2014 IL App (1st) 133688
FIFTH DIVISION November 7, 2014
No. 1-13-3688
K&K IRON WORKS, INC., ) ) Plaintiff-Appellee and Counterdefendant, ) Appeal from the ) Circuit Court of v. ) Cook County ) MARC REALTY, LLC, ) ) Nos. 08 CH 46647 Defendant-Appellant, ) 08 L 8886 ) 09 L 6760 ) (Kenneth Stefan Jones, Midwest Masonry, Inc., Plaintiffs; ) Honorable CMP Construction, Plaintiff-Counterdefendant; Lakeview ) Lisa R. Curcio, Athletic Club, Cole Taylor Bank, Chicago Title and ) Judge Presiding. Trust Co., Walter Klein, Sr., Walter Klein, Jr., Unknown ) Necessary Parties, and Unknown Parties, Defendants; ) LPAC Broadway Realty, LLC and Klein Construction ) Services, Inc., Defendants-Counterplaintiffs). )
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.
OPINION
¶1 Defendant Marc Realty, LLC, appeals from the circuit court's denial of its request for a
continuance after allowing defendant's attorney to withdraw on the day trial was set to begin,
after approximately five years of litigation. On appeal, defendant contends that circuit court
abused its discretion when it allowed defense counsel to withdraw and subsequently denied
defendant's motion for a continuance. We affirm.
¶2 We will discuss the facts of the underlying litigation only to the extent necessary to
understand the current appeal. According to the complaint filed by K&K Iron Works, Inc., and a
counterclaim filed by Klein Construction Services, Inc., in 2005, LPAC Broadway Realty, LLC,
owned property at 3212 North Broadway Avenue (property) in Chicago, Illinois. Marc Realty No. 1-13-3688
was a "member/manager" and an agent of LPAC. In July 2005, LPAC entered into a contract
with Klein to serve as the general contractor for the construction of the Lakeview Athletic Club
at the property.
¶3 In September 2005, Klein entered into a contract with K&K which provided that K&K
would provide labor and materials to "properly finish and install structural steel and
miscellaneous iron" on the property for the sum of $1,345,000. K&K began performance on the
project shortly after and had completed all work required by the contract in August 2007.
¶4 In the interim, LPAC terminated Klein as the general contractor of the project. In July
2007, Klein assigned its subcontract with K&K to LPAC. Under the assignment, LPAC agreed
to "assume and perform all of the obligations" of Klein under the September 2005 subcontract.
K&K further alleged that Marc Realty also assumed the subcontract and that, after assuming the
subcontract, Marc Realty "held itself out as construction manager and general contractor on the
project, including monitoring work on the project and making direct payments to K&K and other
subcontractors for work performed."
¶5 In August 2008, K&K filed its complaint against Klein, LPAC, and Marc Realty, alleging
a breach of contract claim against LPAC and Marc Realty (count I), quantum meriut as an
alternative claim against LPAC and Marc Realty (count II), breach of contract against Klein
(count III), and quantum meruit as an alternative claim against Klein. 1 K&K alleged that LPAC
and Marc Realty owed K&K an additional $228,515.20 plus interest for the work performed.
1 In December 2008, Kenneth Stefan Jones and CMP Construction Company, who are not parties to this appeal, filed suit against various entities related to the Lakeview Athletic Club construction project, including Klein and LPAC. In June 2009, the cases were consolidated. However, the details of the Kenneth Stefan Jones and CMP lawsuit are not relevant to the present appeal. -2- No. 1-13-3688
Bradley Staubus of Esposito & Staubus represented LPAC, Marc Realty, and Klein throughout
the proceedings.
¶6 In February 2009, Klein filed its answer to K&K's complaint. In June 2009, LPAC and
Marc Realty filed a joint answer to K&K's complaint and filed separate amended answers to the
complaint in December 2009. Marc Realty's amended answer generally denied the allegations in
K&K's complaint.
¶7 In July 2010, LPAC and Klein filed counterclaims and affirmative defenses against
K&K. The circuit court dismissed LPAC and Klein's counterclaims and affirmative defenses in
December 2010, and twice dismissed their subsequent amended counterclaims and affirmative
defenses. Marc Realty never filed a counterclaim or any affirmative defense against K&K.
¶8 In October 2011, LPAC and Klein filed their third amended counterclaim against K&K,
alleging, in pertinent part, delay damages resulting in lost profits estimated between $900,000
and $1,200,000.
