Kimbrell v. State Bank of Speer , 426 Ill. Dec. 335 ( 2018 )

2018 IL App (3d) 170498
Opinion filed December 5, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
JODY D. KIMBRELL, ) Appeal from the Circuit Court
MICHAEL D. KIMBRELL, and ) of the 10th Judicial Circuit,
ANNA F. ISAACS, ) Peoria County, Illinois.
)
Plaintiffs, ) Appeal No. 3-17-0498
) Circuit No. 16-MR-752
v. )
) Honorable
STATE BANK OF SPEER, ) James A. Mack,
) Judge, presiding.
Defendant-Appellee )
)
(Jody D. Kimbrell, Plaintiff-Appellant). )
_____________________________________________________________________________
PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices Holdridge and McDade concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 Jody D. Kimbrell, a nonlawyer proceeding pro se, filed a complaint, which she
subsequently amended twice, on behalf of herself and also on behalf of her mother and her
husband. The trial court dismissed Kimbrell’s second amended complaint. Kimbrell appealed.
We affirm the trial court’s dismissal order of Kimbrell’s second amended complaint as a nullity
due to Kimbrell’s unauthorized practice of law.
¶ 2 FACTS
¶3 I. Background
¶4 In this case, Kimbrell filed an original complaint pertaining to certain property, which
was dismissed without prejudice, a first amended complaint, which was dismissed without
prejudice, and a second amended complaint, which was dismissed with prejudice. Kimbrell’s
pleadings asserted a mass amount of immaterial and superfluous facts and contained tangential
and superfluous allegations. Kimbrell’s pleadings appear to be attempts to state causes of action
for slander of title and to quiet title related to certain property. In making their supporting
arguments in this case, both parties made somewhat obscure references to proceedings in other
cases that involved the plaintiffs and the property at issue in this case. We have reviewed some
of those other cases and the filings made in this case, which provided the following information.
¶5 The subject property appears to involve a portion of property located near Jeth Court
Apartments, off of University Street, in Peoria, Illinois. In 1997, plaintiffs purchased the Jeth
Court apartment complex. Kimbrell v. Illinois-American Water Co., 2013 IL App (3d) 110790­
U, ¶ 4. In May 2005, On May 6, 2005, plaintiffs executed two promissory notes in favor of
Republic Bank for $2,051,000 and $294,000, secured by first and second mortgages on seven
“Jeth Court” tracts of land and three “University Street” tracts of land. Republic Bank of Chicago
v. Kimbrell, 2015 IL App (3d) 140675-U, ¶¶ 5, 10. On August 1, 2008, plaintiffs paid off the
$2,051,000 Republic Bank note (by refinancing the debt under Kimbrell’s limited liability
company, which resulted in Republic Bank releasing the mortgages, except for the mortgages on
two University Street tracts of land because the note for $294,000 remained outstanding. Id.
¶¶ 19, 23-24, 34-35. On August 1, 2008, Kimbrell’s limited liability company obtained a
$2,264,000 loan from the Royal Bank of Canada (Royal Bank), secured by a mortgage that was
subsequently assigned to the Federal National Mortgage Association (Fannie Mae). Federal
2
National Mortgage Ass’n v. Kimbrell, 2016 IL App (3d) 140662-U, ¶¶ 4, 6, 10, 25. On August
12, 2010, Kimbrell’s limited liability company transferred a portion of the Fannie Mae
mortgaged property to the plaintiffs in this case (Kimbrell, her husband, and her mother) so they
could have a building constructed on the property. Id. ¶¶ 6, 9. According to the pleadings in this
case, between July 27, 2009, and May 12, 2010, defendant State Bank of Speer gave plaintiffs
four advances on a $400,000 construction loan for the construction of that building.
¶6 On February 7, 2012, Fannie Mae filed a foreclosure complaint (case No. 12-CH-97)—
against the plaintiffs in this case (Kimbrell, her husband, and her mother), Kimbrell’s limited
liability company, a personal guarantor of the loan, and State Bank of Speer (defendant in this
case), alleging that Kimbrell’s limited liability company defaulted on the note by failing to make
payments, making an unauthorized transfer of mortgaged property, and causing the property to
be encumbered by two mortgages held by State Bank of Speer. Id. ¶¶ 5, 9. On August 4, 2014,
the trial court granted Fannie Mae’s motion for summary judgment, entered a judgment of
foreclosure and sale, and granted a motion for sanctions against Kimbrell pursuant to Illinois
Supreme Court Rule 137 (eff. July 1, 2013) by ordering Kimbrell not to make any further filings
in that case or file any other lawsuits against those parties without prior leave of court. Federal
National Mortgage Ass’n, 2016 IL App (3d) 140662-U, ¶¶ 10-13.
¶7 On August 29, 2014, Kimbrell filed for bankruptcy. In re Kimbrell, No. 14-81545, 2016
WL 1620228, slip op. at *1 (Bankr. C.D. Ill. Apr. 20, 2016).
