The Clerk Rejects a Filing – Appellate Court Answers “Blame the Lawyers”

Mendoza v. Herzog, 2026 IL App (2d) 250330-U

This is another case where a clerk rejected a filing on the last day of the statute of limitations and the Illinois courts, as they typically do, blamed the lawyers for their own technological problems. Respectfully, the Illinois courts have developed a ready-made excuse for these issues – Blame the Lawyers. Put me down on the side of the excellent dissent in this case. If the clerk screws up, the client should not lose the cause of action.

Facts

Plaintiff was involved in an auto accident on September 12, 2022. His attorney attempted to e-file the complaint on September 12, 2024 (the last day of the two-year limitations period), but the clerk rejected it for four reasons: wrong county in the caption, an attorney address mismatch, an improperly included jury demand, and inclusion of a civil action cover sheet. The complaint also misstated the accident date as September 15, 2022.

The corrected complaint was rejected again that day as a duplicate submission. A third filing was accepted on Monday, September 16, 2024 — after the limitations period had run — and still contained the incorrect accident date.

Defendant moved to dismiss under section 2-619(a)(5) (limitations) and (a)(9) (the misstated date). Only in response to the motion, filed six months later, did plaintiff first argue the complaint should be backdated nunc pro tunc under the version of Illinois Supreme Court Rule 9(d)(2) then in effect, which allowed relief upon a showing of good cause for a clerk rejection that rendered a filing untimely.

The trial court granted dismissal, adopting defendant’s brief in full. On the motion to reconsider, the court explained that plaintiff’s six-month silence after the September 16 acceptance showed counsel mistakenly believed the complaint was timely (based on the wrong accident date), not that counsel was diligently pursuing Rule 9 relief. The court found no good cause and denied reconsideration, while noting it “probably would have granted relief” had a Rule 9 motion been filed promptly.

Issues on Appeal

  1. Whether the trial court abused its discretion in finding no good cause under former Rule 9(d)(2).
  2. Whether the relation-back doctrine permitted correction of the accident date — an issue the court did not reach because it requires an underlying timely-filed complaint.

Majority Holding and Reasoning

The court reviewed the good-cause determination for abuse of discretion, characterizing that standard as highly deferential (“next to no review at all”).

On forfeiture: Plaintiff’s opening brief asserted, without developed argument, that none of the 22 authorized rejection bases in the Illinois Supreme Court’s Electronic Filing Rejection Standards applied to his complaint. Because he did not meaningfully develop this argument (citing only a catch-all provision) and did not rebut defendant’s point-by-point defense of the rejection until his reply brief, the majority held the argument forfeited under Rule 341(h)(7). The court therefore presumed the rejection was valid, attributable to plaintiff’s own avoidable errors rather than any e-filing system flaw.

On good cause: The panel held it was not unreasonable for the trial court to weigh the six-month delay in seeking Rule 9(d)(2) relief as part of the totality of the circumstances, citing Miller v. Thom for the proposition that timing of a request is a proper consideration. Because the trial court could reasonably infer that plaintiff’s inaction stemmed from a mistaken belief that the complaint was timely (due to the wrong accident date), rather than active pursuit of relief from the rejection, the denial of good cause was not arbitrary or unreasonable.

The court distinguished its own recent decision in Skarbek v. Woodman’s Food Market, which applied de novo review to a clerk-rejection question, on the ground that Skarbek turned on interpreting the scope of the Standards themselves, whereas this case did not require rule construction once the forfeiture was found.

Dissent (Presiding Justice Kennedy)

The dissent would reverse, on the theory that the case never should have reached the good-cause stage because the clerk’s rejection was unauthorized and void ab initio, meaning the original September 12, 2024 complaint should be deemed timely filed regardless of any good-cause showing. Key points:

  • Forfeiture: The dissent disputes the majority’s forfeiture finding, noting plaintiff’s opening brief devoted four paragraphs to arguing the clerk lacked authority to reject the filing, including an explicit citation to Rule 9(f), which the dissent says is enough to preserve the issue under Rule 341(h)(7) and Quezada (forfeiture binds parties, not courts).
  • Standard of review: The dissent argues review should be de novo rather than abuse-of-discretion, since the case requires interpreting Rule 9’s scope, consistent with Skarbek.
  • Merits: The dissent walks through the Standards and concludes none of the clerk’s four stated reasons was actually authorized. The “wrong county in the header” ground contradicts the Standards’ express instruction that a caption error should not cause rejection if the case is filed in the correct court. The “address mismatch” ground conflates a mismatch with missing information, which is the actual authorized basis; a differing address on file is not the same as no address at all.
  • Because the rejection standards had been adopted only eleven days before the filing and the clerk cited no authorized basis, the dissent views the rejection as invalid, meaning the complaint should be treated as timely filed as of September 12, 2024, consistent with Skarbek’s holding that a complaint rejected without proper basis is “deemed filed” as of its original submission date.
  • The dissent also invokes the general instruction that supreme court rules be liberally construed to resolve controversies on the merits rather than through dismissal for nonprejudicial technical defects.

