NOTICE 2024 IL App (4th) 230166-U This Order was filed under FILED Supreme Court Rule 23 and is January 5, 2024 NO. 4-23-0166 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
CYNTHIA SAMAHA, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County BRIAN BURNSIDE, ) No. 22EV1527 Defendant-Appellant. ) ) Honorable ) Bruce P. Fehrenbacher, ) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Justices Steigmann and Zenoff concurred in the judgment.
ORDER
¶1 Held: The appellate court dismissed defendant’s appeal for lack of jurisdiction.
¶2 Defendant, Brian Burnside, pro se appeals from trial court orders continuing the
case for a bench trial and evicting defendant from the rental property of plaintiff, Cynthia Samaha.
Although an appellee’s brief has not been filed, we may consider this appeal under the principles
set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133
(1976). We conclude we lack jurisdiction over this matter and dismiss the appeal.
¶3 I. BACKGROUND
¶4 The record on appeal does not contain a report of proceedings, a bystander’s report,
or an agreed statement of facts of the trial court proceedings. See Ill. S. Ct. R. 323(a), (c), (d) (eff.
July 1, 2017) (permitting a bystander’s report or an agreed statement of facts in lieu of a report of
proceedings). The following facts appear only in the common law record. ¶5 In December 2022, plaintiff filed an eviction complaint against defendant and
Nicole Burnside, who is not a party to this appeal. According to the complaint, plaintiff leased to
defendant the premises located at 1502 W. Tiffany Court, Unit 4, in Peoria, Illinois (the premises).
The complaint sought $5400 for past-due rent and possession of the premises. Plaintiff attached to
the complaint a copy of the five-day notice to quit along with an affidavit of service.
¶6 The record next details a series of failed attempts to serve a copy of the summons
on defendant, who appeared to be evading service of process. After several unsuccessful attempts
at service when someone was inside the premises but refused to answer the door, the trial court
granted plaintiff’s motion for service of process by posting. The order directed the Peoria County
Sheriff’s Office to post three copies of the summons in public places and to mail a copy of the
summons to the premises.
¶7 On February 13, 2023, defendant, acting pro se, filed an “Affidavit,” which was
not notarized, and a request for court records in the trial court. Neither filing included a demand
for jury trial. Defendant also filed a motion to defend as a poor person without paying filing fees,
which the court granted.
¶8 On February 14, 2023, the trial court entered a written order continuing the case for
a bench trial on March 9, 2023. That same day, defendant filed a motion to vacate the February 14
order, a motion to dismiss, and a motion for jury trial.
¶9 Thereafter, plaintiff filed a motion for summary judgment, requesting possession
of the premises and damages in the amount of $6325 for past-due rent plus costs. Plaintiff attached
an affidavit stating she was the owner of the premises, which she leased to defendant pursuant to
an oral lease, and rent was $575 per month. On February 21, 2023, the trial court, in a written
order, again continued the matter for a bench trial on March 9, 2023.
-2- ¶ 10 On February 22, 2023, defendant filed a notice of appeal from the trial court’s
February 14 and February 21 orders. Defendant also filed a notice of removal to federal court. On
March 8, 2023, defendant filed a motion to substitute judge. Due to the filing of this motion, the
bench trial date was vacated, and a hearing date was scheduled for March 27.
¶ 11 On March 22, 2023, the United States District Court for the Central District of
Illinois remanded this case back to the trial court based on lack of subject matter jurisdiction over
a state eviction proceeding. The district court further imposed sanctions on defendant in the amount
of $1000 and barred him from filing civil lawsuits in the district court until he paid the sanctions
in full, admonishing defendant for his history of frivolous filings.
¶ 12 The next day, defendant filed in the trial court an unnotarized “Affidavit” titled
“Attorney No Authority.” Defendant claimed plaintiff’s counsel and the court had “no authority
or jurisdiction to proceed in this matter” based on the filing of defendant’s notice of appeal on
February 22, 2023.
¶ 13 Defendant failed to appear on March 27, 2023, for the hearing on his motion to
substitute judge. Based on his failure to appear, the trial court entered a written order denying
defendant’s motion.
¶ 14 In April 2023, plaintiff filed a motion to set trial and to allow her to appear by
Zoom. Plaintiff alleged defendant filed the March 8, 2023, motion to substitute judge in bad faith
in order to delay the trial. Plaintiff also argued defendant’s notice of appeal was improper as there
was no final order and defendant’s grounds for appeal did not meet the requirements for an
interlocutory appeal. The final page of the appellate record, dated April 11, 2023, indicates
defendant was notified of a hearing set for later that month on plaintiff’s motion to set trial and
motion to allow plaintiff to appear by Zoom. No further filings appear in the common law record.
-3- ¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant contends that the trial court (1) denied him his right to a jury
trial and (2) lacked jurisdiction to enter a May 23 order evicting him from the premises.