¶8 On October 6, 2014, a judicial sale for “a portion” of the foreclosed property was sold to
Fannie Mae as the highest bidder and its certificate of sale was assigned to BV Sun Grove, LLC
(a holding company created by Fannie Mae to hold title to the property). Federal National
Mortgage Ass’n, 2016 IL App (3d) 140662-U, ¶¶ 14, 20. In support of defendant’s motion to
3
dismiss in this case, defendant attached documents from the foreclosure case. The sheriff’s deed,
certificate of sale, and report of sale for the judicial sale of the “portion” of the foreclosed
property that took place on October 6, 2014, pertained to six tracts of land, with tract 1 including
parcels A and B and having property identification No. 14-17-126-001 (now property
identification No. 14-17-126-018 and “part of 14-17-126-020”)—common address of 1347 Jeth
Court. 1 The sale was adjourned to a later date with respect to the remaining portion of the
collateral—“that being a part of 14-17-126-020.”
¶9 On April 24, 2015, Fannie Mae requested to modify the automatic bankruptcy stay in
Kimbrell’s bankruptcy case so that the foreclosure sale could take place on the remaining parcel
of property. 2 In re Kimbrell, No. 14-81545, 2015 WL 3424458, slip op. at *1 (Bankr. C.D. Ill.
May 27, 2015). On May 27, 2015, the bankruptcy court lifted the stay, finding Fannie Mae had
proven a lack of equity in the property, noting the bankruptcy case was part of a larger ongoing
dispute between the plaintiffs in this case and several lenders “in various proceedings pending in
other courts” and lifting the say would “shift the dispute back to state court.” Id. at *4.
¶ 10 Documents attached to defendant’s motion to dismiss that were filed in Kimbrell’s
foreclosure case indicate that on August 5, 2015, another order confirming sale (presumably of
1
The other tracts were listed as property identification Nos. 14-17-126-003 (1301 Jeth Court), 14­
17-126-006 (1300 Jeth Court), 14-17-126-011 (1317 Jeth Court), 14-17-126-010 (1308 Jeth Court), and
14-17-126-012 (6608 N. University Street).
2
This remaining parcel of property had been improved with a 5-unit apartment building—3½
units were located on a parcel of property mortgaged by Fannie Mae and the other 1½ units were located
on a parcel of property mortgaged by State Bank of Speer. A report submitted by a certified real estate
appraiser indicated that at some point in 2011, those two separate parcels had been combined to create a
new parcel, which was assigned property identification No. 14-17-126-020. A relief of the bankruptcy
stay had previously been granted in regard to the other Jeth Court parcels because those parcels were
owned by Kimbrell’s limited liability company and were not part of the plaintiffs’ individual debtors’
estates. After crediting the bid price for the sale of those other parcels, $515,575.25 was still due and the
remaining parcel that secured that balance was valued at $70,000. In re Kimbrell, No. 14-81545, 2015
WL 3424458, slip op. at *1-2 (Bankr. C.D. Ill. May 27, 2015).
4
the remaining property) was entered, which ordered that a sheriff’s deed to the property be issued
to Fannie Mae or its assignee. The sheriff’s deed conveyed the property to BV Sun Grove,
LLC—property with identification No. “14-17-126-001 (now 14-17-126-018 and part of 14-17­
126-020).” A quitclaim deed recorded on July 21, 2016, from BV Sun Grove, LLC, to third-party
Jeth Court Homes, LLC, included the foreclosed property that had been sold at the judicial sale
on October 6, 2014, and, in addition, the property conveyed in the sheriff’s deed of August 5,
2015—“parcel C” of tract 1, property identification Nos. “14-17-126-018 and 14-17-126-020”
(rather than just a “part of” property identification No. 14-17-126-020).
¶ 11 During pendency of the foreclosure case, Kimbrell had filed five separate complaints
(consolidated into case No. 12-MR-272) against multiple defendants alleging wrongdoing by
those defendants in the mortgage foreclosure process. 3 Kimbrell v. Wells Fargo Multifamily
Capital & Commercial Mortgage Servicing, 2015 IL App (3d) 140718-U, ¶¶ 6-7. Those
complaints were dismissed with prejudice as having previously been heard and denied in the
foreclosure proceeding. Id. 4 In that case, on October 17, 2014, the trial court granted the
defendants’ motion for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. July 1, 2013)
against Kimbrell. The sanctions order indicated:
“The purpose of Rule 137 is to prevent the filing of false or frivolous
lawsuits. The Rule is in place to prevent abuse of the judicial process by parties
who make claims based on unsupported allegations of fact or law. Ms. Kimbrell’s
use of the legal system could not more squarely within these definitions. In
3
Defendant State Bank of Speer was not one of the named defendants in that case. See Kimbrell v.
Wells Fargo Multifamily Capital & Commercial Mortgage Servicing, 2015 IL App (3d) 140718-U.
4
On appeal, on September 30, 2015, this court affirmed the dismissal of the claims with prejudice,
finding the doctrine of res judicata applied where Kimbrell had raised the same claims at issue on appeal
in the mortgage foreclosure action and the remaining claims were forfeited because Kimbrell did not raise
those claims on appeal. Wells Fargo, 2015 IL (3d) 140718-U, ¶¶ 14, 16.
5
accordance with the requirement of Rule 137, this court specifically finds that Ms.