Practical Takeaways

  • Under the pre-May 2025 version of Rule 9(d)(2), a plaintiff seeking to backdate a rejected e-filing bears the burden of good cause, and unexplained delay in seeking that relief — even several months — can defeat the showing, particularly where the delay is attributable to the plaintiff’s own mistaken belief about timeliness rather than genuine reliance on Rule 9.
  • Appellate counsel should fully brief arguments about the clerk’s authority to reject a filing under the Electronic Filing Rejection Standards in the opening brief; the majority treated underdeveloped argument on this point as forfeited, while the dissent would have reached the merits.
  • The amended Rule 9(d) (effective May 21, 2025) eliminated the good-cause standard in favor of mandatory relief where the rule’s requirements are met, though the court declined to apply that amendment retroactively here.
  • Practitioners should note the case underscores the risk of relying on the clerk’s acceptance of a filing as confirmation of accuracy — the erroneous accident date here undercut plaintiff’s good-cause argument even though it was not itself a stated rejection reason.

Since this is a Rule 23(b) order, it is non-precedential except as allowed under Rule 23(e)(1) (e.g., for res judicata, collateral estoppel, or law of the case).

AI Strikes Again- Appeal Dismissed

P-Three Development, LLC v. Therm Flo, Inc., 2026 IL App (1st) 250567-U

Disposition: Appeal dismissed; intervenor-appellant’s brief stricken under Illinois Supreme Court Rule 341.

Background: This is a sprawling underlying dispute over data center equipment in Mount Prospect, Illinois, stemming from a 2014 settlement note that was later assigned to P-Three Development, LLC when it purchased one of the data centers in 2015. As part of that purchase, P-Three (through its sole manager, Ravi Kadiyala) executed a release discharging the “Pressman defendants” from claims on the note. Despite that release, P-Three sued in 2021 anyway, and when defendants moved for summary judgment based on the release, P-Three/Kadiyala claimed the release was a forgery. The circuit court granted summary judgment for defendants (finding the release valid) and imposed Rule 137 sanctions after finding Kadiyala’s forgery claims were false — discovery showed he had in fact signed and transmitted the release.

The intervention issue: After P-Three’s own attorneys withdrew and it went unrepresented, Kadiyala tried to keep litigating pro se on P-Three’s behalf, which the trial court rejected since he wasn’t a party. He then filed a formal petition to intervene individually under 735 ILCS 5/2-408(a)(3), which the trial court denied, finding he hadn’t shown he’d benefit or suffer from the litigation’s outcome. Kadiyala appealed that denial.

Why the appeal was dismissed: The court didn’t reach the merits of the intervention question. Instead, it focused on serious Rule 341 compliance problems in Kadiyala’s appellate brief:

  • He misquoted the actual statutory text of section 2-408(a)(3).
  • He cited four entirely fictitious cases (Greer, S.I.T.E., Hartigan (the fake one), and a fabricated Ortega citation), complete with invented quotes and holdings.
  • He cited several real cases (the actual E&E Hauling, Zivin, Bilyk, Smith, and Himmel decisions) but attributed fabricated quotes and holdings to them that bore no relationship to what those cases actually addressed.

The court noted these hallmarks strongly suggested undisclosed use of generative AI in drafting the brief, and — citing the Fourth District’s recent In re Baby Boy decision — reiterated that the Illinois Supreme Court’s AI policy permits AI use but requires attorneys (and, per Holzrichter, pro se litigants held to the same standard) to verify AI-generated content before filing. Because the fabrications were pervasive rather than an isolated slip, the court exercised its discretion to strike the brief and dismiss the appeal outright rather than proceed to the merits, declining to address the abuse-of-discretion standard of review issue on intervention or the substantive section 2-408(a)(3) arguments at all.

AI Usage Sanctions In Human Rights Appeal

Scott v. Illinois Human Rights Comm’n, 2026 IL App (1st) 251462, is an appeal from a decision of the Illinois Human Rights Commission. Kimberly Scott, an African American woman who worked at a Starbucks in downtown Chicago, filed a workplace racial discrimination charge against Starbucks in 2022 after being disciplined for misgendering a coworker (she alleged the discipline was racially motivated). She dual-filed her charge with both the EEOC and the Illinois Department of Human Rights.

