text:
    The CITY OF DANVILLE, a Municipal Corporation, Plaintiff-Appellant, v. Lisa MADIGAN, in Her Official Capacity as Attorney General, and Kevin Flynn, Defendant-Appellees.
    NO. 4-17-0182
    Appellate Court of Illinois, Fourth District.
    Rule 23 Filed March 28, 2018 Motion to Publish Granted April 25, 2018 April 25, 2018
    David B. Wesner, of Danville, for appellant.
    Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Linda Boachie-Ansah, Assistant Attorney General, of counsel), for appellee Lisa Madigan.
    No brief filed for other appellee.
   PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 This case arises from defendant Kevin Flynn's request pursuant to the Freedom of Information Act (the Act or FOIA) ( 5 ILCS 140/11(e) (West 2014) ). In August 2015, Flynn requested documents from plaintiff, the City of Danville (the City), pertaining to the Danville Housing Task Force (Housing Task Force). The City denied Flynn's request, and he sought administrative review with defendant, the office of the Illinois Attorney General. The Attorney General subsequently issued a binding opinion, finding that the City improperly denied Flynn's request. The City then sought administrative review in Sangamon County circuit court, which affirmed the decision of the Attorney General.

¶ 2 The City appeals, arguing that (1) the Housing Task Force is not a "public body" subject to FOIA disclosure requirements and (2) the requested records do not constitute "public records" as defined by the Act. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In December 2014, the Housing Task Force convened to identify housing issues and trends in the city of Danville, Illinois. Eighteen community members were asked to participate in the Housing Task Force in addition to four City employees. The Housing Task Force met several times between December 2014 and July 2015. At these meetings, the Housing Task Force discussed the availability of public housing and the population loss that the City had experienced. The objective of the Housing Task Force was to develop strategic goals and objectives to improve housing conditions within the community.

¶ 5 In July 2015, the City's engineering and urban services department sent a memorandum to the City's council members. The memorandum summarized the Housing Task Force's findings and recommendations, stating, in pertinent part, as follows:

"With the assistance of city staff, we have extensively reviewed existing data associated with our neighborhoods, our public housing authority, and our city's policies. This document is not intended to be a comprehensive housing analysis; rather, it is a conglomeration of current issues, goals, and recommendations to alleviate said issues. * * * We are now pleased to present to you our findings and recommendations for improvements."

¶ 6 On July 24, 2015, the Housing Task Force submitted its final report to the city council, which was made available to the public. The introduction to the report stated as follows:

"Together, [the] goals, objectives and recommendations are intended to comprise the City's housing strategy for the 2015-2020 planning period, and will guide daily decision-making by City officials and staff, while equipping citizens with the awareness of the housing programs that the City will be initiating to meet its overall housing goals."

¶ 7 On August 31, 2015, Kevin Flynn, a private citizen, requested documents from the City pursuant to the Act ( 5 ILCS 140/11(e) (West 2014) ). Specifically, he requested the following:

"1. Please provide all meeting times, locations and meeting notices for the Danville Housing Task Force that completed the July 24, 2015 report.
2. Provide copies of all minutes, notes and documents created during the meetings.
3. Provide all communication[s], electronic or otherwise, between any member of said task force and any city of Danville employee, city staff or elected official."

¶ 8 That same day, the City denied Flynn's request on the basis that "the Housing Task Force is not a [p]ublic [b]ody and therefore not subject to FOIA." Flynn subsequently challenged the denial and sought administrative review with the Attorney General's Public Access Counselor. See id. § 9.5.

¶ 9 In a binding opinion dated December 15, 2015 (2015 Ill. Att'y Gen. Pub. Access Op. No. 15-014, at 1, http://foia.ilattorneygeneral.net/pdf/opinions/2015/15-014.pdf), the Attorney General found that the City "violated the requirements of FOIA by improperly withholding records responsive to [Flynn's] FOIA request relating to the Danville Housing Task Force." The Attorney General noted that Flynn's request was submitted to the City, which was a public body. The Attorney General's opinion further stated as follows:

"[T]he Housing Task Force was organized by a City department to assist that department in planning the City's five-year housing strategy. The City's Corporation Counsel has confirmed that the City's [Danville Area Transportation Study] Director coordinated the Housing Task Force using City resources during business hours. Based on these facts, it is clear that records relating to the activities of City officials and employees who convened the Housing Task Force and who continue to work on its objectives pertain to the transaction of public business of the City." Id. at 7.

The Attorney General concluded that the requested records pertained to the public business of the City and were in the City's possession. As such, the records were subject to disclosure under the Act.

¶ 10 In January 2016, the City filed the underlying complaint seeking administrative review in the circuit court, alleging that the documents requested were not subject to disclosure. In October 2016, the City filed a motion for summary judgment arguing that the Housing Task Force was not a "public body" and the requested records were not "public records" as defined by the Act.

¶ 11 In February 2017, the circuit court denied the City's motion for summary judgment and granted the Attorney General's cross-motion for summary judgment, finding that the City had possession of the requested records and the FOIA request was properly made upon a public body.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 Defendant argues on appeal that (1) the Housing Task Force is not a "public body" subject to FOIA disclosure requirements and (2) the requested records do not constitute "public records" as defined by the Act.

¶ 15 On review, the binding opinion issued by the Attorney General is considered a "final decision of an administrative agency, for purposes of administrative review under the Administrative Review Law." See 5 ILCS 140/11.5 (West 2014). "In an appeal from a final administrative decision, the applicable standard of review depends on whether the issue involves a question of fact, a question of law, or a mixed question of law and fact." City of Champaign v. Madigan , 2013 IL App (4th) 120662, ¶ 24, 372 Ill.Dec. 787, 992 N.E.2d 629 (citing City of Belvidere v. Illinois State Labor Relations Board , 181 Ill. 2d 191, 204, 229 Ill.Dec. 522, 692 N.E.2d 295, 302 (1998) ). Where an agency's decision involves a mixed question of law and fact, the agency's decision is reviewed for clear error. Goodman v. Ward , 241 Ill. 2d 398, 406, 350 Ill.Dec. 300, 948 N.E.2d 580, 585 (2011) (citing Cinkus v. Village of Stickney Municipal Officers Electoral Board , 228 Ill. 2d 200, 211, 319 Ill.Dec. 887, 886 N.E.2d 1011, 1018 (2008) ); see also AFM Messenger Service, Inc. v. Department of Employment Security , 198 Ill. 2d 380, 391, 261 Ill.Dec. 302, 763 N.E.2d 272, 280 (2001). "An agency's decision is 'clearly erroneous' when the reviewing court is left with a firm and definite conviction that the agency has committed a mistake. [Citation.]" City of Sandwich v. Illinois Labor Relations Board, State Panel , 406 Ill. App. 3d 1006, 1008, 347 Ill.Dec. 472, 942 N.E.2d 675, 678 (2011).

¶ 16 Here, we review a mixed question of law and fact. We consider whether the documents responsive to Flynn's FOIA request concern a matter of public business. This case also concerns a question of law because the terms "public record" and "public body" are legal terms that require interpretation. As such, we review the Attorney General's decision under the clearly erroneous standard with deference given to the administrative decision. See City of Champaign , 2013 IL App (4th) 120662, ¶ 28, 372 Ill.Dec. 787, 992 N.E.2d 629.

¶ 17 The purpose of the Act "is to open governmental records to the light of public scrutiny." Bowie v. Evanston Community Consolidated School District No. 65 , 128 Ill. 2d 373, 378, 131 Ill.Dec. 182, 538 N.E.2d 557, 559 (1989). "[P]ublic records are presumed to be open and accessible." Lieber v. Board of Trustees of Southern Illinois University , 176 Ill. 2d 401, 407, 223 Ill.Dec. 641, 680 N.E.2d 374, 377 (1997) ; 5 ILCS 140/1.2 (West 2014) ("All records in the custody or possession of a public body are presumed to be open to inspection or copying."). The public policy underlying the Act is set forth in section 1 of the Act:

"The General Assembly hereby declares that it is the public policy of the State of Illinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government. It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.
* * *
Restraints on access to information, to the extent permitted by this Act, are limited exceptions to the principle that the people of this State have a right to full disclosure of information relating to the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people. The provisions of this Act shall be construed in accordance with this principle." 5 ILCS 140/1 (West 2014).

¶ 18 The Act requires each public body to make public records "available to any person for inspection or copying." Id. § 3(a). The City argues on appeal that the Housing Task Force does not constitute a "public body" and thus it is not subject to the disclosure requirements under the Act. However, as the Attorney General explained in the binding opinion, Flynn submitted his FOIA request directly to the City-not the Housing Task Force. Thus, the relevant inquiry is whether the City, not the Housing Task Force, is a "public body." Under the Act, the term "public body" expressly includes cities: " 'Public body' means all legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities , * * * committees, or commissions of this State, [and] any subsidiary bodies of any of the foregoing * * *." (Emphasis added.) Id. § 2(a). None of the parties to this appeal dispute that the City qualifies as a "public body" under the Act.

¶ 19 When a FOIA request is properly submitted to a public body, the inquiry is then whether the requested documents qualify as "public records" subject to the Act. Section 2(c) of the Act defines "public records" as follows:

"[A]ll records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body." Id. § 2(c).

Accordingly, to qualify as a "public record" under the Act, the requested documents must (1) pertain "to the transaction of public business " and (2) have been "prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body." (Emphases added.) Id.

¶ 20 We first consider whether the requested records pertain to the "transaction of public business." Id. In City of Champaign , 2013 IL App (4th) 120662, ¶ 31, 372 Ill.Dec. 787, 992 N.E.2d 629, this court explained that the Act does not define the term "public business." Using the definition provided in Merriam-Webster's Dictionary, this court found that, to qualify as a public record, "a communication must first pertain to business or community interests as opposed to private affairs." (Internal quotations omitted.) Id.

¶ 21 Here, Flynn sent his FOIA request to the City and requested the following:

"1. Please provide all meeting times, locations and meeting notices for the Danville Housing Task Force that completed the July 24, 2015 report.
2. Provide copies of all minutes, notes and documents created during the meetings.
3. Provide all communication[s], electronic or otherwise, between any member of said task force and any city of Danville employee, city staff or elected official."

¶ 22 We agree with the Attorney General that the requested records pertain to "public business" as they appear to concern business or community interests and not private affairs. See id. The Housing Task Force, which was the subject of Flynn's FOIA request, had the stated objective of developing housing strategies specifically for the City. The final report submitted by the Housing Task Force to the City council stated as follows:

"Together, [the] goals, objectives and recommendations are intended to comprise the City's housing strategy for the 2015-2020 planning period, and will guide daily decision-making by City officials and staff, while equipping citizens with the awareness of the housing programs that the City will be initiating to meet its overall housing goals."