¶ 17 Before addressing defendant’s claims, we must establish whether this court has
jurisdiction over this appeal. Defendant, without further argument, asserts our jurisdiction arises
under Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019). However, we have an independent duty
to ascertain whether we have jurisdiction before considering the merits of this appeal. In re Estate
of Prunty, 2018 IL App (4th) 170455, ¶ 19 (citing Secura Insurance Co. v. Illinois Farmers
Insurance Co., 232 Ill. 2d 209, 213 (2009)). We conclude we lack jurisdiction over defendant’s
claims and dismiss the appeal.
¶ 18 “The Illinois Constitution confers on the appellate court the jurisdiction to hear
appeals from all final judgments entered in the circuit court.” In re Marriage of Fatkin, 2019 IL
123602, ¶ 26 (citing Ill. Const. 1970, art. VI, § 6); Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). “A judgment
or order is ‘final’ if it disposes of the rights of the parties, either on the entire case or on some
definite and separate part of the controversy.” Dubina v. Mesirow Realty Development, Inc., 178
Ill. 2d 496, 502 (1997). “[A]bsent a supreme court rule, the appellate court is without jurisdiction
to review judgments, orders, or decrees that are not final.” Blumenthal v. Brewer, 2016 IL 118781,
¶ 22.
¶ 19 Defendant’s notice of appeal identified only the February 14 and 21, 2023, bench
trial orders. An order for bench trial is nonfinal, as it “does not terminate the litigation between the
parties on the entire controversy or a separate part thereof.” Hutton v. Consolidated Grain & Barge
Co., 341 Ill. App. 3d 401, 403-04 (2003) (stating the same for an order denying a motion for jury
trial).
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NOTICE 2024 IL App (4th) 230166-U This Order was filed under FILED Supreme Court Rule 23 and is January 5, 2024 NO. 4-23-0166 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
CYNTHIA SAMAHA, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County BRIAN BURNSIDE, ) No. 22EV1527 Defendant-Appellant. ) ) Honorable ) Bruce P. Fehrenbacher, ) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Justices Steigmann and Zenoff concurred in the judgment.
ORDER
¶1 Held: The appellate court dismissed defendant’s appeal for lack of jurisdiction.
¶2 Defendant, Brian Burnside, pro se appeals from trial court orders continuing the
case for a bench trial and evicting defendant from the rental property of plaintiff, Cynthia Samaha.
Although an appellee’s brief has not been filed, we may consider this appeal under the principles
set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133
(1976). We conclude we lack jurisdiction over this matter and dismiss the appeal.
¶3 I. BACKGROUND
¶4 The record on appeal does not contain a report of proceedings, a bystander’s report,
or an agreed statement of facts of the trial court proceedings. See Ill. S. Ct. R. 323(a), (c), (d) (eff.
July 1, 2017) (permitting a bystander’s report or an agreed statement of facts in lieu of a report of
proceedings). The following facts appear only in the common law record. ¶5 In December 2022, plaintiff filed an eviction complaint against defendant and
Nicole Burnside, who is not a party to this appeal. According to the complaint, plaintiff leased to
defendant the premises located at 1502 W. Tiffany Court, Unit 4, in Peoria, Illinois (the premises).
The complaint sought $5400 for past-due rent and possession of the premises. Plaintiff attached to
the complaint a copy of the five-day notice to quit along with an affidavit of service.
¶6 The record next details a series of failed attempts to serve a copy of the summons
on defendant, who appeared to be evading service of process. After several unsuccessful attempts
at service when someone was inside the premises but refused to answer the door, the trial court
granted plaintiff’s motion for service of process by posting. The order directed the Peoria County
Sheriff’s Office to post three copies of the summons in public places and to mail a copy of the
summons to the premises.
¶7 On February 13, 2023, defendant, acting pro se, filed an “Affidavit,” which was
not notarized, and a request for court records in the trial court. Neither filing included a demand
for jury trial. Defendant also filed a motion to defend as a poor person without paying filing fees,
which the court granted.
¶8 On February 14, 2023, the trial court entered a written order continuing the case for
a bench trial on March 9, 2023. That same day, defendant filed a motion to vacate the February 14
order, a motion to dismiss, and a motion for jury trial.
¶9 Thereafter, plaintiff filed a motion for summary judgment, requesting possession
of the premises and damages in the amount of $6325 for past-due rent plus costs. Plaintiff attached
an affidavit stating she was the owner of the premises, which she leased to defendant pursuant to
an oral lease, and rent was $575 per month. On February 21, 2023, the trial court, in a written
order, again continued the matter for a bench trial on March 9, 2023.
-2- ¶ 10 On February 22, 2023, defendant filed a notice of appeal from the trial court’s
February 14 and February 21 orders. Defendant also filed a notice of removal to federal court. On
March 8, 2023, defendant filed a motion to substitute judge. Due to the filing of this motion, the
bench trial date was vacated, and a hearing date was scheduled for March 27.
