the motions because the record on appeal does not contain a report of proceedings from that date. The amended complaint was filed on December 20, 2016, and listed "Pennymac Corp." as the plaintiff.

¶ 8 On January 17, 2017, Jenkins filed his answer to the amended complaint and two affirmative defenses. Jenkins pled his affirmative defenses as follows:

"1. Plaintiff has not complied with the requirement of 735 ILCS 5/15-1703 for notice.
2. The notice of intent is not sufficient as a matter of law, since Citibank had no right to possession. While the name of the owner is not required, the name of a non-owner is not equivalent. United States Bank Nat'l Ass'n v. Luckett , 2013 IL App (1st) 113678 at Par. 29, 369 Ill.Dec. 705, 987 N.E.2d 47. The notice here is not sufficiently similar to the notice."

¶ 9 On March 7, 2017, Pennymac filed a motion for summary judgment. Pennymac's motion asserted that its notice/demand was proper and that it properly served the notice/demand on Jenkins. Pennymac stated that it was undisputed that Jenkins was personally served with the notice/demand, that he had no right to possession superior to Pennymac's right, and that he failed to vacate the property upon receipt of the notice/demand. Pennymac recognized that the notice/demand served on Jenkins erroneously listed the property's previous owner, Citibank, as the plaintiff, but argued that did not render the notice/demand defective because it adequately informed Jenkins of the property owner's intent to file the instant forcible entry and detainer action.

¶ 10 On March 28, 2017, Jenkins filed his opposition to Pennymac's motion for summary judgment and a cross-motion for summary judgment. Jenkins asserted that although Pennymac filed an amended complaint listing the proper plaintiff, the defective notice/demand that listed Citibank as plaintiff was still attached as an exhibit to the amended complaint. Jenkins further argued that the notice/demand here was not brought in the name of the party entitled to possession and, thus, summary judgment in favor of Pennymac would not be proper. Contrarily, Jenkins contended, "[b]ecause there is no question that the required notice did not name the party entitled to possession, Defendant Jenkins is entitled to summary judgment as a matter of law." Attached to Jenkins's opposition was his unnotarized affidavit dated March 25, 2017. Jenkins's affidavit stated that he and his wife had been negotiating with Pennymac for two years and that "[w]e were puzzled when we received a notice from Citibank because the mortgage was with Bank of America and Pennymac was our contact." Jenkins further attested that he called Pennymac, who confirmed it was the owner of the property but could not provide any information about the notice.

¶ 11 On April 17, 2017, the trial court granted Pennymac's motion for summary judgment in an order that stated:

"This cause coming to be heard on Plaintiff's motion for summary judgment, counsel for Plaintiff and Defendant present, the court finding that any issue regarding the notice served on September 17, 2016 that included the name of the plaintiff in the first complaint filed October 31, 2016 was cured by the filing of the amended complaint on December 20, 2016, as there was no dispute that the notice was served on Defendant Jenkins, and that the notice complied with 735 ILCS 5/9-104 and 735 ILCS 5/9-102, the court having heard argument, it is ordered:
1. Plaintiff's motion for summary judgment is granted and 2. Plaintiff is granted an order for possession by separate order."

A separate order for possession was also entered on April 17, 2017.

¶ 12 Jenkins filed his timely notice of appeal on May 10, 2017. The section of the notice of appeal describing the judgment appealed from stated that the judgment was entered on April 17, 2017, and "Relief sought from Reviewing Court: Vacate Grant of Summary Judgment."

¶ 13 II. ANALYSIS

¶ 14 Jenkins raises the following three arguments on appeal: (1) the trial court erred in granting substitution of plaintiff, (2) the notice given to Jenkins was not in conformity with the Forcible Entry and Detainer Act, and (3) the trial court erred in granting summary judgment in favor of Pennymac. We address each in turn.

¶ 15 A. Substitution of Plaintiff

¶ 16 Jenkins first argues that the trial court erred when it granted the motion of then-named plaintiff Citibank to amend the complaint. Pennymac responds that Citibank's motion to amend is not subject to review because the order granting leave to amend was not specified in the notice of appeal and, even if this court had jurisdiction, Jenkins "waived" review by failing to object to the motion to amend in the trial court.

¶ 17 Illinois Supreme Court Rule 303(b)(2) (eff. Jan. 1, 2015) provides that the notice of appeal "shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court." "The purpose of the notice of appeal is to inform the prevailing party that the other party seeks review of the trial court's decision." (Internal quotation marks omitted.) General Motors Corp. v. Pappas , 242 Ill. 2d 163, 176, 351 Ill.Dec. 308, 950 N.E.2d 1136 (2011). Further, "[a] notice of appeal confers jurisdiction on a court of review to consider only the judgments or parts of judgments specified in the notice of appeal." Id. However, " 'the unspecified judgment is reviewable if it is a "step in the procedural progression leading" to the judgment specified in the notice of appeal.' " U.S. Bank National Ass'n v. Luckett , 2013 IL App (1st) 113678, ¶ 13, 369 Ill.Dec. 705, 987 N.E.2d 47 (quoting Burtell v. First Charter Service Corp. , 76 Ill. 2d 427, 435, 31 Ill.Dec. 178, 394 N.E.2d 380 (1979) ).

¶ 18 We find this case similar to the facts presented in James v. SCR Medical Transportation, Inc. , 2016 IL App (1st) 150358, ¶ 34, 406 Ill.Dec. 775, 61 N.E.3d 1043. In James , one of the defendants argued that due to a defect in the plaintiff's notice of appeal, the court lacked jurisdiction to review the order that disposed of the second amended complaint and dismissed the defendant at issue as a party. Id. ¶ 32. Specifically, the defendant argued that the order dismissing it was entered on May 30, 2014, but the notice of appeal only referenced the January 12, 2015, order that dismissed the third amended complaint. Id. The court disagreed with the defendant because the plaintiff incorporated by reference the previous iterations of its complaint into the third amended complaint and thus preserved the arguments as to the dismissal of the counts regarding the defendant at issue. Id. ¶ 33. The court noted that "[a] notice of appeal is to be liberally construed and unless it contains a defect that is both prejudicial and substantive, an appellant's failure to comply with the established form of notice will not be fatal to his appeal." Id. ¶ 34. The court noted that the defendant never argued it was prejudiced by the notice of appeal. Id. Specifically, the appellate court recognized that the defendant had previously presented it with a motion to dismiss based on the notice of appeal that was denied without prejudice and, as a result, the defendant at issue was able to present a brief containing substantive argument and thus did not suffer prejudice. Id.

