Mohiddin v. Hwangbo , 2022 IL App (1st) 210211-U ( 2022 )


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    2022 IL App (1st) 210211-U
    FOURTH DIVISION
    June 9, 2022
    No. 1-21-0211
    NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
    limited circumstances allowed under Rule 23(e)(1).
    ______________________________________________________________________________
    IN THE APPELLATE COURT
    OF ILLINOIS
    FIRST JUDICIAL DISTRICT
    ______________________________________________________________________________
    MOHAMMAD MOHIUDDIN,                                ) Appeal from the
    ) Circuit Court of
    Plaintiff-Appellee,                           ) Cook County
    )
    v.                                                 ) No. 16 CH 11061
    )
    KYUN HWANGBO and ELIZABETH HWANGBO,                ) Honorable
    ) Neil H. Cohen,
    Defendants-Appellants.                        ) Judge Presiding.
    ____________________________________________________________________________
    PRESIDING JUSTICE REYES delivered the judgment of the court.
    Justices Lampkin and Rochford concurred in the judgment.
    ORDER
    ¶1     Held: The appeal is dismissed for lack of jurisdiction where the notice of appeal was
    untimely.
    ¶2     Plaintiff Mohammad Mohiuddin filed a complaint for specific performance and breach of
    contract in the circuit court of Cook County against defendants Kyun Hwangbo and Elizabeth
    Hwangbo based on a real estate contract executed by the parties. The circuit court ultimately
    entered a final order resolving all issues and took the case off call. Approximately two months
    later, defendants filed a pro se notice of appeal. As discussed below, we dismiss this appeal for
    lack of jurisdiction based on the untimely notice of appeal.
    1-21-0211
    ¶3                                          BACKGROUND
    ¶4     Defendants owned an apartment building in Melrose Park, Illinois (the property). In
    December 2015, defendants entered into a written real estate contract for the sale of the property
    to plaintiff for $300,000. Plaintiff subsequently requested modifications to the contract; he
    allegedly reserved the right to proceed under the contract if his modifications were not accepted.
    After defendants did not accept his modifications, plaintiff communicated that he was ready,
    willing, and able to close at the contract price of $300,000, but defendants apparently refused.
    ¶5     In August 2016, plaintiff filed a complaint against defendants for specific performance
    and breach of contract. Defendants did not file an appearance or answer, and plaintiff filed a
    motion for a default judgment, which was granted. Following a prove-up in September 2017, the
    circuit court ordered a closing within 30 days (which did not occur). The circuit court also
    ordered specified amounts to be deducted from the net proceeds to defendants, including
    plaintiff’s earnest money and certain attorney fees.
    ¶6     In November 2018, plaintiff filed a motion to modify the September 2017 order.
    According to plaintiff, his former counsel was unresponsive when plaintiff attempted to prepare
    for the closing. 1 A title search obtained by his new counsel revealed, among other things,
    numerous judgment liens against defendants and the property from the Village of Melrose Park
    for ordinance violations. In the motion, plaintiff sought additional amounts – attorney fees and
    the rental payments which defendants continued to collect from the tenants of the property – as
    well as the execution of a judicial deed as an equitable remedy for defendants’ “contemptuous
    refusal” to comply with the court order, i.e., refusal to cooperate in the transfer of the property.
    In an order entered in February 2019, the circuit court granted the requested relief.
    1
    His counsel had been suspended from the practice of law based on a felony conviction.
    2
    1-21-0211
    ¶7       Following the execution of a judicial deed, defendants continued to refuse to cooperate
    and continued to collect rent from the tenants at the property. Plaintiff filed a motion to appoint
    a receiver to manage the property and effectuate a closing. After the circuit court granted the
    motion and appointed a receiver, defendants filed an appearance through counsel.
    ¶8       In September 2019, defendants filed a motion to quash service, claiming they were never
    properly served with the summons years earlier. Following an evidentiary hearing, the circuit
    court denied the motion. The circuit court subsequently entered multiple orders regarding
    defendants’ failure to comply with its directives. Among other things, the court found that
    certain financial documents tendered by defendants to the receiver were “wholly insufficient.”