Kimbrell has a long history of filing frivolous, vexatious and harassing lawsuits
and pleadings in this court and the federal courts of this district. Ms. Kimbrell has
been previously admonished in other litigation *** to stop filing frivolous,
vexatious lawsuits, or she would face sanctions from the Federal court and/or this
court. Instead of heading [sic] those warnings, Ms. Kimbrell filed more lawsuits
and appeals. The court finds that Ms. Kimbrell’s lawsuits are frivolous, vexatious
and are designed to harass Defendants and needlessly increase the cost of
litigation. The court finds that Ms. Kimbrell’s repeated pro se filings interfere
with the orderly administration of justice and divert scarce judicial resources from
cases with merit.
It is the judgment of this Court that reasonable and necessary restraints
must be imposed upon Plaintiff and her ability to file motions and pleadings in
this consolidated Case no. 14 MR 272 against the Defendants herein and their
agents or representatives.
It is hereby ordered that Jody D. Kimbrell, or anyone acting on her behalf,
is enjoined from filing any new motions or pleadings in this Case No. 14 MR 272
against the Defendants herein or their agents or representatives and from filing
any new civil actions or proceedings in any court located in the 10th Judicial
Circuit against the Defendants herein or their agents or representatives, without
first obtaining leave of Court. Ms. Kimbrell is specifically enjoined and
prohibited from drafting any pleading, motion, complaint or written document of
6
any type in the name of any third party or for the use or benefit of any third party,
specifically including, but not limited to, Anna Isaacs and Michael Kimbrell.
To the extent Ms. Kimbrell desires to file motions or pleadings against the
Defendants herein or their agents or representatives in this Case No. 14 MR 272,
she shall file a ‘Motion Seeking Leave to File Pursuant to Court Order’ and shall
attach the proposed motion or pleading to the [motion]. She shall set the Motion
for hearing before the presiding judge in this matter. ***
To the extent Ms. Kimbrell desires to file a new lawsuit against the
Defendants herein or their agents or representatives in any court located in the
10th Judicial Circuit, she shall file a ‘Motion Seeking Leave to File Pursuant to
Court Order’ and shall attach the proposed Complaint or pleading to the [motion].
She shall set the Motion for hearing before the chief judge. ***
Ms. Kimbrell is further admonished that, as someone not licensed to
practice law in this state, she may not draft pleadings or file complaints on behalf
of her limited liability company [LLC] (Kimbrell Realty/JETH Court, LLC) or
any other corporate or business entity or she risks being sanctioned for the
unauthorized practice of law.”
¶ 12 II. Pleadings and Proceedings in This Case
¶ 13 A. Original Complaint
¶ 14 On October 6, 2016, Kimbrell, proceeding pro se, with her husband (Michael D.
Kimbrell), and her mother (Anna F. Isaacs) also named as plaintiffs, signed and filed a complaint
against State Bank of Speer and its president, Steven J. Leuthold, for “declaratory judgment.”
7
Kimbrell alleged that plaintiffs were the owners of property “known as 14-17-126-020” 5;
between July 27, 2009, and May 12, 2010, State Bank of Speer had given plaintiffs four
advances on a $400,000 construction loan, which totaled, $401,625; and all the construction loan
notes and mortgages were paid by the plaintiffs. Kimbrell attached to the complaint what she
alleged were copies of the paid notes. Kimbrell alleged that defendants unlawfully clouded
plaintiff’s title and requested a declaratory judgment indicating, among other things, that
plaintiffs owned the properties and were entitled to “the quiet and peaceful possession” of the
subject property.
¶ 15 In response, defendants filed a motion to dismiss the complaint. Defendants argued that
plaintiffs had made no allegations against Leuthold in his individual capacity and that plaintiff’s
pleading failed to state a claim. At the hearing on the motion to dismiss, defendants also argued
that the subject property had been foreclosed upon and was now owned by a third party who was
in possession of the entire property. Defendant also sought a dismissal of plaintiffs’ complaint
based upon the sanctions order entered in case No. 14-MR-272, on October 17, 2014, even
though defendant was not a named party in that case.
¶ 16 At the hearing on defendants’ motion to dismiss, defendants argued that valid loan
documents existed to bar plaintiffs from the relief they sought and that the affidavit of Leuthold,
which was attached to the motion to dismiss, established that the parties entered into five loans
secured by mortgages, which were subsequently consolidated into “two new and larger loans” in
5
Kimbrell further described property identification No. 14-17-126-020 as having been combined
from various other parcels of property and listed identification numbers for those various parcels of
property.
8
the amounts of $487,625 and $231,482.89. 6 Defendants argued that the two loans were “current
outstanding loans” in default, but collection efforts could not be undertaken due to plaintiffs
having pending bankruptcy proceedings.
¶ 17 In ruling, the trial court noted that the order from case No. 14-MR-272 had been
addressed by the chief judge in another case involving Kimbrell (case No. 16-CH-108) and had
been read “in a very limited fashion.” The trial court found plaintiffs had made no allegations
against Leuthold, individually, and granted the motion to dismiss Leuthold, with prejudice. The
trial court also granted defendants’ motion to dismiss for a failure to state a claim pursuant to
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2016)) with plaintiffs
allowed 28 days to file an amended complaint.