¶9 In November 2011, K&K filed an answer and affirmative defenses to LPAC and Klein's
third amended counterclaim.
¶ 10 In January 2012, K&K filed a motion for partial summary judgment against Klein as to
Klein's third amended counterclaim, which the circuit court granted in March 2012.
¶ 11 In December 2012, the circuit court entered a written order setting the case for trial on
June 11, 2013. Oral discovery was to be completed on January 31, 2013, but the circuit court
granted extensions of time for the parties to complete oral discovery in February and March
2013.
¶ 12 In May 2013, the circuit court entered an order setting the matter for trial on October 1,
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¶ 13 In June 2013, K&K filed a motion for partial summary judgment against LPAC's third
amended counterclaim as to the issue of delay damages based on lost profits, alleging that the
terms of the subcontract agreement precluded LPAC from obtaining delay damages against K&K
and that LPAC had failed to identify any "opinions or testimony that K&K was the cause of any
delays on the project which would entitle LPAC to obtain delay damages" in its answers to the
Supreme Court Rule 213 interrogatories.
¶ 14 On September 12, 2013, the circuit court granted K&K's motion for partial summary
judgment against LPAC's third amended counterclaim on the issue of delay damages, finding
that LPAC "failed to disclose or identify any testimony related to lost profits sustained by it."
¶ 15 On September 13, 2013, the circuit court entered a final trial order, which stated that trial
would commence on October 1, 2013, at 10:30 a.m.
¶ 16 On September 20, 2013, LPAC filed an emergency motion to reconsider the court's
September 12 order and continue the trial to allow limited discovery. The same day, after
hearing oral argument, the circuit court denied LPAC's emergency motion.
¶ 17 On October 1, 2013, the circuit court entered an order continuing the trial to October 2,
2013, at 10:30 a.m. No transcript from the proceedings on October 1 was included in the record
on appeal.
¶ 18 On October 2, 2013, the parties reported that they had been unable to reach a settlement.
The following exchange occurred:
"MR. BONADIES [counsel for K&K]: We worked for a
long time yesterday, as you know, coming to a settlement or a
stipulated judgment. We went back—both of us—to our office
and drafted the stipulated judgment, with the indication that it was
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going to get either commented on, approved, something, with
respect to the defendant. We wasted an entire day of trial, and we
don't even get a response.
I have subpoenaed witnesses that now are working on the
finishing of the Red Line that are working for other employers that
I—in jockeying the scheduling—and we don't even get the
courtesy of, 'This isn't accepted.' Nothing. We're still in limbo.
***
MR. STAUBUS: Before we get into this, I received a call
right before the matter before you at 9:30—right before that I got a
call from the client, and they have terminated my services, and
they have ordered me to withdraw on behalf of the LPAC and
Marc.
I am still in for Klein. I have talked to Mr. Klein about
that, and I still represent them, but that's what I was ordered to do
this morning. There is an owner's rep here, Mr. Allen Glass, who
will confirm that. And I really can't get into too much more
because of attorney-client privilege.
THE COURT: I don’t expect you to tell me anything else,
Mr. Staubus, but I certainly hope they're prepared to go forward
with trial today. And if Mr. Glass would like to step up, I would
be happy to talk with him. But this case has been scheduled for
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trial for months. There has been extensive trial preparation. The
Court has scheduled the time.
We were going to go to trial yesterday morning when there
was an indication that perhaps, with the Court's assistance, a
settlement might be reached. When we left yesterday afternoon,
the understanding was that if the settlement was not possible, we
would begin trial this morning. And I most certainly am not going
to inconvenience everyone else because they have decided—and
when I say they, I mean LPAC, and I assume, Marc Realty—have
decided at this moment this morning that they no longer wish to
have you represent them. That they’ve known about this for quite
some time, and I cannot fathom how they could expect that this
sudden decision would result in the Court continuing the trial.
So—
MR. GLASS: I'm the rep of those two parties. These
owners last night decided that there is an inherent conflict now
with Mr. Staubus that just arose recently as a result of one of this
Court's orders, and they just don't believe that it's possible for him
to continue to represent us. And they will have—they will have
another trial attorney be [sic] entering an appearance as soon as
possible, but—
THE COURT: Mr. Glass, the order that you're referring to
was entered quite some time ago, and it was then reconsidered by
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this Court. They have been aware of that order, and to decide
when we are here for trial that there is an inherent conflict as a
result of that order is unacceptable.
If they're not prepared to go to trial today, I'm prepared to
allow Mr. Bonadies to go forward with his case, and allow Mr.
