Zurek v. Zurek , 2022 IL App (1st) 220275-U ( 2022 )

2022 IL App (1st) 220275-UOrder filed: November 3, 2022
FIRST DISTRICT
FOURTH DIVISION
Nos. 1-22-0275 and 1-22-0395 (consolidated)
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 JUDICIAL DISTRICT
______________________________________________________________________________
RON ZUREK, as Trustee of the Stella E. Zurek 2003
) Appeal from the
Declaration of Trust, ) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
) No. 18 M1 1700805
v. )
) Honorable
KENNETH P. ZUREK, CHRISTOPHER ) James Ryan and
BURNETT, and UNKNOWN OCCUPANTS, ) Regina A. Mescall,
) Judges, presiding.
Defendants )
)
(Kenneth P. Zurek and Christopher Burnett, )
)
Defendants-Appellants). )
_____________________________________________________________________________
JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Lampkin and Justice Martin concurred in the judgment.
ORDER
¶1 Held: We dismiss these consolidated appeals, where they involve issues that have been
rendered moot by the sale of the property at issue and appellants failed to comply
with Illinois Supreme Court Rules 347 and 361.
¶2 Defendants-appellants, Kenneth P. Zurek and Christopher Burnett, appeal from various
orders that ultimately led to the grant of summary judgment and eviction orders in favor of
plaintiff-appellee, Ron Zurek, as Trustee for the Stella E. Zurek 2003 Declaration of Trust, with
respect to certain property. For the following reasons, we dismiss this appeal both as moot and for
Nos. 1-22-0275 and 1-22-0395 (consolidated)
appellants’ failure to comply with Illinois Supreme Court Rules 347 (eff. Oct. 1, 2020) and 361
(eff. Dec. 1, 2021).
¶3 Because it is extensive, we summarize here only that portion of the factual background
necessary to the resolution of these consolidated appeals. Portions of this order have been taken
from prior decisions issued by this court in related appeals. See Zurek v Zurek, 2018 IL App (1st)
172620-U; Zurek v Zurek, 2021 IL App (1st) 200342-U.
¶4 Stella E. Zurek died on February 11, 2014, at which time she was a resident of Franklin
Park, Illinois, living in her home with her son Kenneth. At the time of her death, she was survived
by her three adult sons: Ron, Kenneth and Frank L. Zurek. Pursuant to a “2003 Declaration of
Trust” and an amendment thereto (2003 Trust), both executed by Stella in August 2003, upon
Stella's death Kenneth became the successor trustee of the 2003 Trust and was charged with
distributing the trust's assets among Stella's three sons, per stirpes. The only exception to this
arrangement involved Stella's home (the property), with respect to which the 2003 Trust provided
that it “shall not be sold until [Kenneth] moves out or becomes unwilling or unable to maintain the
premises so long as [Kenneth] keeps the real estate and homeowner's insurance current, maintains
the premises consistent with state, local and federal building code requirements and generally
maintains the property in a condition rated as good by real estate standards.” Upon any sale of the
property, the 2003 Trust provided that any proceeds from the sale would likewise be distributed
among Stella's three sons, per stirpes.
¶5 On November 19, 2014, Ron initiated a prior lawsuit by filing a “Complaint to Compel
Accounting, To Remove Trustee and Imposition of Constructive Trust,” naming as defendants
both Frank and Kenneth, with Kenneth being named both individually and in his capacity as
successor trustee of the 2003 Trust. Zurek v Zurek, 14 CH 18611 (Cir. Ct. Cook County). Therein,
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Ron alleged that upon Stella's death, the 2003 Trust contained the property and “other assets in
excess of $200,000.” Ron also generally alleged that since Stella's death, Kenneth had failed to:
(1) provide any information or accounting with respect to the assets of the 2003 Trust; (2) provide
any information confirming that Kenneth was fulfilling his responsibilities with respect to the
property; or (3) distribute any trust assets in accordance with the terms of the 2003 Trust. Further
contending that Kenneth was improperly being personally benefited by his breach of the fiduciary
duties imposed upon him by his role as successor trustee, Ron's complaint asked the circuit court
to: (1) require Kenneth to provide all documentation with respect to his actions as trustee; (2)
require Kenneth to provide an accounting by a date certain; (3) remove Kenneth as trustee; (4)
order Kenneth to pay Ron's attorney fees and costs; and (5) award “such other, further or different
relief as the Court deems just.”