The EEOC investigated first (as required when a charge is dual-filed) and dismissed her charge in August 2022. Under the Illinois Human Rights Act, once the EEOC issues its determination, the complainant has 30 days to submit that determination to the Department in order for the Department to have jurisdiction to proceed. Scott didn’t submit the EEOC’s determination to the Department until roughly 175 days later — well past the deadline.

Despite this, the Department (and later the Commission) initially proceeded to investigate and rule on the merits without flagging the timeliness problem. Only after Scott sought a second round of review before the Commission did the Department raise the jurisdictional defect for the first time, and the Commission ultimately sustained dismissal of her charge on that basis (lack of jurisdiction due to the untimely submission), while also noting the charge would fail on the merits anyway for insufficient evidence of discrimination.

Scott petitioned the Illinois Appellate Court for review of that Commission decision. The court affirmed, holding that the 30-day submission deadline is jurisdictional and cannot be equitably tolled — even though the agencies had themselves proceeded for years as though they had jurisdiction before raising the issue.

The opinion is notable, however, less for that jurisdictional holding than for what happens alongside it: the court used the case as a vehicle to sanction Scott’s attorney, Mason Cole, for filing briefs riddled with AI-hallucinated case citations and fabricated statutory quotations.

1. Fabricated statutory quotations (Rule 341(h)(5) violation) Cole’s brief attributed language to four different statutory/regulatory provisions that doesn’t exist in them:

  • Claimed § 7A-102(D)(2) required a “full investigation” — it doesn’t; that language is invented.
  • Claimed Code § 5300.530(b) governed reconsideration standards — it actually governs ALJ rulings on motions, unrelated.
  • Misquoted § 8-111(B)(1)’s judicial review language.
  • Invented “vigorous enforcement” language in § 1-102(A).

2. Fake and misused case citations

  • Cited Harris v. Illinois Human Rights Comm’n, 2022 IL App (1st) 210454 — this case doesn’t exist at all. The citation number actually corresponds to an unrelated criminal case.
  • Attributed holdings/definitions to real cases that don’t contain them (Gusciara, Village of Oak Lawn, Abrahamson).
  • Cited cases for propositions they don’t support — e.g., citing Hall v. Naper Gold Hospitality for the idea that courts “routinely decline to strike briefs,” when that paragraph of Hall actually supports striking briefs as a sanction.

3. Improper statement of facts — cited to the brief’s appendix rather than the actual record on appeal, violating Rule 341(h)(6).

4. Made things worse in the show-cause response When ordered to explain himself, Cole’s response itself contained new legal errors:

  • Cited a statutory subsection that was repealed in 2008.
  • Misattributed and misquoted another subsection.
  • Quoted several cases verbatim without quotation marks (a separate plagiarism-adjacent problem).
  • Ignored the court’s explicit order to include pin cites for six citations.
  • Called the misconduct mere “technical deficiencies” rather than owning it, and his reply brief had repeated one of the false quotations after opposing counsel flagged it — which the court treated as evidence of willfulness rather than carelessness.

5. The underlying explanation Cole said he used a “premier corporate subscription of ChatGPT” and claimed he “cross-referenced” citations on Lexis but “overlooked” the fabrications — an explanation the court didn’t find persuasive, especially since his own show-cause response repeated the pattern. The court was exasperated with him.

¶ 59 In addition, the clerk of the Appellate Court, First District, shall send a copy of this opinion to the ARDC. See Baby Boy, 2025 IL App (4th) 241427, ¶ 132. The Code of Judicial Conduct requires us to “inform the Illinois Attorney Registration and Disciplinary Commission” if “a lawyer has committed a violation of the Illinois Rules of Professional Conduct of 2010 that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Ill. Code Jud. Conduct (2023), Canon 2, R. 2.15(B) (eff. Jan. 1, 2023). Here, attorney Cole repeatedly misrepresented the law to this court even after his opponent identified his misstatements to this court and even after being warned that the court was considering sanctions.

Moreover, in his response, attorney Cole claims that his “inability to properly verify the cites is a result of [his] inexperience in appellate court.” But attorneys verify citations the same way in every court, so this claim raises questions about attorney Cole’s fitness to practice law generally.

Consequences:

  • $15,000 fine ($1,500 per false citation/quotation — 10 total), calibrated deliberately higher than prior Illinois cases (which had used $1,000/$500 splits) to signal that fabrication type doesn’t matter — all misstatements of law get the same treatment.
  • Referral to the ARDC for potential discipline.
  • The court declined to strike the brief or dismiss the appeal (since the record was sufficient for it to resolve the merits itself) and declined to order CLE attendance or notice-to-other-judges, reasoning Rule 375 likely doesn’t authorize those additional sanctions.
  • The court found Cole’s central merits argument (the “full investigation” theory) was itself frivolous under Rule 375(b) precisely because it rested on the fabricated statutory language.