Staubus to go forward with Klein's case, and they will be
unrepresented. And I suppose that may give them another issue for
appeal, but I believe firmly that, given the history of this case, that
is within the Court's discretion, and I will exercise it; that is my
ruling.
MR. STAUBUS: So I have obviously withdrawn from
LPAC and Marc Realty. I represent just Klein.
THE COURT: We'll enter an order to that effect, and the
order will further reflect that the Court will not continue the trial
on any of the claims, given the late nature of this decision on the
part of LPAC and Marc Realty, and for the reasons articulated,
fortunately on the record.
MR. GLASS: Will LPAC and Marc Realty have the right
to have another attorney step in whenever the next date of this case
may be in front of the Judge?
THE COURT: The case is before me today. I'm going to
trial.
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They have, frankly, made their bed, and I'm not making any
rulings whatsoever. They’ve decided to terminate Mr. Staubus's
representation. They are before the court. They are unprepared to
substitute counsel today. That's the status."
¶ 19 Just before trial, the attorneys for Klein and K&K reached an agreement for a stipulated
judgment as to count III of K&K's complaint, and K&K withdrew count IV of its complaint.
The trial was then held with Allen Glass sitting at counsel table as a representative for LPAC and
Marc Realty. At the trial's conclusion, the circuit court entered judgment in favor of K&K and
against LPAC and Marc Realty.
¶ 20 On October 3, 2014, the circuit court entered a written final judgment order that stated:
"1. Pursuant to an Order entered on May 21, 2013, this
matter was set for trial on October 1, 2013; at the commencement
of trial, the parties asked the Court to conduct a settlement
conference and the Court agreed. After negotiations, the parties
believed they could reach an agreement. The trial was continued
to October 2, 2103 for the parties to enter a stipulated judgment or
to begin their presentation of evidence.
2. On October 2, 2013, at the start of trial, a corporate
representative of LPAC Broadway Realty, LLC and Marc Realty,
LLC, represented to the Court that [LPAC] and [Marc Realty] had
discharged their attorney Mr. Bradley K. Staubus.
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3. The representative of [LPAC] and [Marc Realty] made
an oral request for a continuance of the trial in order to find
substitute counsel.
4. [LPAC] and [Marc Realty]'s motion to continue was
denied based on lack of good cause."
The court further found that LPAC and Marc Realty failed to present any evidence in opposition
to K&K's complaint and that LPAC failed to present any evidence in support of its third
amended counterclaim. The court entered judgment in favor of K&K and against: (1) Klein
Construction as to count III of K&K's complaint, in the amount of $152,431.98; (2) LPAC and
Marc Realty, jointly and severally, as to count I of K&K's complaint, in the amount of
$152,431.98, plus costs; and (3) LPAC as to LPAC's third amended counterclaim, plus costs.
Only Marc Realty appeals the judgment and raises one issue.
¶ 21 Marc Realty contends that the trial court erred in allowing Marc Realty's counsel to
withdraw and then denying its motion for a continuance to obtain new counsel.
¶ 22 It is well settled that a litigant does not have an absolute right to a continuance. In re
Marriage of Ward, 282 Ill. App. 3d 423, 430 (1996). The decision to grant or deny a motion for
a continuance is within the sound discretion of the trial court and will not be disturbed on appeal
"unless it has resulted in a palpable injustice or constitutes a manifest abuse of discretion." Wine
v. Bauerfreund, 155 Ill. App. 3d 19, 22 (1987). A circuit court's ruling is considered an abuse of
discretion when it is arbitrary, fanciful, or unreasonable, or when no reasonable person would
take the same view. Roach v. Union Pacific R.R., 2014 IL App (1st) 132015, ¶ 20.
¶ 23 Section 2-1007 of the Code of Civil Procedure generally states that the court has the
discretion to grant additional time for "the doing of any act or the taking of any step or
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proceeding prior to judgment" on good cause shown. 735 ILCS 5/2-1007 (West 2012). It
further provides that the "circumstances, terms and conditions under which continuances may be
granted, the time and manner in which application therefor shall be made, and the effect thereof,
shall be according to rules." Id. According to Supreme Court Rule 231(f), "[n]o motion for the
continuance of a cause made after the cause has been reached for trial shall be heard, unless a
sufficient excuse is shown for the delay." Ill. S. Ct. R. 231(f) (eff. Jan. 1, 1970). Once the case
reaches the trial stage, the party seeking a continuance must provide the court with "especially
grave reasons" for the continuance because of the potential inconvenience to the witnesses, the
parties, and the court. In re Marriage of Ward, 282 Ill. App. 3d at 430-31. We also observe that,
according to local court rules, a continuance "shall not be granted upon the ground of
substitution or addition of attorneys." Cook Co. Cir. Ct. R. 5.2(b) (July 1, 1976).