¶ 18 B. First Amended Complaint
¶ 19 On December 1, 2016, Kimbrell filed a pro se first amended complaint against State
Bank of Speer, with her mother and husband also named as plaintiffs in the caption. Kimbrell
described the action as an action to quiet title to real property regarding property identification
No. 14-17-126-020. 7 Kimbrell alleged the subject property was not part of the property
foreclosed upon by Fannie Mae. She also alleged that State Bank of Speer had filed a claim as a
creditor with a perfected mortgage lien and note of debt in her bankruptcy proceedings even
6
Leuthold’s affidavit indicated that he never interacted with plaintiffs outside of his capacity as a
representative of the State Bank of Speer; plaintiffs entered into five loans from July 27, 2009, through
November 8, 2010, and two subsequent loans consolidating those previous loans in the amounts of
$487,625 (secured by mortgage Nos. 1, 2, and 3) and $231,482.89 (secured by mortgage Nos. 4 and 5),
which had not been paid or released and were in default.
7
Kimbrell indicated that this was an action to quiet title to property located at 1324 to 1330 W.
Jeth Court, 1306 W. Jeth Court and 6522, 6600, and 6608 N. University Street in Peoria, Illinois. She
appears to further alleged that property identification No. 14-17-126-020 had been “combined from”
various parcels of property identification Nos. 14-17-126-004 (parcels A, B, and C), 14-17-126-015, 14­
17-126-016, 14-17-126-017, and 14-17-126-012 (an easement located on property identification No. 14­
17-126-004 and frontage parcels A, B, and C).
9
though it did not have a perfected mortgage lien against the subject property. Kimbrell alleged
that she was in possession of the original paid notes (related to the $400,000 construction loan)
and defendant failed to release the corresponding mortgages. Kimbrell contended that defendant
had released the original construction loan and never closed the mortgage related to a subsequent
note for $487,625.
¶ 20 In response, defendant filed a motion to dismiss, arguing that the first amended complaint
failed to state a cause a claim. Defendant also requested that the trial court rule “the Standing
Order from October 17, 2014” that had been entered in case No. 14-MR-272 was applicable to
the parties in this case.
¶ 21 At the hearing on defendant’s motion to dismiss, defendant’s attorney indicated that
plaintiffs had constructed a building on the property line of where Fannie Mae’s mortgage ended
and State Bank of Speer’s mortgage began. As a result, Fannie Mae had a mortgage for about
two-thirds of that building and State Bank of Speer had a mortgage for the remaining one-third.
Defendant’s attorney argued the only property plaintiffs could be in possession of was one-third
of a building and two vacant out lots because that was the only property that Fannie Mae had not
foreclosed upon. Defendant’s attorney also argued that while plaintiffs’ original loan had been
refinanced more than once, at no point was the debt released. Defendant’s attorney additionally
requested that the order of October 17, 2014, entered in case No. 14-MR-272, be found to be
applicable to defendant and the law firm of defendant’s attorney.
¶ 22 Kimbrell argued that State Bank of Speer refused to close on a mortgage when it was
discovered that the building encroached on property owned by Kimbrell’s limited liability
company, which Fannie Mae was mortgagee. Kimbrell argued that State Bank of Speer does not
10
have proper closing documents, the note was not notarized, and there was no corresponding
mortgage.
¶ 23 The trial court granted State Bank of Speer’s motion to dismiss, without prejudice. The
trial court also denied defendant’s request to be deemed an intended party of the standing order
of October 17, 2014, entered in case No. 14-MR-272. The trial court admonished Kimbrell, “you
may, in fact, have a cause of action for which some relief may be granted, but unless it’s
properly pled, we can’t even get there.” The trial court further also admonished Kimbrell that if
she filed an additional pleading without “substantial improvement in that pleading,” it would
mostly likely be dismissed with prejudice if a motion to dismiss was filed. The trial court noted a
dismissal with prejudice was “a drastic measure” that the court did not take lightly. The trial
court stated to Kimbrell, “I just want you to be aware, so that you act accordingly.”
¶ 24 C. Second Amended Complaint
¶ 25 On March 20, 2017, Kimbrell, “on behalf of herself, her spouse Michael D. Kimbrell and
her mother Anna F. Isaac,” filed a pro se, verified second amended complaint for “Quiet Title”
and a “Declaratory Judgment for Slander of Title,” requesting that the court “declare the
respective rights of parties in and to real property the subject of [the] complaint.” Kimbrell
described the subject property8 and requested that the trial court determine the priority of
competing liens or encumbrances, declare that an interest or lien appearing in the public records
was invalid, and find that documents held by defendant were manufactured, were not signed by
plaintiffs, were never “closed,” and did not meet the requirements of applicable banking and
8
Kimbrell alleged, “[t]his action pertains to the properties known as 1324-1330 W. Jeth Ct.
Peoria, IL 61614 combined tax IDs 14-17-126-004, 14-17-126-019; frontage lots A & B, 14-17-126-015
1 ac R-7 parking lot/wooded lot 1306 W. Jeth Ct, 14-17-126-016 6522 N University St, 14-17-126-017
6600 N University and 14-17-126-012-Parcel C 6608 N University common addresses and Tax ID.
Parcels A-B-C case 99-CH-393 survey Exhibit A.”