¶ 19 Here, we find that although not expressly referenced in Jenkins's notice of appeal, the trial court's December 20, 2016, decision granting leave to file an amended complaint was a step in the procedural progression that led to the trial court granting summary judgment in favor of Pennymac. Pennymac did not file its motion for summary judgment until after the court allowed the complaint to be amended. Without the amendment, Pennymac would not have been able to seek summary judgment because it would not have been a party to this case. Further, the court's April 17, 2017, order granting summary judgment in favor of Pennymac expressly referenced the December 20, 2016, order when it stated that summary judgment was proper because any defect in the notice/demand served on Jenkins was "cured by the filing of the amended complaint on December 20, 2016." Thus, it is apparent that summary judgment would not have been granted without Pennymac having been granted leave to file an amended complaint.

¶ 20 Further, Pennymac does not argue that it would be prejudiced if we reviewed the court's order that allowed amendment of the complaint. In fact, as an alternative to its assertion that we lack jurisdiction to review the amendment of the complaint, Pennymac's response brief contains substantive argument as to why the trial court acted within its discretion to allow amendment of the complaint. Therefore, similar to the holding in James , we find that, because no prejudice would result to Pennymac and because the court's December 20, 2016, order assisted in the procedural progression of this case, we have jurisdiction to review whether the trial court erroneously allowed the complaint to be amended. Additionally, like in James , Pennymac has been able to supply this court with substantive argument on this issue.

¶ 21 However, even assuming we have jurisdiction to review the December 20, 2016, order, Pennymac further asserts that Jenkins is raising this argument for the first time on appeal and thus has "waived" review of that order. For clarity, we note that waiver is the intentional relinquishment of a known right, while forfeiture-which is likely what Pennymac intended to assert-applies when an issue is not raised in a timely manner. See Palm v. 2800 Lake Shore Drive Condominium Ass'n , 2013 IL 110505, ¶ 26, 370 Ill.Dec. 299, 988 N.E.2d 75. Specifically, Pennymac asserts that Jenkins never filed an objection to the motion to amend and, thus, any arguments on this issue are unreviewable on appeal. "Generally, arguments not raised before the circuit court are forfeited and cannot be raised for the first time on appeal." Mabry v. Boler , 2012 IL App (1st) 111464, ¶ 15, 362 Ill.Dec. 1, 972 N.E.2d 716.

¶ 22 Our review of the record indicates that Jenkins has raised for the first time on appeal the argument that Citibank should not have been granted leave to amend its complaint. In his reply brief, Jenkins asserts that he "did not respond to the motion to amend because it was presented and rolled up in the hearing on his motion to dismiss." Presumably, this means that Jenkins did not believe a response to the motion to amend was necessary because he had already filed a motion to dismiss based on the same reasoning that he would have asserted in response to the motion. This argument fails where Jenkins's motion to dismiss was based on a lack of standing, which is not the same argument that Jenkins now makes on appeal regarding why the complaint should not have been amended. It is unclear if the trial court was even made aware that Jenkins opposed the amendment of the complaint. We find there is simply no evidence that Jenkins ever objected to Citibank seeking leave to amend the complaint. Not only did Jenkins fail to file a response to the motion for leave to amend, but after the motion for leave to amend was granted, Jenkins did not file a motion to reconsider. Further, Jenkins opted to answer the amended complaint and alleged affirmative defenses only regarding the notice/demand he received. Because the court's December 20, 2016, order granting Citibank leave to file an amended complaint does not state that the motion was granted over Jenkins's objection and because Jenkins did not present a transcript or other form of report of proceedings from the court's hearing on December 20, 2016, we are unaware if Jenkins's counsel orally objected on that date. Ultimately, there is no evidence that Jenkins preserved this issue for review.

¶ 23 Notwithstanding Jenkins's forfeiture of this issue, we opt to address the merits. "Forfeiture * * * is a limitation on the parties and not the reviewing court, and this court may overlook forfeiture where necessary to obtain a just result or maintain a sound body of precedent." Wilson v. Humana Hospital , 399 Ill. App. 3d 751, 757, 339 Ill.Dec. 346, 926 N.E.2d 821 (2010). The issue of whether the trial court erroneously allowed the complaint to be amended is so closely related to the ultimate issue of whether summary judgment was proper, and thus, addressing the merits of the former assists in our acquisition of a just result.

¶ 24 Turning to the merits, Jenkins asserts that the trial court erred in granting substitution of plaintiff because this case does not involve misnomer, as there were two distinct entities that were named as plaintiffs, rather than one as is common in misnomer cases. Pennymac responds that the trial court acted within its discretion when it granted Citibank leave to amend regardless of whether misnomer or mistaken identity applies. "Whether to allow an amendment of a complaint is a matter within the sound discretion of the trial court, and absent an abuse of that discretion, the court's determination will not be overturned. [Citation.] An abuse of discretion will be found only where no reasonable person would take the view adopted by the trial court. [Citation.]" Moore v. People for the Ethical Treatment of Animals, Inc. , 402 Ill. App. 3d 62, 75, 342 Ill.Dec. 321, 932 N.E.2d 448 (2010).

¶ 25 Prior to determining whether the court abused its discretion, we must first decide whether Pennymac's act of misnaming itself as plaintiff in the complaint constitutes a misnomer or a mistaken identity. This distinction is important because, if this case involves a misnomer, which "is a mistake in name of the provision of an incorrect name," then section 2-401(b) of the Code ( 735 ILCS 5/2-401(b) (West 2014) ) applies. See, e.g. , Bristow v. Westmore Builders, Inc. , 266 Ill. App. 3d 257, 260-61, 203 Ill.Dec. 680, 640 N.E.2d 339 (1994). Conversely, if this matter involves a mistaken identity, then section 2-616 of the Code governs. See, e.g. , Todd W. Musburger, Ltd. v. Meier , 394 Ill. App. 3d 781, 806, 333 Ill.Dec. 383, 914 N.E.2d 1195 (2009) ; 735 ILCS 5/2-616 (West 2014). "The determination of whether a case involves a misnomer or a mistaken identity depends on the intent of the parties, but a plaintiff's subjective intent is not controlling in the face of objective manifestations indicating an intent to sue another."

Estate of Henry v. Folk , 285 Ill. App. 3d 262, 264, 220 Ill.Dec. 831, 674 N.E.2d 102 (1996).

¶ 26 We first look to whether a misnomer is involved here. Section 2-401(b) of the Code states, "[m]isnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires." 735 ILCS 5/2-401(b) (West 2014). Pennymac argues that the principles of misnomer apply because it was always its attorney's intention to bring the action in the name of the property's current title owner. Jenkins responds that this case does not involve misnomer because the plaintiff's name did not just contain a scrivener's error or another similarly minor error but, instead, the plaintiff was pled as entirely different entity. We agree with Jenkins and find that misnomer does not apply here.