¶ 24 In the present case, on the day of trial, counsel for Marc Realty informed the court that he
had been terminated by Marc Realty that morning. The corporate representative who was
present, who was also an attorney, informed the court that the reason counsel was being
terminated was "an inherent conflict *** that just arose recently as a result of one of this Court's
orders." The request was made orally and consisted solely of the remarks noted above. These
statements that an "inherent conflict" exists unsupported by any facts beyond a vague reference
to a previous court ruling do not amount to a sufficiently grave reason to require the granting of a
continuance.
¶ 25 For the first time in its appellate brief, Marc Realty embellishes its reasons for
terminating counsel the morning of trial, saying it had "lost confidence in its attorney and
represented to the court that it was now 'in conflict' with its attorney, implicitly suggesting that it
was contemplating suing its attorney for malpractice." However, arguments not raised before the
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circuit court are forfeited and cannot be raised for the first time on appeal. Parikh v. Division of
Professional Regulation of the Department of Financial & Professional Regulation, 2012 IL
App (1st) 121226, ¶ 28. These conclusory statements presented in Marc Realty's appellate brief
for the first time on appeal do not amount to good cause or sufficient grounds for a continuance
under any authority of which we are aware.
¶ 26 Forfeiture aside, were we to consider Marc Realty's reasons for terminating its attorney
the day of trial, an important consideration for a court in determining the propriety of a
continuance due to counsel's actions is the degree of diligence exercised by the party seeking the
continuance. Meyerson v. Software Club of America, Inc., 142 Ill. App. 3d 87, 92 (1986). Here,
the record clearly demonstrates that Marc Realty had multiple prior opportunities to request a
continuance to obtain new counsel if it was unhappy with its representation: the partial summary
judgment order was entered against LPAC 19 days before the original trial date of October 1,
2013; the original trial date was set 18 days before that date; and LPAC's motion to reconsider
was denied 11 days before the original trial date. Although Marc Realty has not argued how the
adverse ruling to another party created a conflict for itself, Marc Realty nonetheless could have
terminated its attorney and filed a motion to continue at any time during the 19-day period
preceding the original trial date.
¶ 27 On October 1, 2013, the record shows that the circuit court entered an order continuing
the trial to the next day, October 2, 2013. Although the transcript from October 1 is not part of
the record on appeal, the transcript from October 2 and the orders entered by the circuit court
indicate that the parties appeared before the circuit court on October 1, ready for trial, but
requested to continue the trial one day because there was a possibility the parties could reach a
settlement or a stipulated judgment. However, it was not until the following day, the day that
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trial was set to begin and a full 20 days after the cause of the "inherent conflict," that Marc
Realty fired its attorney and sought a continuance of the trial to obtain new counsel. For Marc
Realty to appear on October 2, terminate counsel, and then request a continuance to obtain new
counsel the day after counsel represented Marc Realty in trying to reach a settlement or a
stipulated judgment appears disingenuous, as it must have appeared to the trial court. In denying
the continuance on October 2, the circuit court said that the understanding on the afternoon of
October 1 was that if a settlement was not possible the trial would begin on October 2 and that
the court would not inconvenience the other parties just because LPAC and Marc Realty decided
to fire their attorney the morning of trial. That the request for a continuance was because of an
"inherent conflict" is not supported by the record. Instead, the record demonstrates Marc
Realty's lack of diligence in attempting to obtain new counsel before trial was set to begin. It
was an obvious attempt to continue the case for trial without good cause and, under these
circumstances, we cannot find the trial court abused its discretion.
¶ 28 Marc Realty also contends that "the notion it could find a new attorney willing to step
into a complex piece of five-year litigation with multiple parties, generating thousands and
thousands of documents and go to trial on it in ten days (or twenty-one days) is nothing less than
chimerical." (Emphasis in original). However, Marc Realty did not even attempt to seek a
continuance to obtain new counsel until the day of trial. In addition, the record does not support
Marc Realty's assertion that its case was a "complex piece of five-year litigation, generating
thousands and thousands of documents. *** To require Defendant to navigate the shoals of such
a proceeding without a lawyer condemned the Defendant to a six-figure judgment against it."