11
mortgage laws. Kimbrell alleged that on July 27, 2009, she obtained a construction loan from
State Bank of Speer for $401,625 to erect a new building “on the now combined parcel 14-17­
126-004 (combined with parcel A, B, and encroached parcel 14-17-126-019 easement by
necessity acquired ground).” Kimbrell attached various documents to the second amended
complaint as evidence that the related notes/mortgages were “released.” Kimbrell stated that, at
the time of the closing on the “final mortgage,” it was discovered that “a small parcel was
encroached on belonging to [Kimbrell’s] LLC building 14-17-126-001” and defendant State
Bank of Speer “did not close the mortgage.” Kimbrell alleged that plaintiffs never signed either
of the notes that State Bank of Speer was claiming was evidence of liens against the subject
properties and there were no corresponding mortgages or closing statements. In further support
of her quiet title claim, Kimbrell additionally alleged that she was in possession of the subject
properties and defendant “even sends their pleadings to the address.” 9
¶ 26 In response, defendant filed a motion to dismiss the second amended complaint, arguing
plaintiffs failed to allege necessary facts to sufficiently state a claim. Defendant specifically
argued that plaintiffs could not bring an action for quiet title because they were not in possession
of the subject property, with defendant contending that property identification No. 14-17-126­
012, “at a minimum,” was included as part of the property foreclosed upon by Fannie Mae and
subsequently sold to a third party. Defendant argued that the loans were not paid or released, the
loans were currently in default, and collection efforts could not be pursued due to Kimbrell’s
pending bankruptcy case. Defendant also argued the second amended complaint was a nullity
that must be dismissed because Kimbrell was engaging in the unauthorized practice of law by
filing the second amended complaint “on behalf of herself, her spouse Michael D. Kimbrell and
9
Kimbrell’s address of record is listed as 6608 N. University Street in Peoria, Illinois, on her
filings and in the notices defendant sent to Kimbrell.
12
her mother Anna F. Isaacs.” Defendant stated that despite the numerous argued motions, the
other two plaintiffs have never appeared in court or “uttered a single word into the record on
their own behalf.” In addition, defendant requested that the trial court rule that “the Standing
Order from October 17, 2014, applie[d] to the parties in this case.”
¶ 27 On July 27, 2017, at the hearing on defendant’s motion, defendant requested that
plaintiff’s second amended complaint be dismissed with prejudice because Kimbrell was
engaging in the unauthorized practice of law by acting on behalf of her mother and husband.
Defendant also argued that plaintiffs did not have title to the subject property and, therefore,
could not bring a claim for quiet title. Defendant explained that it held a mortgage on a small
portion of the subject property, which was at issue in Kimbrell’s pending bankruptcy case, and
the remainder of the property had been foreclosed upon by Fannie Mae and sold to a third party.
Defendant also argued that plaintiffs failed to state a claim for slander of title and that the loans
were never paid.
¶ 28 In response, Kimbrell argued that her second amended complaint was filed solely on
behalf of herself. She additionally argued that she filed the current suit to have State Bank of
Speer “verify a mortgage that’s remaining on the parcels” to include a description of the property
and prove a corresponding note of debt. Kimbrell argued that State Bank of Speer never
completed closing documents to be able to claim a first mortgage lien on the subject property and
requested that the trial court declare that there was no mortgage lien held by State Bank of Speer
related to the subject property.
¶ 29 III. Trial Court’s Ruling
¶ 30 In ruling, the trial court indicated that it was clear from the language of the complaint that
Kimbrell “is representing three plaintiffs” and that Kimbrell’s pro se second amended complaint
13
had been “put forth” also on behalf of her mother and her husband. The trial court stated,
“[a]side from that issue, the remainder of the complaint is incomprehensible.” The trial court
stated that it could not discern what Kimbrell was requesting and did not know how defendant
could intelligently respond to it, noting that it was Kimbrell’s third attempt at filing a complaint.
Kimbrell stated, “[t]here is no third yet, unless you let me leave to try again.” After going back
and forth with Kimbrell as to whether she had filed two or three complaints, the trial court stated,
“it can’t keep going, and I am going to dismiss with prejudice.” The trial court stated, “[w]ith
regard to sanctions,” it would incorporate the order from case No. 14-MR-272 entered on
October 17, 2014, into its order. The trial court denied the request of defendant’s attorney to add
himself and his law firm to the sanctions order.
¶ 31 In the written order, the trial court indicated that: (1) State Bank of Speer’s motion to
dismiss plaintiffs’ verified second amended complaint pursuant to section 2-619 of the Code of
Civil Procedure (735 ILCS 5/2-619 (West 2016)) and for sanctions was granted; (2) the second
amended complaint was “dismissed in its entirety with prejudice”; (3) the order entered in case
No. 14-MR-272 on October 17, 2014, was adopted in this case as if fully set forth within, in
favor of all defendants, their agents and representatives, “except to those portions pertaining to
Anna Isaacs”; and (4) plaintiffs’ motion for summary judgment and all other pending motions
and pleadings were moot in light of the dismissal of the second amended complaint. 10
¶ 32 Kimbrell appealed.
