Smith v. King , 2023 IL App (1st) 210446-U ( 2023 )

2023 IL App (1st) 210446-UNo. 1-21-0446
Order filed January 13, 2023
Fifth Division
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
______________________________________________________________________________
TALONDA SMITH, ) Appeal from the
) Circuit Court of
Petitioner-Appellee, ) Cook County.
)
v. ) No. 20 OP 75994
)
BRANDON J. KING, ) Honorable
) Marina E. Ammendola,
Respondent-Appellant. ) Judge, presiding.
PRESIDING JUSTICE CONNORS delivered the judgment of the court.
Justices Delort and Mitchell concurred in the judgment.
ORDER
¶1 Held: The circuit court properly granted petitioner leave to amend her petition for a
stalking no contact order to permit correction of scrivener’s errors after the court
dismissed the petition on respondent’s motion without prejudice. The court had
jurisdiction to extend the emergency stalking no contact order.
¶2 In this interlocutory appeal, respondent Brandon J. King challenges the circuit court’s
orders regarding petitioner Talonda Smith’s pro se emergency petition for a stalking no contact
order under the Stalking No Contact Order Act (740 ILCS 21/1 et seq (West 2020)). Respondent
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argues the circuit court improperly sua sponte granted petitioner leave to file an amended petition
following its involuntary dismissal of her petition without prejudice. He also argues the circuit
court lacked jurisdiction to extend the effective dates of the emergency stalking no contact order
because petitioner had substituted a new respondent named “Bradon J. King” in the proceedings.
We affirm.
¶3 On August 27, 2020, petitioner filed a pro se emergency petition for a stalking no contact
order against “Brandon J King.” She alleged that in “May,” on the 11000 block of South Wallace
Street, respondent hit petitioner’s fence, and respondent and his wife “came on [petitioner’s]
property and tried to pick [a] fight” after being told that “their son needs to stop trespassing or
damaging [petitioner’s] property.” Petitioner alleged that a second incident occurred on “8-27” at
7 p.m. at the same location, in which respondent “picked a fight” with petitioner and her family,
fought with petitioner’s son, and left to retrieve a firearm. Respondent, his wife, and his son
allegedly “tried to fight [petitioner].” On a separate page, file stamped August 27, 2020, are the
handwritten date “8-28-2020” and the statement “I have evidence of Brandon and his friends in
my backyard looking around my property, and also showing I recently got a fence put up for know
[sic] trespassing.”
¶4 In her petition, petitioner requested the circuit court prohibit respondent from threatening
to commit stalking or committing stalking, having any contact with her and multiple other
individuals, knowingly coming within 100 feet of petitioner’s residence, and possessing a Firearm
Owner’s Identification card or possessing or buying firearms. Petitioner also requested injunctive
relief in the form of “no contact by any means.” The summons named “Brandon J. King” as
respondent and listed an address on the 11000 block of South Wallace as the place to serve him.
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¶5 On August 27, 2020, at 1:55 p.m., the circuit court entered an ex parte emergency stalking
no contact order (740 ILCS 21/95 (West 2020)) against respondent prohibiting him from
threatening to commit stalking, committing stalking, having any contact with petitioner and “any
protected person,” and knowingly coming or remaining within 10 feet of petitioner’s residence.
The protected persons included the individuals petitioner identified in the petition. The court also
entered injunctive relief providing for “no contact by any means.” The court’s stated reason for
the emergency order was “threats, assault w/ weapon, causing fear & emotional distress.” The
order would remain effective until September 17, 2020, at 4:30 p.m.
¶6 On September 17, 2020, the circuit court ordered the clerk to issue an alias summons and
extended the emergency order until October 8, 2020. On October 1, 2020, respondent was
personally served with a copy of the stalking no contact order and informed of its contents. On
October 8, 2020, the circuit court entered an order stating respondent was served in open court,
extending the emergency order until November 6, 2020, and continuing the matter for the parties
to retain counsel. In November, the court extended the emergency order until December 2, 2020.
Respondent filed an appearance through counsel on that date and the court extended the emergency
order until February 2021. Petitioner continued pro se.
¶7 On January 29, 2021, respondent filed a motion to dismiss the petition pursuant to section
2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2020)), arguing the petition
was “fatally defective” as to the “May” and “8-27” incidents. Respondent noted that the petition
did not provide a date or time for the “May” incident and the incident alleged to have occurred on
“8-27” at 7 p.m. was “presumably August 27, 2020, with a time of 7 pm.” Respondent argued that
the latter allegation was “factually inconsistent” because the circuit court’s August 27, 2020, order
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was entered “approximately 5 hours and 5 minutes” prior to the time of the alleged “8-27” incident
stated in the petition. Respondent claimed that the circuit court’s emergency stalking no contact
order of August 27, 2020, was void because the circuit court “had no jurisdiction over a future
event.”
