365 Group Inc. v. JP Morgan Chase Bank N.A.

• Court: Appellate Court of Illinois
• Decided: June 23, 2023
• Docket: 1-12-21259
• Status: Published

Opinion

2023 IL App (1st) 1221259

FIFTH DIVISION June 23, 2023

No. 1-22-1259

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 DISTRICT

365 GROUP INC., an Illinois corporation, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) ) v. ) No. 21 L 4653 ) JPMORGAN CHASE BANK, N.A., ) ) Honorable Defendant-Appellee. ) James Snyder, ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Mitchell and Lyle concurred in the judgment.

ORDER

¶1 Held: We dismiss this appeal for lack of jurisdiction. The appellant voluntarily dismissed its first, and timely, appeal of the dismissal order, and it could not revive that appeal by filing a second, untimely, notice of appeal.

¶2 BACKGROUND

¶3 The plaintiff-appellant, 365 Group Inc., sued its bank, JPMorgan Chase (Chase), alleging

that Chase improperly withheld about $60,000 from its bank account. The circuit court of Cook No. 1-22-1259

County dismissed 365 Group’s second amended complaint with prejudice. Numerous procedural

mishaps happened along the way. In sum, we dismiss this appeal for lack of jurisdiction.

¶4 FACTS

¶5 365 Group’s second amended complaint (complaint) against Chase is the operative

complaint for the purposes of this appeal. The complaint pleaded three counts: Count I, breach of

contract; Count II, conversion; and Count III, unjust enrichment. All counts were based on the

same underlying facts. 365 Group alleged that it was a Chase account holder. On August 6, 2020,

Susan Heiber, a Recovery Investigator for Chase, sent 365 Group a letter stating in pertinent part:

“Based on fraudulent activity on your deposit account, we debited $60,630.50 from your account

ending in 9763 for money you owe. We also restricted and may be closing your account(s).” In its

complaint, 365 Group noted that it believed Chase’s actions were related to the actions of a

company named BBX Logistics, whom Chase might have believed had some relationship to 365

Group.

¶6 Chase moved to dismiss the complaint pursuant to section 2-615 of the Illinois Code of

Civil Procedure (Code), 735 ILCS 5/2-615 (West 2020). On January 14, 2022, when Chase first

presented the motion, 365 Group did not appear. The court granted the motion without briefing or

argument, and dismissed the complaint with prejudice. At this point, the court had granted two

previous section 2-615 motions to dismiss with leave to amend, each after full briefing.

¶7 On January 26, 365 Group filed a “motion to clarify” the January 14 order, stating that its

counsel had contacted Chase’s counsel by voice mail to say that he had a scheduling conflict and

was requesting that Chase have the court enter a briefing schedule on the motion. In this motion,

365 Group asked the court to explain why it granted the motion to dismiss without briefing or

argument, but did not request that the court actually vacate the dismissal order.

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¶8 On February 14, 365 Group filed a virtually identical motion to its motion to clarify, titled

a “motion for clarification and reconsideration,” which only differed in that it specifically

requested that the court reconsider the dismissal order.

¶9 Chase responded to the motions, arguing that the court’s standing orders permitted it to

grant the motion to dismiss without briefing or argument. On February 28, the court denied what

is characterized as “the motion to reconsider.”

¶ 10 On March 28, 365 Group filed a notice of appeal, seeking review of the January 14

dismissal order. That notice of appeal was docketed in this court as docket no. 1-22-0442, and was

randomly assigned to this court’s Third Division for motion purposes (the first appeal).

¶ 11 The filing of the notice of appeal did not halt proceedings in the circuit court. On April 25,

365 Group filed a motion for approval of a bystander’s report pursuant to Illinois Supreme Court

Rule 323(c) (eff. July 1, 2017), which was set for hearing on May 11. On May 10, Chase filed an

agreed statement of facts and bystander’s report.

