By Stephen Soltanzadeh
Associate, Ancel Glink
Associate, Ancel Glink
The Illinois Appellate Court, Second District, recently held
in Hartney v. Bevis, 2018 IL App (2d)
170165, that an involuntary dismissal of a prior appeal for failure to file a
brief had a preclusive effect on a subsequent appeal that involved the same
issue raised in the dismissed appeal.
In Hartney, plaintiff
obtained a monetary judgment against defendant, and defendant appealed in an
appeal docketed as No. 2-15-0005. In a separate action, plaintiff sought
enforcement, including an order requiring the sale of stock owned by defendant,
with the proceeds to go toward satisfying the judgment. Defendant argued that
the stock was exempt under 735 ILCS 5/12-1001(b), but the circuit court held
that the stock was to be sold, with the exemption applying to any proceeds from
the sale, not the stock itself. Defendant appealed that order as well, and that
appeal was docketed as No. 2-15-0929. Hartney,
2018 IL App (2d) 170165, ¶¶ 1-5.
In December 2015, with appeal No. 2-15-0929 pending, the
appellate court affirmed the underlying judgment in appeal No. 2-15-0005. In
January 2016, the circuit court stayed the sale of stock. It later lifted that
stay in August 2016, and the stock was sold to plaintiff at auction in October
2016 for $1.00. Meanwhile, in July 2016, the appellate court dismissed appeal No. 2-15-0929 for defendant’s failure
to file a brief. Id. ¶ 6.
In November 2016, defendant moved the circuit court for an
order applying defendant’s statutory exemption to the stock, not to the
proceeds from its court-ordered sale. The circuit court ultimately denied the
motion in January 2017 and held that the exemption applied to the proceeds from
the sale, but not the stock, and declined to void the sale of stock. Defendant
appealed. Id. ¶¶ 7-8.
The appellate court held that its prior dismissal of appeal No.
2-15-0929 on the ground that defendant failed to file a brief precluded
defendant from appealing the circuit court’s January 2017 order. The court
explained that whereas, generally, a voluntary dismissal will not have
preclusive effect on a subsequent appeal, an involuntary dismissal will have
preclusive effect so long as the dismissal is based on “a defect in the appeal
proceedings . . . attributable to appellant,” (id. ¶¶ 12-13 (quoting 50 C.J.S. Judgments,
§ 984 (2015))), meaning “where the appellant fails to properly conduct the
appeal of an otherwise appealable order.” Id.
¶ 13. The court concluded that the involuntary dismissal based on defendant’s
failure to file a brief qualified as a dismissal based on a defect attributable
to defendant and, therefore, had preclusive effect. Id. ¶ 16. It further determined that defendant was raising the same
substantive issue in the appeal before the court as he had raised in appeal No.
2-15-0929, and, therefore, held that the appeal was barred by that prior
appeal’s dismissal.
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