Contrary to Marc Realty's argument, the record does not show that this was a complex piece of
litigation. The complaint was filed in August 2008. Subsequently LPAC and Klein both filed
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counterclaims and affirmative defenses against K&K which were dismissed. Then LPAC and
Klein twice filed amended counterclaims and affidavits which were also dismissed. Notably,
Marc Realty never filed any counterclaims or affirmative defenses in response to K&K's
complaint and alleged no damages; its answer simply generally denied the allegations in the
complaint. The record also shows that the circuit court set the case for trial once, continued the
cause to allow for the completion of oral discovery, and then set the case for trial on October 1.
Again, contrary to Marc Realty's assertion, this action was not terribly complicated, but was
primarily a dispute over alleged money damages that remained unpaid for the completion of a
construction contract. K&K alleged that it was owed $228,515.20 and ultimately was awarded
$152,431.98. Although the damages awarded were in the six-figure range, that figure alone does
not make the litigation complex. We cannot say the circuit court's decision to deny the
continuance was a manifest abuse of discretion.
¶ 29 Numerous decisions support our conclusion. For example, in Meyerson, 142 Ill. App. 3d
87, the plaintiff filed a complaint against the defendant corporation, seeking to recover for
advertising services rendered to the defendant. Id. at 88. The cause was originally set for trial
on July 1, 1985, but was continued by agreement on that date and on July 8, 1985. Id. at 89. In a
letter dated July 3, 1985, defense counsel asked the circuit court to set the case for trial on July
25, 1985. Id. On July 25, 1985, the plaintiff was present in court with her attorney, but defense
counsel requested a continuance because the president of the defendant corporation was ill. Id.
The parties were unable to agree on a date and defense counsel informed the circuit court that he
would be on vacation the first two weeks in August; the case was then continued to July 29. Id.
at 89-90. The circuit court denied motions to continue from the defendant on July 29 and 30,
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1985, and ultimately set the case for August 1, 1985. Id. at 90. In one of the motions for
continuance, the defendant alleged:
"[E]arlier that day [July 29] defendant had appeared in court at
9:30 a.m. and was ready for trial, that the court on its own motion
delayed the matter until 2 p.m., that at 10 a.m. defendant
discharged its counsel, that at 10:30 a.m. a pretrial conference was
held in the chambers of Judge Ahern and the court on its own
motion reset the case for trial on Thursday, August 1, 1985, at 2
p.m. although defendant's counsel informed the court that he had
just been discharged and was scheduled for a vacation from July
31, 1985, through August 9, 1985. Counsel stated he had
consulted with another law firm which 'will represent' defendant
'provided the trial date be continued approximately' 30 days.
Defendant asserted it was being denied counsel of its choice." Id.
at 90.
¶ 30 On August 1, 1985, the president of the defendant corporation appeared without counsel
and tendered an affidavit to the circuit court which indicated that he could not proceed with trial
because of a medical condition Id. at 91. The affidavit also stated that the defendant corporation
had dismissed counsel "because counsel was not familiar with the complex, specialized issues
involved in the case." Id. "After informing the court that discharged counsel had told him that
he would not be present, [the president of the defendant corporation] asked and was granted
permission to leave the courtroom." Id. The same day, the court entered a judgment for the
plaintiff. Id. at 88.
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¶ 31 On appeal, the defendant argued that the circuit court's actions deprived it of its
"constitutionally protected right to its day in court." Id. at 91. Specifically, the defendant
reasoned that because, as a corporation, it could only appear in court through a duly licensed
attorney, the circuit court's conduct toward defense counsel "capriciously and arbitrarily abridged
its constitutionally protected due process rights to notice, and an opportunity to be heard and to
defend in an orderly proceeding." Id. at 91-92. On appeal, the court affirmed the judgment of
the circuit court. Id. at 93. The court first observed that the defendant had not cited "any case in
which a trial court has been found to have abused its discretion in denying a continuance, where,
as here, counsel would have had to interrupt his vacation plans." Id. at 92. The court further
explained:
"Having discharged its counsel at least in part due to defendant's
opinion that its counsel lacked specific experience 'in the complex
area of an advertising agency's liability to its client,' we do not see
how defendant has reason to complain that its counsel did not
appear at the trial." Id. at 92-93.
¶ 32 We acknowledge that, like the defendant in Meyerson, as a corporation, Marc Realty may
only litigate through a duly licensed attorney. Berg v. Mid-America Industrial, Inc., 293 Ill. App.