¶ 27 It is well-settled that "[t]he vast majority of cases addressing misnomer have arisen in the context of misnamed, misidentified, or mischaracterized defendants," but the same rules apply for cases in which a plaintiff misnames itself. Bristow , 266 Ill. App. 3d at 261, 203 Ill.Dec. 680, 640 N.E.2d 339. In this case, Pennymac misnamed itself as Citibank in its own complaint; thus we are dealing with the rare situation where a plaintiff has erroneously self-identified in its complaint. We look to cases involving the misidentification of a plaintiff for instruction.

¶ 28 In Bristow , the plaintiff was a sole proprietor but sued in the name of a corporation. Id. at 261, 203 Ill.Dec. 680, 640 N.E.2d 339. The defendants argued that the complaint was a nullity because the corporate entity that was listed as the plaintiff did not exist. Id. at 259, 203 Ill.Dec. 680, 640 N.E.2d 339. The court rejected the defendants' argument, finding that a misnomer was involved because the parties were fully aware of the identity of the actual litigants, an actual plaintiff existed, and prejudice would not have resulted. Id. at 261-62, 203 Ill.Dec. 680, 640 N.E.2d 339. Similarly, in Todd W. Musburger, Ltd. , the plaintiff filed suit as "The Law Offices of Todd W. Musburger, Ltd." rather than as "Todd W. Musburger, Ltd.," which was its official corporate name. Todd W. Musburger, Ltd. , 394 Ill. App. 3d at 805-06, 333 Ill.Dec. 383, 914 N.E.2d 1195. The court found that the facts of the case before it were "even more compelling for the application of the doctrine of misnomer than the facts in Bristow " because "an actual corporate plaintiff does, and at all relevant times did, exist." Id. at 808, 333 Ill.Dec. 383, 914 N.E.2d 1195.

¶ 29 More recently in Luckett , this court determined that a misnomer occurred where the plaintiff listed itself in both its preeviction notice and complaint as "Bank National Association, as Trustee for Credit Suisse First Boston HEAT 2005-5" but its name was actually "U.S. Bank National Association, as Trustee for Credit Suisse First Boston HEAT 2005-5." Luckett , 2013 IL App (1st) 113678, ¶ 20, 369 Ill.Dec. 705, 987 N.E.2d 47. Basically, the abbreviation "U.S." was supposed to precede "Bank National Association" in the plaintiff's name but was omitted. On appeal, this court found that the circuit court had properly granted the plaintiff leave to amend its complaint where the variation in the plaintiff's name was minor and the defendant did not suffer any prejudice. Id. ¶ 23.

¶ 30 Here, the complaint was filed on October 31, 2016, and named "Citibank, N.A. as Trustee for CMLTI Asset Trust" as the plaintiff. However, the plaintiff should have been named as "Pennymac Corp." because Citibank had previously conveyed the property via quitclaim deed to Pennymac on March 10, 2016. Thus, the complaint listed the previous owner of the property, rather than the current owner.

We find that this discrepancy is not as minor as a misnomer. Unlike the aforementioned cases that involved an incorrectly identified entity, the case before us involved two distinct entities, Citibank and Pennymac, not merely one entity that was incorrectly named. Although Citibank was the previous owner of the property and, thus, not entirely unrelated to this case, they are two entirely separate entities. We similarly find that the parties' intent is unclear. Pennymac argues that it was its intent to bring this action in the name of the current owner of the property. Because Citibank was, in fact, a former owner of the property, Pennymac's subjective intent is unclear. It is possible, at the time the notice/demand was served and the complaint was filed, that counsel here was simply unaware that the property had been conveyed to Pennymac. Bringing the complaint in the name of Citibank, a former owner of the property, amounts to an objective manifestation of counsel's intent to sue another. As a result, we find the misnaming of the plaintiff here involves a mistaken identity, not a misnomer.

¶ 31 Having determined that this is not a misnomer case, we must next analyze whether the trial court abused its discretion in allowing Citibank leave to amend its complaint. As previously stated, section 2-616 of the Code applies to situations involving mistaken identity and states in part:

"At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim." 735 ILCS 5/2-616(a) (West 2014).

In determining "whether a trial court abused its discretion in ruling on a motion for leave to file an amended complaint, we consider the following factors: (1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleadings could be identified." (Internal quotation marks omitted.) Moore , 402 Ill. App. 3d at 75, 342 Ill.Dec. 321, 932 N.E.2d 448.

¶ 32 After consideration of these factors, we find that the trial court acted within its discretion when it allowed Citibank leave to file an amended complaint. First, we find that the proposed amendment cured the defective pleading. Allowing Pennymac to be substituted as the plaintiff cured the complaint's defect because Pennymac was the true owner of the property on the date of the complaint's filing. Although Jenkins stresses that amendment of the complaint did not cure the defect because the notice/demand attached to the complaint still listed Citibank as plaintiff, we reject such a contention for the reasons more fully set forth below. The second factor weighs in favor of amendment because Jenkins would not suffer any surprise or prejudice based on the substitution of Pennymac as plaintiff. The chain of title is undisputed and clear, as each transaction was recorded with the Cook County Recorder of Deeds. Citibank acquired the property following the judicial foreclosure sale. Thereafter, Citibank conveyed the property to Pennymac. Further, Jenkins was not surprised by the amendment since he was aware that Citibank was not the proper plaintiff, as evidenced through his motion to dismiss based on standing. Third, we find the amendment to be timely, where Citibank sought leave to amend its complaint less than two months after the complaint was filed. The fourth factor similarly weighs in favor of amendment because there is no indication that the motion for leave to amend could have been filed sooner. Here, Jenkins filed his motion to dismiss on November 29, 2016. It appears from the record that Citibank filed its motion for leave to file an amended complaint on the same date, November 29, 2016, but set it for hearing in the wrong courtroom. Thus, Citibank sought leave to correct its error nearly instantaneously with its discovery of the error. Further, Citibank refiled its motion to amend in the correct courtroom on December 15, 2016. Thus, even Citibank's motion to amend that listed the correct courtroom was only filed approximately two weeks after Jenkins filed his motion to dismiss. We find that no abuse of discretion occurred where all four factors heavily support the trial court's decision to grant Citibank leave to amend its complaint.

¶ 33 B. Notice/Demand Served on Jenkins

¶ 34 Next, Jenkins contends that allowing Pennymac to be substituted as the plaintiff did not cure any pleading defects because the notice/demand that was served upon Jenkins and attached as an exhibit to the complaint listed Citibank as the plaintiff.