¶8 On February 2, 2021, the circuit court dismissed the petition without prejudice. It granted
petitioner leave to file an amended petition within 28 days, on or before March 2, 2021, to cure
the defect in the petition “which incorrectly states the 2nd event occurred on August 27, 2020.”
The circuit court denied respondent’s oral motion to vacate the emergency stalking no contact
order as void and extended the order’s effective period through March 23, 2021, at 11 a.m.
¶9 On February 25, 2021, petitioner filed a pro se “ammend [sic]” petition for stalking no
contact order. The word “ammend [sic]” was handwritten and appeared above the title of the
template petition form. In the caption at the top of the petition and in the “respondent information”
section, petitioner spelled the respondent’s name as “Bradon J. King.” This petition included the
same allegations as the original and identified the same addresses for petitioner and respondent,
but the date for the second incident was changed from “8-27” to “8-26” at 7 p.m. The handwritten
page contained the same allegations as in the original petition, but the “8-28-2020” date was
removed.
¶ 10 On March 16, 2021, respondent filed a section 2-615 motion to dismiss the February 25,
2021, petition. He argued the petition made “no reference to it being an ‘Amended Petition.’ ” He
further claimed that petitioner failed to name “Brandon J. King” as a party and instead named as
the respondent “Bradon J. King, the first name of which is similar to the last name of one of
Respondent’s attorneys, Zedrick Braden.” Respondent argued the circuit court lacked jurisdiction
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over the matter “as it pertains to Brandon King.” Respondent also argued the circuit court “never
had jurisdiction of this matter” due to petitioner’s “fatal error” in the initial petition, “which
resulted in [the circuit court] entering an Emergency Order of Protection for an alleged act on a
date in the future.” Respondent requested that the circuit court dismiss the petition with prejudice
and declare the February 2, 2021, order extending the emergency stalking no contact order void
because the circuit court “never acquired jurisdiction of this matter and has no inherent powers to
enter any orders pertaining to same.”
¶ 11 On March 23, 2021, the circuit court conducted a status hearing via video conference, in
which petitioner, respondent, and respondent’s counsel appeared. Petitioner confirmed that she
had filed an amended petition on or before March 2 and wished to “go forward in [her] request for
a longer order.” The court asked respondent’s counsel if he had the amended petition, and counsel
responded that he received a petition naming “Bradon J. King,” and he filed another section 2-615
motion to dismiss. Respondent’s counsel explained that petitioner e-mailed him the February 25,
2021, filing, seeking relief against a “Bradon” J. King, but his client was “Brandon” J. King.
Petitioner acknowledged that “the ‘N’ is missing” in respondent’s name in her amended petition
but it was an “innocent mistake.”
¶ 12 The court dismissed the petition without prejudice and granted petitioner leave to file an
amended petition “to correct the spelling.” Respondent’s counsel stated that he had a “standing
objection.” The court explained it granted respondent’s section 2-615 motion to dismiss with leave
to amend, “which is the law.” The court granted petitioner leave to file the amended petition by
April 22, 2021, set a court date for April 29, 2021, and extended the emergency stalking no contact
order’s effective period to April 29, 2021.
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¶ 13 Counsel repeated he had a “standing objection to all actions of the Court.” He claimed that
because the misspelled name on the new petition was “very similar” to his last name, he had “no
way of knowing” whether it was an error or petitioner was attempting to substitute him for his
client. The court informed counsel that his “speculation” was “entirely unhelpful,” and explained
that the sheriff served respondent with the initial petition, and petitioner made a scrivener’s error
in identifying respondent in a subsequent filing. The court stated that “there is nothing before this
Court that suggests the petitioner was trying to attribute to you the allegations she identified in the
petition.”
¶ 14 On April 9, 2021, petitioner filed a pro se “motion to amend petition,” identifying
“Brandon J. King” as the respondent. Along with the motion, petitioner filed another “Amended”
petition, spelling the respondent’s name as “Brandon J. King” and containing the same allegations
and addresses as the previous filing.
¶ 15 On April 20, 2021, respondent filed a notice of interlocutory appeal under Illinois Supreme
Court Rule 307 (eff. Nov. 1, 2017) of the “Trial Court’s order of March 23, 2021.”
¶ 16 On April 22, 2021, respondent filed a motion for a stay of circuit court proceedings while
his interlocutory appeal remained pending before this court. Respondent also asserted a continuing
objection to the amended petition filed on April 9, 2021.