Notably, the court frames this squarely as an ethics violation, not just a briefing defect — citing Rules 1.1 (competence, including “benefits and risks associated with relevant technology”), 3.1 (frivolous filings), 3.3(a)(1) (candor to the tribunal), and 8.4(c) (dishonesty/misrepresentation), and reiterating the zero-tolerance standard: no citation should appear in a filing that counsel hasn’t personally read and verified, regardless of source.

Comment: please be careful when using chatbots to do legal work. They are not qualified and have not passed the bar exam. They really don’t get it. They aren’t lawyers. They have no shame. They won’t feel guilt if they screw up as you would.

Edward X. Clinton, Jr.

Appellate Brief Stricken By Court – Possible AI Use

In Cole v. Lee, 2026 IL App (1st) 252223-U, the appellate court struck Cole’s brief and dismissed his appeal entirely for violations of Illinois Supreme Court Rule 341(h)(7) — the rule requiring an appellant’s brief to support its argument with citations to authority. The problems fell into two related categories:

1. Misattributing propositions to cases that don’t support them

Cole cited real, correctly-identified cases but claimed they stood for propositions they simply didn’t contain:

  • He cited Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100 (2005), for the proposition that Consumer Fraud Act damages claims are legal claims triable to a jury — but the court found nothing in Averysupporting that.
  • He cited People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1 (1991), for the proposition that when legal and equitable issues are joined, the legal issues must go to a jury — again, unsupported by the actual case.

2. Miscited case citations (wrong volume/page combinations)

Beyond mischaracterizing holdings, several of his citations didn’t correspond to the cases he named at all:

  • “Stephens v. Kasten, 334 Ill. App. 3d 1004″ — Stephens is actually a supreme court case at 383 Ill. 127 (1943); the citation he gave instead landed on an unrelated criminal case, People v. Lewis.
  • “In re Estate of Mulvaney, 288 Ill. App. 3d 464″ — Mulvaney actually begins at 128 Ill. App. 3d 133 (1984); his citation instead pointed to a different criminal case, People v. Lambert.
  • The court noted the same pattern recurred with his citations to Kaiser v. MEPC American Properties and Harris Trust & Savings Bank v. Chicago College of Osteopathic Medicine — and that these were just the errors in the firstof three argument subsections.

Why this was fatal rather than just criticized

The court invoked the principle that a reviewing court is “entitled to have the issues clearly defined and supported by pertinent authority” and is not obligated to “act as an advocate or seek error in the record” on the appellant’s behalf (quoting U.S. Bank v. Lindsey). Rule 341(h)(7)’s citation requirement implicitly demands accurate citations — citing to nothing, or to the wrong case, defeats the purpose of the rule and shifts the research burden onto the court.

The court also stressed two aggravating points:

  • Cole’s pro se status didn’t excuse compliance with the rules, and pro se status doesn’t earn him extra leniency (citing People v. Shunick, 2024 IL 129244).
  • Cole had a documented pattern — the opinion lists eight other appeals where he’d committed similar Rule 341 violations, two of which had already resulted in stricken briefs and dismissed appeals.

Given that history, the court treated this as a case where striking the brief and dismissing the appeal (an admittedly “drastic” remedy per Hall v. Naper Gold Hospitality) was warranted, citing Ammar v. Schiller, DuCanto & Fleck, LLP as support for that outcome given repeated, escalating noncompliance.

Rule 341(h)(7) citation accuracy isn’t a formality — courts treat fabricated or unsupported legal propositions as substantively undermining the entire brief, not just a technical defect in one section. This looks like a case where a pro se litigant used AI to create a brief and the AI struggled.

Failure To Present Complete Record Defeats Sanctions Appeal

In Green v. McDonald, 2025 IL App (4th) 240759, the Appellate court affirmed the denial of a Rule 137 motion. The plaintiff had sued to obtain visitation with her “half-siblings” who were minors. She lost. Defendant moved for sanctions, which were denied by the trial court. Defendant’s appeal was unsuccessful.

¶ 30 Section 602.9(c) of the Marriage Act authorizes siblings of a minor child to petition the trial court for visitation if there is an unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child and the child’s other parent is deceased. 750 ILCS 5/602.9(c) (West 2020). A sibling may do so by filing a petition in the dissolution proceeding or any other proceeding that involves visitation issues regarding the child. 750 ILCS 5/602.9(b)(1) (West 2020).

