Friedman v. Thorson

707 N.E.2d 624, 303 Ill. App. 3d 131, 236 Ill. Dec. 497, 1999 Ill. App. LEXIS 55
CourtAppellate Court of Illinois
DecidedFebruary 4, 1999
Docket1-98-2322
StatusPublished
Cited by18 cases

This text of 707 N.E.2d 624 (Friedman v. Thorson) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friedman v. Thorson, 707 N.E.2d 624, 303 Ill. App. 3d 131, 236 Ill. Dec. 497, 1999 Ill. App. LEXIS 55 (Ill. Ct. App. 1999).

Opinion

JUSTICE HOFFMAN

delivered the opinion of the court:

The defendant, Jeffrey Thorson, appeals from the trial court’s ruling on his motion to vacate, dissolve, or modify a temporary restraining order. For the reasons that follow, we find we have no jurisdiction and dismiss the appeal.

The plaintiff, Michael Friedman, and the defendant, Thorson, are the sole equal shareholders and officers in the defendant, FM Ware Industries, Inc. (the Corporation). On May 29, 1998, Friedman filed a “Verified Complaint for Injunctive Relief, Corporate Dissolution and Breach of Fiduciary [Duty]” against Thorson and the Corporation. On June 1, 1998, Friedman filed an emergency motion for a temporary restraining order and injunctive relief seeking, inter alia, an order requiring Thorson to immediately provide him with access to or a copy of a computer program developed by Thorson and owned by the Corporation. At a hearing that same day before Judge Robert V Boharic, Thorson appeared pro se, and Judge Boharic entered a temporary restraining order requiring, inter alia, that Thorson turn over the program on June 4, 1998.

On June 4, 1998, Thorson, who had retained counsel, filed an emergency motion to vacate, dissolve, or modify the temporary restraining order. Judge Stephen Schiller heard arguments on Thor-son’s motion on June 8, 1998, and refused to vacate or dissolve the temporary restraining order but did modify it. Judge Schiller entered a written order on June 17, 1998, nunc pro tunc June 8. Thorson complied with the temporary restraining order by turning over the program on June 8. He now appeals from the court’s orders of June 8 and June 17.

It is our responsibility to consider the question of our jurisdiction sua sponte where necessary and dismiss any appeal in which it is lacking. Shanklin v. Hutzler, 277 Ill. App. 3d 94, 99, 660 N.E.2d 103 (1995). Although neither party here raised the issue in his original brief, we perceived a possible lack of jurisdiction and requested that the parties submit supplemental briefs addressing the issue.

Thorson filed his appeal from the trial court’s order pursuant to Supreme Court Rule 307(a)(1), which allows interlocutory appeals from orders “(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” 166 Ill. 2d R. 307(a)(1). A party appealing an order pursuant to Rule 307(a)(1) has 30 days from the entry of the order in question to perfect his appeal and file the record with this court. 166 Ill. 2d R. 307(a). It is undisputed that Thorson filed his notice of appeal within this 30-day period. We do not question Thorson’s compliance with Rule 307(a)(1) but, rather, question whether the order at issue is, in fact, appealable under Rule 307(a)(1) at all.

In Bohn Aluminum & Brass Co. v. Barker, 55 Ill. 2d 177, 303 N.E.2d 1 (1973), the Illinois Supreme Court ruled that the term “injunction” as used in Rule 307(a) applies to temporary restraining orders as well. Since that time, orders granting or refusing to grant, modifying or refusing to modify, and dissolving or refusing to dissolve temporary restraining orders routinely have been appealed in Illinois under Rule 307(a)(1). See Northwestern Steel & Wire Co. v. Industrial Comm’n, 254 Ill. App. 3d 472, 477, 627 N.E.2d 71 (1993); Murges v. Bowman, 254 Ill. App. 3d 1071, 1080, 627 N.E.2d 330 (1993); Field Surgical Associates, Ltd. v. Shadab, 59 Ill. App. 3d 991, 994, 376 N.E.2d 660 (1978); Board of Education of Springfield Public Schools, District No. 186 v. Springfield Education Ass’n, 47 Ill. App. 3d 193, 198, 361 N.E.2d 697 (1977).

Effective 1989, however, our supreme court amended Rule 307 by adding paragraph (d), which provides that a petitioner seeking “review of the granting or denial of a temporary restraining order as authorized in paragraph (a)” must file a notice of appeal, petition, record, and legal memorandum, if any, within two days of the entry or denial of the order. 166 Ill. 2d R. 307(d). Rule 307(d) further provides that the respondent may file a legal memorandum within two days of the filing of the petition, record, and petitioner’s memorandum, and that the appellate court must decide the appeal within two days after the expiration of time for filing of the respondent’s brief. 166 Ill. 2d R. 307(d). Rule 307(d) makes no reference to the appeal from orders modifying, dissolving, or refusing to modify or dissolve a temporary restraining order.

Since the effective date of Rule 307(d), several Illinois courts have considered under Rule 307(a)(1) appeals from orders regarding modification or dissolution of temporary restraining orders without any discussion of the apparent conflict caused by Rule 307(d). See Murges, 254 Ill. App. 3d at 1080; In re Application of the Cook County Collector for Judgment & Sale Against Lands & Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1985, 228 Ill. App. 3d 719, 736, 593 N.E.2d 538 (1991).

The court in Harper v. Missouri Pacific R.R. Co., 264 Ill. App. 3d 238, 636 N.E.2d 1192 (1994), is the only Illinois court that has discussed the interaction between paragraphs (a) and (d) of Rule 307. In dicta, the Harper court apparently concluded that a party filing a motion to dissolve or modify a temporary restraining order could not appeal from the court’s ruling on that motion. Rather, the Harper court stated that the party wishing to bring such a motion must do so and obtain a ruling on the motion within two days of the entry or service of the order so that it may still appeal the order within that time frame. If the moving party is unable to obtain a ruling on its motion within that two-day period, according to the Harper court, it must file its appeal from the entry of the order without ever having obtained a ruling on its motion to modify or dissolve. Harper, 264 Ill. App. 3d at 243-46. We find no support for these contentions in Rule 307. We do, however, believe that the promulgation of paragraph (d) raises a question as to whether orders modifying, dissolving, and refusing to modify or dissolve temporary restraining orders are still appealable under Rule 307(a)(1), with a 30-day limit for filing, or whether they must be appealed under the two-day filing requirements of Rule 307(d).

When interpreting a supreme court rule, we must apply the same rules used to interpret a statute. Hill v. Joseph Behr & Sons, Inc., 293 Ill. App. 3d 814, 817, 688 N.E.2d 1226 (1997). The primary rule of construction is to ascertain and give effect to the intent of the drafter, in this case our supreme court. Advincula v. United Blood Services, 176 Ill.

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Bluebook (online)
707 N.E.2d 624, 303 Ill. App. 3d 131, 236 Ill. Dec. 497, 1999 Ill. App. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-thorson-illappct-1999.