Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP
As any experienced appellate practitioner knows, Rule 307(a) permits an appeal as a matter of right in cases involving seven separate categories of interlocutory orders, including orders “granting, modifying, refusing, dissolving, or refusing or dissolve or modify an injunction.” Ill. S. Ct. Rule 307(a)(1). While this rule historically has been broadly interpreted, in The Raymond W. Pontarelli Trust v. Pontarelli, 2015 IL App (1st) 133138, the court held that two orders did not qualify as injunctions, and thus were not appealable under Rule 307(a)(1). Id. ¶ 1. Accordingly, the court dismissed the appeal for lack of jurisdiction. Id. ¶¶ 1, 18.
In Pontarelli, a widow and two trusts, of which she was the trustee and sole income beneficiary, brought an action against her deceased husband’s children from a prior marriage, as well as others. Plaintiffs sought various forms of relief relating to various real properties and entities in which she or the trusts had an interest. Id. ¶ 4. Defendants counterclaimed for, among other things, the removal of the wife as trustee of the trusts, as well as an accounting. Id. ¶ 6. After the trial court entered a temporary restraining order barring the wife from acting as trustee and barring the sale of two condominium units owned by the trusts, the court entered three orders: (1) an order establishing the wife’s right to receive income from the trusts during the litigation (the “income order”), (2) an order allowing defendants to lease the condominium units, but imposing restrictions on the leases and prohibiting construction on the units, and ordering an accounting for rents and expenses (the “leasing order”), and (3) an order denying defendants’ motion to dismiss. Id. ¶¶ 1, 7, 8-15, 18. Defendants appealed, and the appeals were consolidated. Id. ¶ 16.
In reviewing the income order and the leasing order for purposes of determining whether jurisdiction under Rule 307(a)(1) existed, the appellate court began its analysis with the familiar rule that a court “must look to the substance of the action, not its form” in determining what constitutes an appealable injunctive order. Id. ¶ 21. Citing the Illinois Supreme Court’s decision in In re A Minor, 127 Ill. 2d 247, 261 (1989), the court defined an injunctive order as one which requires a party to do a particular thing, or to refrain from doing a particular thing, “the most common sort of which operate as a restraint upon the party in the exercise of his real or supposed rights.” 2015 IL App (1st) 133138, ¶ 21. However, “orders properly characterized as ‘ministerial’ or ‘administrative’ are not subject to interlocutory appeal as of right because they only regulate the procedural aspects of the case before the court.” Id.
In explaining its findings that neither the income order nor the leasing order were nature injunctive, the court reasoned that those orders do not “regulate the parties’ conduct in their everyday activities outside the litigation, and they are a valid exercise of the court’s power under” the Trusts and Trustees Act (760 ILCS 5/1 et seq. (West 2012)). Pontarelli, 2015 IL App (1st) 133138, ¶¶ 24-25. Rejecting defendants’ argument that the fact that the income and leasing orders contained restrictions and requirements made them injunctive in nature, the court explained, “[v]irtually every order entered by a court compels a party to do or prohibits a party from doing something. But that does not make every order an injunction.” Id. ¶ 25. Rather, the court concluded, the leasing and income orders “were necessary and appropriate in the administration of the litigation” to ensure that the trusts’ operations continue during the litigation and that the wife received what she was due, particularly the income from the trusts for which it was undisputed that she was the sole beneficiary. Id. ¶ 25, 36.
The court also found that none of the three orders were appealable under Rule 304(b)(1), which allows for the immediate appeal without a special finding from orders entered “in the administration of an estate, guardianship, or similar proceeding which finally determine a right or status of a party.” Pontarelli,2015 IL App (1st) 133138, ¶ 26 (citing Ill. S. Ct. R. 304(b)(1)). With respect to the income and leasing orders, neither order purported to “fully resolve any matters or issues regarding the rights of any of the parties, properties, or corporations at stake.” Pontarelli, 2015 IL App (1st) 133138, ¶¶ 26, 27. As for the order denying defendants’ motion to dismiss, that order, too, was not appealable under Rule 304(b)(1) because the trial court did not make any final determination regarding the wife’s capacity to act as trustee. Id. ¶¶ 29, 30. Indeed, as the trial court noted, the issue of the wife’s competence as trustee was an issue that would not be properly disposed of on the pleadings and a single affidavit, as the court “could never reach a complicated issue about somebody’s mental health condition on a 2-619 motion to dismiss.” Id. ¶ 30.
Finally, the court found that the filing of three interlocutory appeals by defendants’ counsel (including a previous appeal of the wife’s guardianship proceedings, which had also been dismissed for lack of jurisdiction) warranted the imposition of sanctions pursuant to Rule 375(b). Id. ¶¶ 32-39. Finding that the premature filing of the appeals was “not simply zealous advocacy in action,” the court characterized the appeals “frivolous,” “unjustified,” and indicative of “a lack of good faith,” among other choice words. Id. ¶¶ 34, 38-39.
Recommended Citation: Katherine A. Grosh, Illinois Appellate Court Discusses Whether Trial Court Orders Were Injunctive for Purposes of Interlocutory Appeal Under Rule 307, The Brief, (May 6, 2015), http://applawyers-thebrief.blogspot.com/2015/05/illinois-appellate-court-discusses.html.
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