¶ 35 We find it pertinent to first address Jenkins's argument that the notice/demand did not comply with the Illinois Mortgage Foreclosure Law (Foreclosure Law) ( 735 ILCS 5/15-1101 et seq. (West 2014) ). Jenkins does not expound on this contention, but we presume he suggests the Foreclosure Law is applicable because the complaint in this case was filed as a complaint for foreclosure-related eviction. "Section 15-1701(h) of the Foreclosure Law provides a mechanism, outside of the Detainer Act, in which a purchaser of foreclosed property, up to 90 days after the date of the order confirming the sale, can file a supplemental petition for possession against a person not personally named as a party to the foreclosure." Deutsche Bank National Trust Co. v. Puma , 2016 IL App (1st) 153513, ¶ 25, 408 Ill.Dec. 423, 65 N.E.3d 899 (citing 735 ILCS 5/15-1701(h)(1) (West 2014) ). Also relevant is section 15-1701(a) of the Foreclosure Law, which explains that "[t]he provisions of this Article shall govern the right to possession of the mortgaged real estate during foreclosure ." (Emphasis added.) 735 ILCS 5/15-1701(a) (West 2014). We find that section 15-1701 of the Foreclosure Law is inapplicable where Citibank filed a separate action for forcible entry and detainer, rather than a supplemental petition in the foreclosure case. Additionally, the notice/demand was not served on Jenkins until September 17, 2016, which is well over 90 days from January 27, 2014, the date the confirmation of sale was entered. Therefore, we conduct our review according to the notice required by the Forcible Entry and Detainer Act (Detainer Act) (id. § 9-101 et seq. ).

¶ 36 It is well settled that when a party receives a property after a judicial foreclosure sale, as is the case here, it may pursue a forcible entry and detainer action to evict individuals in possession of the property, pursuant to section 9-102(a)(6) of the Detainer Act, but only after making a "demand in writing by the person entitled thereto, or his or her agent" for possession of the property. See id. § 9-102(a)(6). "Where the statute includes a requirement that written demand is made prior to filing a complaint, the demand must be made in strict compliance with the statute or jurisdiction will not attach."

Figueroa v. Deacon , 404 Ill. App. 3d 48, 52, 343 Ill.Dec. 852, 935 N.E.2d 1080 (2010). Whether there is substantial compliance with a statutory provision is a question of law, and our review is de novo . Id. "The role of courts in interpreting statutes is to give effect to the legislature's intent when enacting a statute. When the statute is plain and unambiguous, we look only to what is actually contained within the statute by determining its plain and ordinary meaning." Goldberg v. Astor Plaza Condominium Ass'n , 2012 IL App (1st) 110620, ¶ 43, 361 Ill.Dec. 346, 971 N.E.2d 1.

¶ 37 Section 9-104 of the Detainer Act, titled "Demand-Notice-Return" explains section 9-102(a)(6)'s "demand in writing" requirement and states as follows:

"The demand required by Section 9-102 of this Act may be made by delivering a copy thereof to the tenant, or by leaving such a copy with some person of the age of 13 years or upwards, residing on, or being in charge of, the premises; or in case no one is in the actual possession of the premises, then by posting the same on the premises; or if those in possession are unknown occupants who are not parties to any written lease, rental agreement, or right to possession agreement for the premises, then by delivering a copy of the notice, directed to 'unknown occupants', to the occupant or by leaving a copy of the notice with some person of the age of 13 years or upwards occupying the premises, or by posting a copy of the notice on the premises directed to 'unknown occupants'. When such demand is made by an officer authorized to serve process, his or her return is prima facie evidence of the facts therein stated, and if such demand is made by any person not an officer, the return may be sworn to by the person serving the same, and is then prima facie evidence of the facts therein stated. The demand for possession may be in the following form: To ...
I hereby demand immediate possession of the following described premises: (describing the same.)
The demand shall be signed by the person claiming such possession, his or her agent, or attorney." 735 ILCS 5/9-104 (West 2014).

¶ 38 The Detainer Act does not provide detailed parameters regarding the demand's contents. Instead, it provides only a few requirements. First, section 9-104 requires that the demand be delivered to the tenant in one of the manners listed. Id. Here, there is no dispute that Jenkins was personally served with the notice/demand on September 17, 2016. Second, section 9-104 requires the demand to be "signed by the person claiming such possession, his or her agent, or attorney." Id. The notice/demand served on Jenkins was signed by Matthew Gruca of Pierce & Associates as "Attorney for Plaintiff." Although Citibank was the plaintiff listed on the notice/demand, Gruca was the attorney for both Citibank and Pennymac. Thus, demand was signed by the attorney for Pennymac, which satisfies the requirement that the demand be signed by the attorney for "person claiming such possession." Id.

¶ 39 Section 9-104 states that the demand "may" be in the form set forth therein. Id. "Legislative use of the word 'may' is generally regarded as indicating a permissive or directory reading, whereas use of the word 'shall' is generally considered to express a mandatory reading." (Internal quotation marks omitted.) People v. Bilelegne , 381 Ill. App. 3d 292, 295, 320 Ill.Dec. 420, 887 N.E.2d 564 (2008). Here, the notice/demand stated that it was "To: Clarence Jenkins" and stated that Citibank "hereby demands immediate possession of the following premises: 1041 East 168th Street South Holland, IL 60473." Thus, even though the form of the demand was permissive under the statute, the notice/demand here took the same form as suggested in section 9-104 of the Detainer Act. Having complied with both the mandatory and permissive portions of section 9-104, we find that the notice/demand served on Jenkins substantially complied with the Detainer Act.

¶ 40 We reject Jenkins's argument that the notice/demand was defective because it did not contain the accurate name of the property owner. Pennymac responds that there is no requirement that the owner of the property be named in the notice/demand. Our review of the statute indicates that Pennymac is correct. Although not directly on point, we find the court's reasoning in Luckett to be instructive in resolving this issue also.

¶ 41 In Luckett , the court found that the case involved a correctable misnomer and allowed the amended complaint to relate back to the filing of the original complaint, which contained the inaccurate party name. Luckett , 2013 IL App (1st) 113678, ¶ 27, 369 Ill.Dec. 705, 987 N.E.2d 47. The defendants, however, argued that even if the court had authority to amend the complaint, it did not have authority to amend the defective notice that was attached as an exhibit to the complaint. Id. ¶ 28. The court explained that "[t]he preeviction notice is prepared and served long before a complaint is filed, so the regular pleading rules do not apply to it." Id. The court then looked to section 15-1701(h) of the Foreclosure Law and determined "[t]he statute specifies no particular language or content of the preeviction notice, but only provides that it should be 'properly served.' " Id. ¶ 29. In fact, the court acknowledged that "there is no requirement that the notice contain the name of the owner." Id. Although Luckett explores the notice required by the Foreclosure Law and we have already found that statute inapplicable here, we nonetheless find the court's logic there to be helpful. The Detainer Act, similar to the Foreclosure Law, does not contain a requirement that the notice state the owner of the property at issue. Keeping in mind that when a statute is plain and unambiguous, we look only to what is actually contained within the statute by determining its plain and ordinary meaning ( Goldberg , 2012 IL App (1st) 110620, ¶ 43, 361 Ill.Dec. 346, 971 N.E.2d 1 ), we decline to read into the Detainer Act the requirement that the property owner's name be included on the notice.