¶ 17 On April 29, 2021, the circuit court entered an order granting petitioner’s motion to amend
her petition “over objection,” extending the stalking no contact order’s effective period to June 8,
2021, at 11 a.m., and setting a status hearing for that date and time. The order also “excused
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[respondent] for all status dates” and noted that respondent “advises the 3/23/21 Order is Subject
of an Appeal pending.” 1
¶ 18 This court entered an order that the appeal be taken on respondent’s appellant brief and the
record only, as petitioner has not filed a brief.
¶ 19 Before proceeding to the merits of the appeal, we first note that this court has jurisdiction
over the interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017),
which allows interlocutory appeals as a matter of right from orders “granting, modifying, refusing,
dissolving, or refusing to dissolve or modify an injunction.” See People v. Smith, 228 Ill. 2d 95,
104 (2008) (“A reviewing court has an independent duty to consider issues of jurisdiction,
regardless of whether either party has raised them.”). Respondent challenges two circuit court
orders: one extending an injunctive order and another dismissing a petition for injunctive relief
without prejudice. Rule 307(a)(1) permits an interlocutory appeal from both orders. See Fricke v.
Jones, 2021 IL App (5th) 200044, ¶¶ 18-21 (interlocutory appeal from an order extending an
injunctive order is proper); see also Bundy v. Church League of America, 125 Ill. App. 3d 800,
802-03 (1984) (interlocutory from dismissal without prejudice is proper, where the dismissal
“leav[es] [an] injunction issue open to further litigation”). Accordingly, this court has jurisdiction
to consider respondent’s interlocutory appeal.
1
The record contains no further circuit court proceedings following the April 29, 2021, order.
The record also does not establish whether the circuit court ruled on respondent’s motion to stay the
proceedings pending the outcome of this appeal. Nonetheless, we note that an interlocutory appeal does
not divest the circuit court of all jurisdiction, but restrains the circuit court from changing or modifying
the order on appeal or from “taking any other action which would interfere with appellate review of that
order.” Payne v. Coates-Miller, Inc., 68 Ill. App. 3d 601, 608 (1979). Therefore, even assuming,
arguendo, the circuit court denied the motion to stay and continued proceedings, any action taken by the
circuit court within its authority during the pendency of this appeal would not affect the subject matter
before us.
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¶ 20 In an interlocutory appeal, our “scope of review is normally limited to an examination of
whether or not the trial court abused its discretion in granting or refusing the requested
interlocutory relief.” In re Lawrence M., 172 Ill. 2d 523, 526 (1996). However, where the appellant
presents questions of law, we determine the question “independently of the trial court’s judgment.”
Id.¶ 21 Respondent first argues on appeal that the circuit court “erred or abused its discretion” in
entering an order “to persuade petitioner to file an Amended Petition” after it dismissed her petition
without prejudice pursuant to section 2-615 on respondent’s motion. We find respondent’s claim
meritless.
¶ 22 A section 2-615 motion to dismiss serves “to point out defects in pleadings and allow the
[claimant] an opportunity to amend and present a valid [pleading].” Village of South Elgin v. Waste
Management of Illinois, Inc., 348 Ill. App. 3d 929, 939-40 (2004). “Leave to amend should
generally be granted unless it is apparent that even after amendment no cause of action can be
stated.” City of Elgin v. County of Cook, 169 Ill. 2d 53, 71 (1995). “The question of whether to
grant or deny leave to amend a [pleading] is within the trial court’s discretion, and the court’s
decision will not be reversed absent an abuse of that discretion.” Weidner v. Midcon Corp., 328
Ill. App. 3d 1056, 1059 (2002).
¶ 23 Here, respondent moved to dismiss under section 2-615 on the basis that petitioner failed
to file an “amended” petition and name respondent as a party. Respondent’s challenges to the
sufficiency of the petition rested on petitioner’s misspelling of the word “amended” as “ammend”
and respondent’s first name “Brandon” as “Bradon.” We find the two spelling defects in the
petition amount to easily remedied scrivener’s errors with no bearing on whether petitioner could
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ultimately state a claim for relief. The circuit court properly granted petitioner leave to amend her
petition, as “courts are encouraged to freely and liberally” allow a party to amend pleadings. Lee
v. Chicago Transit Authority, 152 Ill. 2d 432, 467 (1992); see 735 ILCS 5/2-616 (West 2020) (“[a]t
any time before final judgment amendments may be allowed on just and reasonable terms.”).
¶ 24 In support of his position on appeal that the court abused its discretion in granting petitioner
leave to amend her petition, respondent cites four factors adopted by our Illinois supreme court in
Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992): (1) “whether the
proposed amendment would cure the defective pleading”; (2) “whether other parties would sustain
prejudice or surprise by virtue of the proposed amendment”; (3) “whether the proposed amendment
is timely”; and (4) “whether previous opportunities to amend the pleading could be identified.”