3d 731, 737 (1997). However, Marc Realty chose to dismiss its counsel the morning of trial due
to its opinion that there was an inherent conflict. Moreover, contrary to Marc Realty's
contention, there is no constitutional right to counsel in a civil proceeding between corporations.
Rodriguez v. Bagnola, 297 Ill. App. 3d 906, 921 (1998); see also In re Marriage of Schmidt, 241
Ill. App. 3d 47, 48-49 (1993) (neither the United States Constitution nor the Illinois Constitution
provides a right to counsel in a dissolution proceeding); Hermann v. Hermann, 219 Ill. App. 3d
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195, 198 (1991) ("It would be an extravagant expansion of the Sixth Amendment to hold that it
applies equally to civil and criminal proceedings."). A representative for Marc Realty was
present and the circuit court explained that it would allow Mr. Staubus to withdraw his
representation but would proceed to trial. Similar to the Meyerson court, we do not see how
Marc Realty has reason to complain that it did not have counsel at trial.
¶ 33 In addition, in Thomas v. Thomas, 23 Ill. App. 3d 936 (1974), the plaintiff appealed from
an order entered by the circuit court following proceedings enrolling an Indiana divorce degree
in Illinois. Id. at 937. On appeal, she claimed that the circuit court erred in denying her request
for a continuance. Id. at 939. The plaintiff's attorney withdrew from the case after serving notice
of his intention to withdraw on July 5, 1973. Id. On July 12, the plaintiff appeared before the
circuit court and the trial judge advised that she should obtain counsel for the trial, scheduled for
July 17, but also advised that the plaintiff could file for a continuance if she felt she would need
more time. Id. The plaintiff indicated that she would have counsel for trial and did not request a
continuance. Id. On July 17, "during the course of the trial's proceedings, for the first time" the
plaintiff requested a continuance to obtain counsel. Id. In finding the circuit court properly
exercised its judicial discretion, the appellate court explained:
"Although absence of counsel is one factor to take into
consideration in deciding on a motion to continue, it does not
entitle a party to a continuance as a matter of right. [Citation.]
Plaintiff had ample opportunity to extend the time for trial in order
to obtain counsel. We find that the denial of plaintiff's motion for
a continuance, particularly where no prejudice resulted to the
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plaintiff, was a proper exercise of the trial judge's discretion." Id.
at 940-41.
¶ 34 Similarly in the present case, Marc Realty had ample opportunity to request a
continuance to obtain new counsel before the trial date. Moreover, although Marc Realty argues
that it was "harmed" by the denial of its request for a continuance, it has failed to present any
reasoned argument as to prejudice it suffered as a result. "The failure to assert a well-reasoned
argument supported by legal authority is a violation of Supreme Court Rule 341(h)(7) [citation],
resulting in waiver." Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 804 (2009). Therefore,
like the Thomas court, we find the circuit court properly exercised its discretion in denying Marc
Realty's motion for continuance. See also Wine, 155 Ill. App. 3d 19 (no abuse of discretion in
denying a motion for continuance where defense counsel made an oral request on the morning of
trial because the defendant was attending school in Iowa); Martinez v. Scandroli, 130 Ill. App.
3d 712 (1985) (no abuse of discretion in denying a motion for continuance where the case was
set for a September 26 trial date on August 19, the plaintiff retained new counsel in early
September, and counsel sought a continuance on September 19 and 23 because he had not had
sufficient time to prepare); Parker v. Newman, 10 Ill. App. 3d 1019 (1973) (no abuse of
discretion in denying a motion for continuance filed four days before the trial and renewed on the
day of trial where the plaintiffs showed a lack of due diligence because the defendant was out of
the country for the trial, the plaintiff's attorney refused to participate in the defendant's evidence
deposition just before trial, and on the day of trial, the plaintiff's attorney said he would not go to
trial unless the defendant was personally present).
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¶ 35 We must also point out that there was no adverse ruling entered against Marc Realty by
the circuit court prior to trial. The party apparently impacted by the previous court order, LPAC,
has chosen not to appeal.
¶ 36 Marc Realty also suggests in its appellate brief that, in denying the motion for
continuance to obtain new counsel, the circuit court should have denied counsel's motion to
withdraw. First, we note that, once again, Marc Realty did not raise this argument before the
circuit court and has therefore waived the argument on appeal. Parikh, 2012 IL App (1st)
121226, ¶ 28. Nonetheless, we find that the circuit court acted properly in allowing counsel to
withdraw despite denying the motion for continuance. On the day of trial, counsel indicated to
the circuit court that he had been fired by LPAC and Marc Realty and, as a result, was
withdrawing. After the court allowed counsel to withdraw and indicated it would go forward
with the trial, the corporate representative for Marc Realty never suggested to the court that Marc
Realty might want to retain its previously fired attorney.