¶6 The prior matter then proceeded to a bench trial on Ron's complaint. At the conclusion of
the trial, the circuit court entered an order on June 30, 2017, in which it found that: (1) Kenneth
breached his fiduciary duties as trustee of the 2003 Trust, including converting trust assets for his
own benefit; (2) both a purported 2003 Trust revocation and a purported 2013 Trust alleged by
Kenneth at trial were “null and void,” and that any assets held in any purported 2013 Trust were
the sole property of the 2003 Trust; and (3) a 2016 deed purportedly transferring title of the
property to the 2013 Trust was null and void, and that title to the property was vested in the 2003
Trust. The circuit court further ordered: (1) Kenneth to account for all of the assets of the 2003
Trust, which were specifically found to have included the property and at least $156,000 in liquid
assets at the time of Stella's death; (2) the removal of Kenneth as trustee of the 2003 Trust instanter,
replacing him with Ron; and (3) that Ron was authorized and directed to sell the property “as soon
as possible” and to hold any proceeds of the sale of the property until further order of the circuit
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court. The order further provided that Ron was “entitled to sole possession of the [property],” and
found that there was no reason to delay its enforcement or appeal.
¶7 Kenneth’s posttrial motion was denied, and he filed a prior appeal. In an order entered in
August 2018, this court affirmed the judgment entered in the prior litigation, in part due to
Kenneth’s failure to provide a sufficient record on appeal. Zurek, 2018 IL App (1st) 172620-U.
¶8 While the prior appeal was pending, Ron initiated this lawsuit in January 2018 by filing a
complaint against Kenneth and unknown occupants of the property, pursuant to the Eviction Act
(formerly the Forcible Entry and Detainer Act) 735 ILCS 5/9-101, et seq. (West 2018). Therein,
Ron generally sought possession of the property based upon Kenneth’s purported failure to comply
with the terms of the June 30, 2017, order entered in the prior litigation. Thereafter, Ron and
Kenneth engaged in extensive litigation over several issues, not all of which are relevant to our
resolution of these appeals.
¶9 We first note that Kenneth filed a motion to dismiss this matter for Ron’s alleged lack of
diligence in obtaining service upon him, pursuant to Illinois Supreme Court Rule 103(b) (eff. July
1, 2007), as well as a motion seeking to deem unanswered requests for admission admitted as true.
For his part, Ron filed a motion for summary judgment in which he asserted that, considering the
June 30, 2017, order entered in the prior litigation and the principles of collateral estoppel, Ron
was entitled to possession of the property as a matter of law.
¶ 10 In his response to Ron’s motion for summary judgment, Kenneth argued—inter alia, and
for the first time—that he was entitled to possession of the property under the terms of a lease that
was purportedly executed on December 31, 2016, by and between Kenneth, the 2003 Trust and
the purported 2013 Trust. In addition, Kenneth also filed a motion to dismiss this matter for Ron’s
failure to join a necessary and indispensable party. Therein, Kenneth asserted that another
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individual, Burnett, also lived at the property as Kenneth’s roommate. Indeed, the motion asserted
that Burnett resided at the property as a lessee, pursuant to a lease that was purportedly executed
on July 31, 2016, by and between Burnett, the 2003 Trust and the purported 2013 Trust. Kenneth
thus asserted Burnett was required to be added as a defendant.
¶ 11 In response to the two leases newly asserted by Kenneth, Ron sought leave to file an
amended complaint adding two counts challenging the leases as fraudulent under the Uniform
Fraudulent Transfer Act (UFTA). 740 ILCS 160/1 et seq. (2018). That request was denied in an
order entered on July 2, 2019.
¶ 12 Following a hearing, the circuit court entered a written order on August 5, 2019, in which
it: (1) denied the two motions to dismiss filed by Kenneth, as well as Kenneth’s motion seeking to
deem unanswered requests for admission admitted as true, (2) granted Ron’s motion for summary
judgment on his original complaint, and (3) denied Kenneth’s oral motion for a stay of eviction. A
separate eviction order granting Ron possession of the property instanter was entered the same
day against Kenneth and unknown occupants. The report of proceedings for the hearing held that
day reveals that the circuit court rejected Kenneth’s contention that the purported lease executed
on December 31, 2016, by and between Kenneth, the 2003 Trust and the purported 2013 Trust,
entitled Kenneth to possession of the property.
¶ 13 On August 27, 2019, Kenneth filed a motion to stay the eviction order and to reconsider
and vacate the order denying his prior request for a stay. On September 3, 2019, Kenneth filed a
motion to reconsider the other rulings contained in the order entered on August 5, 2019.
¶ 14 While Kenneth’s motions were pending, several other relevant events transpired. On
October 29, 2019, counsel for Burnett filed a limited scope appearance on his behalf. On the same
date, the circuit court entered an order in which it: (1) barred Kenneth from filing further motions
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Nos. 1-22-0275 and 1-22-0395 (consolidated)
without leave of court, (2) granted Ron leave to file an amended complaint to add Burnett as a
defendant and granted Burnett—who was identified in open court—leave to respond thereto, and
(3) stayed the eviction order solely as to Burnett. A separate case management order was entered
the same day concerning Burnett, in which the court—inter alia—set a trial date for December 11,
2019.