¶ 12 On May 11, while the first appeal of the January 14 dismissal order remained pending in

this court, the circuit court entered an order which vacated the dismissal order sua sponte and set

a briefing and discovery schedule on the complaint.

¶ 13 On May 16, Chase filed a motion to vacate the May 11 order, arguing that it was void for

lack of jurisdiction. Chase argued that the circuit court had no jurisdiction to vacate the original

dismissal order because 365 Group filed a valid and timely notice of appeal of that order, and

jurisdiction regarding it had lodged in this court. On July 25, the circuit court granted Chase’s

motion, noting the pending appeal. The court further noted that it granted Chase’s motion to

dismiss the complaint without a hearing because 365 Group had not appeared when it presented

that motion.

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¶ 14 At this point, we must briefly digress to describe what was happening in this court. On May

13, 365 Group filed a motion in this court on the first appeal. In that motion, 365 Group requested

that this court dismiss the first appeal “without prejudice” because the circuit court’s May 11 order,

which vacated dismissal of the complaint, rendered the appeal “moot.” Chase responded to 365

Group’s motion to dismiss its appeal, stating that 365 Group had a “misguided” belief that its

appeal was moot because the circuit court only “purported” to vacate the dismissal order. Further

explaining, Chase noted that the circuit court lacked any jurisdiction to vacate the dismissal order

once 365 Group had filed its timely appeal of the final and appealable dismissal order. Chase also

stated that an appeal cannot be dismissed “without prejudice” because once an appeal is dismissed,

it cannot be reinstated at a later date. Chase asked this court to deny the motion to dismiss the

appeal as moot, and stated that if 365 Group wanted to dismiss its appeal for some other reason, it

would be “free to do so.” 365 Group did not take the hint; it did not withdraw its motion to

voluntarily dismiss the first appeal, nor did it ask this court for leave to file a reply to Chase’s

response pursuant to Illinois Supreme Court Rule 361(b) (eff. Feb. 21, 2023).

¶ 15 On June 6, 2022, a motion panel of this court’s Third Division entered an order stating:

“Appellant’s Motion to Dismiss without prejudice is denied. As the order on appeal has been

vacated, the issues on appeal are moot. Accordingly, the instant appeal is dismissed with

prejudice.” That order terminated the first appeal.

¶ 16 That brings us back to the circuit court. On August 19, 365 Group filed a second notice of

appeal, this time seeking review of both the circuit court’s January 14 and July 25 orders. That

established the appeal now pending before us (the second appeal). Chase filed a motion to dismiss

this second appeal for lack of jurisdiction, which was fully briefed, but apparently never ruled on

by the Third Division. Accordingly, the parties proceeded to full briefing on the merits.

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¶ 17 ANALYSIS

¶ 18 The brief makes no arguments directed at the July 25 order. The argument section of 365

Group’s brief is entirely devoted to its contention that the circuit court abused its discretion by

dismissing the complaint with prejudice without briefing or hearing. Chase notes, quite correctly,

that the argument section of the brief fails to cite a single case authority or statute. Illinois Supreme

Court Rule 341(h)(7) (eff. Oct. 1, 2020) governs the content of appellants’ briefs, and provides

that the brief must contain: “Argument, which shall contain the contentions of the appellant and

the reasons therefor, with citation of the authorities and the pages of the record relied on.” Both an

argument and citation to relevant authority are required. As our supreme court has stated, a

“reviewing court is not simply a depository into which a party may dump the burden of argument

and research.” People ex rel. Illinois Department of Labor v. E.R.H. Enterprises, 2013 IL 115106,

¶ 56. The rules of procedure concerning appellate briefs are rules, not mere suggestions, and it is

within our discretion to strike a brief and dismiss the appeal for failure to comply with those rules.

See Niewold v. Fry, 306 Ill. App. 3d 735, 737 (1999). However, because we are able to discern the

legal issues from the record and Chase’s brief, we decline to dismiss the appeal. See Twardowski

v. Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001) (the court may entertain

an appeal as long as it understands the issues the appellant intends to raise and where it has “the

benefit of a cogent brief of the other party”).

