In re Estate of Mosley

2025 IL App (4th) 240951-U

• Court: Appellate Court of Illinois
• Decided: January 6, 2025
• Docket: 4-24-0951
• Status: Unpublished

Opinion

2025 IL App (4th) 240951-U NOTICE This Order was filed under NO. 4-24-0951 FILED Supreme Court Rule 23 and is January 6, 2025 not precedent except in the Carla Bender limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

In re ESTATE OF LARRY WILLIAM MOSLEY, ) Appeal from the Deceased ) Circuit Court of ) Adams County (Debra Sue Eberle, Executor, ) No. 23PR77 Petitioner-Appellee, ) v. ) Honorable Brian Mosley, ) Scott Douglas Larson, Respondent-Appellant). ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, finding the issues raised in the circuit court were adjudicated in a prior order-of-protection case, where a final judgment on the merits was entered. Therefore, respondent is barred from raising the same issues in this appeal pursuant to the doctrine of collateral estoppel.

¶2 In the underlying probate case, respondent, Brian Mosley, sought to relitigate the

ownership of certain items in his possession that belonged to decedent, Larry William Mosley.

He appeals the circuit court’s order granting petitioner Debra Sue Eberle’s motion in limine,

wherein she sought to preclude respondent’s relitigation pursuant to the doctrine of collateral

estoppel. We affirm.

¶3 I. BACKGROUND

¶4 On August 3, 2023, petitioner filed a petition for probate of will and letters of

testamentary regarding decedent. Respondent was given notice as an heir. Decedent’s will named petitioner as executor and sole beneficiary. The circuit court entered an order admitting

decedent’s will to probate and appointed petitioner as the independent executor.

¶5 In November 2023, petitioner filed a petition for citation, stating respondent was

ordered in Adams County case No. 22-OP-320 to surrender titles to a 2005 Chevrolet Silverado,

a mobile home, a boat motor and trailer, and other personal belongings of decedent believed to

be in respondent’s possession. In February 2024, petitioner filed a motion in limine, seeking to

prohibit respondent from relitigating any claims to the aforementioned property of decedent

under the doctrine of collateral estoppel. Petitioner attached to the motion an August 2022

plenary order of protection entered in case No. 22-OP-320, which had ordered respondent to

return to decedent various titles and personal belongings and transcripts from the plenary

hearing. We note, respondent appealed the plenary order of protection in case No. 22-OP-320,

which this court dismissed as moot given decedent, the protected party in the matter, had died

during the pendency of the appeal. See Mosley v. Mosley, No. 4-23-0053 (Oct. 24, 2023)

(unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶6 The record indicates a hearing on the petition for citation and petitioner’s motion

in limine was held on July 2, 2024; however, no transcripts of this hearing were provided to this

court on appeal. On July 10, 2024, the circuit court entered an order granting petitioner’s motion

in limine pursuant to the doctrine of collateral estoppel. The court stated the property at issue was

adjudicated by a final judgment on the merits after a hearing in case No. 22-OP-320 involving

the same parties or parties in privity.

¶7 The order stated respondent contended the petition for citation was seeking to

discover assets, not to transfer possession of property, and that respondent was entitled to a jury

trial on the property in question. The circuit court found the petition for citation was not merely

-2- seeking information, “but transfer of titles pursuant to the court’s order in 22 OP 320.”

Additionally, respondent had not formally requested a trial by jury, and, if he had, collateral

estoppel applied. Respondent was ordered to personally appear at a later date to execute or

otherwise effectuate the transfer of titles as outlined in the petition for citation.

¶8 This appeal followed.

¶9 II. ANALYSIS

¶ 10 We begin by addressing our jurisdiction. Respondent asserts this court has

jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994). He contends he is

appealing the final judgment entered on July 10, 2024, which disposed of all claims. Petitioner

does not address the question of jurisdiction in her brief. This court has an independent duty to

consider our jurisdiction, “even where a party has not contested the court’s jurisdiction to review

the matter.” Nwaokocho v. Illinois Department of Financial & Professional Regulation, 2018 IL

App (1st) 162614, ¶ 41. Our review of the record reveals the circuit court’s order from July 10

did not dispose of all claims and is not considered a final judgment. However, our supreme court

has stated, “An order granting or denying a distribution of an estate affects the rights of those

who have a claim against the estate (e.g., an heir, legatee, or devisee) and it is those persons who

are considered to be aggrieved parties such that they may appeal at their own expense.” Estate of

Hicks, 174 Ill. 2d 433, 450-51 (1996). In this case, respondent is an heir, as indicated by

petitioner’s notice, which she filed with the circuit court. The order respondent appeals pertains

to the distribution of decedent’s estate, which respondent contends he has a claim against. See Ill.