¶ 15 Ron’s first amended complaint was filed on November 12, 2019, naming as defendants
Kenneth, Burnett and unknown occupants of the property. Therein, Ron sought possession of the
property pursuant to the Eviction Act, and sought a ruling that the lease purportedly executed on
July 31, 2016, by and between Burnett, the 2003 Trust and the purported 2013 Trust be declared
void, pursuant to the UFTA.
¶ 16 Thereafter, leave was granted to Kenneth to file a motion to dismiss or stay these
proceedings due to complaints being filed with the Illinois Human Rights Commission against
Ron on behalf of Kenneth and Burnett. In addition, counsel for Burnett filed a motion to withdraw
its limited scope appearance. The trial date with respect to Burnett was stricken, and all pending
issues were scheduled for a hearing on January 24, 2020.
¶ 17 Following that hearing, a written order was entered on January 24, 2020, in which the
circuit court: (1) denied all of Kenneth’s pending motions, including his motions for
reconsideration and his motion to dismiss, (2) granted Burnett’s counsel leave to withdraw, and
granted leave for Burnett to file an appearance, and (3) set dates in February 2020 for pretrial and
trial as to the claims against Burnett.
¶ 18 Thereafter, Burnett filed an objection to his counsel’s withdrawal of its limited appearance
on January 30, 2020, and, on February 7, 2020, Burnett filed a motion to strike that portion of the
January 24, 2020, order allowing his counsel to withdraw. On February 13, 2020, Ron filed a
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Nos. 1-22-0275 and 1-22-0395 (consolidated)
motion pursuant to the Eviction Act asking the court to grant an extension of time for it to enforce
the August 5, 2019, eviction order against Kenneth and unknown owners, and to apply that eviction
order to Burnett and lift the stay on the eviction order as to Burnett.
¶ 19 Kenneth filed a prior notice of appeal on February 18, 2020, in which he sought review of
all the “orders entered by the court prior to and leading up to the entry of the August 5, 2019, and
January 24, 2020, orders.” Finally, on February 21, 2020, the circuit court entered an order in
which it noted that the objection to the withdrawal of Burnett’s counsel had been withdrawn, and
that all other “motions in this case are stayed pending appeal.”
¶ 20 In the prior appeal filed in this matter, Kenneth asked this court to reverse the circuit court
orders which denied his motions to dismiss for the alleged lack of diligence in obtaining service
upon him, denied his motion to deem unanswered requests to admit as true, granted Ron’s motion
for summary judgment, and denied Kenneth’s requests for reconsideration of those orders.
However, we found that we were without jurisdiction to address Kenneth's prior appeal. Zurek,
2021 IL App (1st) 200342-U, ¶ 22.
¶ 21 We reasoned that even if the orders from which Kenneth sought review were potentially
appealable by virtue of the order granting summary judgment in favor of Ron, those orders did not
resolve all the issues involving all the parties pending below at the time Kenneth filed his notice
of appeal. Specifically, the issues and claims then still pending included: (1) Ron’s claims for
possession of the property as to Burnett, and his UFTA claim with respect to the July 31, 2016,
lease, as pleaded in the amended complaint, (2) Ron’s February 13, 2020, motion asking the court
to grant an extension of time for it to enforce the August 5, 2019, eviction order against Kenneth
and unknown owners, and to apply that eviction order to Burnett and lift the stay on the eviction
order as to Burnett, and (3) the motion and objection filed with respect to the withdrawal of the
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limited scope appearance of Burnett’s counsel. Because the circuit court had not made an “express
written finding that there is no just reason for delaying either enforcement or appeal or both” (Ill.
S. Ct. 304(a) (eff. Mar. 8, 2016)) with respect to the appealed orders, we dismissed the prior appeal
for lack of appellate jurisdiction. Id. ¶¶ 26-27.
¶ 22 Following our dismissal of the prior appeal, the parties returned to the circuit court and
acknowledged that the objection to the withdrawal of Burnett’s counsel had itself been withdrawn
after the prior notice of appeal was filed, thus resolving that matter. Burnett filed an appearance
pro se. In addition, as relevant to this appeal, Ron filed a motion for summary judgment with
respect to the claims against Burnett contained in his amended complaint and that motion was fully
briefed by the parties. The parties also filed briefs addressing Ron’s motion to extend the eviction
order entered against Kenneth, to apply that eviction order to Burnett, and to lift the stay on the
eviction order as to Burnett.
¶ 23 Following a hearing on February 22, 2022, the circuit court entered a written order
resolving all pending issues in which it: (1) granted Ron’s motion for summary judgment with
respect to the claims against Burnett in his amended complaint and granted Ron possession of the
property as to Burnett, after finding that the lease entered into by Burnett was “void as a fraudulent
transfer,” (2) granted Ron’s motion to extend the eviction order entered against Kenneth and
unknown occupants, and lifted the stay on the eviction order as to Burnett, and (3) denied
Kenneth’s oral motion for a stay of the order of possession pending appeal. A separate eviction
order granting possession of the property to Ron was entered against Kenneth, Burnett and
unknown occupants the same day, effective immediately.
