Author: eclinton

B.A. University of Chicago, 1988, J.D. Harvard Law School, 1991, Clerk to the Honorable Michael S. Kanne, United States Court of Appeals for the Seventh Circuit, 1991-1992, Mayer Brown 1992-1996, Katten Muchin 1996-97, The Clinton Law Firm, 1997 -. I practice in the areas of commercial litigation, legal malpractice and legal ethics.

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

Dog Bite Verdict Upheld

In the case captioned, Claffey v. Huntley, 2021 IL App (1st) 191938 the Illinois Appellate court upheld a verdict in favor of a home owner whose dog allegedly bit the plaintiff (a mail carrier) without provocation. At trial the jury ruled in favor of the homeowner defendant (and by extension the dog). Claffey moved for judgment notwithstanding the verdict. The motion was denied and the Appellate Court affirmed the denial.

Claffey testified that he inserted his hand in the mail slot and it was bitten. He argued that there was no evidence of provocation. The jury and the judge disagreed. The Appellate Court also disagreed, holding that there was evidence of provocation. The explanation:

“In this case the Huntleys secured their dog against contact with outsiders by keeping it insider their home. ‘Securing dogs…is what is expected of a dog owner – it protects the dogs and it protects the innocent public.'” The court further explained that by opening the mail slot, “Claffey encroached on the dog’s isolated environment and exposed himself to risk of harm.” ¶27.

Conclusion: don’t put your hand through the mail slot.

Plaintiff’s Attempt to Escape Divorce Court Sanctioned under Rule 137

The case is Davis v. Davis, 2019 IL App (3d) 170744. The parties were divorced in 2012. Husband believed that his wife had violated the postmarital agreement, but instead of filing a claim in the Divorce case he filed a breach of contract lawsuit. His case was dismissed. The dismissal was affirmed on appeal but the Appellate Court reversed the denial of Rule 137 sanctions. The court found that the filing of the breach of contract action violated Rule 137 and awarded wife her legal fees associated with defending the case:

¶18.  The court found that dismissal was warranted because affirmative matter defeated Michael’s claim. The court reasoned that the action was “a divorce court matter” and should have been brought in the dissolution action. We agree with the trial court. Dissolution proceedings are designed to dispose of all matters connected with the dissolution of a marriage, including the parties’ attorney fees. See 750 ILCS 5/508 (West 2016). The dissolution proceedings and the breach of contract action were intertwined asthey were both based on the postmarital agreement. Bringing this claim in the dissolution action would not result in the joining of distinct and independent matters or require separate briefs, defenses, or the joinder of claims against multiple defendants. Both the dissolution action and the breach of contract action relied on the postmarital agreement for resolution. Leann was the only defendant, and there was no one else to join. The doctrine of multifariousness is not applicable under these facts. The dissolution action, which was pending at the time Michael brought the breach of contract action, was the appropriate forum for Michael to seek attorney fees. We find the trial court’s dismissal on this alternative ground was also proper…..

¶25.              We determine that sanctions under both Rule 137 and Rule 375 are warranted. We find that Michael lacked a legal or factual basis to pursue his breach of contract action and to appeal it. He reasoned that his breach ofcontract action was independent of the dissolution proceedings. Nevertheless, he relies on the postmarital agreement to support both his dissolution claim and his breach of contract claim, indicating that he wasaware both causes of action were based on the same set of facts. Moreover, after contesting the validity of the postmarital agreement, Leann complied with its terms and provisions negating any basis for a breach. In essence, Michael attempted an end-around of his obligations under the postmarital agreement to be obligated for his own legal expenses. His filing the breach of contract action and the appeal of its dismissal unnecessarily extended proceedings between the parties. Because there was no basis for Michael’s breach of contract claim, his pursuit of the action can only be directed to harass Leann.

¶ 26                 We thus direct Michael to pay the cost to Leann of defending his action at both the trial and appellatecourts. See Ill. S. Ct. R. 366 (eff. Feb. 1, 1994) (this court may enter any judgment that should have been entered in the trial court). Leann’s attorney should present to this court an affidavit and billing records distinguishing between the trial and appellate work so we may enter proper sanctions amount under each rule. Amadeo v. Gaynor, 299 Ill. App. 3d 696, 706 (1998) (court determined sanctions amount based on attorney affidavit and billing records). Leann has offered to supply this court with the necessary financialinformation within seven days, and we request that she so submit the affidavit and billing records within seven days after issuance of this opinion. We will enter an order specifying the amount due and allow Michael 14 days to either pay Leann or challenge her accounting. We further direct Michael to pay Leann directly through her counsel.

Comment: Don’t try to avoid the divorce court or the divorce judge by filing a “contract” claim in another court.

 

Appellate Court Remands Sanctions Claim to Trial Court

Generally, a litigant has 30 days after final judgment to file a motion for Rule 137 sanctions. In Davis v. Davis, 2019 IL App (3d) 170744, husband filed a breach of contract claim against ex-wife. After his claim was dismissed, the husband appealed and one day later wife moved for Rule 137 sanctions. Because her sanctions motion was timely, the filing of the notice of appeal by the husband did not deprive the trial court of jurisdiction.