S. Ct. R. 304(b)(1) (eff. Mar. 8, 2016) (permitting appeals from final judgments that do not

dispose of an entire proceeding where an “order entered in the administration of an estate ***

-3- finally determines a right or status of a party”). Accordingly, we find we have jurisdiction to

review respondent’s appeal.

¶ 11 Respondent argues (1) the order of protection that he previously appealed was

dismissed as moot, and under the “Munsingwear doctrine” (see United States v. Munsingwear,

Inc., 340 U.S. 36 (1950)), the circuit court’s judgment should be vacated; (2) his due process

rights were violated because he was not permitted to cross-examine decedent during the order-

of-protection hearing; (3) the order of protection did not adhere to the statutory requirements of

the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/101 et seq. (West 2022)); (4) the

court did not have the authority under the Act to transfer ownership of the property in question;

and (5) the court erred when it applied collateral estoppel because there was no final judgment on

the merits.

¶ 12 Before addressing respondent’s claims, we address petitioner’s contention

respondent’s brief should be stricken and his arguments forfeited because (1) respondent failed

to provide a transcript of the hearing at issue and (2) his brief does not comply with Illinois

Supreme Court Rule 341 (eff. Oct. 1, 2020). Specifically, petitioner claims respondent’s brief

fails to provide argument as to how the circuit court’s decision was against the manifest weight

of the evidence and fails to properly cite the record or supporting authority.

¶ 13 Rule 341 sets forth the rules governing the contents and requirements for an

appellant’s brief. Rule 341(a) requires the body of the brief’s text to be double-spaced. Ill. S. Ct.

R. 341(a) (eff. Oct. 1, 2020). The rule requires the appellant to include a statement of the issues

presented for review “without detail or citation of authorities” and “a concise statement of the

applicable standard of review for each issue, with citation to authority.” Ill. S. Ct. R. 341(h)(3)

(eff. Oct. 1, 2020). Additionally, Rule 341 requires an appellant to include a statement of the

-4- facts without argument and with citations to the record and an argument section, which must also

contain citations to the record. Ill. S. Ct. R. 341(h)(6), (7) (eff. Oct. 1, 2020). Compliance with

Rule 341 is not a mere suggestion, and it is within this court’s discretion to strike an appellant’s

brief and dismiss the appeal entirely for failing to comply. Niewold v. Fry, 306 Ill. App. 3d 735,

737 (1999). However, if the violations of supreme court rules do not “hinder or preclude our

review,” the brief need not be stricken in whole or in part. Gaston v. City of Danville, 393 Ill.

App. 3d 591, 601 (2009).

¶ 14 We agree with petitioner that respondent’s brief fails to comply with many of the

requirements set forth in Rule 341. However, we find respondent’s noncompliant brief does not

hinder or preclude our review of the issues in this case. Therefore, we will not dismiss

respondent’s appeal or strike his brief in part or in its entirety for failing to comply with Rule

341.

¶ 15 Additionally, petitioner notes respondent failed to provide the transcripts from the

hearing on the motion in limine before the circuit court. Nor did he provide a bystander’s report

or an agreed statement of facts. See Ill. S. Ct. R. 323(c), (d) (eff. July 1, 2017). The “appellant

has the burden to present a sufficiently complete record of the proceedings” below. Foutch v.

O’Bryant, 99 Ill. 2d 389, 391 (1984). “Any doubts which may arise from the incompleteness of

the record will be resolved against the appellant.” Id. at 392. Without a record of the hearing, we

do not know what evidence or arguments were presented. However, the basis for the circuit

court’s decision is sufficiently explained in the July 10, 2024, order. Additionally, because

resolution of this appeal is not dependent on what occurred at the hearing and the issues are

straightforward and governed by well-settled law, we will review respondent’s claims on the

merits.

-5- ¶ 16 A. Collateral Estoppel

¶ 17 “The doctrine [of res judicata] is based on the public policy which favors judicial

economy and the finality of litigation [citations] and is divided into two branches: res judicata,

or estoppel by judgment, and collateral estoppel, or estoppel by verdict.” Fried v. Polk Brothers,

Inc., 190 Ill. App. 3d 871, 877 (1989). “Whether the doctrine of collateral estoppel applies is a

question of law that we review de novo.” American Family Mutual Insurance Co. v. Westfield

Insurance Co., 2011 IL App (4th) 110088, ¶ 17. “The doctrine of collateral estoppel prevents the

relitigating of issues resolved in earlier causes of action.” Id. Where the following elements are

met, collateral estoppel applies:

“(1) the issue decided in the prior litigation is identical to the one presented in the

current case, (2) there was a final adjudication on the merits in the prior case, and

(3) the party against whom estoppel is asserted was a party to, or in privity with a

party to, the prior litigation.” Pine Top Receivables Illinois, LLC v. Transfercom,

Ltd., 2017 IL App (1st) 161781, ¶ 8.

