2025 IL App (1st) 221941-U Fourth Division Filed January 16, 2025 Nos. 1-22-1941, 1-23-0272, 1-23-0500 cons.
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
FIRST AMERICAN PROPERTIES AND ) ACQUISITIONS, INC., ) Appeal from the ) Circuit Court of Cook County Plaintiff-Appellee, ) No. 2019 L 009969 v. ) ) The Honorable Jerry A. Esrig, HARRY OIL, LLC, and VIPUL M. PATEL, ) Judge, presiding. Defendants-Appellants. )
JUSTICE OCASIO delivered the judgment of the court. Presiding Justice Rochford and Justice Hoffman concurred in the judgment.
ORDER
¶1 Held: In these consolidated appeals, we found that we lacked jurisdiction over the interlocutory appeal from the order granting plaintiff partial summary judgment on liability. After finding we had appellate jurisdiction over the appeals from the interlocutory order denying the defendants’ motion for stay of proceedings and from the final judgment, we affirmed the denial of the stay, the order granting partial summary judgment on liability only, and the final judgment.
¶2 These consolidated appeals arise out of a suit for breach of contract and breach of guaranty
brought by plaintiff, First American Properties and Acquisitions, Inc. (First American), against
defendants, Harry Oil, LLC, and Vipul M. Patel. Nearly three years after the complaint was filed,
the defendants sought leave to amend their counterclaims to include new causes of action against
First American and one of its corporate officers. The proposed claims involved an unrelated
transaction. The trial court denied leave to amend, and it also denied the defendants’ alternative Nos. 1-22-1941, 1-23-0272, 1-23-0500 cons.
request to stay proceedings to allow them to bring their claims in a separate lawsuit and then seek
to consolidate the two cases for trial. The defendants filed a notice of appeal from the denial of the
stay (No. 1-22-1941). While the appeal was pending, the trial court granted First American partial
summary judgment on liability only, and after a prove-up of damages, it entered judgment for First
American. The defendants took separate appeals from the order granting partial summary
judgment on liability (No. 1-23-0272) and from the judgment order (No. 1-23-0500).
¶3 On appeal, the defendants argue that the trial court abused its discretion by denying a stay
and, due to the pending interlocutory appeal from that order, lacked jurisdiction to proceed to
judgment. First American contends that we lack jurisdiction to review any of the orders being
appealed. For the following reasons, we affirm the order denying a stay of proceedings (No. 1-22-
1941), dismiss the appeal from the order granting partial summary judgment (No. 1-23-0272), and,
in the appeal from the final judgment, affirm both the order granting partial summary judgment on
liability and the entry of judgment in favor of First American (No. 1-23-0500).
¶4 I. BACKGROUND
¶5 On September 10, 2019, First American filed a two-count complaint for breach of contract
against Harry Oil and breach of a guarantee against Patel. The complaint alleged that, in 2007,
Harry Oil secured a $577,000 loan from the Small Business Administration by executing a
promissory note, and Patel executed an individual guarantee of payment under the note. The note
and the guarantee were later assigned to First American. The complaint further alleged that, in
2018, the defendants defaulted on their respective obligations, and it sought payment of the
outstanding principal plus interest, which, at the time the complaint was filed, amounted to
approximately $650,000. The defendants’ answer raised seven counterclaims. 1 Five of the
counterclaims involved an alleged settlement agreement between the parties that, the defendants
alleged, First American breached by filing suit. The sixth counterclaim sought equitable rescission
1 The prayers for relief all named Patel as a counterplaintiff; Harry Oil was only named as a counterplaintiff in the count claiming unjust enrichment.
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of the underlying note based on fraud in the inducement. The seventh counterclaim sought to
recover in quantum meruit. On February 1, 2022, the trial court dismissed all but one of the
counterclaims—counterclaim two, which alleged breach of an oral settlement agreement—on the
motion of First American. The court gave the defendants 21 days to amend their counterclaims,
but the defendants did not do so.
