By Karen Kies DeGrand
Partner, Donohue Brown Mathewson & Smyth, LLC
Won v. Grant Park 2, L.L.C., 2013 IL App (1st) 122523, illustrates that dire consequences may result from presuming that no order was entered at a clerk's status call. In Won, the Illinois Appellate Court, First District, dismissed an appeal for lack of jurisdiction. The defendant lost the right to challenge an order entering summary judgment against it when it failed to appear for a status call on the defendant's motion to reconsider the ruling and the court entered an order, drafted by the plaintiff's counsel but not served on the defendant's attorney, in which the court struck the motion to reconsider with prejudice.
The case arose from a breach of a real estate sales contract for the purchase of a condominium. The plaintiff contended that she had exercised her contractual right to terminate the contract because the closing did not proceed by the deadline specified in the contract--a condition precedent. Based on that and other grounds that she contended gave her the right to terminate the deal, plaintiff sued for the return of her earnest money and upgrade fees she had paid for the newly constructed condominium. Discovery and motion practice ensued. Ultimately, the trial court granted plaintiff's motion for summary judgment and denied the defendant's cross motion.
Seeking reversal of the ruling, the defendant timely filed a motion to reconsider. The trial court entered a briefing schedule on the motion in a written order requiring the defendant to provide copies of the motion, response, and reply at a scheduled clerk status hearing. The written order specified that neither the briefing schedule nor the status date could be altered without leave of court, and that failure to comply could result in an order striking the motion or ruling on it without hearing.
On April 5, 2012, the date of the clerk status, defense counsel failed to appear. The trial court then entered an order striking the motion to reconsider, with prejudice. Unaware of the April 5 order, the defendant filed its reply brief on April 6, two days after the deadline specified in the briefing schedule. Defense counsel spoke with the judge's clerk, who did not mention the existence of the strike order; according to the defendant, the clerk advised defense counsel to file a motion to set a hearing on the motion to reconsider. Defendant filed such a motion on May 4, within 30 days of the strike order. Contending that the court by then had lost jurisdiction over the case, the plaintiff opposed the motion to set a hearing on the motion to reconsider. The trial court heard the motion to reconsider on the merits and denied it on July 26, 2012. Within 30 days, on August 24, the defendant filed a notice of appeal.
In a decision authored by Justice Bertina E. Lampkin, the appellate court considered two key issues in concluding that the trial court lost jurisdiction over the case before it ruled on the motion to reconsider. First, it found that the April 5 strike order unambiguously disposed of the motion to reconsider with prejudice. The court rejected the defendant's argument that the order merely was a scheduling order and was not a final ruling on the merits.
Second, the appellate court determined that the motion requesting a hearing date, which was filed within 30 days of the strike order, could not be considered a de facto request to vacate the strike order. The court observed that defense counsel did not know that the strike order existed when the motion to set the matter for hearing was filed. Thus, while agreeing that the title of the motion did not control characterization of it, the appellate court disagreed with the defendant's argument that limiting defendant to the relief requested in the motion elevated form over substance. The court reasoned that the motion for reconsideration could not be set for hearing when it was no longer pending. The motion had been stricken with prejudice; it had not just been taken off the trial court's call.
The appellate panel concluded by observing that the defendant essentially sought to refile a stricken postjudgment motion more than 30 days after disposition. Citing the rule against successive postjudgment motions and the need for finality in the judicial system, the court concluded that its dismissal of the appeal served the efficient administration of justice.
Justice Mary K. Rochford specially concurred. Disagreeing with the characterization of the April 5 order as "unambiguous," Justice Rochford queried whether the applicable rules of construction of the order should lead to a different result. In her view, the record suggested that the trial court did not undertake the important step of considering a postjudgment motion on the merits. Justice Rochford also questioned whether the circumstances indicated that, as the defendant had argued, the April 5 order truly was administrative. She also compared the order to a sanction, which should be accompanied by specific findings. Ultimately, however, Justice Rochford concurred in the majority's conclusion based on the "with prejudice" language of the April 5 order.
Recommended Citation: Karen Kies DeGrand, When the Failure to Appear at a Status Call Leads to a Stricken Motion in the Trial Court and Then a Lack of Jurisdiction in the Appellate Court, The Brief, (April 7, 2014), http://applawyers-thebrief.blogspot.com/2014/04/when-failure-to-appear-at-status-call.html.
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