Schmidt v. Arteaga

2023 IL App (1st) 221008-U

• Court: Appellate Court of Illinois
• Decided: December 13, 2023
• Docket: 1-22-1008
• Status: Unpublished

Opinion

2023 IL App (1st) 221008-U THIRD DIVISION December 13, 2023 No. 1-22-1008

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 ______________________________________________________________________________ CHRISTOPHER SCHMIDT, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 17 M1 109837 ) FRANCISCO ARTEAGA and SUZANNE ARTEAGA, ) ) Defendants ) Honorable ) Martin P. Moltz and (FRANCISCO ARTEAGA, Defendant-Appellant; ) Maire A. Dempsey, SUZANNE ARTEAGA, Defendant-Appellee). ) Judges Presiding.

JUSTICE R. VAN TINE delivered the judgment of the court. Justice Lampkin concurred in the judgment. Presiding Justice Reyes specially concurred in the judgment.

ORDER

¶1 Held: We decline to reach the merits of this appeal because appellant filed the record over six months late, in serious violation of Supreme Court Rule 326 (eff. July 1, 2017). We dismiss the appeal. 1-22-1008

¶2 Christopher Schmidt sued his landlords, Francisco Arteaga and Suzanne Arteaga, alleging

they violated the Chicago Residential Landlord and Tenant Ordinance (Chicago Municipal Code

§ 5-12-110(e) (amended Nov. 6, 1991)) (RLTO), the Security Deposit Return Act (765 ILCS 710/1

(West 2016)) (SDRA), and multiple warranties of habitability. After years of litigation and

innumerable delays caused primarily by Francisco and his lawyer, Schmidt ultimately prevailed

on his SDRA claim and warranty of habitability claims. The circuit court entered a default

judgment awarding damages for these claims, as well as attorney fees. Francisco appeals that

judgment, arguing, among others, that the circuit court erred in entering a default judgment against

him. Because of Francisco’s extraordinary, unexcused delay in filing the record on appeal, we do

not reach the merits of his arguments, and we dismiss his appeal.

¶3 BACKGROUND

¶4 At the outset, we note Francisco’s numerous mistakes from the inception of this lawsuit

through the appeal, including many missed court appearances and deadlines, as well as serious

deficiencies in his opening brief.1 First and foremost, Francisco filed the notice of appeal in this

court on July 8, 2022, but did not file the record on appeal until March 13, 2023. This is a serious

violation of Supreme Court Rule 326 (eff. July 1, 2017), which requires appellants to file the record

on appeal “within 63 days after the filing of the notice of appeal ***.” Second, Francisco has failed

to include a “Nature of the Case” section in his brief, as required by Supreme Court Rule 341(h)(2)

(eff. Oct. 1, 2020). Our supreme court rules are “not mere suggestions.” In re Denzel W., 237 Ill.

2d 285, 294 (2010) (citing People v. Houston, 226 Ill. 2d 135, 152 (2007)). Our rules have the

force of law and must be construed the same as statutes. Houston, 226 Ill. 2d at 152. Third, the

1 Francisco’s missed court appearances and deadlines are detailed in Schmidt’s response brief, and are summarized below.

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brief is rife with typographical errors. Fourth, there are sentences in the brief that simply do not

make sense, including the first paragraph of the “Factual Background” section of his brief. These

deficiencies are particularly vexing given that “[a] reviewing court is entitled to have briefs

submitted that present an organized and cohesive legal argument in accordance with the Supreme

Court Rules.” Twardowski v. Holiday Hosp. Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001)

(citing In re Marriage of Souleles, 111 Ill. App. 3d 865, 869 (1982)). It is incumbent on Fransisco’s

counsel, Calvita Frederick, to remedy such defects in any future filings.

¶5 Schmidt, however, has provided us with a brief that enables us to decipher the facts of this

protracted litigation germane to this appeal.2

¶6 On August 1, 2012, Francisco and Suzanne leased an apartment to Schmidt at the rate of

$900 per month. Schmidt paid them a security deposit of $1350 (150% of the monthly rental

amount). The parties renewed the lease multiple times over the next several years. During that

time, Schmidt notified Francisco about numerous defects in the apartment, but, according to

Schmidt, Francisco did not remedy them at all, or did so with considerable delays.