¶ 24 Kenneth filed a notice of appeal on February 25, 2002, and an amended notice of appeal
on March 14, 2022. Burnett filed a notice of appeal on March 17, 2022. In an order entered by this
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court on May 24, 2022, these appeals were consolidated. On May 31, 2022, Burnett filed a motion
in this court to stay the February 22, 2002, eviction order pending the outcome of these appeals.
That motion was denied on June 7, 2022, for Burnett’s failure to comply with Illinois Supreme
Court Rule 305(d) (eff. July 1, 2017).
¶ 25 On September 30, 2022, after the merits of these consolidated appeals were fully briefed
by the parties, Ron filed a motion to dismiss these appeals as moot. In that motion, Ron asserts
that the eviction orders were executed by the sheriff on June 8, 2022, after which possession of the
property was taken by Ron through his agent, Scott Pryor, who had been retained for that purpose.
Later that day, Pryor was informed by the Franklin Park police that Kenneth had attempted to
break into the property by breaking a door. Criminal complaints against Kenneth for criminal
damage to property and criminal trespass to a residence were sworn out by Pryor, as property
agent, the same day.
¶ 26 The motion to dismiss further asserts that Ron entered into a contract for the sale of the
property to Michael Conroy, a third-party, in July 2022, and that this transaction closed in August
2022. The motion was supported by affidavits executed by Ron and Pryor, as well as by copies of
the criminal complaints, the real estate contract, and a trustee’s deed transferring the property to
Conroy. The deed was executed on August 2, 2022, and recorded on August 25, 2022. In asking
this court to dismiss these appeals, Ron’s motion asserted that these new facts made it impossible
for this court to grant the appellants any effective relief, rendering these appeals moot.
¶ 27 Both Kenneth and Burnett filed objections to the motion to dismiss. Therein, Kenneth and
Burnett concede that the eviction orders were executed, and the property was sold, as described in
Ron’s motion. Nevertheless, they both assert various reasons why these appeals are not moot
because this court can still grant meaningful relief. They also assert that several exceptions to the
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mootness doctrine are applicable here, allowing for review on the merits.
¶ 28 On October 7, 2022, this court entered an order taking Ron’s motion to dismiss with the
case. For the following reasons, we grant Ron’s motion and dismiss these consolidated appeals as
moot and for appellants’ failure to comply with Supreme Court Rules 347 and 361.
¶ 29 In their pro se briefs on the merits, appellants have raised a host of arguments. These
include assertions that the judgment entered in the prior litigation and this court’s affirmance of
that judgment on appeal were incorrect, thus fatally undercutting the basis for Ron’s claim of right
to possession of the property in this matter. They also raise various challenges to the merits of the
orders entering summary judgment, the eviction orders, and the extension of the original eviction
order as to Kenneth. Appellants also challenge various other interim orders entered below,
including the denial of Kenneth’s motions to dismiss, the order precluding Kenneth from filing
additional motions without first obtaining leave and the denial of the motion to deem unanswered
requests for admission admitted as true.
¶ 30 However—with two possible exceptions that will be addressed below—regardless of their
merit or lack thereof, all these arguments ultimately amount to various avenues by which
appellants seek to attack the final summary judgment and eviction orders entered in this matter.
And all these arguments are ultimately efforts to obtain reversal of the circuit court’s decision to
award possession of the property to Ron, a property that has been sold while this appeal was
pending.
¶ 31 “The existence of an actual controversy is an essential requisite to appellate jurisdiction,
and courts of review will generally not decide abstract, hypothetical, or moot questions.” In re
Marriage of Nienhouse, 355 Ill. App. 3d 146, 149 (2004). It is true that the “failure to obtain a stay
pending appeal, by itself, does not necessarily render an issue moot.” In re Tekela, 202 Ill. 2d 282,
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292, 780 N.E.2d 304, 310 (2002). However, “when an intervening event occurs making it
impossible for a reviewing court to grant relief to any party, the case is rendered moot because a
ruling on the issue cannot have any practical effect on the controversy.” Id., at 292-93.
¶ 32 Illinois Supreme Court Rule 305(k) (eff. July 1, 2017) specifically provides:
“If a stay is not perfected within the time for filing the notice of appeal, or within
any extension of time granted under subparagraph (c) of this rule, the reversal or
modification of the judgment does not affect the right, title, or interest of any person who
is not a party to the action in or to any real or personal property that is acquired after the
judgment becomes final and before the judgment is stayed; nor shall the reversal or
modification affect any right of any person who is not a party to the action under or by
virtue of any certificate of sale issued pursuant to a sale based on the judgment and before
the judgment is stayed.”
¶ 33 This provision “protects third-party purchasers of property from appellate reversals or
modifications of judgments regarding the property, absent a stay of judgment pending the appeal.”
Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 523 (2001). As such, “it is well established that
without a stay, an appeal seeking possession or ownership of specific property that has already
been conveyed to a third party is moot.” Northbrook Bank & Trust Co. v. 2120 Division LLC, 2015
IL App (1st) 133426, ¶ 3.
¶ 34 Rule 305(k) requires that: “(1) the property passed pursuant to a final judgment; (2) the
right, title and interest of the property passed to a person or entity who is not part of the proceeding;
and (3) the litigating party failed to perfect stay of judgment within the time allowed for filing a
notice of appeal.” Steinbrecher, 197 Ill. 2d at 523-24; see also Deutsche Bank National Trust Co.
v. Roman, 2019 IL App (1st) 171296, ¶ 23. Each of these elements has been satisfied here.
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¶ 35 As to the first element, a “final judgment disposes of the rights of the parties.” Steinbrecher,
197 Ill. 2d at 524. In the prior litigation, the circuit court entered a final order on June 30, 2017, in
which it found that title to the property was vested in the 2003 Trust and that Ron, as trustee. was
“entitled to sole possession of the [property]” and was authorized and directed to sell the property.
In an order entered in August 2018, this court affirmed the final judgment entered in the prior
litigation. Zurek, 2018 IL App (1st) 172620-U.
¶ 36 In the present matter, Ron sought to enforce that prior final judgment, pursuant to the
Eviction Act and the UFTA, via the relief he sought in his initial and amended complaints; i.e., by
seeking possession of the property. In a written order entered on August 5, 2019, the circuit court
granted Ron’s motion for summary judgment on the claims against Kenneth contained in the
original complaint. A separate eviction order granting Ron possession of the property instanter
was entered the same day.
¶ 37 While, as we recognized in the prior appeal in this matter, these orders were not appealable
at the time they were entered, they were made final and appealable on February 22, 2022, when
the circuit court entered: (1) a final order resolving all pending issues in which it granted Ron’s
motion for summary judgment with respect to the claims against Burnett in the amended
complaint, granted Ron possession of the property as to Burnett, granted Ron’s motion to extend
the eviction order entered against Kenneth, and lifted the stay on the eviction order as to Burnett,
and (2) a separate eviction order against Kenneth, Burnett and unknown occupants the same day,
effective immediately. See In Interest of E.L., 152 Ill. App. 3d 25, 30 (1987) (once a final order is
entered, all prior non-final orders and rulings become final and appealable). Ron’s right of
ownership and possession of the property, as trustee, and the subsequent sale of the property to
Conroy, all rest on these final orders. The first element is therefore satisfied here.
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¶ 38 As to the second element, a “party” is defined as “ ‘[o]ne by or against whom a lawsuit is
brought.’ ” Steinbrecher, 197 Ill. 2d at 525, quoting Black's Law Dictionary 1144 (7th ed. 1999).
See also, 735 ILCS 5/2–401 (West 2020) (defining a “party” to litigation as either one filing the
action (plaintiff) or one required to respond to it (defendant)). Under Rule 305(k), “a person or
entity is deemed a nonparty at the time of the judgment and sale.” (Emphasis in original.)
Steinbrecher, 197 Ill. 2d at 525. Here, the final judgment in this matter was entered on February
22, 2022, Ron entered into a contract for the sale of the property to Conroy in July 2022, and this
transaction closed when a trustee’s deed transferring the property to Conroy was executed on
August 2, 2022. At no point was this litigation brought “by or against” Conroy—including at the
time of the judgment or of the sale of the property—and as such the second element is also
satisfied.
¶ 39 With respect to the third element, while Kenneth sought a stay in the circuit court, that
request was denied and Kenneth never sought to obtain a stay in this court after filing his original
or amended notice of appeal. Burnett never sought a stay in the circuit court and his request for a
stay in this court was denied for his failure to comply with Illinois Supreme Court Rule 305(d)
(eff. July 1, 2017). Because both Kenneth and Burnett failed to perfect a stay of the final judgment,
the third element is also satisfied.
¶ 40 With these three elements having been satisfied, the protections provided to Conroy by
Rule 305(k) apply here. This court therefore may not, pursuant to that rule, issue any order that
would affect the interests of Conroy. As such, with two possible exceptions to be discussed below,
these appeals—by which Kenneth and Burnett seek possession of a property that has already been
conveyed to a third party—are moot. Northbrook Bank, 2015 IL App (1st) 133426, ¶ 3. In reaching
this conclusion, we necessarily reject several arguments raised by Kenneth and Burnett in their
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objections to Ron’s motion to dismiss.
¶ 41 Appellants first generally contend that these appeals are not moot because: (1) on appeal
they requested repossession of the property and therefore this court can grant possession of the
properties to appellants if they are successful on appeal, and (2) the purported leases described
above give appellants rights of possession with respect to the property that are superior to any
third-party purchaser. However, these arguments simply invite this court to address the merits of
the orders entered below that rejected appellants’ contentions regarding these leases and/or invite
this court to reverse or modify those judgments in such a way as to affect Conroy’s rights in the
property. Pursuant to the above cited authority, this is precisely what this court is not to do in
circumstances such as those presented here.