This document expressly provides that the Housing Task Force's recommendations are intended to set forth the City's housing strategy for the 2015-20 planning period and guide the daily decisions of City officials. The City's housing strategies and the daily decisions of City officials in such matters clearly pertain to public or community interests-not private affairs. See id.

¶ 23 Next, we consider whether the requested records have been "prepared by or for, or having been or being used by, received by, in the possession of , or under the control of any public body." (Emphasis added.) 5 ILCS 140/2(c) (West 2014); City of Champaign , 2013 IL App (4th) 120662, ¶ 32, 372 Ill.Dec. 787, 992 N.E.2d 629. The Attorney General points out that the City was in the possession of the documents Flynn requested, as evidenced by the City's ability to provide the Attorney General with the requested documents. We agree. The fact that the City produced the requested documents is certainly persuasive evidence that it possessed the documents. The City does not appear to dispute this part of the Attorney General's argument.

¶ 24 The City contends that the logical extension of the Attorney General's opinion would result in the conclusion that "any piece of paper inside city hall will qualify as a public record based solely upon its presence inside city hall." We disagree. Our holding today does not have the far-reaching implications that the City suggests. When a FOIA request is submitted to a public body and the requested record is possessed by the public body, the record is subject to disclosure only if it qualifies as a "public record" that pertains to public business. There is not an unrestricted right to examine all documents possessed by a public body. If a record possessed by a public body pertains to private information or falls under one of the other enumerated exemptions within section 7(1) of the Act, then its disclosure is not required by the Act.

¶ 25 III. CONCLUSION

¶ 26 For the reasons stated, we affirm the circuit court's judgment affirming the Attorney General's binding opinion.

¶ 27 Affirmed.

Justices Holder White and DeArmond concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Robert PERAINO, Plaintiff-Appellant, v. The COUNTY OF WINNEBAGO; The Winnebago County Highway Department; Joseph A. Vanderwerff, The Winnebago County Engineer; The Rockford Township Highway Department; Daniel P. Conness, The Rockford Township Highway Commissioner; The Village of Cherry Valley; The Village of Cherry Valley Public Works Department; and Chuck Freeman, the Village of Cherry Valley Public Works Director, Defendants
    (The County of Winnebago, Defendant-Appellee).
    No. 2-17-0368
    Appellate Court of Illinois, Second District.
    Opinion filed March 30, 2018 Rehearing denied April 30, 2018
    W. Randal Baudin, of Crystal Lake, for appellant.
    Joseph P. Bruscato, State's Attorney, of Rockford (John P. Giliberti, Assistant State's Attorney, of counsel), for appellee.
   JUSTICE SPENCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Robert Peraino, attempted to electronically file a motion to reconsider shortly before midnight on the day it was due, but he failed to timely upload the motion, and it was file-stamped at 12:03 a.m. the next day. Plaintiff then sought to have the motion to reconsider deemed filed on the due date based on a local court rule, but the trial court denied his request. Plaintiff appeals from this ruling. However, we conclude that the trial court lacked jurisdiction to make such a ruling and that we also lack jurisdiction to consider the merits of this appeal. We therefore vacate the trial court's ruling and dismiss plaintiff's motion seeking to backdate the motion to reconsider. See People v. Bailey , 2014 IL 115459, ¶¶ 28-29, 378 Ill.Dec. 591, 4 N.E.3d 474.

¶ 2 I. BACKGROUND

¶ 3 On June 12, 2013, plaintiff filed a complaint against defendant, the County of Winnebago (County), and others who were later voluntarily dismissed. He alleged that he was injured in a motorcycle crash caused by a defective roadway.

¶ 4 The County moved for summary judgment, and the trial court granted the motion on December 2, 2016. A motion to reconsider would have been due on January 3, 2017, because the thirtieth day after the order was a Sunday and the following day was a court holiday. See 735 ILCS 5/2-1203(a) (West 2016); 5 ILCS 70/1.11 (West 2016).

¶ 5 Plaintiff electronically filed a motion to reconsider that was file-stamped on January 4, 2017.

¶ 6 On January 5, 2017, plaintiff filed a motion for leave to file his motion to reconsider nunc pro tunc to January 3, 2017. He alleged that, due to an illness and deadlines for other cases, his attorney was not able to complete the motion to reconsider until 11:55 p.m. on January 3, 2017. He alleged that, during the e-filing process, the I2File website would not upload the motion, and the motion was not considered accepted or filed by the system until 12:03 a.m. on January 4, 2017. Plaintiff cited local court rule 22.01, and specifically rule 22.01(N), titled "SYSTEM OR USER ERRORS," which provides, inter alia , that "[i]f the electronic filing is not filed with the Clerk because of * * * technical problems experienced by the filer, * * * the Court may upon good cause shown enter an order permitting the document to be subsequently filed effective as of the date filing was first attempted." 17th Judicial Cir. Ct. R. 22.01(N) (July 25, 2016). Plaintiff also cited Illinois Supreme Court Rule 183 (eff. Feb. 16, 2011). Plaintiff attached to the motion the affidavit of a paralegal at his attorney's office, who described her attempt to upload the motion beginning at about 11:58 p.m.

¶ 7 The County filed a response in opposition, arguing against the merits of plaintiff's motion for leave.

¶ 8 The trial court denied plaintiff's motion on April 20, 2017. It stated as follows. The motion to reconsider did not get filed before 12 a.m. on January 4, 2017, due to user error by plaintiff through his attorney. The attorney's assistant might have had some difficulty understanding what she needed to do in terms of uploading documents, but there were no technical defects in the software or electronic filing system. Local court rule 22.01(N)(2) did not define "technical problems." However, the local rules about e-filing were modeled on the Supreme Court of Illinois Electronic Filing User Manual (Manual) (see Ill. S. Ct., M.R. 18368 (eff. Feb. 3, 2014) ). The Manual included the term "technical failure," which excluded a failure of the user's equipment. The trial court did not think that "technical problems" included a user problem, because that definition would be overly broad and would open up a Pandora's box of similar motions. "[U]nder the facts of this case, there [was] no reason under the Local Rule 22.01 to allow the document to be ordered filed earlier."

Rule 183 also did not apply, as it pertained to deadlines set by the supreme court rather than statutory deadlines for filing motions.

¶ 9 This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 On appeal, plaintiff argues that the trial court erred in denying his motion for leave to file his motion to reconsider nunc pro tunc to January 3, 2017. However, we do not consider the substance of the trial court's ruling, as we determine that we lack jurisdiction over this appeal.

¶ 12 Although the parties have not raised the issue of jurisdiction, we have an obligation to independently consider our jurisdiction and dismiss the appeal if jurisdiction is lacking. American Federation of State, County, & Municipal Employees, Council 31 v. Illinois Labor Relations Board, State Panel , 2017 IL App (5th) 160046, ¶ 17, 418 Ill.Dec. 418, 90 N.E.3d 576. It is a jurisdictional and mandatory requirement that a notice of appeal be timely filed ( Secura Insurance Co. v. Illinois Farmers Insurance Co. , 232 Ill. 2d 209, 213, 327 Ill.Dec. 541, 902 N.E.2d 662 (2009) ), and neither the trial court nor the appellate court has the authority to excuse compliance with the filing requirements set forth by supreme court rules ( Won v. Grant Park 2, L.L.C. , 2013 IL App (1st) 122523, ¶ 20, 377 Ill.Dec. 679, 2 N.E.3d 595 ).

¶ 13 Illinois Supreme Court Rule 303(a)(1) (eff. Jan. 1, 2015) requires that a notice of appeal be filed within 30 days after the entry of the final judgment appealed from or, "if a timely posttrial motion directed against the judgment is filed, * * * within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against that judgment." Section 2-1203(a) of the Code of Civil Procedure ( 735 ILCS 5/2-1203(a) (West 2016) ) sets forth the deadline for filing posttrial motions in nonjury cases:

"In all cases tried without a jury, any party may, 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, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief."

Absent a timely-filed posttrial motion, the trial court will lose jurisdiction over the case 30 days after it enters the final judgment. In re Marriage of Heinrich , 2014 IL App (2d) 121333, ¶ 35, 380 Ill.Dec. 26, 7 N.E.3d 889.

¶ 14 Here, plaintiff did not file a notice of appeal within 30 days after the entry of the final judgment (the grant of summary judgment for the County). Instead, he filed a motion to reconsider, which was a "posttrial motion directed against the judgment," but that motion needed to be filed within 30 days in order to extend the time for filing a notice of appeal ( Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015) ) and to extend the trial court's jurisdiction of the case ( In re Marriage of Heinrich , 2014 IL App (2d) 121333, ¶ 35, 380 Ill.Dec. 26, 7 N.E.3d 889). However, plaintiff filed his motion to reconsider on January 4, 2017, which was beyond the 30-day deadline.

¶ 15 Plaintiff's January 5, 2017, motion was an attempt to have his motion to reconsider deemed filed on January 3, 2017. However, as 30 days had already passed since the trial court's final judgment without a timely posttrial motion, the trial court's jurisdiction lapsed. As such, per Bailey , 2014 IL 115459, ¶¶ 28-29, 378 Ill.Dec. 591, 4 N.E.3d 474, the trial court's ruling on the motion is void, and we must vacate the ruling and dismiss the motion. Correspondingly, because plaintiff failed to file a notice of appeal within 30 days after the entry of the trial court's final judgment, we lack jurisdiction to consider the merits of the case. Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015); see Bailey , 2014 IL 115459, ¶¶ 28-29, 378 Ill.Dec. 591, 4 N.E.3d 474.

¶ 16 Plaintiff labeled his January 5, 2017, motion as a nunc pro tunc request. A trial court loses jurisdiction to review the substance of its final judgment after 30 days, but if there is proper evidence of a clerical error, the court may use a nunc pro tunc order at any time to correct the mistake. Jayko v. Fraczek , 2012 IL App (1st) 103665, ¶ 29, 359 Ill.Dec. 433, 966 N.E.2d 1121. Stated differently, nunc pro tunc orders incorporate into the record judicial actions taken by the court that were inadvertently omitted due to a clerical error. People v. Melchor , 226 Ill. 2d 24, 32, 312 Ill.Dec. 632, 871 N.E.2d 32 (2007). However, such a correction must be based on a note, memorandum, or paper remaining in the court record, and it cannot rest on a recollection of an individual or on a new affidavit or testimony. Jayko , 2012 IL App (1st) 103665, ¶ 29, 359 Ill.Dec. 433, 966 N.E.2d 1121. Here, plaintiff did not seek to correct a clerical error in the trial court's judgment, and the evidence he sought to rely on surrounding the filing date of his motion to reconsider came from outside of the established court record. Accordingly, plaintiff's January 5, 2017, motion could not be resolved on a nunc pro tunc basis.