The explanation:

¶ 18 Having determined that the trial court did not err in dismissing Michael’s breach of contract action, we turn to Leann’s cross-appeal. She raises two issues: whether the trial court erred when it found it lacked jurisdiction to hear her request for sanctions and whether the court should have imposed Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018) and Rule 375 (eff. Feb. 1, 1994) sanctions on Michael.

¶ 19 We begin with Leann’s challenge to the trial court’s determination that it lacked jurisdiction to hear her motion for sanctions. She argues that the trial court erroneously determined that it lacked jurisdiction. Michael agrees. They are correct.

¶ 20 A Rule 137 motion for sanctions must be filed within 30 days after the final judgment was entered. Pursuant to Illinois Supreme Court Rule 303(a)(1) (eff. July 1, 2017), a judgment or order does not become final and appealable while a Rule 137 claim remains pending. This is true even when a notice of appeal was filed in the same proceeding prior to the filing of the motion for sanctions. Yunker v. Farmers Automobile Management Corp., 404 Ill. App. 3d 816, 821 (2010). A timely postjudgment motion, such as a motion for sanctions, operates to stay an earlier filed notice of appeal. In re Estate of Hanley, 2013 IL App (3d) 110264, ¶ 43. The notice of appeal becomes effective when the final postjudgment motion is decided. Ill. S. Ct. R. 303(a)(2) (eff. July 1, 2017). We review questions of jurisdiction de novo. In re Marriage of Chrobak, 349 Ill. App. 3d 894, 897 (2004).

¶ 21 The trial court granted Leann’s motion to dismiss on October 3, 2017. Michael filed a notice of appeal on November 1, 2017, and Leann filed her motion for sanctions on November 2, 2017. The trial court dismissed Leann’s motion for sanctions on January 11, 2018, finding it lacked jurisdiction because a notice of appeal had already been filed. However, the motion for sanctions was a timely filed postjudgment motion that prevents an earlier filed notice of appeal from becoming effective until the trial court enters its ruling on the sanctions motion. The trial court retained jurisdiction to determine Leann’s sanctions motion. Thus, the trial court erred when it found it lacked jurisdiction to decide the motion for sanctions. We accordingly remand for the trial court to hear and determine Leann’s motion for sanctions.

Comment: thus, the filing of a notice of appeal by one party does not prevent the other party from seeking sanctions. The Clinton Law Firm

Illinois Appellate Court Rejects Appeal over Attorney’s Delay in Obtaining Service

If you file a case but neglect to serve the complaint, your case can be dismissed. Here a defendant tried to raise this issue in an interlocutory appeal. The court rejected the interlocutory appeal.

On February 5, 2019, in a Rule 23 opinion, the Appellate Court of Illinois, Fifth District denied leave for Defendant Emily Galloway to file an interlocutory appeal of the trial court’s denial of her motion to dismiss under Illinois Supreme Court Rule 103(b). Shirley Runyon v. Emily Galloway, 2019 IL App(5th) 180044-U.

Ms. Galloway’s counsel, in the motion to dismiss, argued that the matter should be dismissed with prejudice under Rule 103(b) because counsel for the Plaintiff Shirley Runyon failed to use reasonable diligence in obtaining service.  The matter, initially filed on August 28, 2008, sat dormant for over six years before service was finally obtained on December 21, 2016.

In concluding that the issue was not appealable under Illinois Supreme Court Rule 308, the Court states,

Illinois Supreme Court rule 103(b) states that ‘[i]f the failure to exercise reasonable diligence to obtain service on a defendant occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice as to that defendant ***.’ Our supreme court has held that Rule 103(b) is an objective standard that was adopted to prevent delays in service of summons and to promote expeditious handling of suits by giving circuit courts the ability to dismiss a cause when service is not affected by reasonable diligence. Segal v. Sacco, 136 Ill. 2d 282, 286 (1990). Because the rule does not provide a specific time by which a defendant must be served, a court must consider the amount of time that has passed in relation to all the other factors and circumstances of each individual case. Case v. Galseburg Cottage Hospital, 227 Ill. 2d 207, 213 (2007); see also Segal, 136 Ill. 2d at 287 (when determining whether a plaintiff lacked reasonable diligence in achieving service, a court may consider seven factors)…In the instant case, [Defendant] has requested this court to review and answer certified questions which would require us to provide an answer that is dependent on the specific underlying facts of this case. As such, this court’s answer would be improper. (emphasis added).

Notably, in a lengthy dissenting opinion, Justice Moore argues that the court should have reframed the question on appeal to answer, as a matter of law, whether “there is a per se violation of the reasonable diligence requirement…where no attempts are made for six years following the filing of a complaint and issuance of an original summons.” For now, at least, no such bright line rule will exist.