¶ 42 Appellants next assert several reasons why Rule 305(k) does not apply in this case. They
first contend that “Rule 305(k) applies only to protect third party good faith bona fide purchasers
for value at court supervised judicial sales which is not the case here.” This is not so, as by its own
terms Rule 305(k) (eff. July 1, 2017) applies both generally to protect a third-party’s interest in
“any real or personal property that is acquired after the judgment becomes final and before the
judgment is stayed,” as well as more specifically in the case of a judicial sale to protect the interests
of “any person who is not a party to the action under or by virtue of any certificate of sale issued
pursuant to a sale based on the judgment and before the judgment is stayed.”
¶ 43 Appellants next contend that “Rule 305(k) does not apply unless the court hears and
determines the appeal to determine whether the appeal would be successful in undoing the
judgment order.” In support of this argument, appellants cite Northbrook Bank, 2015 IL App (1st)
133426.
¶ 44 However, that case involved a particular, fact-specific circumstance where the appellee
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specifically was “not asking us to disregard any of the [appellant’s] appellate arguments, but to
instead curtail the effect of our ruling in accordance with Rule 305 so that we do not diminish the
rights of the third-party purchasers.” Id. ¶ 5. In that circumstance, we concluded that “we need not
analyze this request until it becomes apparent whether the appeal is successful in undoing the
judgment order.” Id. Ultimately, because we rejected the arguments raised on appeal on the merits
and did not disturb any of the circuit court's rulings, we concluded that the appellee’s request was
itself moot, and the request was therefore stricken as such. Id. ¶50.
¶ 45 This is not the situation presented here, where Ron is specifically asking this court to
disregard appellants’ arguments on the merits. In addition, while in the context of the facts before
us in Northbrook Bank we concluded that we “need not” analyze the Rule 305(k) request “until it
becomes apparent whether the appeal is successful in undoing the judgment order,” we never
indicated that such analysis of the merits was required.
¶ 46 Furthermore, the decision in Northbrook Bank only found the Rule 305(k) request itself to
be moot after concluding that the appeal had no merit and the underlying judgment would not be
disturbed, while here appellants would have this court apply the Northbrook Bank decision, rule
in their favor, and reverse the judgments below. Finally, addressing the merits here would be
contrary to all the other authority discussed above and would ignore the numerous decisions where
courts declined to address the merits where the issues on appeal were moot because the property
at issue had been sold to a third party without a stay first being obtained. See, Steinbrecher, 197
Ill. 2d at 532; Old Second National Bank, N.A. v. Karolewicz, 2022 IL App (1st) 192091, ¶ 52;
Deutsche Bank National Trust Co. v. Roman, 2019 IL App (1st) 171296, ¶ 29.
¶ 47 Appellants also contend that Rule 305(k) should not apply here because the orders entered
below from which they appeal are void. We disagree. As our supreme court has made clear: “A
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void judgment is one entered by a court without jurisdiction. In a civil lawsuit that does not involve
an administrative tribunal or administrative review [as is the case here], jurisdiction consists solely
of subject matter or personal jurisdiction.” LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 39.
¶ 48 Appellants first contend that the orders entered below are void because Ron purportedly
“lacked standing to maintain the eviction action.” “The doctrine of standing is designed to preclude
persons who have no interest in a controversy from bringing suit,” and “assures that issues are
raised only by those parties with a real interest in the outcome of the controversy.” Glisson v. City
of Marion, 188 Ill. 2d 211, 221 (1999). However, issues of standing do not implicate the court's
subject matter jurisdiction. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010).
Therefore, even assuming Ron lacked standing to bring this suit, that fact would not support
appellants’ argument that the underlying orders at issue here are void. See also, Nationstar
Mortgage, LLC v. Canale, 2014 IL App (2d) 130676, ¶¶ 17-18 (a plaintiff's standing is not an
element of a circuit court's subject matter jurisdiction, and the lack of standing does not render a
circuit court's judgment void).
¶ 49 Appellants also contend that the underlying orders entered in this matter are void because
they were justified in part on the final judgment entered in the prior litigation, which appellants
contend was itself void. However, even if we assumed that the final judgment entered in the prior
litigation was indeed void, appellants have not explained how that would render the orders entered
in this matter void. At best, it would arguably have made the orders entered in this matter improper
or incorrect, but “an order will not be rendered void merely because of an error or impropriety in
the issuing court's determination of the law.” Herrera v. Herrera, 2021 IL App (1st) 200850, ¶ 37;
Steinbrecher, 197 Ill. 2d at 531 (even if a circuit court entered a judgment in error, the resulting
judgment is not “void”).