¶ 19 365 Group’s jurisdictional statement asserts that this court has jurisdiction over its second

appeal of the January 14 order under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994), which

allows appeals from final judgments. The arguments in Chase’s brief mirror those it made in its

unresolved motion to dismiss this second appeal. Chase contends that this court has no jurisdiction

over 365 Group’s appeal of the January 14 order, and that the circuit court had no jurisdiction to

5 No. 1-22-1259

enter the July 25 order, which was listed in the second notice of appeal. Chase also notes that 365

Group filed its second notice of appeal over 7 months from the final judgment being appealed,

well in excess of the 30 days allowed by Illinois Supreme Court Rule 303(a)(1) (eff July 1, 2017).

Therefore, Chase concludes, this court should dismiss the entire second appeal for lack of

jurisdiction. We agree with Chase.

¶ 20 On January 14, 2022, the circuit court entered a final order dismissing the case with

prejudice pursuant to section 2-615. On February 14, 365 Group filed a timely motion to reconsider

that order, which stayed the time for it to file an appeal. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017)

(notice of appeal of a final judgment may be filed “within 30 days after the entry of the order

disposing of the last pending postjudgment motion directed against that judgment or order”). On

February 28, the circuit court denied 365 Group’s motion to reconsider. On March 28, 365 Group

filed its first notice of appeal, which was timely and duly docketed in this court. At that point, the

circuit court no longer had jurisdiction over the January 14 dismissal order, for two reasons.

¶ 21 First, it had already denied one postjudgment motion, and under Illinois Supreme Court

Rule 274 (eff. July 1, 2019), “[a] party may make only one postjudgment motion directed at a

judgment order that is otherwise final and appealable.” Second, the March 28, 2022 notice of

appeal divested the circuit court of jurisdiction. Our supreme court has explained that:

“A notice of appeal is a procedural device filed with the trial court that, when timely filed,

vests jurisdiction in the appellate court in order to permit review of the judgment such that

it may be affirmed, reversed, or modified. Once the notice of appeal is filed, the appellate

court's jurisdiction attaches instanter, and the cause of action is beyond the jurisdiction of

the circuit court.” (Internal citations omitted.) General Motors Corporation. v. Pappas, 242

Ill. 2d 163, 173 (2011).

6 No. 1-22-1259

¶ 22 Chase was therefore correct when it argued in the first appeal that 365 Group could not

dismiss its appeal “without prejudice,” so as to be able to refile it. And the Third Division was

correct in dismissing the first appeal with finality, although it was not correct in stating that the

appeal was moot because the circuit court had vacated the order. This is because, by the time it

vacated the January 14, 2022 dismissal order on May 11, the circuit court lacked jurisdiction to do

so. 1 365 Group should have heeded the warning Chase implied in its response to the motion to

dismiss the first appeal—that because the circuit court’s order vacating the dismissal order was

void, 365 Group would forever lose its ability to seek review of the January 14 dismissal order if

it dismissed the first appeal for any reason. 365 Group could have prevented this result by

withdrawing its motion to dismiss the first appeal, but it did not do so. “By voluntarily dismissing

its appeal, appellant must be held to have contemplated the effect and necessary result of such act.”

People ex rel. Waite v. Bristow, 391 Ill. 101, 113 (1945).

¶ 23 CONCLUSION

¶ 24 All of this leads inexorably to the conclusion that this court has no jurisdiction over this

second appeal of the January 14, 2022 dismissal order. We dismiss the appeal for lack of

jurisdiction.

¶ 25 Appeal dismissed.

1 We note that the circuit court was nonetheless able to consider the various motions regarding bystander’s reports, because the circuit court maintains jurisdiction over all matters pertaining to its own record even if a valid notice of appeal has been filed divesting it of jurisdiction generally. Ill. S. Ct. R. 329 (eff. July 1, 2017).