¶ 17 In conjunction with his arguments on appeal, plaintiff cites the Illinois Supreme Court's Electronic Filing Standards and Principles (Filing Standards). Illinois Supreme Court, Electronic Filing Standards and Principles (amended Sept. 16, 2014), http://www.illinoiscourts.gov/SupremeCourt/Policies/Pdf/Electronic_Filing_Standards.pdf. Local court rule 22.01(A) also references the Filing Standards, in that the rule states that "[e]lectronic filing shall operate pursuant to the Electronic Filing Standards and Principles set out in the Supreme Court Order [M.R. 18368 (eff. Jan. 1, 2013) ]." (Emphasis in original.) 17th Judicial Cir. Ct. R. 22.01(A) (July 25, 2016). Illinois Supreme Court order M.R. 18368 authorized Illinois circuit courts to accept the electronic filing of documents in civil cases. See id. ; Ill. S. Ct., M.R. 18368 (eff. Jan. 1, 2013). The order further approved the Filing Standards "to maintain uniformity of electronic filing practices and procedures" throughout the state. Ill. S. Ct., M.R. 18368 (eff. Jan. 1, 2013). In 2016, the supreme court mandated e-filing in civil cases in Illinois circuit courts beginning January 1, 2018. Ill. S. Ct., M.R. 18368 (eff. Jan. 1, 2018) (filed Jan. 22, 2016). The supreme court additionally stated that "[i]n all Circuit Courts operating an approved local e-filing program by the filing date of this Order, e-filing of civil cases shall occur per the applicable policies, guidelines and/or standards authorized by the Supreme Court." Id.

¶ 18 Plaintiff highlights section 10 of the Filing Standards, which is titled "Failure of Electronic Filing Process." It states, as relevant here:

"If a document submitted electronically is not filed or is rejected, the court may, upon good cause shown, enter an order permitting the document to be filed effective as of the date of the at tempted first filing ." (Emphasis added.) Illinois Supreme Court, Electronic Filing Standards and Principles § 10(b) (amend. Sept. 16, 2014), http://www.illinoiscourts.gov/SupremeCourt/Policies/Pdf/Electronic_Filing_Standards.pdf.

Illinois Supreme Court Rule 9(d)(1) (eff. Dec. 13, 2017), although not in effect when plaintiff filed his motion to reconsider, also merits consideration. The rule applies to electronic filings and states: "If a document is untimely due to any court-approved electronic filing system technical failure, the filing party may seek appropriate relief from the court, upon good cause shown." Id.

¶ 19 We recognize that section 10 and Rule 9(d)(1) do not explicitly limit the time in which the court may enter an order backdating a document. Read in isolation, they would appear to allow consideration of plaintiff's January 5, 2017, motion. However, we cannot read those general provisions to apply here over the specific jurisdictional deadlines in section 2-1203(a) and Rule 303(a)(1). See In re Marriage of Adler , 271 Ill. App. 3d 469, 476, 208 Ill.Dec. 31, 648 N.E.2d 953 (1995) (specific provision applies over general). In any event, supreme court rules that give a court authority to take specific actions presuppose that the court has jurisdiction of the case.

¶ 20 For example, Rule 183, which plaintiff also cites, states:

"The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time." Ill. S. Ct. R. 183 (eff. Feb. 16, 2011).

Like section 10 and Rule 9(d)(1), Rule 183 suggests that the trial court may grant an extension at any time. Yet, in In re Marriage of Singel , 373 Ill. App. 3d 554, 311 Ill.Dec. 418, 868 N.E.2d 1079 (2007), we did not apply it to facts similar to those here. In Singel , the respondent failed to file a motion directed against the judgment within the 30-day time limit of section 2-1203(a). Instead he filed, on the thirtieth day, a motion for an extension of time to file such a motion. The trial court thereafter ruled that, because the respondent had not filed such a motion during the 30-day period, it had lost jurisdiction. On appeal, the respondent argued that Rule 183 allowed the trial court to grant an extension of time to file the motion, even after the 30-day deadline. Id. at 556, 311 Ill.Dec. 418, 868 N.E.2d 1079. We disagreed. We observed that "[b]y its plain terms, the rule applies only to the time limits for pleadings and to time limits that have been set by the supreme court rules," and not to the deadline in section 21203(a). Id. at 556-57, 311 Ill.Dec. 418, 868 N.E.2d 1079. However, we also held that, even if Rule 183 applied to that deadline, the trial court could have extended it only within the 30 days. Id. at 556, 311 Ill.Dec. 418, 868 N.E.2d 1079 (citing 735 ILCS 5/21203(a) (West 2004) ). Because the respondent did not file a motion directed against the judgment (or obtain an extension to do so) within the 30 days, the trial court lost jurisdiction, and we lacked jurisdiction of the respondent's appeal. Id. at 556-57, 311 Ill.Dec. 418, 868 N.E.2d 1079.

¶ 21 Here, plaintiff likewise failed to file a motion to reconsider (or obtain an extension to do so) within 30 days as section 2-1203(a) mandates. Although section 10 and Rule 9(d)(1), like Rule 183, purport to allow the trial court to backdate at any time, the lapse of the 30 days divested the court of jurisdiction to do so.

¶ 22 Rule 9(d)(1) also cannot apply in a situation such as this one because it pertains to an "electronic filing system technical failure." Ill. S. Ct. R. 9(d)(1) (eff. Dec. 13, 2017). Although Rule 9 does not define "technical failure," the Manual defines it as "a malfunction of the e-filing provider's or the Court's hardware, software, and or telecommunications facility which results in the inability of a registered user to submit a document electronically. It does not include the failure of a user's equipment." Ill. S. Ct., M.R. 18368, § 2(h) (eff. Feb. 3, 2014). Here, plaintiff concedes that his January 5, 2017, motion was not predicated upon a technical problem in the e-filing system but rather "user error" and/or other "technical problems experienced by the filer." See 17th Judicial Cir. Ct. R. 22.01(N)(2) (July 25, 2016).

¶ 23 We recognize that the County did not assert that the trial court lacked jurisdiction of plaintiff's January 5, 2017, motion, which leads to the question of whether the revestment doctrine applies. The revestment doctrine causes the trial court to regain jurisdiction of a case even after 30 days have passed following the entry of a final judgment if both parties actively participate, without objection, in proceedings that are inconsistent with the merits of the prior judgment. People v. Salem , 2016 IL 118693, ¶ 8, 400 Ill.Dec. 32, 47 N.E.3d 997. If a party opposes setting aside the prior judgment, jurisdiction will not be revested, even if the party does not raise a timeliness objection. Bailey , 2014 IL 115459, ¶¶ 25-26, 378 Ill.Dec. 591, 4 N.E.3d 474. In this case, the County opposed plaintiff's January 5, 2017, motion. Accordingly, the parties' actions did not revest the trial court with jurisdiction.

¶ 24 We acknowledge that the outcome in this case might appear harsh, as plaintiff has lost both his chance to have the trial court reconsider its grant of summary judgment in favor of the County and his chance to have this court review that ruling. However, plaintiff's attorney had 30 days in which to file a motion to reconsider and could even have obtained an extension during those 30 days. He instead waited until less than two minutes before the deadline to attempt to electronically file the motion and unfortunately was unable to upload the motion within that time. As that deadline was jurisdictional, the trial court lacked authority to consider the untimely motion to reconsider and plaintiff's subsequent request to backdate that motion. Plaintiff's notice of appeal was correspondingly untimely, and we lack jurisdiction to consider the merits of this case.

¶ 25 We do note that, once the 30-day deadline for posttrial motions in the trial court had passed, along with the deadline to file a regular notice of appeal, plaintiff was not entirely without recourse. He still had another 30 days to move this court for leave to file a late notice of appeal under Illinois Supreme Court Rule 303(d) (eff. Jan. 1, 2015), but he did not take advantage of that potential avenue for relief. Still, even now, plaintiff has not completely run out of options, as he may request supervisory or other relief from the supreme court.

¶ 26 III. CONCLUSION

¶ 27 For the reasons stated, we vacate the April 20, 2017, order of the Winnebago County circuit court and dismiss plaintiff's January 5, 2017, motion.

¶ 28 Order vacated; motion dismissed.

Justices Jorgensen and Schostok concurred in the judgment and opinion.

      Local rule 22.01(K)(3) states: "The transmission date and time of transfer shall govern the electronic file mark. Pleadings received by the clerk before midnight on a day the courthouse is open shall be deemed filed that day." 17th Judicial Cir. Ct. R. 22.01(K)(3) (July 25, 2016). Here, it is undisputed that plaintiff uploaded his motion to reconsider into the court's electronic filing system after midnight, so it was file-stamped January 4, 2017.

      Indeed, if Rule 183 applied to jurisdictional deadlines as its unlimited language seems to suggest, it would allow a trial court to extend the time for filing a notice of appeal after the deadline set by Rule 303(a)(1). Yet, as noted above, the trial court has no power to do so.

      We reiterate that Rule 9 was not in effect during the events at issue here. However, if we had determined that it could apply to a situation such as plaintiff's, we would then consider whether it could be applied retroactively.


text:
    IN RE APPLICATION OF the WILL COUNTY COLLECTOR
    (Citimortgage, Inc., Petitioner-Appellee, v. Sass Muni V, Respondent-Appellant).
    Appeal No. 3-16-0659
    Appellate Court of Illinois, Third District.
    Opinion filed April 16, 2018
    Timothy A. Clark, of McGrath & Clark PC, of Manhattan, for appellant.
    Jeffrey S. Blumenthal and Rodney C. Slutzky, of Slutzky & Blumenthal, of Chicago, for appellee.
   JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 The circuit court entered an order directing that a tax deed be issued to the respondent, Sass Muni V (SASS), as to a parcel of real property. More than two years later, the petitioner, Citimortgage, Inc. (Citi), filed a petition seeking relief from the circuit court's order pursuant to section 2-1401 of the Illinois Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 2014) ). In its petition, Citi argued in the alternative that: (1) the tax deed was void with no right to reimbursement under section 22-85 of the Illinois Property Tax Code (Code) (35 ILCS 200/22-85 (West 2012) ) because SASS failed to record the deed within one year of the expiration of the redemption period; or (2) the circuit court's order issuing the tax deed was void because the tax sale notices served by SASS were so devoid of any meaningful information as to violate due process.

¶ 2 The parties filed cross-motions for summary judgment on Citi's petition. The circuit court granted Citi's motion for summary judgment and denied SASS's motion for summary judgment. SASS filed a motion to reconsider, which the circuit court denied. SASS appeals the circuit court's judgment.

¶ 3 FACTS

¶ 4 On July 18, 2011, SASS filed a petition for a tax deed alleging that: (1) SASS had purchased the delinquent 2007 real estate taxes for a property in Will County; (2) SASS had served or diligently attempted to serve a tax sale notice to all persons or parties with an interest in the property, as required by section 22-30 of the Code ( 35 ILCS 200/22-30 (West 2012) ); and (3) the property had not been redeemed from sale by any such party. On July 19, 2012, the circuit court entered an order granting SASS's petition and directing the issuance of a tax deed to SASS. The circuit court's July 19, 2012, order stated that SASS had "either served or exercised diligent effort in attempting to find and serve" a timely tax sale notice on any and all persons or parties entitled to such notice. The order further stated that the real estate at issue had not been redeemed from the tax sale held on November 6, 2008, and that "the time to redeem this property from the sale expired on November 3, 2011." SASS recorded the deed on September 7, 2012.