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¶ 50 Next, appellants claim that Rule 305(k) should not apply here because the second element
discussed above—that the right, title, and interest of the property must pass to a person or entity
who is not part of the proceeding—was not actually satisfied because Conroy was “effectively part
of the proceeding.” In a related argument, Kenneth asserts that the sale of the property to Conroy
is void as it violates the UFTA and this statute “trumps Rule 305(k) in this case.” We reject these
arguments for appellants’ failure to comply with Rule 361(h) (eff. Dec. 1, 2021).
¶ 51 With respect to dispositive motions in this court, Rule 361(h) (eff. Dec. 1, 2021) provides
in relevant part as follows:
“(3) A dispositive motion shall include:
(a) a discussion of the facts and issues on appeal sufficient to enable the
court to consider the dispositive motion;
(b) a discussion of the facts and law supporting the dismissal of the appeal
or cross-appeal or portion thereof prior to a determination of the appeal on the
merits;
(c) a discussion of the relationship, if any, of the purported dispositive issue
to the other issues on appeal;
(d) an appropriate supporting record containing (i) if the record on appeal
has not yet been filed, the parts of the trial court record necessary to support the
dispositive motion; and (ii) if necessary, any evidence of relevant matters not of
record in accordance with Rule 361(a).
(4) An objection to a dispositive motion shall address each of the required portions of the
motion, and if the record on appeal has not yet been filed, shall include any parts of the
trial court record not submitted by the movant that is necessary to oppose the motion, and
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may include evidence of relevant matters not of record in accordance with Rule 361(a).”
¶ 52 Here, Ron complied with these requirements in his motion to dismiss, in which he fully
discussed the relevant facts and law supporting his argument and provided this court with evidence
of relevant matters not contained in the record on appeal via the affidavits and relevant documents
attached to the motion. In contrast, while the objections do contain several bald factual assertions
casting aspersions on the sale to Conroy—generally asserting that the sale was not for market value
and that Conroy, Pryor and the lawyer who prepared the trustee’s deed and notarized the affidavits
included in the motion to dismiss were working together to defeat these appeals and to “cheat the
trust and the beneficiaries out of the proceeds that would result from a sale at market value”—
these assertions are not supported by any documentary evidence. Rather, they are supported by
nothing more than several otherwise unsupported, conclusory, and self-serving averments in
Kenneth’s affidavit.
¶ 53 Nor have appellants cited any authority or explained how, even if true, these facts establish
that Ron was involved in any such purported scheme, that Conroy was “effectively part of the
proceeding,” or how being “effectively” part of this proceeding would undercut our conclusion
that the property was sold to a third party that was not in fact a party to this litigation. Indeed,
appellants’ objections to the motion to dismiss on these points contain no citation to relevant
authority other than two general citations to sections of the UFTA, and no meaningful discussion
or analysis of how these sections would render the sale to Conroy void or how exactly UFTA
“trumps Rule 305(k) in this case.” Because appellants’ arguments on these points fail to comply
with Rule 361(h), we reject them.
¶ 54 We next consider appellants’ argument that exceptions to the mootness doctrine should
apply here allowing for review of these appeals on the merits. “Generally, a party resisting
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dismissal for mootness has the burden to show an exception to the mootness doctrine on at least
one of three grounds: that the case involves an issue of great public importance, that the case falls
into the category of one that is capable of repetition but evading review, or that there are collateral
consequences of the order appealed from such that it could return to plague the complainant in
some future proceedings or could affect other aspects of the complainant's life.” Koshinski v.
Trame, 2017 IL App (5th) 150398, ¶ 20.
¶ 55 “The public interest exception to the mootness doctrine permits review of an otherwise
moot question when the magnitude or immediacy of the interests involved warrants action by the
court.” Commonwealth Edison Co. v. Illinois Commerce Comm'n, 2016 IL 118129, ¶ 12. “The
public interest exception to the mootness doctrine applies only when ‘(1) the question presented is
of a public nature; (2) an authoritative determination of the question is desirable for the future
guidance of public officers; and (3) the question is likely to recur.’ ” Id. (quoting In re Shelby R.,
2013 IL 114994, ¶ 16. “The public interest exception is narrowly construed and requires a clear
showing of each of its criteria.” Id. ¶ 13. “If any one of the criteria is not established, the exception
may not be invoked.” Id. Here, appellants do not cite to any relevant authority with respect to the
public interest exception and make no attempt whatsoever to make a showing that any of its three
criteria apply here. Because appellants have the burden to show an exception to the mootness
doctrine applies, this exception is narrowly construed, and there has been no effort whatsoever to
apply the relevant law to the facts of this case, appellants have failed to show that the public interest
exception should be applied here.
¶ 56 The capable of repetition yet avoiding review exception has two elements. “First, the
challenged action must be of a duration too short to be fully litigated prior to its cessation. Second,
there must be a reasonable expectation that ‘the same complaining party would be subjected to the
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same action again.’ ” In re Alfred H.H., 233 Ill. 2d 345, 358 (2009), quoting In re Barbara H., 183
Ill. 2d 482, 491 (1998). Once again, appellants have the burden of showing this exception applies
and they have neither cited to these elements nor made any attempt to show how they apply here.