¶ 33 ANALYSIS
10
After filing the second amended complaint in this case and prior to defendant filing its motion
to dismiss, Kimbrell filed a motion for summary judgment on April 17, 2017. She, thereafter, filed a
“motion request for admission of facts” and a “motion to deem facts admitted and for sanctions.”
14
¶ 34 Kimbrell’s notice of appeal was filed with only herself as the named plaintiff in the
caption and with her proceeding pro se as the only appellant. Kimbrell alleged in the notice of
appeal, liberally construed, that the second amended complaint had stated a claim for quiet title
and requested that the trial court declare the respective rights of the parties in regard to the
subject property. Kimbrell argued she could not have asserted her claim for quiet title “any
plainer” and the trial court’s dismissal of the second amended complaint as “incomprehensible”
demonstrated the trial court’s bias toward her as a pro se plaintiff. 11 Kimbrell requested that this
court reverse the trial court’s dismissal order and remand this case for the trial court to determine
who had superior title to the subject property. Kimbrell’s appellate brief contains arguments that
are difficult to follow, with many interwoven superfluous and tangential statements, similar to
the pleadings and motions filed by Kimbrell in the trial court. Liberally construing Kimbrell’s
pro se notice of appeal and pro se brief on appeal, it appears that Kimbrell argues that the trial
court erred in dismissing her second amended complaint with prejudice because she properly
alleged a quiet title action and a slander of title action.
¶ 35 On appeal, defendant argues, among other things, that the trial court was required to
dismiss the second amended complaint as a nullity because Kimbrell, who is not an attorney,
engaged in the unauthorized practice of law by filing the second amended complaint on behalf of
her husband and mother in addition to herself. Defendant also argues, inter alia, that the second
amended complaint was deficient on its face where it contained “virtually no substantive facts
whatsoever”; Kimbrell was unable to adequately plead possession of the property to support her
claim for quiet title; and Kimbrell failed to state a claim for declaratory relief by failing to
indicate “what, if any, alleged ripe controversy must be determined.”
11
Kimbrell further argued that defendant had admitted it did not have a mortgage on the subject
property by way of its failure to respond to her Illinois Supreme Court Rule 216 (eff. July 1, 2014)
request to admit.
15
¶ 36 In addressing defendant’s argument that Kimbrell’s second amended complaint must be
treated as a nullity due to Kimbrell engaging in the unauthorized practice of law, we note that the
Illinois Supreme Court has the inherent power to define and regulate the practice of law in this
state. Downtown Disposal Services, Inc. v. City of Chicago, 2012 IL 112040, ¶ 14. The Illinois
Supreme Court has promulgated regulatory rules to govern the admission of lawyers to the state
bar, regulate the practice of law and the conduct of lawyers, and prescribe discipline for lawyer
misconduct. Ford Motor Credit Co. v. Sperry, 214 Ill. 2d 371, 383 (2005), overruled in part on
other grounds, LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 42. These regulatory rules are
intended to safeguard the public from individuals unqualified to practice law and to ensure the
integrity of our legal system. Downtown Disposal Services, 2012 IL 112040, ¶ 14 (citing Sperry,
214 Ill. 2d at 383).
¶ 37 Under the nullity rule, proceedings in a suit by a person not entitled to practice law are a
nullity and “ ‘the suit may be dismissed’ ” and, if the cause proceeded to judgment, the judgment
is void. Sperry, 214 Ill. 2d at 389 (quoting Remole Soil Service, Inc. v. Benson, 68 Ill. App. 2d
234, 239 (1966)). The nullity rule is grounded in the fact that there are risks to individual clients
and the integrity of the legal system inherent in the representation by an unlicensed person. Id. at
389-90. “The purpose of the nullity ‘rule is *** to protect litigants against the mistakes of the
ignorant and the schemes of unscrupulous and to protect the court itself in the administration of
its proceedings from those lacking the requisite skills.’ ” Id. at 390 (quoting Janiczek v. Dover
Management Co., 134 Ill. App. 3d 543, 546 (1985)).
¶ 38 Our supreme court has specifically held that the application of the nullity rule is not
automatic and, “[i]nstead, the circuit court should consider the circumstances of the case and the
facts before it when determining whether dismissal is proper.” Downtown Disposal Services,
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2012 IL 112040, ¶¶ 31, 36 (holding “there is no automatic nullity rule” and rejecting the
contention that any act of legal representation undertaken by a nonattorney on behalf of a
corporation renders the proceedings void ab initio). A per se nullity rule is unreasonable, and
sanctions for violating the rule against the unauthorized practice of law should be in proportion
to the gravity of the violations’ consequences. Id. ¶ 30. Because the consequences of applying
the nullity rule can be harsh, it should be invoked only where it fulfills the purposes protecting
the public and the integrity of the court system from the actions of the unlicensed and where no
alternative remedy is possible. Id. (citing Applebaum v. Rush University Medical Center, 231 Ill.
2d 429, 438 (2008)).