¶ 5 On September 12, 2014, more than two years after the circuit court entered the order directing the issuance of a tax deed, Citi filed a petition for relief from that order under section 2-1401 of the Code of Civil Procedure. On December 9, 2014, Citi filed an amended petition under section 2-1401 arguing in the alternative that: (1) the tax deed was void with no right to reimbursement pursuant to section 22-85 of the Code because it was not recorded within one year of the expiration of the redemption period; or (2) the circuit court's order was void because the tax sale notices contained the incorrect property PIN number and incorrectly described the property, and were therefore so devoid of meaningful information as to violate due process. Citi filed a motion for summary judgment in support of its petition.

¶ 6 SASS filed a cross-motion for summary judgment arguing that: (1) the circuit court's order was not void; (2) Citi had failed to file its petition within the two-year time limit prescribed by section 2-1401 and failed to demonstrate diligence as required by that section; and (3) Citi had failed to establish that it was entitled to any of the four grounds for relief listed in section 22-45 of the Code ( 35 ILCS 200/22-45 (West 2014) ). The circuit court informed the parties that it would consider the pleadings and issue its ruling by mail without hearing oral argument.

¶ 7 On March 22, 2016, the circuit court e-mailed both parties' counsel stating that it had reviewed the pleadings and was "inclined to find in favor of [Citi] based on inadequate notice of tax sale, and declare void the July 19, 2012, order and the September 7, 2012, tax deed." The court asked the parties to submit an order consistent with the court's direction. The parties submitted a draft order, which the court signed on March 28, 2016. The order contained a finding that the tax sale notices were insufficient, but did not include an express finding that the tax deed was void with no right to reimbursement because it was not recorded within one year of the expiration of the redemption period. On June 16, 2015, after Citi had tendered certain monies as required by section 22-80 of the Code ( 35 ILCS 200/22-80 (West 2014) ), the circuit court entered a final order declaring both the circuit court's order and the tax deed void.

¶ 8 Thereafter, SASS filed a motion to reconsider. The circuit court conducted a hearing on SASS's motion. On September 28, 2016, the circuit court issued an order denying SASS's motion to reconsider. The circuit court's September 28, 2016, order provided that the July 19, 2012, court order issuing the tax deed was void "for lack of adequate service and notice." Moreover, in the September 28, 2016, order, the circuit court expressly modified its prior summary judgment order "on its own motion, * * * nunc pro tunc , to reflect that the tax deed was void without right of reimbursement."

¶ 9 This appeal followed.

¶ 10 ANALYSIS

¶ 11 On appeal, SASS argues that the circuit court erred in granting Citi's motion for summary judgment and in denying SASS's motion for summary judgment. Specifically, SASS challenges the circuit court's rulings that the tax deed was void without right of reimbursement and that the tax sale notices were insufficient.

¶ 12 When a section 2-1401 petition raises a purely legal challenge to a judgment by alleging that the judgment is void, we review the circuit court's ruling on the petition de novo. Warren County Soil & Water Conservation District v. Walters , 2015 IL 117783, ¶ 47, 392 Ill.Dec. 523, 32 N.E.3d 1099 ; Tuna v. Airbus, S.A.S. , 2017 IL App (1st) 153645, ¶ 34, 415 Ill.Dec. 24, 81 N.E.3d 546. Moreover, when parties file cross-motions for summary judgment, as here, they agree that only a question of law is involved and invite the court to decide the issues based on the record. Pielet v. Pielet , 2012 IL 112064, ¶ 28, 365 Ill.Dec. 497, 978 N.E.2d 1000. When a case is decided through summary judgment, our review is de novo . Id. ¶ 30.

¶ 13 As noted above, the circuit court implicitly accepted Citi's argument that the tax deed was void without right of reimbursement under section 22-85 of the Code because the deed was not recorded within one year of the expiration of the redemption period. Section 22-85 provides, in pertinent part, that

"[u]nless the holder of the certificate purchased at any tax sale under this Code takes out the deed in the time provided by law, and records the same within one year from and after the time for redemption expires, the certificate or deed, and the sale on which it is based, shall, after the expiration of the one year period, be absolutely void with no right to reimbursement." 35 ILCS 200/22-85 (West 2012).

The length of the redemption period is set by statute. See 35 ILCS 200/21-350(b) (West 2012). However, the expiration of the statutory redemption period may be extended if the certificate holder (i.e. , the purchaser of the property during the tax sale or the purchaser's assignee) files a notice extending the redemption period before the redemption period expires. 35 ILCS 200/21-350(c) (West 2012); 35 ILCS 200/21-385 (West 2012) ; In re Application of the County Treasurer , 2012 IL App (1st) 101976, 359 Ill.Dec. 87, 966 N.E.2d 408 ( CCPI ).

¶ 14 Because the property at issue in this case was improved with a single family dwelling at the time of the tax sale, the statutory redemption period expired two years and six months after the date of sale. 35 ILCS 200/21-350(b) (West 2012). The sale occurred on November 6, 2008. Thus, absent a valid extension, the redemption period expired on May 6, 2011. The certificate holder had to record the deed within one year of that date (i.e ., by May 6, 2012) or the deed, and the tax sale upon which it was based, would be rendered null and void. 35 ILCS 200/22-85 (West 2012). In this case, the deed was not recorded until September 7, 2012. Thus, unless the certificate holder filed a timely notice to extend the statutory redemption period, the tax sale deed at issue in this case is a nullity.

¶ 15 SASS maintains that it filed notices extending the redemption period to November 3, 2011. In support of this assertion, SASS produced two "Extension List Reports" purporting to extend the expiration of the redemption period. Both reports indicate that the purported extensions were filed by "Sass Muni V," "[f]or Sass Fund." The first report, which purported to extend the redemption period for the property at issue to July 12, 2011, listed "MUNI V dtr" under the "WinBid" column. The second report, which purported to extend the redemption period for the same property to November 3, 2011, listed "US BANK-CUST/SASS MUNI V dtr" in the "WinBid" column. SASS argues that these notices validly extended the redemption period to November 3, 2011, which gave SASS until November 3, 2012, to record the deed.

¶ 16 As noted above, however, only the certificate holder (i.e ., the purchaser of the property at the tax sale or the assignee of the purchaser) may extend the redemption period. 35 ILCS 200/21-350(c) (West 2012); 35 ILCS 200/21-385 (West 2012) ; CCPI , 2012 IL App (1st) 101976, ¶¶ 39-41, 359 Ill.Dec. 87, 966 N.E.2d 408. Citi argues that the extension notices filed by SASS had no legal effect (i.e ., they did not extend the redemption period) because SASS was not the certificate holder at the time it filed the extension notices. We agree. The tax sale certificate for the property at issue identifies the purchaser as "US BANK-CUST/SASS MUNI V DTR" (US Bank). SASS does not argue that it is the same entity as US Bank, and it produced no evidence to that effect before the circuit court. Nor does SASS claim that it was acting as US Bank's agent when it filed the extension notices. Moreover, in its amended answer to Citi's 2-1401 petition, SASS admitted that the tax sale certificate was never assigned. Although SASS's unverified petition for tax deed baldly alleged that SASS purchased the real estate at issue on November 6, 2008, SASS has never produced any evidence supporting that allegation. SASS has never presented any affidavits, testimony, or other documentary evidence rebutting Citi's argument that "US Bank," and not SASS, was the purchaser and the holder of the certificate of sale. As noted, the first notice of extension in this case was filed by "Sass Muni V" ("[f]or Sass Fund"), not by US Bank. Because this notice of extension was not filed by the certificate holder, it had no legal effect and could not have extended the statutory redemption period. CCPI , 2012 IL App (1st) 101976, ¶ 41, 359 Ill.Dec. 87, 966 N.E.2d 408 (holding that a notice purporting to extend the redemption period filed by a purchaser that had previously assigned the tax sale certificate and all of its rights in the property to another entity was a "nullity" and that the original redemption expiration date remained in effect).

¶ 17 The second notice of extension was also of no legal effect. Although the second notice lists the certificate holder (US Bank) in the "WinBid" column, it appears that the second notice was filed by "Sass Muni V" ("[f]or Sass Fund"), not by the certificate holder. However, even assuming arguendo that the certificate holder filed the second notice of extension, that notice would still have been a nullity because it was filed after the statutory redemption period expired on May 6, 2011. In re Application of the County Treasurer , 333 Ill. App. 3d 355, 361-62, 266 Ill.Dec. 524, 775 N.E.2d 86 (2002) ( Sirt ). As noted above, the statutory redemption period was not validly extended by the first notice. Accordingly, the initial redemption expiration date of May 6, 2011, remained in effect.

¶ 18 Because SASS did not record the tax deed until September 7, 2012, sixteen months after the expiration of the redemption period, the deed and the tax sale on which is was based are void under section 22-85. 35 ILCS 200/22-85 (West 2012) ; see also CCPI , 2012 IL App (1st) 101976, ¶ 41, 359 Ill.Dec. 87, 966 N.E.2d 408. Accordingly, the circuit court properly vacated its prior order issuing the tax deed. Sirt , 333 Ill. App. 3d at 360, 362, 266 Ill.Dec. 524, 775 N.E.2d 86.

¶ 19 SASS's arguments to the contrary are unavailing. SASS notes that, in its July 19, 2012, order directing the issuance of a tax deed, the circuit court expressly found that "[t]he time to redeem the property from the sale expired on November 3, 2011." According to SASS, this statement shows that the circuit court accepted SASS's argument that the redemption period had been validly extended to that date. However, the circuit court subsequently granted Citi's petition to vacate the July 19, 2012, order. In so ruling, the circuit court properly held that the tax deed was "void without right of reimbursement," thereby rejecting SASS's argument that the redemption period had been extended. Thus, the circuit court's initial finding to the contrary no longer stands. In any event, for the reasons set forth above, the circuit court's initial finding that the redemption period had been extended was incorrect.

¶ 20 SASS further argues that the circuit court erred by granting Citi's section 2-1401 petition because Citi failed to file its petition within the two-year deadline prescribed by section 2-1401 and failed to meet the pleading requirements of that section. Specifically, SASS argues that Citi failed to allege and prove that it acted with due diligence in defending the original action, and failed to plead diligence in bringing the 2-1401 petition to vacate and the existence of a meritorious defense. SASS further maintains that Citi's petition was fatally deficient for the additional reason that Citi failed to allege one of the four grounds upon which relief may be granted from an order for tax deed more than 30 days after entry of the order, as mandated by section 22-45 of the Code ( 35 ILCS 200/22-45 (West 2012) ). In support of these arguments, SASS asserts that the circuit court's order directing the issuance of a tax deed cannot be deemed "void" because it is undisputed that the circuit court had jurisdiction to enter the order. SASS maintains that, if the circuit court made an error in issuing the order, that would render the order "voidable," but not "void." According to SASS, such an order may be vacated only when a petitioner meets both the requirements of section 2-1401 and the requirements of section 22-45 of the Code.