Nor do we see how appellants could make such a showing. Ron initiated this lawsuit in January
2018, and the issue of possession of the property has thus been litigated for more than four years.
Furthermore, there can be no reasonable expectation that appellants would again be subject to a
complaint under the Eviction Act with respect to the property where it has now been sold to a third
party.
¶ 57 The collateral consequences exception to the mootness doctrine allows for appellate review
of a court order which has become moot where the appellant has suffered or is threatened to suffer
an actual injury, which would likely be reduced by a favorable decision from the reviewing court.
Alfred H.H., 233 Ill. 2d at 361. The determination as to whether the exception applies must be
made on a case by case basis. In re Rita P., 2014 IL 115798, ¶ 33. “Therefore, [s]ubsistence of the
suit requires * * * that continuing collateral consequences * * * be either proved or presumed.”
(Internal quotation marks omitted.) Alfred H.H., 233 Ill. 2d at 361 (quoting Spencer v. Kemna, 523
U.S. 1, 7 (1998)). Once again, appellants have neither cited these legal principles, nor have they
made any attempt to apply them to the facts of this case. They thus once again have failed to
comply with Rule 361(h).
¶ 58 Instead, in their objections and in their affidavits, appellants have generally asserted that
they are “suffering adverse effects as a direct result of the eviction order and the actual eviction
which would be remedied by a victory in [these] appeals.” Appellants then contend that due to the
eviction order their credit history and credit score have been damaged, which will affect their
ability to gain employment, rent property and obtain credit and loans or credit or loans on favorable
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Nos. 1-22-0275 and 1-22-0395 (consolidated)
terms. In addition, Kenneth contends that a victory on appeal would demonstrate that he was not
guilty of the criminal trespass charge because therefore Ron would not have had a “valid eviction
order.”
¶ 59 Once again, appellants have failed to support these factual assertions with any supporting
documents, and instead they rely on unsupported, conclusory, and self-serving averments in their
affidavit. Nor do they offer any meaningful explanation of how exactly a ruling in their favor on
the merits would alleviate these purported collateral consequences. For example, Kenneth
completely fails to explain how reversal of the eviction orders on appeal would be a defense in his
criminal case where the eviction orders were legal and binding on the parties when they were
executed, and he has not established that they were void.
¶ 60 We reiterate that appellants have the burden of establishing that an exception to the
mootness doctrine applies, whether the collateral consequences exception applies must be made
on a case by case basis, and that collateral consequences must be either proved or presumed. We
conclude that appellants have failed to establish that this exception should apply here.
¶ 61 Finally, we turn to the two possible exceptions to the mootness doctrine mentioned above.
In their objections to the motion to dismiss, appellants note that the relief requested in their notices
of appeal included an award of court costs and a request that the court file in this matter be sealed.
Appellants essentially contend that even if we could not provide any other effective relief upon
success on the merits before this court, we could still grant these requests.
¶ 62 While it is true that this relief was requested in the notices of appeal, the only time these
issues appear in the briefs appellants filed on the merits in this court are in two short references
contained in the final paragraph of appellants’ opening brief containing appellants’ prayers for
relief. Thus, neither the briefs appellants filed on appeal, nor the objections to the motions to
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Nos. 1-22-0275 and 1-22-0395 (consolidated)
dismiss for that matter, contain any argument or application of the law to the facts of this case with
respect to these issues.
¶ 63 The procedural rules governing the content and form of appellate briefs are mandatory and
not suggestions. Ammar v. Schiller, DuCanto & Fleck, LLP, 2017 IL App (1st) 162931, ¶ 11.
Further, self-represented litigants are not excused from following these rules. Lewis v. Heartland
Food Corp., 2014 IL App (1st) 123303, ¶ 5. Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1,
2020) provides that the appellant's brief contain both argument and citation to relevant authority.
Vancura v. Katris, 238 Ill. 2d 352, 370 (2010). “An issue that is merely listed or included in a
vague allegation *** is not ‘argued’ and will not satisfy *** the rule.” Id. When an appellant's
brief fails to comply with the requirements of Rule 341, this court has the discretion to strike the
brief and dismiss the appeal. McCann v. Dart, 2015 IL App (1st) 141291, ¶ 12.
¶ 64 Considering this authority and the failure of appellants’ briefs to comply with Rule 341,
even if we were to reach the other merits of these appeals and rule in appellants’ favor, we would
not be inclined to grant appellants this requested relief. Rather, we would exercise our discretion
to strike these portions of appellants’ briefs and dismiss these claims. Therefore, these requests for
relief provide no basis for this court to overlook the mootness of the other issues raised on appeal
and address these appeals on the merits.
¶ 65 For the foregoing reasons, these consolidated appeals are dismissed.
¶ 66 Appeals dismissed.
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