Coleman v. Seaway Bank & Trust Co. , 2022 IL App (1st) 200971-U ( 2022 )

2022 IL App (1st) 200971-UNo. 1-20-0971
Order filed June 30, 2022
SIXTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
CHARLES E. COLEMAN, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellant, )
)
v. ) No. 2014 CH 20116
)
SEAWAY BANK & TRUST COMPANY, ) The Honorable
SYLVESTER and JENNIFER ) Franklin U. Valderama,
IWUCHUKWU, CHICAGO TITLE LAND ) Judge, presiding.
TRUST COMPANY as TRUSTEE OF )
TRUST NUMBER 8002355906, )
SMITH-ROTHCHILD FINANCIAL )
COMPANY and CITY OF CHICAGO, )
)
Defendants )
)
(Seaway Bank & Trust Company, and )
Sylvester and) Jennifer Iwuchukwu, )
Defendants-Appellees). )
JUSTICE SHARON ODEN JOHNSON delivered the judgment of the court.
Justices Harris and Mikva concurred in the judgment.
ORDER
¶1 HELD: Appeal dismissed for lack of jurisdiction
No. 1-20-0971
¶2 In the case at bar, the trial court granted summary judgment in favor of defendants. Plaintiff
failed to file either a notice of appeal or a postjudgment motion within 30 days. For reasons
that we explain in more detail below, we dismiss the appeal for lack of jurisdiction.
¶3 BACKGROUND
¶4 In this suit, plaintiff Charles E. Coleman alleged that he did not sign a warranty deed for
certain real property located in Chicago and, therefore, the property was not transferred to
defendants Sylvester and Jennifer Iwuchukwu, the purported grantees, on April 16, 1993. The
Iwuchukwus granted a mortgage encumbering the property to defendant Seaway Bank & Trust
Company (Seaway). On December 16, 2014, plaintiff Coleman filed this suit seeking a
declaratory judgment that the signature on the deed was forged and seeking the ejectment of
the Iwochukwus from the property.
¶5 Plaintiff had filed an almost factually identical complaint in 2013, under case No. 2013 CH
25807. In the 2013 complaint, the first count was entitled “Quiet Title,” instead of
“Declaratory Judgment”; and the second count was entitled “Possession,” instead of
“Ejectment.” In the 2013 case, defendant Seaway moved, on April 3, 2015, to dismiss count
1, which was the only count directed at defendant Seaway. The motion was filed pursuant to
section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2018) on the grounds
that plaintiff’s suit was filed after the expiration of any and all possible applicable statutes of
limitation and that defendant Seaway was a bona fide purchaser without knowledge of the
alleged fraud. On June 16, 2015, in a 5-page memorandum order, Judge David B. Atkins of
the Circuit Court of Cook County granted defendant Seaway’s motion to dismiss count 1 with
prejudice and also dismissed count 2, the ejectment count against the Iwuchukwus, without
prejudice.
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¶6 On July 13, 2015, the Iwochukwus moved Judge Franklin U. Valderama in the instant
suit to dismiss the 2014 complaint with prejudice on the basis of Judge Atkins’ order
dismissing the 2013 suit. On September 30, 2015, Judge Valderama issued a written order in
which he dismissed, “on the court’s own motion,” count 1 of the 2014 complaint “with
prejudice for failure to state a cause of action for a declaratory judgment.” Count 2, the count
against the Iwochukwus, was “transferred to the Presiding Chancery Judge for transfer to the
municipal division as no equitable claims remain.” The Iwochukwus’ motion to dismiss was
“also transferred and entered and continued generally.” On September 30, 2015, the presiding
judge, as requested, issued a transfer order, transferring the remaining count to the “Municipal
Department,” on the ground that “neither party has any equitable claims.”