    ¶9       The closing on the property eventually took place on August 6, 2020. Shortly thereafter,
    the receiver filed a report and recommendation regarding the distribution of the sale proceeds.
    ¶ 10     Following a hearing with all counsel and the receiver present, the circuit court adopted
    the report and recommendation in an order entered on December 30, 2020. The order authorized
    the receiver to make specified payments, including various attorney fees and estimated lost rental
    profits to plaintiff. The remaining funds in the amount of $32,328.41 were to be distributed to
    defendants. The receivership was terminated, and the receiver and his counsel were discharged.
    The order concluded by providing that (a) judgment was rendered in favor of plaintiff; (b) the
    case was off call; and (c) there was no just reason for delaying the enforcement or appeal of the
    order.
    ¶ 11     On January 15, 2021, defendants filed a pro se motion requesting 30 days to find another
    attorney to represent them. As provided in their notice of motion, a hearing was held on
    January 28, 2021. An order entered on that date states in part:
    “[Judgment] having already been rendered in favor of the Plaintiff and the case being off
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    1-21-0211
    call, the Court has advised the [Hwangbos] that they may hire any attorney they choose
    without the approval of the court. The court notes that the Hwangbos have not filed any
    motion(s) seeking to extend any deadline in this case and, that being the case, no
    deadlines are extended in relation to the December 30, 2020 final and appealable order.”
    Defendants filed a notice of appeal in the circuit court on February 26, 2021, which listed the
    date of the order being appealed as January 28, 2021.
    ¶ 12                                       ANALYSIS
    ¶ 13   As a preliminary matter, we observe that no appellee’s brief has been filed by plaintiff.
    While we may decide the merits of an appeal without an appellee brief where the issues and
    record are simple (First Capitol Mortgage Corp. v. Talandis Construction Corp., 
    63 Ill. 2d 128
    ,
    133 (1976)), we will not do so in this case, as we lack appellate jurisdiction.
    ¶ 14   Regardless of whether the parties have raised the issue, a reviewing court must ascertain
    its jurisdiction before proceeding in a cause of action. Secura Insurance Co. v. Illinois Farmers
    Insurance Co., 
    232 Ill. 2d 209
    , 213 (2009). The filing of the notice of appeal is the jurisdictional
    step that initiates appellate review. General Motors Corp. v. Pappas, 
    242 Ill. 2d 163
    , 176
    (2011). See also Secura Insurance, 
    232 Ill. 2d at 213
     (noting that the “timely filing of a notice of
    appeal is both jurisdictional and mandatory”). Unless there is a properly filed notice of appeal,
    the appellate court lacks jurisdiction over the matter and is obligated to dismiss the appeal.
    General Motors, 
    242 Ill. 2d at 176
    .
    ¶ 15     Illinois Supreme Court Rule 303 mandates that a notice of appeal must be filed within
    30 days of a final order, unless a “timely posttrial motion directed against the judgment is filed.”
    Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). In that event, the notice of appeal is due “within 30
    days after the entry of the order disposing of the last pending postjudgment motion directed at
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    1-21-0211
    that judgment or order.” 
    Id.
     An untimely motion – or a motion not directed against the
    judgment – does not stay the judgment or extend the time for appeal. Stanila v. Joe, 
    2020 IL App (1st) 191890
    , ¶ 12.
    ¶ 16   “A judgment or order is ‘final’ if it disposes of the rights of the parties, either on the
    entire case or on some definite and separate part of the controversy.” Dubina v. Mesirow Realty
    Development, Inc., 
    178 Ill. 2d 496
    , 502 (1997). Accord Stanila, 
    2020 IL App (1st) 191890
    , ¶ 11.
    The final order herein was the order entered on December 30, 2020, which fully disposed of the
    rights of the parties. See 
    id.