¶ 31 Here, respondent focuses on what he characterizes was a “complete lack of any proof” of undue harm to the minors, which he contends is sanctionable under Rule 137. However, respondent, who was quick to note the perceived deficiencies of petitioner’s pro se brief, has not provided a report of proceedings on appeal to show the evidence petitioner presented at the hearing. We could spend time commenting on respondent’s violations of Illinois Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020), which requires a statement of facts “which shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment” (emphasis added), but need not.

¶ 32 “[A]n appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. Any doubts which may arise from the incompleteness of the record will be resolved against the appellant.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984). In the absence of a complete record, especially when the abuse-of-discretion standard applies, we must presume that the trial court acted properly. See Foutch, 99 Ill. 2d at 392 (without a transcript of the hearing on the motion, “there is no basis for holding that the trial court abused discretion in denying the motion”).

¶ 33 Given the lack of a record of the evidence petitioner actually provided at the hearing, we cannot determine she completely failed in her attempt to prove her case. Meanwhile, as previously noted, Rule 137’s purpose is not to penalize an unsuccessful party. Miller, 311 Ill. App. 3d at 976. While the trial court factually found there was no evidence of undue harm, the court noted petitioner’s attempt at proving the undue harm through evidence of her previously good relationship with the minors and her argument there was an inference the unreasonable termination caused the minors’ emotional distress or mental harm. We further note the record contains material supporting the court’s conclusion the termination was indeed unreasonable. Petitioner’s argument to the court also included assertions respondent had expressed anger in the presence of the minors, which petitioner argued provided an inference of undue harm. That petitioner was ultimately unable to convince the court to accept her inference does not mean the pleading she filed was not well-grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law.

Comment: failing to provide a complete record allowed the court to affirm the denial of sanctions without discussion of the merits.

Lawyers Sanctioned For Filing Suit When They Had Client Sign Arbitration Agreement

In Johnson and Bell, Ltd., v. Scherer, 2024 IL App (1st) 230709-U, the law firm sued a former client to collect an unpaid fee bill. However, the engagement letter signed by the client and the law firm required that all disputes between the parties be submitted to binding arbitration. Because the firm failed to pursue this remedy, the defendant sought Rule 137 sanctions. The trial court denied the motion for sanctions. The Appellate Court reversed and held that the denial of sanctions was an abuse of discretion.

The reasoning:

¶28 We conclude that the instant case warrants a finding that the trial court abused its discretion in denying defendants’ motion for Rule 137 sanctions against plaintiff….First, although plaintiff filed the original complaint without any reference to the parties’ engagement agreements, plaintiff does not deny, nor can it, that it was aware of the existence of these agreements when it filed the original complaint. Plaintiff is a law firm and drafted the engagement agreements that contain the unambiguous and broad mandatory arbitration provision for disputes involving any dispute under the agreement, including disputes regarding the amount of fees or the quality of plaintiff’s services. Consequently, even the most basic level of “reasonable investigation” as mandated by Rule 137 would have required plaintiff to examine the engagement agreements and their provisions before plaintiff signed and filed the original complaint.

¶ 30 Furthermore, plaintiff’s argument that it properly filed the original and amended complaints because the parties could waive the contractual provision for mandatory, binding arbitration lacks merit. Based upon the objective standard used to measure the circumstances at the time plaintiff filed its pleadings, it is irrelevant that plaintiff believed waiver of the arbitration provision was a possibility. Furthermore, plaintiff’s response to defendants’ motion to dismiss and compel arbitration—i.e., that defendants had waived their right to arbitration by moving to dismiss plaintiff’s original complaint based on plaintiff’s failure to abide by pleading requirements and attach the engagement agreements—is clearly contrary to precedent. Illinois courts clearly favor the easier, more expeditious, and less expensive contractual right of arbitration for dispute resolution and will not lightly infer the waiver of that contractual right. All American Roofing, Inc. v. Zurich American Insurance Co., 404 Ill. App. 3d 438, 441 (2010)….

¶33 …[E]ven a cursory examination by plaintiff of the engagement agreements here would have indicated that the challenged complaints were barred by the arbitration provision and, therefore, should not have been filed before obtaining a waiver fro defendants. Furthermore, instead of promptly dismissing the lawsuit that clearly was subject to mandatory arbitration ….plaintiff doubled down by filing the amended complaint and responding to defendants’ motion to dismiss and compel arbitration with the baseless argument that defendants had waived their right to mandatory arbitration by moving to dismiss the original complaint….

The court reversed the denial of the motion for Rule 137 sanctions and remanded the case for further proceedings.