¶ 21 We do not find these arguments persuasive. The issue is not whether the court's order was void for lack of jurisdiction. (It was not.) Rather, the issue is whether the tax deed itself and the order issuing the deed were void under section 22-85 of the Code. Sirt , 333 Ill. App. 3d at 360, 266 Ill.Dec. 524, 775 N.E.2d 86. Section 22-85 provides that, unless the deed is recorded within one year of the expiration of the governing redemption period, "the certificate or deed, and the sale on which it is based, shall, after the expiration of the one year period, be absolutely void with no right to reimbursement." 35 ILCS 200/22-85 (West 2012). As noted above, Citi's 2-1401 petition alleged that SASS's failure to record the deed within one year of the expiration of the initial redemption period (which was not properly extended) rendered the tax deed and the order issuing the deed void under section 22-85. A void judgment may be attacked at any time, either directly or collaterally. CCPI , 2012 IL App (1st) 101976, ¶ 31, 359 Ill.Dec. 87, 966 N.E.2d 408 ; In re Application of the County Collector , 397 Ill. App. 3d 535, 542, 336 Ill.Dec. 848, 921 N.E.2d 462 (2009) ( Devon Bank ). Courts have a duty to vacate and expunge void orders from court records and thus may declare an order void sua sponte . Sirt , 333 Ill. App. 3d at 359, 266 Ill.Dec. 524, 775 N.E.2d 86 ; see also CCPI , 2012 IL App (1st) 101976, ¶ 31, 359 Ill.Dec. 87, 966 N.E.2d 408. In addition, section 2-1401 expressly provides that "[n]othing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief." 735 ILCS 5/2-1401(f) (West 2008). A section 2-1401(f) petition alleging voidness is exempt from the general requirements of section 2-1401 petitions, such as alleging a meritorious defense and due diligence. Sarkissian v. Chicago Board of Education , 201 Ill. 2d 95, 104, 267 Ill.Dec. 58, 776 N.E.2d 195 (2002) ; see also Warren County Soil & Water Conservation District , 2015 IL 117783, ¶ 48, 392 Ill.Dec. 523, 32 N.E.3d 1099 ; CCPI , 2012 IL App (1st) 101976, ¶ 31, 359 Ill.Dec. 87, 966 N.E.2d 408 ; Devon Bank , 397 Ill. App. 3d at 543, 336 Ill.Dec. 848, 921 N.E.2d 462.

¶ 22 Thus, contrary to SASS's argument, Citi was not required to comply with the requirements of section 2-1401 or section 22-45 of the Code in order to challenge the tax deed or the circuit court's order awarding the deed. CCPI , 2012 IL App (1st) 101976, ¶¶ 30-31, 359 Ill.Dec. 87, 966 N.E.2d 408. Given the evidence presented in this case, the circuit court properly vacated that prior order and granted Citi's motion for summary judgment.

¶ 23 Because we hold that the tax deed at issue is void under section 22-85 and we affirm the circuit court's judgment on that basis, we do not need to address SASS's challenge to the circuit court's additional holding that the tax deed was void because the tax sale notices were so insufficient as to violate due process.

¶ 24 CONCLUSION

¶ 25 For the reasons set forth above, the judgment of the circuit court of Will County is affirmed.

¶ 26 Affirmed.

Justices McDade and Wright concurred in the judgment and opinion.

      The order stated that the court "adopts the arguments asserted by [Citi]" and "grants summary judgment on the bases set forth therein." However, the following sentence in the order stated merely that "[n]otice was insufficient." The order did not expressly state that the tax deed was void under section 22-85 of the Code.

      In its verified responses to Citi's request to admit facts, SASS admitted that no other extension notices were filed in connection with the tax sale at issue.

      Section 22-45, which applies in conjunction with section 2-1401, lists four grounds upon which relief may be had from a tax deed by means of a section 2-1401 petition filed more than 30 days after entry of the order awarding the tax deed: (1) proof that the taxes were paid prior to the sale; (2) proof that the property was exempt from taxation; (3) proof by clear and convincing evidence that the tax deed had been procured by fraud or deception by the tax purchaser or his or her assignee; or (4) proof by a person or party holding a recorded ownership or other recorded interest in the property that he or she was not named as a party in the publication notice as set forth in section 22-20, and that the tax purchaser or his or her assignee did not make a diligent inquiry and effort to serve that person or party with the notices required by sections 22-10 through 22-30. 35 ILCS 200/22-45 (West 2012) ; Devon , 397 Ill. App. 3d at 543, 336 Ill.Dec. 848, 921 N.E.2d 462.


text:
    Abby BAUMAN and Dave Anderson, Cotrustees of the Fifth Amended and Restated R. Mack Brown Revocable Trust, Dated October 19, 2016, as Successor in Interest to R. Mack Brown, Deceased, d/b/a Golfview Apartments, Plaintiffs and Counterdefendants-Appellants v. Wayne PATTERSON and Joan Schneider, Defendants,
    (Wayne Patterson, Defendant, Counterplaintiff, and Third-Party Plaintiff-Appellee; Dennis Brooks, Individually, Third-Party Defendant-Appellant).
    Abby Bauman and Dave Anderson, Cotrustees of the Fifth Amended and Restated R. Mack Brown Revocable Trust, Dated October 19, 2016, as Successor in Interest to R. Mack Brown, Deceased, d/b/a Golfview Apartments, Plaintiffs and Counterdefendants-Appellants, v. Wayne Patterson and Any Unknown Occupants, Defendants,
    (Wayne Patterson, Defendant, Counterplaintiff, and Third-Party Plaintiff-Appellee; Dennis Brooks, Individually, Third-Party Defendant-Appellant).
    NOS. 4-17-0169 4-17-0170 4-17-0190 4-17-0191 cons.
    Appellate Court of Illinois, Fourth District.
    FILED April 23, 2018
    Brian P. Thielen and Barbara Snow Mirdo, of Thielen, Foley & Mirdo, LLC, of Bloomington, for appellant Dennis Brooks.
    Wayne Patterson, of Normal, appellee pro se.
   PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 This litigation began with actions to evict Wayne Patterson from an apartment. Dennis Brooks filed an action as an agent of the landlord, R. Mack Brown, and Brown filed his own action. Thus, two eviction actions against Patterson were filed in the McLean County circuit court.

¶ 2 Patterson in turn filed counterclaims against Brooks and Brown, alleging they converted his belongings while enforcing a judgment for possession of the apartment-a judgment that, after its enforcement, was vacated because of defective service of process. (Brown died after Patterson filed his action, and on appeal, we have allowed cotrustees of Brown's revocable trust, Abby Bauman and Dave Anderson, to be substituted for him.) The final expression of the conversion claim was Patterson's fourth amended counterclaim, which consisted of one count against Brooks and another count against Brown.

¶ 3 Brooks and Brown moved for summary judgment on the fourth amended counterclaim, and Patterson cross-moved for summary judgment. After consolidating the two cases, the circuit court denied the motions by Brooks and Brown, and the court granted the motion by Patterson-but only as to liability, reserving the issue of damages for a trial. Thus, it was "deemed established" that Brooks and Brown had converted Patterson's chattels, but the amount of damages resulting from the conversion was to be determined in a trial. 735 ILCS 5/21005(d) (West 2016).

¶ 4 After entering the partial summary judgment in Patterson's favor, the circuit court granted a motion by him to voluntarily dismiss, without prejudice, his fourth amended counterclaim. See id. § 2-1009. Consequently, the trial on damages never occurred.

¶ 5 Brooks and Brown (through his personal representatives, Bauman and Anderson) appeal in the two cases, thereby generating four appeals, which we have consolidated. We dismiss all four appeals for lack of subject-matter jurisdiction because (1) a voluntary dismissal renders appealable only prior orders that are final in nature and (2) none of the rulings on the cross-motions for summary judgment were final in nature.

¶ 6 I. BACKGROUND

¶ 7 A. McLean County Case No. 10-LM-638

¶ 8 In September 2010, in McLean County case No. 10-LM-638, Dennis Brooks, as the agent of R. Mack Brown, the owner of Golfview Apartments, filed a civil complaint against Wayne Patterson and Joan Schneider. (Brooks was represented by counsel.) The complaint was pursuant to the Forcible Entry and Detainer Act ( 735 ILCS 5/9-101 to 9-321 (West 2010) ), and it sought (1) possession of an apartment leased to Patterson and (2) overdue rent.

¶ 9 Patterson filed an answer, affirmative defenses, and a counterclaim. The counterclaim, which alleged conversion, was against Brown and also against Brooks, "individually and as [the] agent for" Brown. In substance, it was a counterclaim against Brown combined with a third-party complaint against Brooks in his individual capacity.

¶ 10 Brooks voluntarily dismissed his complaint, but Patterson's counterclaim remained pending.

¶ 11 R. Mack Brown died on February 8, 2017. On June 15, 2017, we granted a motion to substitute Brown with Abby Bauman and Dave Anderson in their capacities as cotrustees of the Fifth Amended and Restated R. Mack Brown Revocable Trust, Dated October 19, 2016. The caption in these consolidated appeals originally listed the trust as a party, but because a trust is a fiduciary relationship rather than a legal person (see National City Bank of Michigan/Illinois v. Northern Illinois University , 353 Ill. App. 3d 282, 288, 288 Ill.Dec. 765, 818 N.E.2d 453 (2004) ;

Dennett v. Kuenzli , 130 Idaho 21, 936 P.2d 219, 228 (Idaho Ct. App. 1997) ) and because a relationship cannot be a party to an appeal, the cotrustees, Bauman and Anderson, are now listed as parties in lieu of the trust. We also have changed the caption to reflect that Brooks is sued only in his individual capacity since we have ordered that Bauman and Anderson, rather than Brooks, will serve as Brown's personal representatives. So, Bauman and Anderson are sued in their representative capacities, and Brooks is sued in his individual capacity.

¶ 12 B. McLean County Case No. 11-LM-9

¶ 13 In McLean County case No. 11-LM-9, Brown, the landlord, filed an eviction action against Patterson and unknown occupants. This case was substantially identical to McLean County case No. 10-LM-638 except that Brown, rather than Brooks, was the plaintiff. The complaint was pursuant to the Forcible Entry and Detainer Act, and Brown sought possession of the same apartment.