¶7 On January 7, 2016, the Iwochukwus moved to transfer the case to “the Forcible
Detainer Division.” On February 23, 2016, the presiding judge of the chancery division
transferred the case back to Judge Valderama. On August 25, 2016, Judge Valderama issued
a memorandum order denying the Iwochukwus’ motion to dismiss count 2, which was the
ejectment count. On November 14, 2016, plaintiff filed an amended complaint which added a
third count for “injunctive relief.” On February 7, 2017, the Iwochukwus moved to dismiss
again, and the trial court ordered defendant Seaway Bank to answer or otherwise plead to
plaintiff’s amended complaint. On March 2, 2017, defendant Seaway Bank moved to dismiss
counts 1 and 3, for a declaratory judgement and for injunctive relief, which were the two counts
against it. On September 7, 2017, the court entered a written order stating “Defendants’
motions are denied w/o prejudice.”
¶8 After a year of discovery, defendant Seaway filed on August 7, 2018, a motion for
partial summary judgment as to counts 1 and 3, the two counts against it. On February 1,
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2019, the trial court denied the motion in an 11-page memorandum opinion. In conclusion,
the trial court found: “As there are genuine issues of material fact as to the alleged forgery of
the Warranty Deed, whether and when the Iwochukwus paid all that was owed on the
Installment Contract, and whether and when the Iwochukwus’ possession of the Property
satisfied the elements of adverse possession, Seaway’s motion for summary judgment is
denied.”
¶9 After the denial, defendant moved to take additional discovery, namely, the deposition
of Diane Shelley, the notary public who had witnessed plaintiff’s signature on the disputed
warranty deed. On August 29, 2019, her deposition was taken, and she testified that she was
currently a circuit court judge. Judge Shelley testified that she had been a circuit court judge
for 13 years but, prior to assuming the bench, she had practiced law and had been a notary
public. As a notary public, her “general procedure” was “to either know the person personally”
such that she was “able to vouch for that individual” or to “request some type of identification.”
After verifying the person’s identity and witnessing his or her signing of the document, Shelley
would then sign the document herself and affix a notary seal. In 1993, Shelley represented the
Iwochukwus at the closing in question, acting as their attorney, and plaintiff Coleman was also
present. While Shelley did not have a specific memory of notarizing Coleman’s signature, she
identified her signature and notary seal at the bottom of the document and testified that she
believed that she had notarized it. Shelley testified that she would not have signed and stamped
the document if she had not been able to see Coleman sign and verify his identity. Over the
last 25 years, plaintiff has tried to contact Shelley repeatedly “by phone, by mail, by Internet,”
leaving messages in which he asked for legal advice or about election matters or “accus[ed]
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people of fraud.” However, she has never responded because she has “never taken him
seriously.”
¶ 10 After the notary’s deposition, defendant Seaway moved for summary judgment on
November 6, 2019. In addition to the notary’s deposition and other documents, Seaway
attached statements from “dueling” handwriting experts. Plaintiff’s handwriting expert opined
that it was “more likely than not” that the signature on the disputed deed was not plaintiff’s
signature, whereas defendants’ handwriting expert had opined that it was “highly probable”
that the signature was plaintiff’s signature. Defendant Seaway’s motion moved for summary
judgement in favor of both itself and the Iwochukwus.
¶ 11 Plaintiff Coleman did not file a response to the motion, and his attorney moved to
withdraw. The motion to withdraw was filed on January 9, 2020, and it cited “an irretrievable
breakdown in the attorney/client relationship.” On Monday, January 27, 2020, the trial court
granted both defendant Seaway’s motion for summary judgment and plaintiff’s attorney’s
motion to withdraw.
¶ 12 At the January 27, 2020, hearing, plaintiff’s attorney stated:
“I can tell you that the plaintiff himself has received [the motion to withdraw] and has
been in discussion with our office about it. He understands that it’s our intent to
withdraw our appearance today. He had mentioned a possibility of filing his individual
appearance and mentioned a possibility of being here today, although I don’t see him
in the courtroom.”