Comment: the opinion is well-reasoned and appropriate. Arbitration can be inconvenient to those familiar with courtrooms and court proceedings. However, the firm agreed to arbitration and was required to arbitrate. The opinion states that the firm obtained a fee award in the arbitration.

http://www.clintonlaw.net

Dismissal of Complaint Affirmed Because of A Failure to Obtain Transcript

In civil courts of Cook County, the litigants are responsible for hiring a court reporter to transcribe hearings on dispositive motions. In Stogis v. Miller 2024 IL App (1st) 230379, Stogis sued for legal malpractice alleging that the lawyers her mother breached the duty of care in failing to amend her mother’s living trust. According to plaintiff the legal error caused her to be removed as the trustee of the living trust after her mother died. The Defendants argued that the two-year statute of limitation and six-year statute of repose barred the claim. The trial court held a hearing and dismissed the complaint but the transcript was not included in the record. The dismissal of the complaint was affirmed.

¶ 16 Since the record on appeal does not contain a properly bound and certified transcript of the hearing on defendants’ motion to dismiss, we cannot determine whether the trial court erred in granting defendants’ motion. We are therefore compelled to affirm the judgment of the trial court. See Foutch, 99 Ill. 2d at 392. Consequently, we must reject plaintiff’s contention of error.

If you appeal, it is your job to provide the court with a complete record on appeal. Should you have a question about an appeal, do not hesitate to contact us.

http://www.clintonlaw.net

City Hall

False Allegations in Petitions Draw Sanctions

In Amen v. Attiah, 2023 IL App (2d) 220031-U, the Illinois Appellate Court upheld sanctions awards in three cases where the same plaintiff requested no contact orders against three different people. The underlying dispute was between citizens and the school board, of which Amen was a member. The dispute concerned whether or not to return to in person learning. Each petition argued that there were threatening statements in facebook posts, but the posts were not attached to the petitions. The petition was a member of a school board. The Appellate Court affirmed the award of Rule 137 sanctions.

¶ 48 The record supports the trial court’s findings for Rule 137 sanctions against Amen due to the untrue allegations littered throughout her petitions. See supra ¶ 25. The evidence also fully supports the notion that sanctions were appropriate as the allegations in Amen’s petitions were wholly unsupported by facts or law. Indeed, the evidence tended to show that the petitions were designed to stifle respondents rights to speak out against Amen’s effort to gain re-election to the school board. The trial court explicitly found as such by noting

“This is not a situation where there is no harm from petitioner asking for a motion to be granted. While not dispositive of the outcome, Petitioner used her status as a public official to intimidate ordinary citizens. Worse, this petition was filed one day after a respondent demanded the school board act against Petitioner for her public campaign against them. It’s obvious to the Court that Petitioner wished to show them the consequences of public disagreement with her and quash their campaign and criticism of her. Oddly, these respondents had little to no contact with Petitioner. Can you imagine if a local mayor sought court action against a constituent or constituents for little more than online campaigning against that mayor? There’s essentially no difference between that scenario and this. Someone who dares to fight City Hall should be able to do so without fear of meritless litigation. It’s not lost on the court that Petitioner labels herself as a criminal defense attorney and civil rights attorney while seeking this claim against ordinary citizens, though her status as an attorney is not essential to the court’s finding.”

Amen takes further issue with the last sentence in the above findings. She asserts that the trial court improperly relied on her status as an attorney in granting respondents’ motions for sanctions. This assertion is meritless. Rule 137 applies to both attorneys and litigants. See IL. S. Ct. R. 137(a) (eff. Jan. 1, 2018). Throughout the proceedings Amen referred to herself as an attorney. She took issue in her petitions with respondents’ comments on her advertisement for services as an attorney. At no point in the underlying proceedings did she object or otherwise complain about being labeled as such. The trial court’s reference to her status as a criminal defense attorney in no way indicates that it relied on that status in granting the motions for sanctions. As Rule 137 applies equally to both attorneys and litigants, her complaints on this issue are a non-event.

¶ 49 Equally meritless is Amen’s assertion that the trial court treated the hearing on respondents’ motions for sanctions as a plenary hearing for an order of protection. The argument is based on the trial court’s reference to the hearing as an “OP” near the end of the hearing on September 22, 2021. Burton then corrected the trial court by noting that it was a motion for sanctions brought by respondents’ counsel. The court then tells Burton, “You are right.” At the beginning of that hearing, the trial court referred to the matter as “a Motion for Sanctions and movant in this case is respondent.” The order awarding sanctions to respondents repeatedly refers to the motions for Rule 137 sanctions. To state it mildly, Amen’s assertion that the trial was treated as a plenary hearing for an order of protection is based on a momentary misstatement by the trial court as opposed to any theory grounded in Illinois law or a reasonable person’s ability to read the report of proceedings.

¶ 50 In sum, the trial court’s award of sanctions and fees in favor of respondents was not an abuse of discretion. The detailed order is supported by the evidence presented and we will not disturb those findings here.