¶ 14 Again, Patterson filed an answer, affirmative defenses, and a counterclaim against Brown and Brooks for conversion. As in the other case, the conversion was allegedly of Patterson's personal property that remained in the apartment when Brown took possession of the apartment pursuant to a judgment.

¶ 15 In August 2011, the trial court resolved Brown's complaint against Patterson by granting Brown possession of the apartment, but Patterson's counterclaim remained pending.

¶ 16 C. Proceedings in the Consolidated Cases

¶ 17 In May 2011, the circuit court consolidated the two cases.

¶ 18 Patterson filed a fourth amended counterclaim against Brown and Brooks. It consisted of two counts, both of which alleged conversion. Count I was against Brown, and count II was against Brooks.

¶ 19 After discovery, Brown and Brooks each moved for summary judgment on the counts against them, and Patterson cross-moved for summary judgment on those counts. On August 12, 2015, the circuit court denied the motions by Brown and Brooks but, on the issue of liability alone, granted Patterson's motion, leaving the issue of damages to be determined in a trial. On January 6, 2016, the court denied motions by Brown and Brooks to reconsider or, more precisely, vacate the summary judgment rulings.

¶ 20 On January 17, 2017, pursuant to section 2-1009 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1009 (West 2016) ), the circuit court granted a motion by Patterson to voluntarily dismiss, without prejudice, his fourth amended counterclaim. Consequently, a trial on damages never occurred. No claims remained pending after the voluntary dismissal. These appeals followed.

¶ 21 In case No. 4-17-0169, Brooks appeals (1) the denial of his motion for summary judgment on the fourth amended counterclaim and the partial granting of Patterson's cross-motion for summary judgment (the order of August 12, 2015), (2) the denial of Brooks's motion to reconsider the rulings on the cross-motions for summary judgment (the order of January 6, 2016), and (3) the granting of Patterson's motion to voluntarily dismiss his fourth amended counterclaim (the order of January 17, 2017).

¶ 22 In case No. 4-17-0170, Brooks appeals the same three orders. It is a duplicate notice of appeal because the circuit court entered the orders in the two consolidated cases.

¶ 23 In case No. 4-17-0190, Bauman and Anderson appeal (1) the order denying their motion for summary judgment on the fourth amended counterclaim and partially granting Patterson's cross-motion for a summary judgment (the order of August 12, 2015), (2) the order denying Bauman's and Anderson's motion to reconsider the rulings on the cross-motions for summary judgment (the order of January 6, 2016).

¶ 24 In case No. 4-17-0191, Bauman and Anderson appeal the same two orders, which the trial court entered in the two consolidated cases.

¶ 25 II. ANALYSIS

¶ 26 Patterson does not dispute our jurisdiction over these appeals. Even so, we have an independent duty to make sure we have jurisdiction and to dismiss the appeals if we lack jurisdiction. See Archer Daniels Midland Co. v. Barth , 103 Ill. 2d 536, 539, 83 Ill.Dec. 332, 470 N.E.2d 290 (1984).

¶ 27 Patterson voluntarily dismissed his fourth amended counterclaim, and in their statements of jurisdiction, Brooks, Bauman, and Anderson argue that the voluntary dismissal of a lawsuit renders immediately appealable all prior orders that were not otherwise appealable at the time they were entered. In support of that argument, they cite Hudson v. City of Chicago , 228 Ill. 2d 462, 468, 321 Ill.Dec. 306, 889 N.E.2d 210 (2008), and Dubina v. Mesirow Realty Development, Inc. , 178 Ill. 2d 496, 503-04, 227 Ill.Dec. 389, 687 N.E.2d 871 (1997).

¶ 28 Both of those cases are distinguishable because the prior orders in those cases were final in nature whereas the prior orders in the present cases were not final in nature.

¶ 29 We first examine Hudson . In that case, the plaintiffs brought a tort action against the City of Chicago and some of its employees in the fire department. Hudson , 228 Ill. 2d at 464, 321 Ill.Dec. 306, 889 N.E.2d 210. The complaint consisted of two counts: count I, which alleged negligence, and count II, which alleged willful and wanton misconduct. Id. The circuit court granted the defendants' motion to dismiss count I with prejudice, pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2619(a)(9) (West 2000) ), on the ground that the city and its employees had immunity under section 3.150 of the Emergency Medical Services (EMS) Systems Act ( 210 ILCS 50/3.150 (West 2000) ). Hudson , 228 Ill. 2d at 464-65, 321 Ill.Dec. 306, 889 N.E.2d 210. Then, pursuant to section 2-1009 of the Code ( 735 ILCS 5/2-1009 (West 2000) ), the plaintiffs voluntarily dismissed the remaining count, count II. Later, the plaintiffs refiled their action, pleading only one count, the same count of willful and wanton misconduct. Hudson , 228 Ill. 2d at 465, 321 Ill.Dec. 306, 889 N.E.2d 210. The circuit court granted a motion by the defendants to dismiss the refiled action as barred by res judicata . Id. The supreme court agreed with that ruling. The voluntary dismissal had "terminated [the litigation] in its entirety[,] and all final orders [had] bec[o]me immediately appealable." (Emphasis added.) Id. at 468, 321 Ill.Dec. 306, 889 N.E.2d 210. The dismissal of count I, the negligence count, was a final order, and because the plaintiffs voluntarily dismissed count II, thereby ending the case, the rule against claim-splitting now prevented them from subverting that finality by refiling count II, which, with its allegations of willful and wanton misconduct, arose out of the same set of operative facts as the negligence count and could have been litigated at the same time as the negligence count. Id. at 473-74, 321 Ill.Dec. 306, 889 N.E.2d 210.

¶ 30 The other case, Dubina , likewise turned on the finality of the orders entered before the voluntary dismissal. The final orders in Dubina were the dismissal, with prejudice, of contribution claims between settling defendants. Dubina , 178 Ill. 2d at 503, 227 Ill.Dec. 389, 687 N.E.2d 871. Absent a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 1, 1994), the dismissal of the contribution claims, though final, was not immediately appealable. Dubina , 178 Ill. 2d at 503, 227 Ill.Dec. 389, 687 N.E.2d 871. Later, however, when the plaintiffs voluntarily dismissed their action, the dismissal of the contribution claims became appealable. "The order of voluntary dismissal, because it disposed of all matters pending before the circuit court, rendered all orders which were final in nature , but which were not previously appealable, immediately final and appealable." (Emphasis added.) Id.

¶ 31 Taking our lead from Hudson and Dubina , we must determine whether the orders appealed in the present cases were "final in nature." Id. ; see also Hudson , 228 Ill. 2d at 468, 321 Ill.Dec. 306, 889 N.E.2d 210. Brooks, Bauman, and Anderson appeal (1) the denial of their motions for summary judgment on Patterson's fourth amended counterclaim and (2) the partial granting of Patterson's cross-motion for summary judgment. (Brooks also appeals the granting of Patterson's motion for a voluntary dismissal, but he makes no argument on that issue.) We begin with the denial of the motions by Brooks and Brown for summary judgment. (We will treat Bauman and Anderson as interchangeable with Brown.) Unlike dismissals with prejudice ( Hudson , 228 Ill. 2d at 473, 321 Ill.Dec. 306, 889 N.E.2d 210 ; Dubina , 178 Ill. 2d at 503, 227 Ill.Dec. 389, 687 N.E.2d 871 ), "[t]he denial of a summary judgment motion is not a final order * * *. [Citation.] An exception exists where the parties have filed cross-motions for summary judgment and the circuit court has granted one, disposing of all the issues in the case ." (Emphasis added.) Fogt v. 1-800-Pack-Rat, LLC , 2017 IL App (1st) 150383, ¶ 95, 411 Ill.Dec. 877, 74 N.E.3d 186. When denying the motions by Brooks and Brown for summary judgment in their favor, the circuit court granted Patterson's cross-motion for summary judgment-but the court granted it only partly, as to the issue of liability. By granting Patterson's motion only as to liability, the court did not "dispos[e] of all the issues in the case." Id. The issue of damages remained unresolved by the partial summary judgment. That issue was left to potential future litigation, which would be "an entirely new and separate action" ( Dubina , 178 Ill. 2d at 504, 227 Ill.Dec. 389, 687 N.E.2d 871 ). Therefore, contrary to the exception described in Fogt , the denial of the motions by Brooks and Brown for summary judgment in their favor was not a final order. See Fogt , 2017 IL App (1st) 150383, ¶ 95, 411 Ill.Dec. 877, 74 N.E.3d 186. Although the denial of a motion for summary judgment is regarded as final under an exception for totally dispositive rulings on cross-motions for summary judgment, that exception has no applicability here.

¶ 32 Brooks, Bauman, and Anderson invoke another exception, which the appellate court created in DePluzer v. Village of Winnetka , 265 Ill. App. 3d 1061, 203 Ill.Dec. 31, 638 N.E.2d 1157 (1994). In that case, the complaint had two counts, and as to count I, the circuit court granted the defendant's motion for summary judgment, but as to count II, the court denied the defendant's motion. Id. at 1062, 203 Ill.Dec. 31, 638 N.E.2d 1157. The court then granted a motion by the plaintiff to voluntarily dismiss count II. Id. The plaintiff appealed the summary judgment on count I, and the defendant cross-appealed the denial of summary judgment on count II. Id. The plaintiff moved that the appellate court dismiss the defendant's appeal for lack of subject-matter jurisdiction, arguing that the denial of a summary judgment was not a final order. Id. at 1064, 203 Ill.Dec. 31, 638 N.E.2d 1157. While agreeing that typically this was true, the First District held that the plaintiff's voluntary dismissal of count II made the preceding denial of the defendant's motion for a summary judgment on that count final and appealable. Id. at 1064-65, 203 Ill.Dec. 31, 638 N.E.2d 1157. The First District reasoned as follows:

"Although [the plaintiff] is correct that the denial of a motion for summary judgment is typically not appealable, the propriety of the denial may be considered if the case is properly before a reviewing court from a final judgment and no trial or hearing has been conducted. [Citation.] In this case the order is final and appealable because, in addition to denying summary judgment, the trial court granted [the plaintiff's] motion to voluntarily dismiss this count, making the order final and appealable.
Our Illinois Supreme Court has determined that it is important that a defendant have the ability to appeal from an order of voluntary dismissal since, otherwise, such an order would never be subject to review. [Citations.] Consequently, the order granting [the plaintiff] a voluntary dismissal as to count II of his complaint is a final and appealable order, which brings before the reviewing court all other orders and rulings directly associated with that judgment, including, in this case, the denial of summary judgment. This court, therefore, has jurisdiction to consider the appeals." Id.