The trial court responded that the proceeding was not scheduled for argument but solely for
ruling and, thus, it found that “there was no prejudice” since the court was not “expecting
argument.”
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¶ 13 On Thursday, February 27, 2020, or on the 31st day after the trial court’s grant of
summary judgment, plaintiff filed a pro se motion to reconsider the grant of both defendants’
summary judgment motion and his attorney’s motion to withdraw. Plaintiff claimed, among
other things, that he had not received “timely” notice of either the motion for summary
judgment or his attorney’s motion to withdraw. Plaintiff claimed that Shelley, the notary, had
slandered him in her deposition, and he attached exhibits to establish his good reputation.
Plaintiff attached an exhibit which purportedly showed that Shelley had claimed to represent
him, although she did not. Plaintiff argued that the court should not have let his attorney
“abandon” him when a summary judgment motion was pending and that defendant Seaway
must have been aware that plaintiff’s attorney had abandoned him and, thus, plaintiff would
have no response to the summary judgment motion.
¶ 14 On July 7, 2020, the trial court issued a written order that observed that “all parties”
were “present via virtual conference.” The order directed defendants to file a response on or
before July 21 and plaintiff to file his reply on or before August 4, 2020. The order provided
that a “ruling” would issue on August 13, 2020, at 9:30 a.m. at a Zoom hearing, “with the Court
to provide the parties with necessary instructions to participate.” Both Seaway and the
Iwochukwus filed responses arguing, among other things, that plaintiff’s reconsideration
motion was untimely and, therefore, the trial court lacked jurisdiction. On August 3, 2020, the
day before his reply was due, plaintiff moved for a 28-day extension “to continue his ongoing
effort, to hire a skilled legal advocate, or otherwise plead.”
¶ 15 On Thursday, August 13, 2020, the trial court issued an order that began with the
observation that “all parties” were “present via virtual conference.” The court denied plaintiff’s
motion to reconsider as untimely and found that the court, therefore, lacked jurisdiction. The
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trial court further found that plaintiff failed to provide any “substantive basis for the Court to
reconsider its prior ruling on summary judgment.” The court also denied plaintiff’s motion for
an extension. Thirty days after Thursday, August 13 was Saturday, September 12, 2020. The
next business day was Monday, September 14, 2020.
¶ 16 At 4 p.m. on Monday, September 14, 2020, plaintiff filed a pro se notice of appeal.
¶ 17 ANALYSIS
¶ 18 On March 7, 2022, defendant Sylvester Iwuchukwu filed a motion with this court to
dismiss plaintiff’s appeal for lack of jurisdiction. Plaintiff did not file a response to the motion.
We grant defendant’s motion for the following reasons.
¶ 19 I. Duty to Consider Jurisdiction
¶ 20 Although in this case one of the parties raised the jurisdictional issue, an appellate court
panel always has an independent duty to consider its own jurisdiction. People v Smith, 228 Ill.
2d 95, 106 (2008).
¶ 21 Our supreme court has stated that the ascertainment of a court’s own jurisdiction is one of
the “most important tasks of an appellate court panel when beginning the review of a case.”
Smith, 228 Ill. 2d at 106 (“We take this opportunity to remind our appellate court of the
importance of ascertaining whether it has jurisdiction in an appeal[.]”; R.W. Dunteman Co. v
C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998) (“A reviewing court must be certain of its
jurisdiction prior to proceeding in a cause of action.”)
¶ 22 II. A Timely Notice is Jurisdictional
¶ 23 An appellate court’s jurisdiction is dependent on the appellant’s timely filing of a notice
of appeal. Huber v. American Accounting Ass’n, 2014 IL 117293, ¶ 19. In fact, the timely
filing of a notice of appeal is the only jurisdictional step needed to initiate appellate review.