¶6 In August 2022, about one month before the close of discovery, the defendants filed a joint
“Motion for Leave to File Second [Sic] Amended Answer, Affirmative Defenses and
Counterclaims and to Add Niki-Alexander Shetty as Counter-Defendant.” Approximately 26 hours
later, they then filed an “Amended Motion for Leave to Plead New Counterclaims or Alternatively
to Stay Proceedings Pending Separate Lawsuit and Consolidation for Trial,” which we take to be
an amended version of the motion filed the day before. Both motions were supported by what
appears to be identical documents entitled “Verified Second [sic] Amended Answer, Affirmative
Defenses and Counterclaims of Defendants Harry Oil LLC and Vipul M. Patel.” The proposed
amended counterclaims included three new claims, all naming Patel as the sole counterplaintiff,
alleging that First American and its president, Niki-Alexander Shetty, had fraudulently induced
him to transfer $750,000 in funds related to the mortgage on a property in Will County. There
seems to be no dispute that the allegedly fraudulent transaction is not factually related to First
American’s claims in this case. 2 The motion justified the belated request to plead new
counterclaims by asserting that the defendants first learned about the allegedly fraudulent conduct
after they received a notice of delinquency in April 2022. Alternatively, the defendants asked the
court to stay proceedings in this case so they could file a separate action raising his new claims
that could, eventually, be consolidated for trial with this case.
2 The proposed amended counterclaims also amended five of the original claims, four of which had already been dismissed, to name Harry Oil as an additional plaintiff and to add Shetty as a defendant to three breach-of-contract claims. On appeal, the defendants do not raise any arguments concerning their implicit request to make those additional amendments. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited.”).
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¶7 In November 2022, with the motion to plead new counterclaims still pending, First American
filed a motion for summary judgment. In its motion, First American sought judgment on both
liability and for damages based in part on the defendants’ failure to make payments on the note
and the guarantee. In the alternative, First American asked the court to enter partial summary
judgment on liability and set a prove-up hearing for damages. The court entered a briefing schedule
and set the motion to be heard on January 13, 2023.
¶8 On December 6, 2022, the court held a hearing on the motion for leave to plead new
counterclaims. In an order entered after the hearing, the court denied the motion without prejudice
to the defendants’ ability to assert those claims in a separate action. It also denied the alternative
request for a stay of proceedings “for the reasons stated on the record.” 3 On December 27, 2022, the defendants filed a notice of appeal from the December 6, 2022 denial of a stay. The appeal was
docketed under No. 1-22-1941. The defendants later filed what purported to be a three-volume
Rule 328 supporting record.
¶9 Meanwhile, the defendants did not file a response to the pending motion for summary
judgment, and they did not appear at the January 13, 2023 hearing on the motion. After the hearing,
the court entered an order granting First American’s partial summary judgment on liability and set
the case for a damages prove-up hearing on February 16. The court also ordered First American to
provide evidence of the claimed damages, including the loan ledger. On February 10, 2023, the
defendants filed a notice of appeal from the January 13 order. The appeal was docketed under No.
1-23-0272.
¶ 10 Counsel for the defendants appeared at the February 16, 2023 prove-up hearing, but only for
the purpose of challenging the court’s jurisdiction given the pending appeal from the denial of the
defendants’ request for a stay (No. 1-22-1941). The court found that the pending appeal did not
3 As originally filed, the record on appeal did not include a transcript of the hearing. After filing their reply brief, the defendants sought to supplement the record on appeal with the transcript. We denied that belated request.
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deprive it of jurisdiction, and, based on the evidence of damages presented, it entered a final
judgment in favor of First American for $917,021.65.
¶ 11 On March 16, 2023, the defendants filed a notice of appeal from the February 16 final
judgment order. The appeal was docketed under No. 1-23-0500.
¶ 12 At the defendants’ request, we consolidated all three appeals.
¶ 13 II. ANALYSIS
¶ 14 The defendants argue on appeal that the trial court erred by denying a stay and that the
pendency of their interlocutory appeal deprived the trial court of jurisdiction to enter the orders
granting partial summary judgment on liability and entering final judgment, including damages,
in favor of First American. First American contends that the defendants never properly invoked
this Court’s jurisdiction and, accordingly, that the trial court retained jurisdiction to proceed to
judgment.
¶ 15 A. Appellate Jurisdiction
¶ 16 We will begin by evaluating our own jurisdiction in each appeal, which we would have an
independent duty to do even absent a party’s challenge to it. People v. Smith, 228 Ill. 2d 95, 104
(2008). In general, we have jurisdiction to review appeals from final orders or judgments. See Ill.
Const. 1970, art. VI, § 6; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). Interlocutory orders are only
reviewable as authorized by the supreme court rules. EMC Mortgage Corp. v. Kemp, 2012 IL
113419, ¶ 9. Appellate jurisdiction is a question of law that we review de novo. People v. Van Dyke,
2020 IL App (1st) 191384, ¶ 41.
¶ 17 We find that we have jurisdiction to review the stay order entered on December 6, 2022 that
is the subject of appeal No. 1-22-1941. Although that order is interlocutory, Rule 307(a)(1)
authorizes interlocutory appeals of orders “granting, modify, refusing, dissolving, or refusing to
dissolve or modify an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2017). It is well-established
that an order denying a stay of proceedings is injunctive in nature and, accordingly, appealable on
an interlocutory basis. Blumenthal v. Brewer, 2016 IL 118781, ¶ 39. First American argues that,
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even if the stay is reviewable, the trial court’s decision not to permit the defendants to plead new
counterclaims is not. But as we understand the defendants’ briefs, they are not challenging the trial
court’s denial of their request to raise new counterclaims, only the court’s denial of a stay, so we
need not consider that point.