¶ 33 For two reasons, we are unconvinced by the quoted reasoning. First, the First District states: "[T]he propriety of the denial [of a motion for summary judgment] may be considered if the case is properly before a reviewing court from a final judgment and no trial or hearing has been conducted." (Emphasis added.) However, there was no final judgment in DePluzer . The supreme court has explained:

"A final judgment is a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. A judgment is final if it determines the litigation on the merits so that, if affirmed, nothing remains for the trial court to do but to proceed with its execution." Big Sky Excavating, Inc. v. Illinois Bell Telephone Co. , 217 Ill. 2d 221, 232-33, 298 Ill.Dec. 739, 840 N.E.2d 1174 (2005).

By granting the motion for a voluntary dismissal without prejudice, a court does not determine the litigation on the merits. If statutory law allowed the plaintiff in DePluzer to refile count II within one year after voluntarily dismissing it (see 735 ILCS 5/13-217 (West 1994) ), then, necessarily, the voluntarily dismissal left the issues in count II unresolved and the merits of that count undetermined.

¶ 34 Second, although the decision to grant the plaintiff's motion for a voluntary dismissal of count II was appealable by the defendant (see Dillie v. Bisby , 106 Ill. 2d 487, 491, 88 Ill.Dec. 612, 478 N.E.2d 1338 (1985) ), it did not follow that every order preceding the voluntary dismissal was appealable. Several years after DePluzer , the appellate court dispelled such a misconception:

"An order granting a plaintiff's motion for a voluntary dismissal is final and appealable by the defendants. [Citation.] But, because jurisdiction in the appellate court is generally limited to appeals from final judgments, the power to address a defendant's appeal from a voluntary dismissal does not form the jurisdictional basis from which we may also address the substantive merits of other nonfinal orders entered by a trial court prior to the granting of a voluntary dismissal. [Citations.]
A judgment is final if it determines the litigation on the merits so that, if affirmed, nothing remains for the trial court to do but to proceed with its execution. [Citation.] When an order leaves a cause still pending and undecided, it is not a final order. [Citation.] Accordingly, the denial of a motion for summary judgment is not final. [Citation.]
It is true that an appeal from a final judgment draws into issue all previous interlocutory orders that produced the final judgment. [Citation.] But such orders must constitute procedural steps in the progression leading to the entry of the final judgment. [Citation.] The denial of summary judgment is not a procedural step to an order of voluntary dismissal. [Citation.] Thus, the denial here was neither a final judgment nor a procedural step to a final judgment, and it is not appealable." (Internal quotation marks omitted.) Resurgence Financial, LLC v. Kelly , 376 Ill. App. 3d 60, 62, 314 Ill.Dec. 706, 875 N.E.2d 679 (2007).

While we disagree with the implicit statement of law, in the third paragraph of the quotation from Resurgence Financial , that an order granting a motion for a voluntary dismissal is a "final judgment" (it is not, because it is not a determination on the merits (see Big Sky , 217 Ill. 2d at 232-33, 298 Ill.Dec. 739, 840 N.E.2d 1174 ) ), we otherwise agree with Resurgence Financial , and we disagree with DePluzer . We agree with Resurgence Financial that a voluntary dismissal that disposes of all remaining claims in the case makes appealable only those orders preceding the voluntary dismissal that were "final in nature." Dubina , 178 Ill. 2d at 503, 227 Ill.Dec. 389, 687 N.E.2d 871 ; see also Jackson v. Victory Memorial Hospital , 387 Ill. App. 3d 342, 352, 326 Ill.Dec. 673, 900 N.E.2d 309 (2008) ("While it is well settled that upon entry of a voluntary dismissal all final orders become appealable (see Hudson , 228 Ill. 2d at 468, 321 Ill.Dec. 306, 889 N.E.2d 210 ; Dubina , 178 Ill. 2d at 503, 227 Ill.Dec. 389, 687 N.E.2d 871 ), [the defendant] does not cite, nor have we found, any case holding that an order granting a voluntary dismissal renders final an otherwise nonfinal order.").

¶ 35 Such preceding orders, made appealable by the voluntary dismissal, necessarily were interlocutory when they were entered-otherwise, nothing would have remained for the plaintiff to voluntarily dismiss. See Commonwealth Edison Co. v. Illinois Commerce Comm'n , 368 Ill. App. 3d 734, 742, 306 Ill.Dec. 620, 858 N.E.2d 65 (2006) ("An interlocutory order is one that does not dispose of all of the controversy between the parties."). But in addition to being interlocutory, these orders had to be final when they were entered. Dubina , 178 Ill. 2d at 503, 227 Ill.Dec. 389, 687 N.E.2d 871. It is possible for an order to be both interlocutory and final. "A judgment is final for appeal purposes if it determines the litigation on the merits or some definite part thereof " (that is, the judgment is interlocutory) "so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment." (Emphasis added.) In re Marriage of Verdung , 126 Ill. 2d 542, 553, 129 Ill.Dec. 53, 535 N.E.2d 818 (1989). To be made appealable by a voluntary dismissal, the preceding order had to be final in nature, such that it would have been eligible for a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). See MidFirst Bank v. McNeal , 2016 IL App (1st) 150465, ¶ 25, 402 Ill.Dec. 457, 52 N.E.3d 378 ("While Rule 304(a) permits appeals from orders which do not dispose of an entire proceeding, the mere inclusion of Rule 304(a) language cannot make a nonfinal order final and appealable."). Thus, to use some contrasting examples, a voluntary dismissal does not make appealable the preceding denial of the defendant's motion to dismiss the plaintiff's complaint ( Saddle Signs, Inc. v. Adrian , 272 Ill. App. 3d 132, 140, 208 Ill.Dec. 788, 650 N.E.2d 245 (1995) ), but it makes appealable the dismissal of a count with prejudice ( Reagan v. Baird , 140 Ill. App. 3d 58, 61-62, 94 Ill.Dec. 151, 487 N.E.2d 1028 (1985) ; Saddle Signs , 272 Ill. App. 3d at 139, 208 Ill.Dec. 788, 650 N.E.2d 245 ). The difference is that the denial of a motion for dismissal is not final in nature ( Saddle Signs , 272 Ill. App. 3d at 135, 208 Ill.Dec. 788, 650 N.E.2d 245 ) whereas the dismissal of a count with prejudice is final in nature ( Dubina , 178 Ill. 2d at 502, 227 Ill.Dec. 389, 687 N.E.2d 871 ("A dismissal with prejudice is usually considered a final judgment, including the dismissal of claims in a complaint * * *.") ).

¶ 36 We find that Resurgence Financial is correct in identifying finality as the criterion of appealability with regard to any previously entered interlocutory orders when all remaining claims are voluntarily dismissed without prejudice. This is the criterion the supreme court laid down and by which we are bound: "The order of voluntary dismissal, because it disposed of all matters pending before the circuit court, rendered all orders which were final in nature , but which were not previously appealable, immediately final and appealable." (Emphasis added.) Dubina, 178 Ill. 2d at 503, 227 Ill.Dec. 389, 687 N.E.2d 871 ; see also Hudson , 228 Ill. 2d at 468, 321 Ill.Dec. 306, 889 N.E.2d 210. Resurgence Financial correctly concluded that because the denial of a motion for summary judgment lacked finality, a subsequent termination of the case by a voluntary dismissal did not make the denial appealable. See Resurgence Financial , 376 Ill. App. 3d at 62, 314 Ill.Dec. 706, 875 N.E.2d 679.

¶ 37 That is the germane conclusion in Resurgence Financial , and it is irrelevant whether an order preceding the voluntary dismissal was a "procedural step" to the voluntary dismissal. The only relevant consideration is the finality of the preceding order. Dubina , 178 Ill. 2d at 503, 227 Ill.Dec. 389, 687 N.E.2d 871. We observe here that the procedural-step analysis applies to a wholly different question: the construction of a notice of appeal when the appeal is from a final judgment. "[T]he appeal from a subsequent final judgment draws in question all prior non-final orders and rulings which produced the judgment." (Internal quotation marks omitted.) Burtell v. First Charter Service Corp. , 76 Ill. 2d 427, 433, 31 Ill.Dec. 178, 394 N.E.2d 380 (1979). In other words, a notice of appeal from a final judgment should be liberally construed ( In re Jamari R. , 2017 IL App (1st) 160850, ¶ 39, 415 Ill.Dec. 164, 82 N.E.3d 109 ) to include "prior orders that [were] a step in the procedural progression leading to the judgment specified in the notice of appeal" (internal quotation marks omitted) ( id. ¶ 41 ). This legal construct is not germane to the issue of the appealability of an interlocutory order that preceded the plaintiff's voluntary dismissal, without prejudice, of all remaining claims. The construction or scope of a notice of appeal is not at issue in this case. The only jurisdictionally relevant issue is the finality of orders preceding the voluntary dismissal. Because the denial of the summary judgment motions by Brooks and Brown was nonfinal in nature, Patterson's voluntary dismissal of his fourth amended counterclaim did not make the denial appealable. See Resurgence Financial , 376 Ill. App. 3d at 62, 314 Ill.Dec. 706, 875 N.E.2d 679.

¶ 38 We next consider the partial summary judgment in Patterson's favor on the issue of liability for conversion and whether it became final and appealable by virtue of Patterson's voluntary dismissal of his lawsuit. Brooks relies on Home Savings & Loan Ass'n of Joliet v. Samuel T. Isaac & Associates, Inc. , 99 Ill. App. 3d 795, 54 Ill.Dec. 768, 425 N.E.2d 985 (1981), for the following proposition: "An order that grants partial summary judgment on liability, but does not address damages, is an order that resolves a definite and separate part of the controversy, and therefore is final for purposes of appeal." Bauman and Anderson rely on Home Savings for the same proposition.

¶ 39 Granted, the appellate court held in Home Savings : "Insofar as the partial summary judgment determined the issue of liability, a 'definite and separate part' of the instant lawsuit, it is appealable." Home Savings , 99 Ill. App. 3d at 806, 54 Ill.Dec. 768, 425 N.E.2d 985 (quoting Village of Niles v. Szczesny , 13 Ill. 2d 45, 48, 147 N.E.2d 371 (1958) ). Actually, though, the circuit court in Home Savings did more than determine the issue of liability; it also awarded remedies, thereby " 'dispos[ing] of the rights of the parties * * * upon some definite and separate part' " of the controversy. Id. (quoting Szczesny , 13 Ill. 2d at 48, 147 N.E.2d 371 ). In granting the partial summary judgment, the court imposed constructive and resulting trusts, reformed loan instruments, and ordered the assignment of all rights and title the defendants had in the loan instruments. Id. at 797, 54 Ill.Dec. 768, 425 N.E.2d 985. For that reason, Home Savings is distinguishable.

¶ 40 Moreover, since deciding Home Savings , the appellate court has repeatedly rejected the argument that a partial summary judgment on the issue of liability alone is a final and appealable order. Morgan v. Richardson , 343 Ill. App. 3d 733, 739, 278 Ill.Dec. 476, 798 N.E.2d 1233 (2003) ; Lindsey v. Chicago Park District , 134 Ill. App. 3d 744, 747, 89 Ill.Dec. 706, 481 N.E.2d 58 (1985) ; Harold Butler Enterprises No. 662, Inc. v. Underwriters at Lloyds, London , 100 Ill. App. 3d 681, 686, 56 Ill.Dec. 232, 427 N.E.2d 312 (1981).