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People v. Patrick, 2011 IL 111666, ¶ 20. An appellant’s failure to file a timely notice leaves
this court without jurisdiction to hear his or her appeal. Huber, 2014 IL 117293, ¶ 19 (where
the appellant filed his notice of appeal after the 30-day deadline provided in the relevant
supreme court rule, the appellate court was correct in dismissing the appeal for lack of
jurisdiction); Patrick, 2011 IL 111666, ¶ 20. To ascertain whether a notice of appeal was
timely filed, we turn to the relevant supreme court rules and statutory provisions.
¶ 24 III. Statutory Interpretation
¶ 25 Since interpretation of a supreme court rule presents purely a question of law, our
review is de novo. VC&M, Ltd. v. Andrews, 2013 IL 114445, ¶ 13 (the proper interpretation
of Supreme Court Rule 303(a) “presents purely a question of law” and thus “proceeds de
novo”). De novo consideration means that we perform the same analysis that a trial judge
would perform. A.M. Realty, 2016 IL App (1st) 151087, ¶ 72.
¶ 26 When interpreting a supreme court rule, we are governed by the same rules that govern
statutory interpretation. VC&M, Ltd. v. Andrews, 2013 IL 114445, ¶ 30. Under those rules,
our primary objective is to ascertain and give effect to the intent of the rule’s drafters. VC&M,
Ltd. v. Andrews, 2013 IL 114445, ¶ 30. The most reliable indicator of the drafters’ intent is
the language used in the rule itself, which should be given its plain and ordinary meaning.
VC&M, Ltd. v. Andrews, 2013 IL 114445, ¶ 30.
¶ 27 IV. Supreme Court Rule 303
¶ 28 Regarding jurisdiction, plaintiff’s appellate brief asserts: “Jurisdiction of this case is
proper in the Appellate Court because this matter involves a final judgment from the Circuit
Court of Cook County, Illinois.” Plaintiff’s appellate brief does not cite a rule, but he does
assert that it is an appeal from a final judgment, and Illinois Supreme Court Rule 303 governs
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appeals from final judgments of the circuit court in civil cases. Ill. S.. Ct. R. 303 (eff. July 1,
2017).
¶ 29 Supreme Court Rule 303 provides, in relevant part, that “[t]he notice of appeal must be
filed with the clerk of the circuit court within 30 days after the entry of the final judgment
appealed from, or, if a timely posttrial motion directed against the judgment is filed *** within
30 days after the entry of the order disposing of the last postjudgment motion directed against
that judgment or order.” Ill. S.. Ct. R. 303(a)(1) (eff. July 1, 2017). The words of the rule
could not be more plain: only a “timely” postjudgment motion tolls the time to file the notice
of appeal. Ill. S.. Ct. R. 303(a)(1) (eff. July 1, 2017).
¶ 30 V. Supreme Court Rule 274
¶ 31 Defendant claims, and the trial court found, that the plaintiff’s postjudgment motion to
reconsider was untimely. The plain words of the applicable rule compel us to agree. Supreme
Court Rule 274 provides, in relevant part: “A party may make only one postjudgment motion
directed at a judgment order that is otherwise final and appealable. The motion must be filed
within 30 days of that judgment order or within the time allowed by any extensions.” Ill. S.
Ct. R. 274 (eff. July 1, 2019). In the case at bar, the “judgment order” at issue was the order
granting summary judgment in favor of defendants, and it was “otherwise final and
appealable.” Ill. S. Ct. R. 274 (eff. July 1, 2019). Plaintiff made “only one postjudgment
motion directed” against it, namely, his motion for reconsideration. Ill. S. Ct. R. 274 (eff. July
1, 2019). For that motion to be timely, it had to be “filed within 30 days” of the summary
judgment order (and it was not) or filed “within the time allowed by any extensions.” Ill. S.
Ct. R. 274 (eff. July 1, 2019). The appellate record does not disclose that any extensions were
granted, nor does plaintiff argue that any were.