Comment: the court seemed concerned that Amen was using the requests for protective orders to stifle speech.

www.clintonlaw.net

Requesting The Court To Stay Its Decision Is Not Sanctionable

In re Marriage of Yazeji and Assaf, 2021 IL App (3d) 190430-U is an appeal of a decision by a trial court to sanction a litigant for filing a motion to stay the court’s ruling pending an appeal. The appeal involved a parenting plan.

The procedural history:

¶ 2 In a dissolution of marriage proceeding, respondent, Bassam A. Assaf, filed notices of appeal to challenge the trial court’s dissolution judgment and parenting plan. After doing so, Assaf later filed in the trial court a motion to stay the enforcement of the parenting plan while his appeals were pending, pursuant to Illinois Supreme Court Rule 305(b) (eff. July 1, 2017). Petitioner, May S. Yazeji, filed a motion to strike and dismiss Assaf’s request for a stay, and sought to have Supreme Court Rule 137 (eff. Jan. 1, 2018) sanctions imposed against Assaf for filing a “meritless” motion. Following a hearing, the trial court found that it did not have jurisdiction to rule upon Assaf’s stay request because Assaf had already filed a notice of appeal. The trial court, therefore, granted Yazeji’s motion to strike and dismiss and imposed sanctions on Assaf of nearly $5000 for the attorney fees that Yazeji had incurred defending against the stay request. Assaf appeals. We reverse the trial court’s imposition of sanctions and remand this case with directions to the trial court to enter an order requiring that the sanctions amount be refunded to Assaf, if the sanctions amount has already been paid.

The reasoning:

¶ 14 The trial court’s sanction order in the instant case was based upon its finding that it lacked jurisdiction to rule upon Assaf’s motion to stay after Assaf filed his second notice of appeal. A notice of appeal is a procedural device that when timely filed with the trial court, vests jurisdiction in the appellate court to permit review of the trial court’s judgment. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 173 (2011). Once a notice of appeal is filed, the jurisdiction of the appellate court attaches instanter, and the cause of action is beyond the trial court’s jurisdiction. Id. The trial court, however, retains jurisdiction after the notice of appeal is filed to determine matters that are collateral or incidental to the judgment. Id. at 173-74. The question here is whether a motion to stay is such a matter.

¶ 15 Supreme Court Rule 305(b), which allows for the filing of the stay request in the instant case, does not state whether a motion to stay is collateral or incidental to the judgment or whether the trial court may rule upon such a motion after an appeal has been filed. See Ill. S. Ct. R. 305(b) (eff. July 1, 2017). Our supreme court, however, has previously indicated that a stay of judgment is collateral to the judgment and does not alter the issues on appeal. Pappas, 242 Ill. 2d at 174; Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 526 (2001). We must conclude, therefore, that a trial court may rule upon a motion to stay after a notice of appeal has been filed. See Pappas, 242 Ill. 2d at 173-74; Steinbrecher, 197 Ill. 2d at 526.

¶ 16 In the present case, Assaf’s stay request was collateral to the trial court’s dissolution judgment and parenting plan. See Pappas, 242 Ill. 2d at 174; Steinbrecher, 197 Ill. 2d at 526. The trial court, therefore, retained jurisdiction to rule upon Assaf’s motion to stay and was not divested of jurisdiction to do so by Assaf’s filing of the second notice of appeal. See Pappas, 242 Ill. 2d at 173-74; Steinbrecher, 197 Ill. 2d at 526. The trial court’s ruling to the contrary was legally incorrect. See Pappas, 242 Ill. 2d at 173-74; Steinbrecher, 197 Ill. 2d at 526. Assaf’s motion to stay was not false or frivolous and could not serve as a basis for Rule 137 sanctions. See Ill. S. Ct. R. 137(a) (eff. Jan. 1, 2018); Peterson, 313 Ill. App. 3d at 7. Thus, the trial court abused its discretion when it imposed Rule 137 sanctions upon Assaf. See Blum, 235 Ill. 2d at 36; Leona W., 228 Ill. 2d at 460.

Comment: it can become necessary to ask the trial court to stay an interlocutory ruling pending an appeal. Lawyers and litigants should not be sanctioned for doing that.

Ed Clinton, Jr.

Chicago, Illinois

Rule 137 Sanctions Awarded For Post-Decree Filings

In Marriage of Kent, 2021 Ill App (2d) 200637-U, the Illinois Appellate Court affirmed an award of Rule 137 sanctions against one of the lawyers. The lawyer who was sanctioned had filed numerous post-decree petitions and then withdrew them. The opposing party brought the motion for sanctions on the ground that the petitions lacked a good faith basis. The key portions of the opinion are quoted below.