¶ 39 In Downtown Disposal Services, the trial court had granted the defendant’s motion to
dismiss administrative review complaints filed by the plaintiff-corporation’s president, who was
not an attorney and, therefore, had engaged in the unauthorized practice of law. Id. ¶¶ 17-19 (a
corporation must be represented by counsel in legal proceedings). Our supreme court stated that
in determining whether to apply the nullity rule, a trial court should consider, among other
things, “whether the nonattorney’s conduct [was] done without knowledge that the action was
improper, whether the corporation acted diligently in correcting the mistake by obtaining
counsel, whether the nonattorney’s participation [was] minimal, and whether the participation
result[ed] in prejudice to the opposing party.” Id. ¶ 31. Our supreme court indicated that an
action is properly dismissed where the nonlawyer’s participation on behalf of the corporation is
substantial or the corporation does not take prompt action to correct the defect. Id. Our supreme
court noted that: the corporation’s president was not aware that he could not prepare and sign the
complaint for administrative review; the administrative law officer advised the corporation’s
president on procedures for filing the complaint, which as a layperson, he could have interpreted
17
as directing him personally to execute the filing; the participation of the corporation’s president
was minimal in that he filed a preprinted form with plaintiff’s name, address, the date of the
administrative decision, and the docket numbers; and the corporation’s president made no
unscrupulous attempt to litigate on behalf of the corporation. Id. ¶ 32. Our supreme court
concluded that the trial court should have allowed an alternative remedy, rather than dismissing
the complaint as nullity, by permitting the corporation to amend its complaint for administrative
review to add counsel’s signature. Id. ¶¶ 32, 34, 36 (holding the lack of an attorney’s signature
on a complaint does not render the complaint for administrative review null and void or mandate
dismissal in all instances and, where a nonattorney signs a complaint for administrative review
on behalf of a corporation, the trial court should afford the corporation an opportunity to retain
counsel and amend the complaint if the facts so warrant).
¶ 40 Here, Kimbrell filed the second amended complaint at issue not only on her own behalf
but also “on behalf of” her husband and her mother and, additionally, was the only person who
represented the three plaintiffs at the hearings in this case. See Marken Real Estate &
Management Corp. v. Adams, 56 Ill. App. 3d 426, 429 (1977) (the signing of a complaint by a
nonattorney constitutes the unauthorized practice of law). A lay person may only appear on his
or her own behalf and may not represent another in a court of law. Blue v. People, 223 Ill. App.
3d 594, 596 (1992); see also 705 ILCS 205/1 (West 2016) (“[n]o person shall be permitted to
practice as an attorney or counselor at law within this State without having previously obtained a
license for that purpose from the Supreme Court of this State”). Thus, Kimbrell, who is not an
attorney, engaged in the unauthorized practice of law.
¶ 41 We note and distinguish, however, in reference to Kimbrell’s filing on behalf of her
husband, the case of Custom Builders, Inc. v. Clemons, 52 Ill. App. 3d 399 (1977), wherein this
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court held that it was not error for the trial court to allow the attorney representing the husband
and wife to withdraw and allow the wife to proceed pro se and represent her codefendant
husband, who did not appear and took no part in the proceedings. The Clemons case is
distinguishable from this case, where the pro se wife in that case was defending the suit filed
against herself and her husband. See 750 ILCS 65/2 (West 2016) 12 (“If husband and wife are
sued together, either may defend for his or her own right and, if either neglects to defend, the
other may defend for both.”). Here, Kimbrell filed the action and signed the complaint on behalf
of herself and her husband and mother, and she was not defending a suit.
¶ 42 Arguably, prior to our supreme court’s decision in Downtown Disposal Services, the
effect of a nonattorney’s unauthorized practice of law on behalf of a party was to “require”
dismissal of the cause or to treat the particular actions taken by the representative as a nullity.
(Emphasis in original.) Downtown Disposal Services, 2012 IL 112040, ¶¶ 47, 49 (Karmeier, J.,
dissenting, joined by Kilbride, C.J., and Thomas, J.) (quoting Sperry, 214 Ill. 2d at 390 and
noting that courts of Illinois had only previously declined to apply the nullity rule in situations
“where an actual lawyer was involved or appeared to be involved in the case at the time the
proceeding was initiated”). However, pursuant to our supreme court’s decision in Downtown
Disposal Services, the trial court was required to consider the circumstances of the case and the
facts before it in determining whether to dismiss the second amended complaint as a nullity due
to Kimbrell’s unauthorized practice of law. Id. ¶¶ 31, 36 (majority opinion). Given that the trial
court was required to weigh several factors in determining whether the second amended
complaint should be dismissed as a nullity, we review the trial court’s decision in that regard for
an abuse of discretion. See id. ¶ 31.
12
Our supreme court has not ruled on the efficacy of this statute as it relates to spousal
representation.