¶ 42 C. Trial Court's Grant of Summary Judgment

¶ 43 Finally, we address Jenkins's challenge to the trial court's grant of summary judgment in favor of Pennymac. "[S]ummary judgment is proper only where the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mashal v. City of Chicago , 2012 IL 112341, ¶ 49, 367 Ill.Dec. 223, 981 N.E.2d 951 (citing 735 ILCS 5/2-1005(c) (West 2014) ). The court is required to strictly construe the pleadings, depositions, admissions, and affidavits against the movant and liberally in favor of the opposing party. Id. When examining an appeal from a summary judgment ruling, we conduct a de novo review. Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992).

¶ 44 In his reply brief, Jenkins expressly states that he "agrees that Pennymac has a right to possession but disagrees that is the end of the matter, focusing on the defect in the notice of intent." Having already determined that the trial court did not abuse its discretion in allowing the complaint to be amended and having found that the notice/ demand strictly complied with the requirements of the Detainer Act, we find no genuine issue of material fact exists, rendering summary judgment proper. We, therefore, affirm the trial court's decision.

¶ 45 III. CONCLUSION

¶ 46 Based on the foregoing, we find that the trial court properly granted summary judgment in favor of Pennymac and affirm its decision.

¶ 47 Affirmed.

Presiding Justice Hoffman and Justice Cunningham concurred in the judgment and opinion.

      We remind Jenkins that it is the burden of the appellant to provide a sufficiently complete record of circuit court proceedings. See Foutch v. O'Bryant , 99 Ill. 2d 389, 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984).

      We note that subsequent to Luckett , section 15-1701(h) of the Foreclosure Law was amended by Pub. Act 98-514, § 5 (eff. Nov. 19, 2013). The amended version of section 15-1701(h) also does not contain a requirement that the owner of the property be named in the notice.


text:
    The PEOPLE EX REL. Nkyia ERVIN, Plaintiff-Appellant, v. Dean BARNETT, Defendant-Appellee.
    No. 1-17-2639
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    May 11, 2018
    McStephen O.A. Solomon, of Chicago, for appellant.
    James P. Nally, of Chicago, for appellee.
   JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 Relator Nkyia Ervin filed a petition for leave to file a complaint in quo warranto against defendant Dean Barnett, a member of the board of education of a suburban public school district. Ervin's petition alleged that she was the parent of a minor enrolled in one of the district's schools, and that Barnett was a "convicted felon" and thus ineligible to hold his office pursuant to section 29-15 of the Election Code ( 10 ILCS 5/29-15 (West 2016) ). Attached to the petition were copies of letters that Ervin's attorney sent to the Attorney General and the State's Attorney of Cook County requesting that they bring a quo warranto action against Barnett on their own. The petition alleged that both offices declined to proceed. The record before us contains a copy of a letter from the state's attorney declining to pursue the matter. Neither Ervin's letters to the two agencies, nor the petition itself, specified any details of the felony in question, such as the date or the nature of the crime committed.

¶ 2 Barnett appeared and filed a motion to dismiss Ervin's petition pursuant to section 2-619.1 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619.1 (West 2016) ). In the section 2-619 portion of the motion, Barnett argued that the petition should be dismissed because (1) the crime of which Barnett was convicted was not an "infamous crime" as defined by state law; (2) Ervin had not alleged a sufficiently distinct private interest to warrant her ability to file a quo warranto petition after the Attorney General and state's attorney had declined to do so; and (3) the issue of Barnett's qualifications had been resolved in another lawsuit and that Ervin's petition was thus barred by the doctrines of res judicata , collateral estoppel, and law of the case. In the section 2-615 portion of the motion, Barnett alleged that the petition was defective because Ervin did not file a security for costs when she filed the case as required by section 18-105 of the Code, or issue a formal summons as required by section 18-106 of the Code. 735 ILCS 5/18-105, 18-106 (West 2016).

¶ 3 Furthermore, Barnett's motion to dismiss admitted that in 1993, when Barnett was 17 years old, he was convicted in circuit court of Cook County case No. 93-MC6-010900 of the offense of possession of a stolen motor vehicle (Ill. Rev. Stat. 1991, ch. 95 ½, ¶ 4-103(a)(1) ). A copy of the felony complaint is attached to the motion to dismiss. Ervin did not-and does not-dispute the facts surrounding Barnett's conviction. The record also contains a certified statement from the clerk of the circuit court of Cook County showing that on November 15, 1993, Barnett pleaded guilty to the charge in question, was found guilty based on the plea, was sentenced to two years' probation, and thereafter completed probation satisfactorily. Barnett's motion further explained that the circuit court of Cook County had previously resolved the question of whether his felony conviction barred him from running for the school board. In 2017, the same attorney who now represents Ervin represented an objector to Barnett's nomination papers for reelection to the school board. The gist of the objections was that Barnett's felony conviction disqualified him from running for the board. The electoral board adopted a hearing officer's recommendation, which determined that because Barnett's conviction was for "theft," it was for a crime enumerated as an "infamous" crime in section 124-1 of the Code of Criminal Procedure of 1963. On judicial review of the electoral board's decision, Presiding Judge Sullivan of the county division of the circuit court of Cook County entered an order reversing the board's finding and overruling the objections. That court's order found that "the offense of receipt/possession of a stolen motor vehicle is not an infamous crime as set forth in 10 ILCS 5/29-15 as infamous crime is defined in section 124-1 of the 1963 Criminal Code." Barnett v. Cook County Officers Electoral Board , No. 2017-COEL-39 (Cir. Ct. Cook County, Feb. 24, 2017).

¶ 4 On September 26, 2017, after briefing, the circuit court granted Barnett's motion and denied Ervin leave to file a quo warranto petition. The court found that because Barnett's 1993 conviction was not for an "infamous crime" as defined by state law, Ervin's petition failed to allege a valid basis to bring a quo warranto claim. The court further found that the public interest in judicial economy did not favor relitigating an issue which had already been decided in the 2017 proceedings before the Cook County Electoral Board and the circuit court. This appeal followed.