¶ 18 The January 13, 2023 order granting partial summary judgment was also a nonfinal order,
and we agree with First American that no supreme court rules authorize an interlocutory appeal
from a nonfinal order that grants a motion for summary judgment on a portion of the complaint
but does not enter final judgment thereon. Therefore, we lack jurisdiction in appeal No. 1-23-0272,
which is not an authorized interlocutory appeal. First American’s motion to dismiss that appeal,
which we took with the case, is granted.
¶ 19 In contrast to the first two appeals, appeal No. 1-23-0500 is an appeal from a final judgment
order, so we necessarily have jurisdiction. See Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 301 (eff.
Feb. 1, 1994). Our jurisdiction, moreover, is not limited to reviewing the final judgment order
itself: we are also empowered to review “any interlocutory orders that were a ‘step in the
procedural progression’ leading to the judgment.” Northbrook Bank & Trust Co. v. 2120 Div. LLC,
2015 IL App (1st) 133426, ¶ 8 (quoting CitiMortgage, Inc. v. Bukowski, 2015 IL App (1st) 140780,
¶ 13). That includes, obviously, the January 13, 2023 order that granted partial summary judgment
on liability and set the case for a proof-of-damages hearing. Hence, although we are dismissing
appeal No. 1-23-0272, we are satisfied that we have jurisdiction to review the order that was the
subject of that appeal.
¶ 20 B. Denial of Stay of Proceedings
¶ 21 We now turn to the merits of the trial court’s decision to deny the defendants’ request for a
stay of proceedings. The defendants sought that stay as an alternative in the event that the trial
court denied leave to plead their new counterclaims so that they could file those claims in a separate
action and then seek consolidation with this case for trial. The decision to grant or deny a stay is
within the trial court’s discretion. Universal Metro Asian Services Association v. Mahmood, 2021
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IL App (1st) 200584, ¶ 26. In determining whether the trial court abused its discretion, the
reviewing court should not decide whether it disagrees with the trial court. Instead, the reviewing
court should reverse only if it finds that the trial court “ ‘acted arbitrarily without the employment
of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and
ignored recognized principles of law so that substantial prejudice resulted.’ ” May v. SmithKline
Beecham Clinical Laboratories, Inc., 304 Ill. App. 3d 242, 246 (1999) (quoting Zurich Insurance
Co. v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 594-95 (1991)).
¶ 22 Here, we are unable to evaluate the trial court’s exercise of its broad discretion to determine
whether to stay proceedings. The court’s written order states that it denied a stay of proceedings
“for the reasons stated on the record.” But the record on appeal does not contain a transcript from
the hearing, so it does not disclose what reasons the court gave for denying a stay. The defendants,
as the appellants, bear the burden of presenting a complete record in support of their claim of error.
Foutch v. O’Bryant, 99 Ill. 2d 389, 391 (1984). When the record is not complete, we presume that
what was missing would have disclosed a proper legal and factual basis for entering the order
being challenged. Id. at 392. “As there is no transcript of the hearing on the motion *** here, there
is no basis for holding that the trial court abused [its] discretion in denying the motion.” Id.
¶ 23 With that said, we recognize that, on February 8, 2023, the defendants filed a motion in this
court seeking leave to file the report of proceedings instanter, to which they attached a purported
transcript of the December 6, 2022 hearing. At that time, the only appeal pending was the Rule
307 interlocutory appeal in No. 1-22-1941, and the only record on appeal was the Rule 328
supporting record. See Ill. S. Ct. R. 307(a) (eff. Nov. 1, 2017); Ill. S. Ct. R. 328 (eff. July 1, 2017).
The transcript, however, was not “authenticated by the certificate of the clerk of the trial court or
by the affidavit of the attorney or party filing it.” Ill. S. Ct. R. 328 (eff. July 1, 2017). Accordingly,
on February 17, 2023, we denied the motion without prejudice to the filing of a supplemental
record which was properly certified and transmitted for electronic filing by the circuit court clerk.