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¶ 32 Similarly, section 2-1203 of the Code of Civil Procedure (Code) provides that, “[i]n all
cases tried without a jury, any party may, within 30 days after the entry of the judgment or
within any further time the court may allow within the 30 days or any extensions thereof, file
a motion for a rehearing.” 735 ILCS 5/2-1203 (West 2018). Under this section, after summary
judgment, a party’s reconsideration motion must be filed within 30 days, which was not done
here, or within “further time,” if allowed by the court. Within the 30-day period, a court may
allow “further time,” but that was not done here. 735 ILCS 5/2-1203 (West 2018).
¶ 33 Plaintiff’s motion for reconsideration claimed that he did not receive “timely” notice
of either defendant’s summary judgment motion or his attorney’s motion to withdraw. But he
did not claim a lack of timely notice of the decision itself. “Absent a timely-filed posttrial
motion, the trial court will lose jurisdiction over the case 30 days after it enters final judgment.”
Peraino v. County of Winnebago, 2018 IL App (2d) 170368, ¶ 14.
¶ 34 Although untimeliness was the primary reason cited by the trial court for denying his
motion to reconsider, plaintiff does not address this issue in his appellate brief. Thus, he makes
no arguments on appeal that his reconsideration motion was filed “within the time allowed by
any extensions.” Ill. S. Ct. R. 274 (eff. July 1, 2019). In his appellate brief, plaintiff claims
repeatedly that the notary public lied and committed fraud, and he asserts that the trial court
“totally tricked and bamboozled him,” but he does not address the untimeliness of his
reconsideration motion. Points not argued are waived for our consideration. Khan v. Fur Keeps
Animal Rescue, Inc., 2021 IL App (1st) 182694, ¶ 42 (where an appellant fails to raise an issue
in his appellate brief, he forfeits it for our consideration); Lozman v. Putnam, 379 Ill. App. 3d
807, 824 (2008); Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited
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and shall not be raised in the reply brief, in oral argument, in oral argument, or on petition for
rehearing.”).1
¶ 35 The closest that his appellate brief comes to addressing the untimeliness of his
reconsideration motion is to argue that defendant Seaway was aware that he was without an
attorney and that, as a result, Seaway was required to send its motion for summary judgment
to him. However, plaintiff’s appellate brief does not argue that he was unaware of either
defendant’s summary judgment motion or the trial court’s grant of summary judgment on
January 27, 2020. 2
¶ 36 While we understand that a pro se litigant may feel frustrated when he misses a filing
deadline by one day, this is also a reason not to try to wait until the very last day, as plaintiff
chose to do. Peraino, 2018 IL App (2d) 170368, ¶ 24 (although dismissing an appeal due to a
one-day filing error may “appear harsh,” the plaintiff could have filed anytime during the 30
days for an extension and instead chose to wait until the deadline before trying to file).
¶ 37 CONCLUSION
¶ 38 For the foregoing reasons, this appeal is dismissed for lack of jurisdiction.
¶ 39 Dismissed.
1
Defendant’s motion to dismiss the appeal as untimely also argues why we should not construe
plaintiff’s motion for reconsideration as a Section 2-1401 petition. 735 ILCS 5/2-1401 (West 2018).
Since plaintiff has made no argument that this should be done, either to the trial court or in his appellate
brief, this point is forfeited for our consideration. As we noted in the text, points not argued are waived.
2
Plaintiff’s appellate brief asserts that he received “no notice” of the August 13 hearing regarding
his reconsideration motion. He claims that defendant Seaway’s attorney called him on August 13, 2020,
which was the day that the trial court denied plaintiff’s motion to reconsider; that the attorney told him to
“hold on”; and that a person claiming to be Judge Valderama got on the phone, but that there was too
much ambient noise for plaintiff to be certain what the judge said. Plaintiff’s August 3 motion for an
extension, filed the day before his reply was due, suggests that he did have notice of the July 7 order
which also set the August 13 hearing. The August 13 order states that “all parties” were “present.”
However, a lack of notice of the August 13 hearing, even if it occurred, does not alter the fact that his
reconsideration motion was not timely filed.
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