¶ 5 Section 18-101 of the Code allows private parties to file complaints in quo warranto with leave of court if the Attorney General and state's attorney have declined to do so on their own. 735 ILCS 5/18-101 (West 2016). Whether to grant a petition for leave to file a quo warranto action is a matter within the trial court's sound discretion. People ex rel. Hansen v. Phelan , 158 Ill. 2d 445, 449, 199 Ill.Dec. 686, 634 N.E.2d 739 (1994) (citing People ex rel. Prather v. Miller , 331 Ill. 395, 399, 163 N.E. 139 (1928) ). "In the exercise of its discretion, the court should consider all of the conditions and circumstances in the case, the motives of the relators in instituting the proceedings, the policy of and necessity for the remedy sought, and whether the public interest will be served or damaged by the writ." Id. (citing Miller , 331 Ill. at 399, 163 N.E. 139, and People ex rel. Weber v. Burson , 307 Ill. 533, 536, 139 N.E. 139 (1923) ). We review a trial court's denial of leave to file a quo warranto case for abuse of discretion. Id.

¶ 6 This case involves interpretation of three statutes. The first is section 29-15 of the Election Code, which provides:

"Any person convicted of an infamous crime as such term is defined in Section 124-1 of the Code of Criminal Procedure of 1963, as amended, shall thereafter be prohibited from holding any office of honor, trust, or profit, unless such person is again restored to such rights by the terms of a pardon for the offense or otherwise according to law." 10 ILCS 5/29-15 (West 2016).

¶ 7 Section 124-1 of the Code of Criminal Procedure of 1963 was repealed in 1986. It contained a specific list of crimes which were "infamous" crimes: "the offenses of arson, bigamy, bribery, burglary, deviate sexual assault, forgery, incest or aggravated incest, indecent liberties with a child, kidnaping or aggravated kidnaping, murder, perjury, rape, robbery, sale of narcotic drugs, subornation of perjury, and theft if the punishment imposed is imprisonment in the penitentiary." Ill. Rev. Stat. 1983, ch. 38, ¶ 124-1 (repealed by Pub. Act 84-1047, § 2 (eff. July 1, 1986) ). Despite the repeal of section 124-1, its definition of "infamous crime" remains applicable to section 29-15 of the Election Code. Alvarez v. Williams , 2014 IL App (1st) 133443, ¶ 10, 387 Ill.Dec. 852, 23 N.E.3d 544. The Alvarez court stated: "According to the principles of statutory construction, it is well settled that statutes which adopt by specific reference provisions of other statutes are not affected by a subsequent amendment or repeal of the incorporated statute." Id. Thus, the Alvarez court held, "the repeal of section 124-1 of the Code of Criminal Procedure does not change the classifications for an 'infamous crime' in section 29-15 of the Election Code." Id. ; accord People ex rel. Foxx v. Agpawa , 2018 IL App (1st) 171976, ¶ 17 n.1, 423 Ill.Dec. 438, 105 N.E.3d 846.

¶ 8 Barnett was charged with violation of the possession of a stolen motor vehicle statute (Ill. Rev. Stat. 1991, ch. 95 ½, ¶ 4-103(a)(1) ), which provided that it was felony for "[a] person not entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted." Notably, that statute did not require that the defendant steal or commit any theft himself; it merely required that the defendant "receive, possess, conceal, sell, dispose, or transfer" a vehicle which was already stolen.

¶ 9 The cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent, and the plain language of the statute is the best indication of that intent. Acme Markets, Inc. v. Callanan , 236 Ill. 2d 29, 37-38, 337 Ill.Dec. 867, 923 N.E.2d 718 (2009). "The best evidence of legislative intent is the language used in the statute itself, which must be given its plain and ordinary meaning." Roselle Police Pension Board v. Village of Roselle , 232 Ill. 2d 546, 552, 328 Ill.Dec. 942, 905 N.E.2d 831 (2009). "The statute should be evaluated as a whole, with each provision construed in connection with every other section." Id. If the statutory language at issue is clear and unambiguous, a reviewing court must interpret the statute according to its terms without resorting to aids of statutory construction. Branson v. Department of Revenue , 168 Ill. 2d 247, 254, 213 Ill.Dec. 615, 659 N.E.2d 961 (1995).

¶ 10 Distilled to its essence, this case presents a simple question of statutory interpretation. Section 124-1 of the Code of Criminal Procedure classified 18 specific offenses as "infamous" crimes.

None of these offenses cover Barnett's 1993 conviction of the crime of possession of a stolen motor vehicle. The only one even remotely related to Barnett's conviction is theft, which the electoral board erroneously found was applicable. But Barnett was not convicted of a theft. Rather, he was convicted of the less severe crime of possessing stolen property. Therefore, the "infamous crime" provision of section 29-15 of the Election Code does not disqualify Barnett from holding office as a member of the board of education.

¶ 11 Relying on People ex rel. Marre v. Countryside Sanitary District , 5 Ill. App. 3d 747, 284 N.E.2d 308 (1972), Ervin makes an unconvincing argument to the contrary. In Marre , the court cautioned against conflating the two steps in the quo warranto process: granting leave to file a complaint and the actual complaint itself. Id. at 750, 284 N.E.2d 308. Since the circuit court essentially dismissed the case on the merits at the "leave" stage, she contends that the court acted prematurely. We disagree. As our supreme court held in Hansen , the court possesses discretion in determining whether even to grant a private party leave to file a complaint in quo warranto against an elected official. Put simply, the circuit court was correct when it found that the stolen vehicle offense was not an "infamous" crime. Because Barnett's conviction was for a crime not included in section 124-1 of the Criminal Code of 1963, allowing Ervin to file her quo warranto petition would have been futile, and the law does not require the performance of a futile act. Geary v. Dominick's Finer Foods, Inc. , 129 Ill. 2d 389, 400, 135 Ill.Dec. 848, 544 N.E.2d 344 (1989) (citing Lang v. Hedenberg , 277 Ill. 368, 376, 115 N.E. 566 (1917) ). Therefore, the circuit court did not abuse its discretion in denying Ervin leave to file a complaint in quo warranto against Barnett.

¶ 12 Affirmed.

Justices Cunningham and Connors concurred in the judgment.


text:
    ZURICH AMERICAN INSURANCE COMPANY and American Zurich Insurance Company, Plaintiffs-Appellees, v. PERSONNEL STAFFING GROUP, LLC; Daniel S. Barnett; and Dash Management, Defendants-Appellants.
    No. 1-17-2281
    Appellate Court of Illinois, First District, SECOND DIVISION.
    May 15, 2018
    Sperling & Slater, P.C., of Chicago (Greg Shinall, Thomas D. Brooks, and Nathan A. Shev, of counsel), for appellants.
    Locke Lord LLP, of Chicago (Steven T. Whitmer, Julie L. Young, and Heidi L. Brady, of counsel), for appellees.
    OPINON
   PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion.