¶ 37 For the first time in its reply brief, Marc Realty relies on Illinois Supreme Court Rule
13(c)(2) (eff. Jan. 4, 2013) to support its conclusion that the trial court erred in denying its
motion for a continuance. However, arguments not raised in the opening brief are considered
waived and may not be raised for the first time in a reply brief. Ill. S. Ct. R. 341(h)(7) (eff. Feb.
6, 2013). Waiver aside, we find that 13(c)(2) is not applicable to the present case.
¶ 38 Rule 13(c)(2) provides:
"An attorney may not withdraw his appearance for a party without
leave of court and notice to all parties of record, and, unless
another attorney is substituted, he must give reasonable notice of
the time and place of the presentation of the motion for leave to
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withdraw ***. Such notice shall advise said party that to insure
notice of any action in said cause, he should retain other counsel
therein or file with the clerk of the court, within 21 days after entry
of the order of withdrawal, his supplementary appearance stating
therein an address at which service of notices of other documents
may be had upon him." Ill. S. Ct. R. 13(c)(2) (eff. Jan. 4, 2013).
¶ 39 We first note that the cases Marc Realty cites in support of its Rule 13 arguments are
distinguishable. See In re Marriage of Miller, 273 Ill. App. 3d 64 (1995); Ali v. Jones, 239 Ill.
App. 3d 844 (1993). In Ali, the plaintiff's counsel was granted leave to withdraw just 11 days
before trial. Ali, 239 Ill. App. 3d at 846. On the day of trial, the plaintiff sought a motion for a
continuance to obtain counsel. Id. at 846. The trial court noted the action was nearly eight years
old and the plaintiff had been given every opportunity to pursue his cause of action, then it
dismissed the cause with prejudice. Id. at 847. On appeal, the reviewing court found the circuit
court had abused its discretion because the plaintiff's attorney withdrawing just before trial was a
sufficiently grave reason to require a continuance. Id. The court also relied on Rule 13(c)(2),
finding that "given the 21-day transition period that Rule 13 contemplates for the continuation of
representation, the trial court should have allowed the plaintiff's continuance." Id. at 849.
¶ 40 In Miller, the respondent went through four different attorneys from the time the
petitioner filed his petition for dissolution of marriage, also seeking permanent custody of the
couple's minor child, to the date the hearing was set. Miller, 273 Ill. App. 3d at 65-67. The day
of the hearing, the respondent's third attorney renewed a prior motion to withdraw, asked for a
continuance, but also said he was ready to proceed to trial if the respondent did not agree to his
withdrawal. Id. at 66. The court granted the motion to withdraw, continued the hearing to the
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next day, and informed the respondent that she should either get another attorney or be prepared
to proceed pro se at the hearing. Id. The next day, the respondent's fourth attorney entered his
appearance. Id. at 67. He explained to the court that he had been retained that morning but
indicated that he was " 'ready' " to proceed. Id. After the hearing, the court awarded permanent
custody of the child to the petitioner. Id. On appeal, the respondent contended that the court
abused its discretion in denying her motion for a continuance to secure new counsel after
granting her attorney's motion to withdraw. Id. Although the court agreed that, pursuant to Rule
13(c)(2), the circuit court should have granted the respondent a continuance of at least 21 days
after entry of the order granting withdrawal of her attorney to attain new counsel, the respondent
had waived appeal of the error because her fourth attorney did not seek a continuance and instead
indicated he was ready to proceed. Id. at 69.
¶ 41 In both Ali and Miller, the attorneys in question filed motions to withdraw of their own
volition and, therefore, the court was required to abide by Rule 13(c)(2). In contrast, in the
present case, Marc Realty dismissed its own attorney the day of trial. We conclude that, under
the circumstances presented in this case, Rule 13(c)(2) is inapplicable. See In re Rose Lee Ann
L., 307 Ill. App. 3d 907, 912 (1999) (finding that Rule 13 allows an attorney to "end the attorney-
client relationship with or without cause so long as the client is not left in a position where he is
prejudiced").