¶7 On March 28, 2017, Schmidt filed a ten-count complaint against Francisco and Suzanne,

alleging violations under the RLTO (Chicago Municipal Code § 5-12-110(e) (amended Nov. 6,

1991)), which provides various substantive and remedial procedures governing the landlord-tenant

relationship, and the SDRA (765 ILCS 710/1 (West 2016)), which generally requires the landlord

to return the security deposit to the tenant within 30 days of the tenant vacating the rented premises.

In support thereof, Schmidt alleged the following. Between 2013 and 2016, he reported numerous

unit defects to his landlords. Schmidt complained of a hole in the wall that the landlords did not

2 We commend Schmidt’s counsel in the well-drafted brief that sets forth all the facts of this complicated appeal in a clear and orderly fashion.

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repair for eight months, which decreased the fair rental value of the unit by $250 per month for

those eight months. He notified his landlords of damage to his bathroom ceiling caused by water

leaking from above, but the landlords did not repair it, which decreased the fair rental value of the

unit by $100 per month for 38 months. Schmidt requested the landlords to repair a defective

shower, but they refused. In June 2016, he presented the landlords a sub-tenant, but they refused

to consent to the sub-tenancy. Schmidt vacated the unit on June 30, 2016. On July 7, 2016, Schmidt

terminated his lease pursuant to section 5-12-170 of the Chicago Municipal Code, which provides

that a tenant may terminate a rental agreement by written notice if a landlord violates the RLTO.

The landlords did not return Schmidt’s security deposit.

¶8 Nearly seven months later, after missing the responsive pleading deadline and failing to

appear in court on status, Francisco, without leave of court, filed a motion to dismiss. Francisco

missed the next appearance as well, but did appear at the one thereafter, at which he requested the

court to grant him an additional 21 days to amend his motion to dismiss. The court granted the

request. Again, Francisco missed the deadline. Eventually, the court set a briefing deadline on

Francisco’s original motion to dismiss. Four days after his reply was due, he faxed an amended

motion to dismiss to Schmidt. Francisco failed to appear at the next hearing, and the court

continued the matter to another day. The day before the new hearing, Francisco, again without

leave of court, filed a new version of the motion to dismiss. At that hearing, the court continued

the new motion to dismiss. At the next hearing, a new attorney appeared for Francisco. The new

attorney requested leave of court to withdraw the motion to dismiss and instead file a motion for

summary judgment as the “responsive pleading.” The court granted this request.

¶9 The next day, the new attorney moved the court to withdraw as counsel. A couple weeks

later, the court granted this motion, granted leave for Frederick to substitute her appearance for the

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new attorney, and struck the briefing and hearing schedule for summary judgment. A couple weeks

thereafter, Francisco appeared and requested 28 days to answer or otherwise plead. The court

granted this request. Francisco, again, missed this deadline, but the court, on its own accord,

granted him yet another extension. He missed the deadline of that extension. He filed his

responsive pleading the day before the next court date. The court did not strike the pleadings and

instead allowed Francisco to proceed, ordering Schmidt to answer the counterclaim and reply to

the affirmative defenses.

¶ 10 Over the next several months, Francisco failed to comply with discovery requests.

Eventually, he submitted his discovery responses. Shortly thereafter, Francisco indicated that he

wished to proceed on the motion for summary judgment that he had filed earlier, and filed a new

motion for summary judgment, arguing: (1) the RLTO did not apply because of the “owner

occupancy” exception; and (2) the SDRA did not require him to return the deposit because Schmidt

still owed him rent money. The court held that the RLTO did not apply because Francisco also

lived in the apartment complex where Schmidt’s unit was located; that is, the “owner occupancy”

exception applied. However, the court allowed Schmidt to proceed on the SDRA claim.