¶ 18 Respondent argues the decision of who gets possession of the property at issue,

which was decided in the previous order-of-protection case, was not a judgment on the merits for

purposes of collateral estoppel. A judgment on the merits occurs when the judgment “amounts to

a decision to the respective rights and liabilities of parties based on the ultimate facts or the state

of the facts disclosed by pleadings or evidence, or both, and on which the right of recovery

depends.” Fried, 190 Ill. App. 3d at 878. Respondent contends, because his appeal in the order-

of-protection case was dismissed by this court as moot, there was no final judgment. This is not

true. Respondent had a hearing, wherein the facts of that case were decided by the circuit court

based upon the pleadings and evidence. Respondent may be unsatisfied with the outcome of that

-6- hearing, but his dissatisfaction does not make the court’s determination in that matter no longer a

final judgment. Respondent appealed, and this court dismissed the appeal because of mootness

due to the protected party’s death (the decedent in this case). See Mosley, No. 4-23-0053. The

circuit court’s judgment remains in effect and is considered a final judgment.

¶ 19 Respondent then argues, under the “Munsingwear doctrine,” when a case

becomes moot pending appeal, the appellate court should vacate the circuit court’s judgment and

remand to the lower court for the cause to be dismissed. The United States Supreme Court dealt

with a procedural appeal issue regarding a federal regulation in Munsingwear, 340 U.S. at 38.

The Supreme Court stated:

“The established practice of the Court in dealing with a civil case from a court in

the federal system which has become moot while on its way here or pending our

decision on the merits is to reverse or vacate the judgment below and remand with

a direction to dismiss.” Id. at 39.

¶ 20 However, when addressing a matter of state law, Illinois courts “are not bound by

Federal court decisions other than, in appropriate cases, those of the United States Supreme

Court.” Office of Lake County State’s Attorney v. Human Rights Comm’n, 235 Ill. App. 3d 1036,

1043 (1992). In Munsingwear, the Supreme Court was not addressing an issue of constitutional

or state law. Rather, the Court was addressing a procedural matter within the federal court

system. As such, Munsingwear is not authoritative. Indeed, contrary to respondent’s contention

on appeal, the Supreme Court endorsed the doctrine of res judicata. See Munsingwear, 340 U.S.

at 41. A defensive use of collateral estoppel occurs when, as in this case, petitioner invoked the

doctrine to prevent respondent from arguing an issue that he had previously litigated and lost.

See Prospect Development, LLC v. Kreger, 2016 IL App (1st) 150433, ¶ 33 (“Defensive use of

-7- collateral estoppel occurs when a defendant invokes the doctrine to prevent a plaintiff from

asserting a claim the plaintiff has previously litigated and lost.”). Consequently, we find the

doctrine of collateral estoppel applies here.

¶ 21 B. Claims Regarding the Order of Protection

¶ 22 The remainder of respondent’s arguments attack the order of protection entered in

a case not currently before this court. Although we find collateral estoppel applies, this appeal is

not the appropriate vehicle to relitigate the issues in a distinct and different case. See Wilson v.

Illinois Benedictine College, 112 Ill. App. 3d 932, 936 (1983) (“A reviewing court will not

consider questions or contentions which are not essential to the determination of the case before

it.”). Therefore, we need not address the issues respondent raises regarding the order of

protection or how he may appropriately seek redress. “This court cannot pass judgment on mere

abstract propositions of law, render an advisory opinion, or give legal advice as to future events.”

Stokes v. Pekin Insurance Co., 298 Ill. App. 3d 278, 281 (1998). “Simply stated, res judicata

does not permit ‘a do-over of the first action.’ ” Deutsche Bank National Trust Co. v.

Bodzianowski, 2016 IL App (3d) 150632, ¶ 22 (quoting Turczak v. First American Bank, 2013 IL

App (1st) 121964, ¶ 28).

¶ 23 III. CONCLUSION

¶ 24 For the reasons stated, we affirm the circuit court’s judgment.

¶ 25 Affirmed.

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