¶ 42 We find the other cases Marc Realty relies on in support of its argument to be
distinguishable. See In re Marriage of Fahy, 208 Ill. App. 3d 677 (1991); Rutzen v. Pertile, 172
Ill. App. 3d 968 (1988); Ullmen v. Department of Registration & Education, 67 Ill. App. 3d 519
(1978); Ryan v. Monson, 47 Ill. App. 2d 220 (1964). In Fahy, the petitioner filed a petition for
dissolution of marriage and the trial court ultimately entered a judgment dissolving the marriage
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and awarding custody of the couple's four minor children to the petitioner. Fahy, 208 Ill. App.
3d at 683. On appeal, the respondent argued that the circuit court made several errors that
required reversal of the its ruling. Id. The appellate court reversed the decision of the circuit
court and remanded the cause for further proceedings. Id. at 700. In pertinent part, the appellate
court first concluded that the trial court erred by holding the respondent "in default" with respect
to the petitioner's posttrial petitions for attorney fees and for sanctions and by requiring the
respondent's attorneys to either sign the respondent's pleadings or withdraw from the case,
misapplying the new version of a statute. Id. at 683, 686-87. The court then found:
"Given the foregoing, we further agree with respondent that
the trial court denied him due process of law when, after his
second counsel was allowed to withdraw in lieu of signing the
refiled answer, the court denied respondent's motion for a
continuance to obtain new counsel and compelled respondent to
represent himself at trial instanter." Id. at 688.
¶ 43 While in Fahy the appellate court found that the respondent was forced to go to trial
without representation due to the circuit court's errors, in the present case the circuit court did not
commit any procedural errors that forced Marc Realty to go to trial without representation.
Instead, Marc Realty went to trial without representation because on the morning of trial it fired
its attorney. Therefore, Fahy is inapplicable to the present case.
¶ 44 In Rutzen, the defendant and his wife were flying in from Florida on the day of trial and
were due to land at 1:30 p.m. Rutzen, 172 Ill. App. 3d at 971. After all the other witnesses had
been presented, the circuit court granted a brief continuance until 3:30 p.m. Id. At 3:30 p.m.,
defense counsel informed the court that the defendant and his wife had landed at the airport at
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3:20 p.m., and were approximately one hour away, and requested a continuance pending their
arrival. Id. The circuit court denied the motion. Id. The appellate court concluded that, "where
the witnesses are available and the proceedings have not yet concluded," the circuit court's denial
of a continuance was an abuse of discretion. Id. at 974-75. In the present case, Marc Realty did
not seek a continuance of a few hours because of witnesses who were on their way to testify at
trial and we therefore find Rutzen to be irrelevant.
¶ 45 In Ullmen, the plaintiff and her attorney requested a continuance the day before a hearing
before a committee on the suspension of her real estate broker's license "because of the
unavoidable emergency situation involving the illness of the attorney's wife which would prevent
him from attending the hearing." Ullmen, 67 Ill. App. 3d at 520. The motion for continuance
was denied by the committee and the plaintiff appeared at the hearing without counsel. Id. The
appellate court found that the committee abused its discretion in denying the motion for
continuance, concluding that an illness in the extended family of a party's attorney was a valid
reason for a continuance. Id. at 522. In contrast, in the present case Marc Realty did not present
a valid reason for dismissing its attorney on the day of trial, so we are unpersuaded by Ullmen.
¶ 46 Finally, in Ryan, the circuit court entered a default judgment for the plaintiff and denied a
petition by the defendant to vacate the judgment. Ryan, 47 Ill. App. 2d at 220. The default
judgment was entered after an ex parte hearing at which defense counsel was not present because
he was on trial in federal court at the time of the hearing. Id. at 221-22. On appeal, the appellate
court reversed the circuit court's ruling, concluding that because defense counsel was "actually
engaged in the trial of a case in the Federal District Court," and because the other attorneys at the
firm were unavailable for trial, defense counsel had a legitimate excuse for not being present at
the hearing. Id. at 228. We find Ryan to be inapplicable because here, Marc Realty's attorney
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was not otherwise engaged; rather, he was ready to proceed to trial and Marc Realty chose to
terminate his representation the day of trial.
¶ 47 To the extent that the parties rely on cases from jurisdictions other than Illinois to support
their arguments, we decline to consider them. Although such decisions may be considered as
persuasive authority, it is only in the absence of Illinois authority on the point of law in question
that we are to look to the law of other jurisdictions. Allstate Insurance Co. v. Lane, 345 Ill. App.
3d 547, 552 (2003). Here, as the Illinois authority is more than sufficient on this point of law,
we see no need to consider the decisions from other jurisdictions.
¶ 48 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 49 Affirmed.
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