¶ 11 On January 23, 2020, Schmidt amended his complaint to add two counts alleging warranty

of habitability breaches. Count XI was based on Francisco’s failure to repair a hole in the wall,

and Count XII was premised on Francisco’s failure to repair the damaged bathroom ceiling. The

court ordered Francisco to respond by February 20, 2020, but Francisco neither responded nor

requested additional time to respond by that date. The court also ordered Francisco to complete his

deposition by March 25, 2020, but he failed to do that as well. Based on Francisco’s failure to

respond to Schmidt’s complaint, Schmidt filed a motion for default judgment. According to

Schmidt, that hearing was canceled due to the pandemic.

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¶ 12 During the subsequent 12 months, Schmidt attempted to schedule a Zoom deposition of

Francisco, but Francisco refused. Though the court was closed because of the pandemic, the orders

the circuit court issued explicitly mandated the parties to continue with discovery.

¶ 13 At the August 21, 2020 court date, Schmidt requested the court to hold Francisco in default

because he still had not responded to the amended complaint. At that point, six months had passed

since Francisco’s response was due. Attorney Frederick claimed she had been unable to contact

Francisco. The court declined to hold Francisco in default, and continued the motion for default to

September 10, 2020, to allow Frederick to attempt to contact Francisco. About an hour before the

hearing, Francisco filed a response to the motion for default claiming he had been in Mexico the

entire time Frederick tried to contact him, had become ill in February 2020, and had also lost his

phone. The court set a briefing and hearing schedule on the motion for default.

¶ 14 On February 26, 2021, Francisco finally sat for his deposition. He failed to bring any of

the documents he was required to produce, including his passports. Though Francisco had

previously submitted affidavits claiming that Chicago was his residence, he now testified that he

could not remember whether he resided primarily in Mexico or in Chicago during the time relevant

to this litigation. When asked whether the passports he failed to bring may have entry/exit stamps

that show where Francisco was and when, he responded that he had given these passports to

Frederick in 2018. This contradicted his earlier discovery responses indicating that he had

“surrendered” those passports.

¶ 15 On November 3, 2021, the court set an in-person trial for March 21, 2022. Schmidt served

Francisco a Rule 237 notice requiring him to attend trial. 3 Two days before the trial was to

3 Supreme Court Rule 237 (eff. Oct. 1, 2021) is the mechanism by which witnesses are compelled to appear at trial.

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commence, Frederick emailed Schmidt’s counsel to advise him that she was “on work restriction

and [could not] come for the trial.” She did not indicate whether Francisco would appear at trial,

nor whether another lawyer would represent Francisco. Frederick did not ask Schmidt for an

agreement for a continuation, nor did she file a motion to continue the trial.

¶ 16 On the day of the trial, neither Francisco nor Frederick appeared. The court proceeded with

the trial in their absence. The circuit court entered an order of default judgment against Francisco

in the amount of $81,470.50 ($9850 in damages and $72,097.50 in attorney fees) and also awarded

costs to Schmidt. The $9850 in damages consisted of the following: $4050 for violations of the

SDRA ($1350 deposit plus $2700); $2000 for breach of the warranty of habitability for failing to

repair the hole in the wall; and $3800 for beach of the warranty of habitability for failing to repair

the bathroom ceiling. The court also dismissed Suzanne from the lawsuit without prejudice. The

court noted that neither Francisco nor Frederick appeared. Francisco subsequently moved to vacate

that order. On June 9, 2022, the circuit court entered an order denying his motion to vacate the

March 21, 2022 order. This appeal of the March 21 and June 9 orders follows.

¶ 17 Francisco filed the notice of appeal in this court on July 8, 2022. On March 9, 2023, he

moved the court to file the record on appeal instanter. Francisco did not ask the court for any

extensions prior to the motion to file the record instanter. The court granted the motion on March

13, 2023, and Francisco filed the record on that day, which was more than eight months after he

filed his notice of appeal in this court. On March 16, 2023, Schmidt objected to the untimely

filing. 4 On March 17, 2023, the court, over Schmidt’s objection, allowed its March 13, 2023 order,

which allowed the late filing, to stand.