Nearly 21 months later, on November 15, 2024—which was after First American filed its brief—
the defendants finally sought leave to file the transcript instanter as a supplemental record, but we
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denied that motion because no certified supplemental record had been transmitted by the circuit
court. It was not until December 2, 2024, that the defendants sought leave to file a supplemental
record that had been properly certified and transmitted by the circuit court. First American objected
to the December 2 motion on the grounds of prejudice and untimeliness, and those objections are
well-taken. As appellants, the defendants had the responsibility not only to provide a sufficient and
properly prepared record on appeal but also to do so in a timely manner. See Ill. S. Ct. R. 326 (eff.
July 1, 2017) (requiring record to be filed within 63 days of the filing of the notice of appeal). They
failed to discharge that responsibility, and they have not offered any good for us to excuse their
lack of diligence.
¶ 24 Based on the record before us, we discern no abuse of discretion in the trial court’s denial of
the motion to stay. The case was in a posture for disposition on the alleged failure to make
payments on a note and a guarantee, and the new claims that defendants sought to be raised were
not related to the claims that were ready for adjudication. The order denying a stay of proceedings
is affirmed.
¶ 25 C. Partial Grant of Summary Judgment and Entry of Final Judgment
¶ 26 The defendants next argue that the pendency of their interlocutory appeal from that order
deprived the trial court of jurisdiction to proceed on First American’s motion for summary
judgment, grant that motion in part as to liability, hold a damages prove-up hearing, and then enter
judgment against the defendants, rendering those actions void. See In re Gonder, 139 Ill. App. 3d
627, 628 (1986) (“If the circuit court attempts to act after notice of appeal [from a final judgment]
is filed, but before the reviewing court’s mandate is returned, such actions are void.”). But contrary
to the defendants’ suggestion in their briefs, an interlocutory appeal does not entirely deprive the
trial court of jurisdiction over the case. It only “divests the trial court of jurisdiction to change or
modify the interlocutory order that is on appeal or to make any ruling that would affect the subject
matter or substance of that interlocutory order.” Landmarks Illinois v. Rock Island County Board,
2020 IL App (3d) 190159, ¶ 36 (citing R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d
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153, 162 (1998)). The trial court retains “jurisdiction to hear and determine matters in the pending
litigation that arise independently of and are unrelated to the interlocutory order before the
reviewing court.” Hartz v. Brehm Preparatory School, Inc., 2021 IL App (5th) 190327, ¶ 32. The
notice of interlocutory appeal, in other words, “merely served to restrain the trial court from either
changing or modifying the injunction order, and from taking any other action which would
interview with appellate review of that order.” Payne v. Coates-Miller, Inc., 68 Ill. App. 3d 601,
608 (1979).
¶ 27 Here, the trial court took no further action with respect to its order denying a stay.
Furthermore, proceeding on the motion for summary judgment, granting that motion in part,
holding a damages prove-up hearing, and entering final judgment had no impact on our ability to
review the denial of a stay. “A stay order seeks only to preserve the status quo existing on the date
of its entry and does not address in any way the merits of the underlying dispute.” Kaden v.
Pucinski, 263 Ill. App. 3d 611, 615 (1994). Although the entry of judgment defeated the objective
of the requested stay, it did not prevent us from affording appropriate relief on appeal: had we
found that the trial court abused its discretion by denying the stay, we would have been able to
restore the proceedings to the status quo that existed on December 6, 2022, by vacating the trial
court’s subsequent orders and final judgment. See Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994)
(authorizing reviewing court to “make any *** orders and grant any relief *** that the case may
require”). Hence, the notice of appeal from the December 6, 2022 denial of a stay did not deprive
the trial court of jurisdiction to proceed to judgment on the merits. Neither the January 13, 2023
order granting, in part, First American’s motion for summary judgment nor the February 16, 2023
final judgment order are void.
¶ 28 The defendants do not challenge the merits of the trial court’s grant of partial summary
judgment or its entry of final judgment in favor of First American. Accordingly, they have forfeited
any merits-based arguments they might have raised. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020)
(“Points not argued are forfeited.”). We therefore affirm the trial court’s order granting partial
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summary judgment as to liability and its entry of the final monetary judgment in favor of First
American.
¶ 29 III. CONCLUSION
¶ 30 For the foregoing reasons, we affirm the trial court’s December 6, 2022 interlocutory order
insofar as it denied a stay of proceedings, we dismiss the defendants’ appeal from the January 13,
2023 interlocutory order granting the motion for summary judgment, and we affirm both the
January 13, 2023 order granting partial summary judgment as to liability and the entry of final
judgment in favor of First American and against the defendants.
¶ 31 No. 1-22-1941, Order affirmed.
¶ 32 No. 1-23-0272, Appeal dismissed.
¶ 33 No. 1-23-0500, Judgment affirmed.
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