¶ 1 After Zurich American Insurance Company (Zurich) filed a demand for arbitration of its dispute with its insured, Personnel Staffing Group, LLC (PSG), Zurich filed a complaint against PSG and two other defendants, alleging that PSG fraudulently transferred funds to the other defendants to avoid paying an anticipated arbitration award. PSG filed in court a counterclaim that matched claims it raised in the arbitration. The Cook County circuit court denied the defendants' motion to compel arbitration of the fraudulent transfer claim, and it denied the defendants' motion to stay proceedings on the fraudulent transfer claims pending resolution of the arbitration. The court also dismissed the counterclaims to compel arbitration of those claims. The defendants now appeal.

¶ 2 We find that Zurich's complaint concerns collection of the arbitration award and the circuit court correctly held that the parties did not agree to arbitrate issues regarding collection of arbitration awards. Staying proceedings on the fraudulent transfer claims pending arbitration would conflict with the purposes of the Uniform Fraudulent Transfer Act (Act). 740 ILCS 160/1 et seq. (West 2016). The defendants concede that the parties agreed to arbitrate the issues raised in their counterclaims. Accordingly, we affirm the circuit court's order.

¶ 3 BACKGROUND

¶ 4 In 2011, PSG bought workers' compensation insurance from Zurich subject to a "Loss Retrospective Agreement" (Agreement), which provided that PSG would pay Zurich an amount that depended on the workers' compensation claims eventually filed against PSG for the covered period. The Agreement established that Zurich would handle the claims and then bill PSG for the paid losses. Because Zurich would initially pay the claims, it effectively loaned the payments to PSG. The Agreement referred to this aspect of the Agreement as a "risk financing arrangement," for which Zurich required collateral in the form of a letter of credit in "an amount sufficient to secure [PSG's] financial obligations under this Agreement." The Agreement also provided that "[a]ny dispute arising out of the interpretation, performance or alleged breach of this Agreement, shall be settled by binding arbitration."

¶ 5 For several years, PSG regularly paid Zurich the amounts Zurich billed, but disagreements arose, and PSG stopped reimbursing the full amounts demanded. In June 2016, the final policy term ended, and PSG bought insurance from another source. On December 1, 2016, Zurich filed a demand for arbitration to resolve its disputes with PSG. Zurich sought to recover more than $4.6 million for the retrospective premiums already due, and it sought a letter of credit in the amount of $39 million as security for future claims. PSG replied that Zurich had breached the Agreement by "engag[ing] in a pattern and practice of settling claims without regard for whether the settlements were reasonable," by "fail[ing] to properly investigate and manage claims," and by "failing to consult with PSG about settlements and reserve charges that exceed $10,000."

¶ 6 Before the arbitration hearing began, Zurich filed the complaint that initiated the lawsuit now before this court. Zurich named as defendants PSG, Dash Management, Inc. (Dash), and Daniel S. Barnett. Barnett, the "majority member" of PSG, owned Dash, and PSG paid Dash management fees. Zurich alleged that the defendants violated the Act in 2015, when PSG distributed $4.5 million to Barnett and paid Dash $5.8 million in management fees.

¶ 7 The defendants filed a "Motion To Dismiss or Stay or in the Alternative for Judgment on the Pleadings." They argued that either the circuit court should dismiss the lawsuit and compel arbitration of the fraudulent transfer claims or the court should stay proceedings on the fraudulent transfer claims until the arbitrators issue a final award. In the alternative, the defendants sought judgment on the pleadings, arguing that PSG's debt to Zurich did not arise until 2017 and, therefore, Zurich could not challenge the transfers PSG made in 2015. The defendants also filed a counterclaim that raised the same issues PSG raised in arbitration. Zurich filed a motion to compel arbitration of the counterclaim.

¶ 8 The circuit court set a date for hearing the "Motion To Dismiss or Stay or in the Alternative for Judgment on the Pleadings." Following the hearing, the court entered an order in which it (1) denied the motion to dismiss the lawsuit to compel arbitration of the fraudulent transfer claims, (2) denied the motion to stay proceedings on Zurich's complaint, (3) denied the motion for judgment on the pleadings, and (4) granted Zurich's motion to compel arbitration of the counterclaims. The defendants filed a notice of appeal.

¶ 9 ANALYSIS

¶ 10 Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017) gives this court jurisdiction to decide this appeal. MHR Estate Plan, LLC v. K&G Partnership , 2016 IL App (3d) 150744, ¶ 15, 409 Ill.Dec. 423, 67 N.E.3d 878 ; Robert A. Besner & Co. v. Lit America, Inc. , 214 Ill. App. 3d 619, 623, 158 Ill.Dec. 590, 574 N.E.2d 703 (1991) (an order compelling arbitration is considered to be an appealable interlocutory order because it is injunctive). The circuit court considered only the pleadings and attached documents, deciding the issues as a matter of law. Therefore, we review the court's decision de novo . Board of Managers of Chestnut Hills Condominium Ass'n v. Pasquinelli, Inc. , 354 Ill. App. 3d 749, 753-54, 290 Ill.Dec. 730, 822 N.E.2d 12 (2004).

¶ 11 Motion to Compel Arbitration

¶ 12 PSG argues first that the circuit court should have granted its motion to compel Zurich to arbitrate its fraudulent transfer claims against PSG because the claims "aris[e] out of the interpretation, performance or alleged breach of th[e] Agreement." We disagree. In its complaint, Zurich alleged that PSG transferred funds to Barnett and Dash to avoid paying a possible arbitration award. Zurich's complaint parallels the complaints filed in Northern Tankers (Cyprus) Ltd. v. Backstrom , 967 F.Supp. 1391 (D. Conn. 1997) ; Ryan Racing, LLC v. Gentilozzi , 231 F.Supp.3d 269 (W.D. Mich. 2017) ; and Apparel Art International, Inc. v. Jacobson , Civ. No. 90-1756 (JAF), 1991 WL 641949 (D.P.R. Aug. 21, 1991), aff'd , 967 F.2d 720 (1st Cir. 1992). In Apparel Art , the plaintiff claimed that after it initiated arbitration of its claims against Amertex, "the principals of Amertex themselves, through family members and shell corporations, transferred virtually all assets from Amertex while the arbitration was proceeding as a way to frustrate plaintiff's attempt to collect on any award it might receive." Apparel Art , 1991 WL 641949, at *3. The Apparel Art court observed, "the fraudulent transfer claim is merely one aspect of plaintiff's attempt at collection of the judgment" entered on the arbitration award. Apparel Art , 1991 WL 641949, at *3. Ryan Racing and Northern Tankers also involved fraudulent transfer claims addressed in court as part of the plaintiffs' efforts to collect arbitration awards. Ryan Racing , 231 F.Supp.3d at 275-76 ; Northern Tankers , 967 F.Supp. at 1394-95.