4 Suzanne had been dismissed from the suit, but she joined in Schmidt’s opposition to the untimely filing of the record.

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¶ 18 ANALYSIS

¶ 19 On appeal, Francisco argues that the circuit court erred in entering an ex parte (default)

judgment against him. Specifically, Francisco contends that the court (1) abused its discretion in

denying his motion to dismiss all but the SDRA claim of Schmidt’s amended complaint; (2) did

not achieve “substantial justice” by denying his motion to vacate the default judgment; (3) abused

its discretion in awarding Schmidt attorney fees; (4) erred in hearing matters off the record during

the trial; and (5) erred in ordering Francisco to participate in discovery on issues related to the

RLTO. Additionally, Francisco alleges that Schmidt somehow perpetrated fraud on the circuit

court.

¶ 20 We first consider the effect of Francisco’s extraordinarily late filing of the record on appeal.

Fransisco filed his notice of appeal on July 8, 2022. Under Rule 326, Francisco was required to

file the record within 63 days – in this case, September 9, 2022. Ill. Sup. Ct. R. 326 (eff. July 1,

2017). As mentioned above, Francisco did not seek leave to file a motion to extend the deadline.

¶ 21 On multiple occasions, this court has considered the effect of an untimely filing in

situations such as the one before us, where the appellate court had allowed the appellant to file the

late record. See, e.g., Hall v. Turney, 56 Ill. App. 3d 644 (1977); Portock v. Freeman, 53 Ill. App.

3d 1027 (1977).

¶ 22 In Hall, the appellant failed to timely file a report of proceedings or to move the court for

an extension of time, as allowed under Supreme Court Rule 323(b) (eff. July 1, 1971). Hall, 56 Ill.

App. 3d at 645. The appellant filed a motion for extension seven days after the time allotted for

such a motion had expired. Id. The court granted the untimely motion. Id. However, in its opinion

disposing of the appeal, the court admonished that Rule 323 “has the force of law and is binding

upon both the court and the litigant.” Id. It held that because appellant’s “motion in this court was

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neither made before the expiration of the original time nor filed within 45 days thereafter***”, the

court’s granting of the motion was “ineffective to grant an extension of time for filing the report

of proceedings.” Id. at 646. The court therefore did not consider the merits of appellant’s argument.

¶ 23 In Portock, the appellant filed the report of proceedings about three months late. Portock,

53 Ill. App. 3d 1027, 1031. The appellant there did request an extension of time, and did receive

an extension from the trial court, but did not do so within the 49-day period allotted under Rule

323(b). Id. The court held that because the trial court acted without authority to grant this

extension, as the motion was filed outside the period allowed by the rule, the trial court’s order

was “void and without effect.” Id. The record on appeal was also filed late because no valid

extension was obtained for filing the report of proceedings. Id. The appellate court dismissed the

appeal, reasoning that “[w]here compliance has not been had with Rules 323 and 326, the

appropriate action is to dismiss the appeal or summarily affirm without considering the merits of

the case.” Id. Again, due to the untimely report filing, the court did not consider any of the

appellant’s substantive arguments in that case.

¶ 24 The present case involves a more egregious violation of our supreme court rules than in

Hall and Portock. Francisco filed the notice of appeal on July 8, 2022. He did not file the record

on appeal until March 13, 2023. Francisco never requested an extension of time, and he filed the

record over six months late. Francisco never explained the extraordinary delay. Rather, Francisco

moved this court for leave to file the record on appeal instanter on March 9, 2023, and the court

granted the motion. However, under the precedent in Hall and Portock, this court’s order was

ineffective to serve as an extension to cure the extraordinary filing delay. Though the failure to

timely file a record does not deprive us of jurisdiction, it is well within our discretion to decline to

consider the merits of an appeal where the appellant has flagrantly violated our supreme court

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rules. See, e.g., Deutsche Bank National Trust Co. v. Roongseang, 2019 IL App (1st) 180948, ¶

21. Accordingly, we decline to reach the merits of this appeal.

¶ 25 CONCLUSION

¶ 26 For these reasons, we dismiss this appeal.

¶ 27 Dismissed.

¶ 28 PRESIDING JUSTICE REYES, specially concurring:

¶ 29 I concur in the majority’s decision to dismiss the instant appeal due to Francisco’s lack of

compliance with supreme court rules. To the extent, however, that the majority’s decision provides

that the orders entered by this court permitting the filing of the record instanter were “ineffective

to serve as an extension” (supra ¶ 24), I must respectfully disagree.