¶ 9 On June 15, 2020, the trial court entered an order that the appellate court decision was “spread of record.”[2] On July 15, 2020, Luis filed various petitions and then, on July 17, 2020, he filed a motion for Rule 137 sanctions against Trent. He argued, in part, that several motions filed posttrial by Trent on Colleen’s behalf were not based in fact or law and were not filed in good faith. For example, when Trent filed his first petition for attorney fees, Luis’s counsel and the court reminded counsel that he could not do so while he remained counsel of record; yet, he simply filed an amended petition for fees and another petition for a consent judgment, essentially seeking entry of fees without the benefit of a hearing for his client on those fees. Luis argued that, due to the numerous filings, his counsel was required to respond and appear in court nine times. Then, on the day of the November 6, 2019, hearing, Colleen’s multiple motions were simply withdrawn. Luis represented that, from the entry of the July 22, 2019, dissolution judgment through December 3, 2019, when the court issued its Rule 304(a) language, he had incurred over $38,000 in additional attorney fees and costs, most of which were incurred in the defense of the nine motions/petitions filed by Trent on Colleen’s behalf. He further noted that the substantial increase in postjudgment litigation costs would result in Colleen receiving no funds from the marital estate; hence, both parties to the litigation were being substantially harmed. Luis requested that the court impose against Trent sanctions and award Luis the fees he incurred to answer or defend Colleen’s posttrial motions.

¶ 27 Here, we cannot say that no reasonable person would agree with the court’s decision to sanction Trent. Indeed, when reviewing decisions concerning Rule 137 sanctions, “the deferential standard is applied because generally the conduct at issue occurred before the judge issuing the sanctions, who, therefore, is in the best position to determine whether the challenged conduct warranted penal sanctions or because the trial court heard testimony from individuals involved in the challenged conduct.” Mohica v. Cvejin, 2013 IL App (1st) 111695, ¶ 50. Here, the trial judge was intimately familiar with the case, parties, and attorneys (indeed, it had previously noted the litigiousness with which Colleen and her counsel pursued the case). As Trent concedes, the court did not find convincing that allposttrial filings identified by Luis warranted sanctions, but after considering all circumstances and hearing argument, it determined that some of the filings and withdrawals thereof were not made in good faith. The court clearly considered carefully each challenged filing, and it was in the best position to weigh and assess whether those filings warranted sanctions.

¶ 28 Trent does not agree that his filings, particularly those concerning attorney fees, necessarily resulted in direct costs to Luis. However, we note that the court did not award sanctions in an amount even close to the $38,000 in additional attorney fees and costs Luis alleged to have incurred postjudgment. As such, the court implicitly determined that some of Luis’s postjudgment fees did not directly result from Trent’s alleged misconduct. Nevertheless, the court did find that Trent filed motions alleging issues that required Luis’s response and his counsel’s appearance, then withdrew those motions, and then, although he claimed that they were withdrawn to pursue an appeal, did not appeal the issues in those withdrawn motions. Further, given Trent’s lengthy legal career, the court did not find credible that his multiple filings for attorney fees and consent judgments, while he continued to represent his client, were filed for a proper purpose and, as such, that they were not well-based in law or fact. Indeed, section 508(c)(1) plainly states, “[n]o petition of a counsel of record may be filed against a client unless the filing counsel previously has been granted leave to withdraw as counsel of record or has filed a motion for leave to withdraw as counsel.” (Emphases added.) 750 ILCS 5/508(c)(1) (West 2018)). According to Luis’s 2020 sanctions motion, after Trent filed his first petition for attorney fees, Luis’s counsel and the court reminded Trent that doing so while he remained counsel of record was improper, yet he simply filed an amended petition without moving to withdraw (indeed, while we do not have a transcript reflecting the court’s alleged reminder, the record does not show Trent as having filed a motion to withdraw as counsel between the original and amended petitions). Moreover, although Trent’s petitions for attorney fees against Colleen might not have directly required Luis’s response, Luis’s counsel was not unreasonable in pointing out to the court that the petitions for fees were improper and that all filings and fees in this dissolution case affected the total recovery available to all parties.

¶ 29 In sum, the court’s sanctions ruling was not an abuse of discretion.

Comment: It would appear from the appellate reports that Illinois courts have increased their use of Rule 137 to sanction lawyers for litigation conduct. Here, the record reflects that the lawyer filed numerous motions and then withdrew all of them after the other side had incurred legal fees.

Should you have a question about Rule 137 sanctions, do not hesitate to contact us. We may be able to provide an independent view of your issue.

Ed Clinton, Jr.

http://www.clintonlaw.net