"[B]ecause jurisdiction in the appellate court is generally limited to appeals from final judgments, the power to address a defendant's appeal from a voluntary dismissal does not form the jurisdictional basis from which we may also address the substantive merits of other nonfinal orders entered by a trial court prior to the granting of a voluntary dismissal." (Internal quotation marks omitted.) Resurgence Financial , 376 Ill. App. 3d at 62, 314 Ill.Dec. 706, 875 N.E.2d 679.

A partial summary judgment on the issue of liability is one such nonfinal order, which a subsequent voluntary dismissal of the lawsuit, without prejudice, does not make final.

¶ 41 It follows that we have subject-matter jurisdiction solely over Brooks' appeal of the circuit court's order of January 17, 2017, which granted Patterson's motion to voluntarily dismiss his fourth amended counterclaim. We dismiss the remaining portions of Brooks's appeal, and we dismiss the appeals of Bauman and Anderson, for lack of subject-matter jurisdiction. Because Brooks fails to explain how the circuit erred by granting Patterson's motion for a voluntary dismissal, he has forfeited the sole issue we have jurisdiction to consider. See Vancura v. Katris , 238 Ill. 2d 352, 369, 345 Ill.Dec. 485, 939 N.E.2d 328 (2010). He appears to have abandoned that issue.

¶ 42 III. CONCLUSION

¶ 43 For the foregoing reasons, we dismiss the appeals for lack of subject-matter jurisdiction.

¶ 44 Appeals dismissed.

Justice Steigmann concurred in the judgment and opinion.

Justice Turner dissented, with opinion.

¶ 45 JUSTICE TURNER, dissenting:

¶ 46 I respectfully dissent. For the reasons set forth below, I find this court has jurisdiction to address the denial of the appellants' motion for summary judgment.

¶ 47 I agree the denial of a summary judgment motion is ordinarily not appealable because it is an interlocutory order. See Clark v. Children's Memorial Hospital , 2011 IL 108656, ¶ 119, 353 Ill.Dec. 254, 955 N.E.2d 1065. However, in Clark , 2011 IL 108656, ¶ 119, 353 Ill.Dec. 254, 955 N.E.2d 1065, our supreme court acknowledged some exceptions to the aforementioned rule, which permit a reviewing court to entertain an interlocutory order denying a motion for summary judgment. The supreme court first noted it had previously recognized an exception "when the parties have filed cross-motions for summary judgment and one party's motion is granted and the other party's denied." Clark , 2011 IL 108656, ¶ 119, 353 Ill.Dec. 254, 955 N.E.2d 1065 (citing In re Estate of Funk , 221 Ill. 2d 30, 85, 302 Ill.Dec. 574, 849 N.E.2d 366 (2006) ). That exception exists because the order on the cross-motions disposes of all the issues in the case. Clark , 2011 IL 108656, ¶ 119, 353 Ill.Dec. 254, 955 N.E.2d 1065 (citing Funk , 221 Ill. 2d at 85, 302 Ill.Dec. 574, 849 N.E.2d 366 ). Citing DePluzer and La Salle National Bank v. Malik , 302 Ill. App. 3d 236, 247, 235 Ill.Dec. 755, 705 N.E.2d 938 (1999), the supreme court next noted "[o]ur appellate court has similarly concluded that the propriety of the denial may be considered if the case is properly before a reviewing court from a final judgment and no trial or hearing has been conducted." Clark , 2011 IL 108656, ¶ 119, 353 Ill.Dec. 254, 955 N.E.2d 1065. The Clark case involved several interlocutory orders, including a denial of a summary judgment motion, and culminated with the court dismissing the complaint with prejudice. Clark , 2011 IL 108656, ¶¶ 15, 18, 353 Ill.Dec. 254, 955 N.E.2d 1065. Our supreme court reviewed the denial of summary judgment because the circuit court's order disposed of all issues in the case, the defendants had properly preserved the issue at each stage of the litigation, and it was in the interest of judicial economy. Clark , 2011 IL 108656, ¶ 120, 353 Ill.Dec. 254, 955 N.E.2d 1065.

¶ 48 The DePluzer case involved an appeal from the denial of a summary judgment that was followed by the circuit court granting the plaintiff's motion to voluntarily dismiss the same claim at issue in the summary judgment. DePluzer , 265 Ill. App. 3d at 1062, 203 Ill.Dec. 31, 638 N.E.2d 1157. The final judgment in DePluzer was the voluntary dismissal order. See DePluzer , 265 Ill. App. 3d at 1065, 203 Ill.Dec. 31, 638 N.E.2d 1157 (citing Swisher v. Duffy , 117 Ill. 2d 376, 379, 111 Ill.Dec. 570, 512 N.E.2d 1207 (1987) ; Dillie , 106 Ill. 2d at 491, 88 Ill.Dec. 612, 478 N.E.2d 1338 ; Kahle v. John Deere Co. , 104 Ill. 2d 302, 307, 84 Ill.Dec. 650, 472 N.E.2d 787 (1984) ). The supreme court cases cited by the DePluzer court for that proposition have not been overturned. In La Salle National Bank , 302 Ill. App. 3d at 246-47, 235 Ill.Dec. 755, 705 N.E.2d 938, the appellate court addressed the defendants' cross-appeal from the denial of a summary judgment on other grounds after it reversed the circuit court's orders barring the plaintiffs' experts from testifying and granting summary judgment in the defendants' favor. Thus, the supreme court has recognized different situations in which a denial of a summary judgment motion can be appealed.

¶ 49 Clark , DePluzer , and La Salle National Bank all involved reviewing denials of motions for summary judgment that, after review, could still result in an interlocutory order. In La Salle National Bank , 302 Ill. App. 3d at 248, 235 Ill.Dec. 755, 705 N.E.2d 938, the reviewing court affirmed the denial of the summary judgment motion on cross-appeal and remanded for further proceedings. Thus, the reviewing court's affirmation of the denial of summary judgment resulted in further proceedings on the claim. Likewise, in Clark , the supreme court affirmed the judgment of the appellate court that reversed the circuit court's dismissal of plaintiffs' claims for negligent infliction of emotional distress, affirmed the denial of the summary judgment motion, and remanded for further proceedings. Clark , 2011 IL 108656, ¶ 125, 353 Ill.Dec. 254, 955 N.E.2d 1065. In DePluzer , 265 Ill. App. 3d at 1069, 203 Ill.Dec. 31, 638 N.E.2d 1157, the reviewing court reversed the circuit court's order denying the defendant's motion for summary judgment and granting the plaintiff's motion for voluntary dismissal and remanded the case to the circuit court to enter summary judgment in the defendant's favor on the count at issue. Thus, in that case, the review of the interlocutory denial of summary judgment and subsequent reversal led to a final judgment on the claim. DePluzer demonstrates why it is important for this court to have jurisdiction of the denial of the motion for summary judgment when a voluntary motion to dismiss is entered on the same claim. Accordingly, I disagree with the majority's focus on finality.

¶ 50 Moreover, I disagree with the analysis in Resurgence Financial , which stems from Valdovinos v. Luna-Manalac Medical Center, Ltd. , 307 Ill. App. 3d 528, 241 Ill.Dec. 41, 718 N.E.2d 612 (1999). See Resurgence Financial , 376 Ill. App. 3d at 62, 314 Ill.Dec. 706, 875 N.E.2d 679. In support of its finding jurisdiction of an interlocutory order only arises if the interlocutory order was a procedural step in granting the motion for voluntary dismissal, the Valdovinos decision cites Burtell , 76 Ill. 2d at 433, 31 Ill.Dec. 178, 394 N.E.2d 380, and Hough v. Kalousek , 279 Ill. App. 3d 855, 863-64, 216 Ill.Dec. 373, 665 N.E.2d 433 (1996). Valdovinos , 307 Ill. App. 3d at 538, 241 Ill.Dec. 41, 718 N.E.2d 612. Both of those cases addressed the sufficiency of the notice of appeal as to orders not specified in the notice of appeal. See Burtell , 76 Ill. 2d at 432, 31 Ill.Dec. 178, 394 N.E.2d 380 ; Hough , 279 Ill. App. 3d at 863, 216 Ill.Dec. 373, 665 N.E.2d 433. The issue of what interlocutory orders may be addressed on appeal from a voluntary dismissal is a very different issue then whether a notice of appeal was sufficient to review an unspecified order. Any time before a trial or hearing has begun, the plaintiff may voluntarily dismiss without prejudice his or her cause of action for any reason. See 735 ILCS 5/2-1009(a) (West 2016). The reason is personal to the plaintiff and does not even have to relate to the case. Thus, the "procedural step" analysis makes little sense with a voluntary dismissal. The majority attempts to suggest Resurgence Financial stands for the proposition only final orders can be addressed in an appeal from a voluntary dismissal, but if that is the case, then there was no need for the "procedural step" language. Regardless, while the "procedural step" analysis is unworkable, Resurgence Financial does recognizes an interlocutory order may be appealable from the grant of a voluntary dismissal.

¶ 51 I recognize Dubina was the last supreme court case to address what other orders are appealable from the granting of a voluntary dismissal. However, the only issue before the supreme court was the appealability of a final order. See Dubina , 178 Ill. 2d at 503, 227 Ill.Dec. 389, 687 N.E.2d 871 (noting the dismissal orders the appellant sought to appeal were final where the court had dismissed the claims with prejudice). The supreme court has yet to specifically address the appealability of interlocutory orders from a voluntary dismissal, but the Dubina decision indicates appellate review is not limited to just the granting of the voluntary dismissal.

¶ 52 Last, I note that, of the cases that have dealt with the issue, the language of DePluzer that the voluntary dismissal "brings before the reviewing court all other orders and rulings directly associated with that judgment" best addresses the appealability of a denial of a summary judgment motion on a defendant's appeal from the granting of a voluntary dismissal. DePluzer , 265 Ill. App. 3d at 1065, 203 Ill.Dec. 31, 638 N.E.2d 1157. It prevents a defendant from appealing an interlocutory order related to a claim that is not part of the voluntary dismissal order but allows a defendant to appeal a potentially dispositive interlocutory order on the claim that was voluntarily dismissed, as shown in DePluzer . I emphasize dispositive because appellate court review of an evidentiary ruling or a section 2-615 motion to dismiss from an appeal of the granting of a voluntary dismissal would have no impact on any future litigation. However, a denial of a dispositive motion, such as one for summary judgment, if overturned, would bar future litigation on the same claim.

¶ 53 Accordingly, I would find we have jurisdiction of the denial of the appellants' motion for summary judgment under the exception announced in DePluzer and cited by the supreme court in Clark .