     In the order, the circuit court accepted the receiver’s report and
    recommendation, directed the receiver to make specified payments instanter, terminated the
    receivership and relieved the receiver of any further duties, and stated that the case “is now off
    call.” The order also provided that “[t]here is no just reason for delaying the enforcement or
    appeal of the matter.”
    ¶ 17   Pursuant to Rule 303(a)(1), defendants’ notice of appeal was thus due at the circuit court
    clerk’s office within 30 days of the December 30, 2020 order, or by January 29, 2021. Ill. S. Ct.
    R. 303(a)(1) (eff. July 1, 2017). Plaintiffs filed their notice of appeal on February 26, 2021,
    nearly two months after the entry of the December 30, 2020, order, so their appeal could be
    timely only if filed within 30 days of the resolution of a timely and proper motion directed
    against the final judgment. Heiden v. DNA Diagnostic Center, Inc., 
    396 Ill. App. 3d 135
    , 138
    (2009). See also Stanila, 
    2020 IL App (1st) 191890
    , ¶ 12 (noting that Rule 303(a)(1) provides
    that if a timely postjudgment motion is filed, the time in which to file a notice of appeal is tolled
    and the notice of appeal is due “within 30 days after the entry of the order disposing of the last
    pending postjudgment motion directed against that judgment or order”).
    ¶ 18   Not every motion that is filed after a circuit court has entered judgment constitutes a
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    1-21-0211
    “postjudgment motion” under Rule 303(a)(1). Pro Sapiens, LLC v. Indeck Power Equipment
    Co., 
    2019 IL App (1st) 182019
    , ¶ 53. “A motion tolls the time for filing a notice of appeal and
    qualifies as a proper postjudgment motion if it requests one or more of the types of relief
    authorized in section 2-1203” of the Code of Civil Procedure (Code) (735 ILCS 5/2-1203 (West
    2020)). Stanila, 
    2020 IL App (1st) 191890
    , ¶ 17. To toll the time for appeal, a postjudgment
    motion must request at least one of the forms of relief specified in section 2-1203 of the Code,
    i.e., rehearing, retrial, modification, vacation, or other relief directed against the judgment.
    Heiden, 396 Ill. App. 3d at 140-41. Accord Pro Sapiens, LLC, 
    2019 IL App (1st) 182019
    , ¶ 53.
    ¶ 19   The notice of appeal herein lists the date of the judgment appealed from as January 28,
    2021. The record reflects that the sole matter considered during the hearing on that date was
    defendants’ pro se motion – filed on January 15, 2021 – requesting 30 days to retain a new
    attorney. 2 The motion does not expressly reference or implicitly invoke the forms of relief
    specified in section 2-1203 of the Code. As the motion neither attacked nor challenged the order
    entered on December 30, 2020, it plainly was not “directed against the final judgment.” McNally
    v. Bredemann, 
    2015 IL App (1st) 134048
    , ¶ 22. Although not dispositive, we further note that
    the circuit court expressly stated in its January 28, 2021 order that defendants “have not filed any
    motion(s) seeking to extend any deadline in this case and, that being the case, no deadlines are
    extended in relation to the December 30, 2020 final and appealable order.”
    ¶ 20   In conclusion, the motion filed on January 15, 2021, was not a postjudgment motion
    directed at the December 30, 2020 order, and the time period for filing a notice of appeal was not
    tolled. As the “timely filing of an appeal is both jurisdictional and mandatory”
    2
    Defendants’ motion provides: “I Kyun & Elizabeth Hwangbo need to find another attorney to
    represent me[.] [P]lease allow me 30 days to find another attorney to represent me[.] Thank you.”
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    1-21-0211
    (Secura Insurance, 
    232 Ill. 2d at 217
    ), we are required to dismiss the instant appeal as untimely.
    See Dus v. Provena St. Mary’s Hospital, 
    2012 IL App (3d) 091064
    , ¶ 10.
    ¶ 21                                  CONCLUSION
    ¶ 22   For the reasons discussed above, this appeal is dismissed for lack of jurisdiction.
    ¶ 23   Appeal dismissed.
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