See Tomm’s Redemption, Inc. v. Hamer, 2014 IL App (1st) 131005, ¶¶ 13-14 (when determining
whether leave to amend pleadings should be granted, courts consider four factors, which “apply
only to amendments that have been proposed prior to final judgment”).
¶ 25 Even applying the Loyola Academy factors, each factor clearly weighs in favor of
amendment as: (1) petitioner could easily cure the “defective pleading” by correctly spelling
respondent’s name and the word “amended”; (2) respondent can claim no prejudice or surprise
from the proposed amendment as his motion to dismiss pointing out the misspellings was the
impetus for the court’s granting leave to amend after granting the motion to dismiss without
prejudice; (3) petitioner timely filed the proposed amended pleading while the case was still in the
pleading stage; and (4) petitioner promptly corrected the scrivener’s errors as soon as the court
granted respondent’s motion to dismiss without prejudice. Loyola Academy, 146 Ill. 2d at 273. The
court was not required to dismiss the petition with prejudice based on the facial defects raised by
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respondent, and it properly granted petitioner leave to amend the petition to correct the
misspellings contained in her petition. City of Elgin, 169 Ill. 2d at 71.
¶ 26 Respondent next argues that the circuit court erred in extending the emergency stalking no
contact order because the court lost jurisdiction over him when petitioner “substituted” someone
named “Bradon J. King” as the respondent. This claim is also without merit.
¶ 27 “Personal jurisdiction may be established either by service of process in accordance with
statutory requirements or by a party’s voluntary submission to the court’s jurisdiction.” Municipal
Trust & Savings Bank v. Moriarty, 2021 IL 126290, ¶ 17. “A judgment rendered without voluntary
submission or service of process in strict statutory compliance is void regardless of whether the
defendant had actual knowledge of the proceedings.” Id. Where a party files any pleading or
motion prior to filing a motion objecting to personal jurisdiction, the party waives all objections
to personal jurisdiction. 735 ILCS 5/2-301(a-6) (West 2020).
¶ 28 The record shows that petitioner filed her original petition for a stalking no contact order
against respondent, “Brandon J. King.” Respondent filed a general appearance and motion to
dismiss the original petition but did not argue the court lacked personal jurisdiction over him as a
basis to dismiss. See King v. Find-A-Way Shipping, LLC, 2020 IL App (1st) 191307, ¶ 20 (the
defendant waived objection to personal jurisdiction where it filed a general appearance, and “not
a special limited appearance solely to contest the circuit court’s jurisdiction”); 735 ILCS 5/2-
301(a-6) (West 2020) (party filing any other pleading or motion prior to filing a motion objecting
to the court’s jurisdiction over the party’s person “waives all objections to the court’s jurisdiction
over the party’s person prospectively”). Respondent did not challenge the circuit court’s personal
jurisdiction over him until petitioner filed her amended petition, when he argued the circuit court
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lost jurisdiction over him because petitioner named “Bradon J. King” rather than “Brandon J.
King” as the respondent in that pleading. Having already submitted to the circuit court’s personal
jurisdiction over him, respondent could not subsequently claim that the circuit court lacked
personal jurisdiction. Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 29 (the
defendant waived any right to contest personal jurisdiction or service when he appeared and filed
an answer).
¶ 29 We are not persuaded by respondent’s claim on appeal that petitioner substituted, or even
intended to substitute, a different person named “Bradon J. King” as respondent when she filed
her amended petition. Every pleading filed by petitioner identified the same address for the
respondent (respondent Brandon J. King’s address) and described the same course of conduct.
After the court dismissed her amended petition without prejudice, petitioner soon after filed
another amended petition correctly spelling respondent’s name. It is abundantly clear from the
record that petitioner’s misspelling of respondent’s name was a scrivener’s error.
¶ 30 Further, respondent points to no legal authority supporting his position that the mere
misspelling of his name on a subsequent filing should deprive the circuit court of personal
jurisdiction over him on the basis that he was no longer a named respondent, especially where he
consistently participated in the protective order proceedings and clearly knew he was a party to the
proceedings. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (Argument must be supported with
“citation of the authorities” and “[p]oints not argued are forfeited and shall not be raised in the
reply brief, in oral argument, or on petition for rehearing.”). Moreover, to find that the circuit court
should have dismissed the case for lack of jurisdiction in the midst of the protective order
proceedings due to a scrivener’s error in an amended pleading would needlessly elevate form over
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substance. See Munroe-Diamond v. Munroe, 2019 IL App (1st) 172966, ¶ 45 (“[A]t the pleading
stage, we have never exalted form over substance.”). We therefore conclude that the circuit court
did not lose personal jurisdiction over respondent in this case when respondent’s first name was
misspelled in an amended pleading.
¶ 31 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 32 Affirmed.
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