¶ 11 On March 22, 2023, the United States District Court for the Central District of
Illinois remanded this case back to the trial court based on lack of subject matter jurisdiction over
a state eviction proceeding. The district court further imposed sanctions on defendant in the amount
of $1000 and barred him from filing civil lawsuits in the district court until he paid the sanctions
in full, admonishing defendant for his history of frivolous filings.
¶ 12 The next day, defendant filed in the trial court an unnotarized “Affidavit” titled
“Attorney No Authority.” Defendant claimed plaintiff’s counsel and the court had “no authority
or jurisdiction to proceed in this matter” based on the filing of defendant’s notice of appeal on
February 22, 2023.
¶ 13 Defendant failed to appear on March 27, 2023, for the hearing on his motion to
substitute judge. Based on his failure to appear, the trial court entered a written order denying
defendant’s motion.
¶ 14 In April 2023, plaintiff filed a motion to set trial and to allow her to appear by
Zoom. Plaintiff alleged defendant filed the March 8, 2023, motion to substitute judge in bad faith
in order to delay the trial. Plaintiff also argued defendant’s notice of appeal was improper as there
was no final order and defendant’s grounds for appeal did not meet the requirements for an
interlocutory appeal. The final page of the appellate record, dated April 11, 2023, indicates
defendant was notified of a hearing set for later that month on plaintiff’s motion to set trial and
motion to allow plaintiff to appear by Zoom. No further filings appear in the common law record.
-3- ¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant contends that the trial court (1) denied him his right to a jury
trial and (2) lacked jurisdiction to enter a May 23 order evicting him from the premises.
¶ 17 Before addressing defendant’s claims, we must establish whether this court has
jurisdiction over this appeal. Defendant, without further argument, asserts our jurisdiction arises
under Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019). However, we have an independent duty
to ascertain whether we have jurisdiction before considering the merits of this appeal. In re Estate
of Prunty, 2018 IL App (4th) 170455, ¶ 19 (citing Secura Insurance Co. v. Illinois Farmers
Insurance Co., 232 Ill. 2d 209, 213 (2009)). We conclude we lack jurisdiction over defendant’s
claims and dismiss the appeal.
¶ 18 “The Illinois Constitution confers on the appellate court the jurisdiction to hear
appeals from all final judgments entered in the circuit court.” In re Marriage of Fatkin, 2019 IL
123602, ¶ 26 (citing Ill. Const. 1970, art. VI, § 6); Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). “A judgment
or order is ‘final’ if it disposes of the rights of the parties, either on the entire case or on some
definite and separate part of the controversy.” Dubina v. Mesirow Realty Development, Inc., 178
Ill. 2d 496, 502 (1997). “[A]bsent a supreme court rule, the appellate court is without jurisdiction
to review judgments, orders, or decrees that are not final.” Blumenthal v. Brewer, 2016 IL 118781,
¶ 22.
¶ 19 Defendant’s notice of appeal identified only the February 14 and 21, 2023, bench
trial orders. An order for bench trial is nonfinal, as it “does not terminate the litigation between the
parties on the entire controversy or a separate part thereof.” Hutton v. Consolidated Grain & Barge
Co., 341 Ill. App. 3d 401, 403-04 (2003) (stating the same for an order denying a motion for jury
trial). Furthermore, defendant has not argued that any of the Illinois Supreme Court rules
-4- permitting an interlocutory appeal apply in this case. Accordingly, we lack jurisdiction to address
defendant’s jury trial claim.
¶ 20 Additionally, we also lack jurisdiction to address defendant’s claim concerning a
May 23 order. Illinois Supreme Court Rule 303(b)(2) (eff. July 1, 2017) provides that a notice of
appeal “shall specify the judgment or part thereof or other orders appealed from and the relief
sought from the reviewing court.” The appellate court cannot review judgments or issues that are
not specified in the notice of appeal. Diocese of Quincy v. Episcopal Church, 2014 IL App (4th)
130901, ¶ 35. As noted above, defendant’s notice of appeal identified only the February 14 and
21, 2023, orders.
¶ 21 Moreover, the record does not contain any filings dated after April 11, 2023,
meaning we do not have a copy of the alleged May 23 order in the record. Defendant attempts to
remedy this deficiency by referencing a May 23 order in his brief and as an appendix to his brief.
However,
“a reviewing court will not supplement the record on appeal with the documents
attached to the appellant’s brief on appeal as an appendix, where there is no
stipulation between the parties to supplement the record and there was no motion
in the reviewing court to supplement the record with the material.” Pikovsky v.
8440-8460 North Skokie Boulevard Condominium Ass’n, 2011 IL App (1st)
103742, ¶ 16.
Accordingly, due to the insufficient notice of appeal and incomplete record, we lack jurisdiction
to address defendant’s claim regarding a May 23 order.
¶ 22 In sum, we lack jurisdiction to consider defendant’s claims. We must therefore
dismiss the appeal.
-5- ¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we dismiss the appeal.
¶ 25 Appeal dismissed.
-6-