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¶ 43 Here, in determining whether a dismissal on nullity grounds is proper, we note that
Kimbrell filing the pleadings on behalf of her mother and husband was done with knowledge that
the action was improper. Under the order entered in case No. 14-MR-272 entered on October 17,
2014, Kimbrell had been specifically “enjoined and prohibited from drafting any pleading,
motion, complaint or written document of any type in the name of any third party or for the use
or benefit of any third party, specifically including, but not limited to, Anna Isaacs and Michael
Kimbrell.” None of the plaintiffs obtained counsel. Kimbrell’s participation on behalf of her
husband and her mother in this case was far from “minimal.” Rather, her participation was
substantial where she filed the original complaint, filed two subsequent amended complaints,
filed various motions, including a motion for summary judgment, and made arguments before
the trial court in support of her pleadings and motions and in response to defendant’s motions to
dismiss. Despite Kimbrell indicating that her second amended complaint was filed solely on
behalf of herself, Kimbrell’s mother and husband were named plaintiffs and the trial court found
that it was “clear” from the language of the pleading that Kimbrell was representing all three
plaintiffs.
¶ 44 Furthermore, there is no clear alternative to applying the nullity rule in this case. Section
2-616 of the Code of Civil Procedure provides, in part,
“(a) At any time before final judgment amendments may be allowed on
just and reasonable terms, introducing any party who ought to have been joined as
plaintiff or defendant, dismissing any party, changing the cause of action or
defense or adding new causes of action or defenses, and in any matter, either of
form or substance, in any process, pleading, bill of particulars or proceedings,
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which may enable the plaintiff to sustain the claim for which it was intended to be
brought or the defendant to make a defense or assert a cross claim.
***
(c) A pleading may be amended at any time, before or after judgment, to
conform the pleadings to the proofs, upon terms as to costs and continuance that
may be just.” 735 ILCS 5/2-616 (West 2016).
In determining whether the trial court has abused its discretion in deciding not to allow a party
leave to amend a pleading, we consider the following factors: (1) whether the proposed
amendment would cure the defective pleading, (2) whether other parties would sustain prejudice
or surprise by virtue of the proposed amendment, (3) whether the proposed amendment is timely,
and (4) whether there had been previous opportunities to amend. Loyola Academy v. S&S Roof
Maintenance, Inc., 146 Ill. 2d 263, 273 (1992).
¶ 45 Here, in deciding to dismiss the second amended complaint as a nullity, the trial court
noted that Kimbrell had three opportunities to file a coherent complaint and the second amended
complaint at issue was “incomprehensible.” Kimbrell requested “leave to try again.” The trial
court stated, “it can’t keep going.” Our review of the second amended complaint shows that it
was chaotic in nature and contained allegations and arguments that were difficult to discern, even
when liberally construed. Kimbrell had three opportunities to file a sufficient complaint, and
there was no indication that allowing an additional amendment would result in a cure to the
defective pleading. Thus, as to Kimbrell, the facts and circumstances of this case do not indicate
the trial court abused its discretion in refraining from allowing her another opportunity to amend
the complaint to either add counsel’s signature or to proceed pro se solely on her own behalf.
Additionally, allowing an amendment of the pleading in regard to Kimbrell’s mother and
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husband was not appropriate because neither of them have formally appeared in this matter. We,
therefore, conclude that the trial court did not abuse its discretion in finding there was not an
alternative remedy to a dismissal of the second amended complaint.
¶ 46 Consequently, given that the facts and circumstances of this case do not support an
alternative remedy to a dismissal, Kimbrell’s representation on behalf of her mother and husband
rendered the proceedings null and void where Kimbrell is not a licensed attorney capable of
bringing claims on behalf of her mother and husband. Although the trial court’s written order
indicates this matter was dismissed pursuant to section 2-619 of the Code, our review of the trial
court’s oral rulings indicates this matter was, in fact, dismissed as a nullity where the trial court
found that Kimbrell was engaging in the unauthorized practice of law in that it was “clear” she
was representing all three plaintiffs. Therefore, we affirm the trial court’s dismissal of the second
amended complaint as a nullity.
¶ 47 As a final matter, we note the attorney for defendant had requested that the trial court rule
that the previous sanctions order entered pursuant to Rule 137 against Kimbrell in case No. 12­
MR-272 be made applicable to defendant in this case. The trial court incorporated that order into
the order entered in this case. Rule 137 provides,
“Every pleading, motion and other document of a party represented by an attorney
shall be signed by at least one attorney of record in his individual name, whose
address shall be stated. A party who is not represented by an attorney shall sign
his pleading, motion, or other document and state his address. *** If a pleading,
motion, or other document is signed in violation of this rule, the court, upon
motion or upon its own initiative, may impose upon the person who signed it, a
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represented party, or both, an appropriate sanction.” Ill. S. Ct. R. 137 (eff. July 1,
2013).
¶ 48 On appeal, Kimbrell makes no argument as to whether the Rule 137 sanctions order
entered in this case was an abuse of the trial court’s discretion. See Dismuke v. Rand Cook Auto
Sales, Inc., 378 Ill. App. 3d 214, 217 (2007) (a reviewing court will not disturb a trial court’s
decision regarding Rule 137 sanctions absent an abuse of discretion). We, therefore, do not
address the propriety of the Rule 137 sanctions order entered by the trial court in this case.
¶ 49 CONCLUSION
¶ 50 The judgment of the circuit court of Peoria County is affirmed.
¶ 51 Affirmed.
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