¶ 13 In Geneva Corporate Finance v. G.B.E. Liquidation Corp. , 598 N.W.2d 331 (Iowa Ct. App. 1999), the plaintiff won an arbitration award against the defendant and obtained a judgment on the award. The plaintiff then filed a fraudulent transfer complaint against the defendant in court. The defendant asked the court to dismiss the complaint as res judicata , arguing that the plaintiff could have pursued the fraudulent transfer claim in arbitration. The Geneva court held that the judgment on the arbitration award did not bar the fraudulent transfer claim because "the arbitration award established defendant corporation's liability under the listing contract and this action deals with collecting the judgment." Geneva , 598 N.W.2d at 334. We find that Zurich, like the plaintiffs in Geneva , Apparel Art , Ryan Racing , and Northern Tankers , brought the fraudulent transfer claim as part of an effort to collect an arbitration award.

¶ 14 Under the Uniform Arbitration Act ( 710 ILCS 5/1 et seq. (West 2016) ), after a party obtains an arbitration award, the party must file a complaint in court for confirmation of the award. 710 ILCS 5/14 (West 2016) ; see Windham v. Doctor's Associates, Inc. , 161 Conn.App. 348, 127 A.3d 1082, 1086-87 (2015). The court then decides issues related to enforcement and collection of the judgment entered on the award. 710 ILCS 5/14 (West 2016) ; see Adam Martin Construction Co. v. Brandon Partnership , 135 Ill. App. 3d 324, 326, 90 Ill.Dec. 162, 481 N.E.2d 962 (1985).

¶ 15 The defendants cite Miller v. Flume , 139 F.3d 1130 (7th Cir. 1998), as authority holding that the arbitrator should decide fraudulent transfer issues. In Miller , the defendant won an arbitration award against the plaintiffs, and a court entered a judgment confirming the award. The defendant then filed a second arbitration demand, alleging that the plaintiffs had fraudulently transferred assets to avoid paying the arbitration award. Miller , 139 F.3d at 1131. The plaintiffs filed a complaint to enjoin the second arbitration, which concerned only enforcement and collection of the original arbitration award. The Miller court found the fraudulent transfer claim arbitrable. The court emphasized that "the language of this particular agreement to arbitrate is quite broad, sweeping in not only claims that literally 'arise out of' the business of the firm (i.e., its buying and selling activities), but also claims that have a 'connection' with the firm's business." Miller , 139 F.3d at 1136.

¶ 16 The arbitration clause here, unlike the clause at issue in Miller , limits its scope to issues that arise out of the interpretation, performance, or alleged breach of the Agreement. The Agreement manifests an intention to adopt the usual arrangement: the arbitrator decides how much each party owes the other under the contract, and the court decides issues related to enforcement and collection of the arbitrator's award. We find that the issues surrounding the allegedly fraudulent transfers concern collection of the arbitrator's award and, therefore, they do not arise out of the interpretation or performance of the Agreement. The circuit court correctly denied the defendants' motion to compel Zurich to arbitrate its fraudulent transfer claims.

¶ 17 Motion to Stay

¶ 18 Next, the defendants argue that the circuit court should have stayed court proceedings pending issuance of the arbitral award. "The purpose of the Uniform Fraudulent Transfer Act is to prevent fraudulent transfers of property by a debtor who intends to defraud creditors by placing assets beyond their reach." Yokogawa Corp. of America v. Skye International Holdings, Inc. , 159 S.W.3d 266, 269 (Tex. App. 2005). In accord with the purposes of the Act, "[a] 'claim' under the Act may be maintained even though 'contingent' and not yet reduced to judgment." Cook v. Pompano Shopper, Inc. , 582 So.2d 37, 40 (Fla. Dist. Ct. App. 1991) (per curiam ); see Salisbury v. Majesky , 352 Ill. App. 3d 1188, 1190-91, 288 Ill.Dec. 569, 817 N.E.2d 1219 (2004). "[I]f automatically staying discovery and progression of [fraudulent transfer] claims was standard and a failure to do so an abuse of discretion, the goal of protecting creditors from wrongful asset transfers would likely be nearly entirely frustrated." Friedman v. Heart Institute of Port St. Lucie, Inc. , 863 So.2d 189, 193 (Fla. 2003). We find that, in accord with the purposes of the Act, the circuit court correctly denied the motion to stay proceedings under the Act.

¶ 19 Motion to Dismiss

¶ 20 The defendants argue that the circuit court improperly ruled on their motion to dismiss under section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2016). The defendants asked the circuit court to dismiss the complaint on grounds that Zurich had no claim against PSG in 2015, when PSG made the transfers Zurich seeks to challenge. In this appeal, the defendants argue that the circuit court erred when it denied the motion for judgment on the pleadings because "[d]efendants did not have any opportunity to file a brief or make any argument" in support of their motion. However, defendants do not argue that the denial of the motion to dismiss the complaint qualifies as an order granting or denying an injunction. See Ill. S. Ct. R. 307(a) (eff. Nov. 1, 2017). In this limited appeal under Rule 307, we lack jurisdiction to address the denial of a motion to dismiss the complaint. See Mund v. Brown , 393 Ill. App. 3d 994, 996, 332 Ill.Dec. 935, 913 N.E.2d 1225 (2009) ; Murges v. Bowman , 254 Ill. App. 3d 1071, 1080, 194 Ill.Dec. 214, 627 N.E.2d 330 (1993).

¶ 21 Counterclaims

¶ 22 Finally, the defendants contend that the circuit court erred when it granted Zurich's motion to compel arbitration of the counterclaims. The defendants admit that all of their counterclaims arose out of the Agreement and concern the amount due under the Agreement. None of the counterclaims involve collection of a possible arbitral award. Because the defendants admit that their counterclaims arose out of the Agreement, the circuit court correctly granted Zurich's motion to compel arbitration of the counterclaims.

¶ 23 CONCLUSION

¶ 24 Zurich and PSG agreed to arbitrate all claims arising out of the interpretation or performance of the Agreement, but they did not agree to arbitrate issues concerning collection and enforcement of an arbitrator's award. Because Zurich's fraudulent transfer claims concern collection of a possible award, the claims do not arise out of the interpretation or performance of the Agreement. The circuit court correctly denied the motion to compel arbitration of Zurich's fraudulent transfer claims. The court also correctly denied the motion to stay proceedings on the complaint pending arbitration. As the defendants conceded that the arbitrators have jurisdiction to decide their counterclaims, the circuit court correctly granted Zurich's motion to compel arbitration of the counterclaims. Accordingly, we affirm the circuit court's judgment.

¶ 25 Affirmed.

Justices Hyman and Mason concurred in the judgment and opinion.