Zitella v. Mike's Transportation, LLC

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Appellate Court Date: 2018.04.25
10:58:37 -05'00'
Zitella v. Mike’s Transportation, LLC, 2018 IL App (2d) 160702
Appellate Court ROBERT ZITELLA and RICHARD PIETRANEK, Plaintiffs-
Caption Appellees, v. MIKE’S TRANSPORTATION, LLC; RESTORATION
SERVICES, LLC; SUSAN MARINO; KEITH MARINO; and F.
MICHAEL MALONE, Defendants-Appellants.
District & No. Second District
Docket No. 2-16-0702
Filed March 12, 2018
Decision Under Appeal from the Circuit Court of Du Page County, No. 14-L-507; the
Review Hon. William I. Ferguson and the Hon. Robert G. Kleeman, Judges,
presiding.
Judgment Appeal dismissed.
Counsel on James K. Borcia, of Tressler LLP, of Chicago, for appellants.
Appeal
Mark J. McAndrew, Kaitlyn Anne Wild, and Michael P. Adams, of
Rathje & Woodward, LLC, of Wheaton, for appellees.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Justices Zenoff and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), defendants, Mike’s
Transportation, LLC (Mike’s Transportation); Restoration Services, LLC (Restoration
Services); Susan Marino; Keith Marino; and F. Michael Malone, appeal the judgment of the
circuit court of Du Page County denying their April 7, 2016, motion to vacate a May 30, 2014,
order requiring defendants to preserve all their books and records. We conclude that
jurisdiction is lacking and dismiss the appeal.
¶2 I. BACKGROUND
¶3 In 2012, plaintiffs, Robert Zitella and Richard Pietranek, as principals for companies to be
organized, purchased from defendants the assets of Mike’s Transportation and Restoration
Services. In 2014, plaintiffs were disgruntled with the results of the sale. Susan Marino, Keith
Marino, and Malone (the individual defendants) owned a property whose caretaker was
potentially interested in purchasing it. The caretaker invited Pietranek to come to the property
and consult with him about how he could best utilize the property according to his plans.
Pietranek was left alone for approximately five minutes in a storage room containing a number
of records. He looked inside a box and realized that it contained undisclosed records that
pertained to the asset purchase. Pietranek rifled through the box, took at least 426 pages out of
the box, and stored them in his car. He quickly ended the consultation with the caretaker and
drove away with the records.
¶4 On May 21, 2014, plaintiffs sued defendants for breach of contract and fraudulent
misrepresentation, based on defendants’ alleged withholding of the records that Pietranek had
taken. Plaintiffs alleged that defendants had labeled certain expenditures as distributions to the
individual defendants and then used them to pay their workers, thereby causing the profits of
the businesses to be overstated and causing plaintiffs to overpay for the assets they purchased.
(Defendants, in turn, accused Pietranek of breaking into the storage room and stealing the
records and complained that plaintiffs had not sought to view records of that sort.)
¶5 Also on May 21, 2014, plaintiffs applied, ex parte, for a temporary restraining order (TRO)
to prevent defendants from destroying any of the records located at the individual defendants’
property or any other records that pertained to the asset purchase. The TRO was granted for a
period of 10 days, expiring, on its own terms, at 3 p.m. on May 31. The trial court scheduled a
hearing for May 30.
¶6 Defendants were served with the TRO by May 28. After being served, Keith Marino
removed a number of boxes of records from the individual defendants’ property and took them
into his personal residence; the trial court was not informed. On May 30, the parties appeared,
and the trial court held a hearing. At the hearing, the trial court stated its intention to convert
the TRO into a preservation order requiring defendants not to destroy any records. Defendants’
attorney repeatedly stated that she had no objection to converting the TRO into a preservation
order.
¶7 Following the hearing, the trial court entered the following order:
“All books and records of the defendants in any format will be preserved and the
location of the books and records in any format will be immediately disclosed to the
plaintiffs. The physical books and records will be available for pick up by F.E. Walsh
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& Associates and Cintas today. An inventory of all books and records will be provided
to all counsel of record. The costs of transport and storage will be born [sic] by plaintiff
[sic] unless otherwise ordered by this court. The TRO will expire by its terms and the
requirement of a bond is extinguished. The parties will meet and confer with respect to
any electronically stored information by June 13, 2014.”
¶8 On June 12, 2014, defendants filed a motion to vacate the May 30, 2014, order, arguing
that plaintiffs had not successfully alleged the elements necessary to secure a preliminary
injunction. Frenetic motion practice ensued. On August 27, 2014, the trial court denied
defendants’ motion to vacate the May 30, 2014, order.1
¶9 The case continued over the next two years in similar fashion. Much motion practice
occurred, but the case advanced very little. On April 7, 2016, defendants once again filed a
motion “to dissolve” the May 30, 2014, order, again arguing that plaintiffs had not properly
alleged the elements necessary to secure a preliminary injunction. Following briefing and
argument, on August 23, 2016, the trial court denied defendants’ motion to dissolve. On
August 25, 2016, defendants filed their notice of appeal from the denial of the motion to
dissolve.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendants argue that plaintiffs failed to sufficiently allege facts entitling them
to the injunctive relief granted in the May 30, 2014, order. Plaintiffs argue that the May 30,
2014, order was a preservation order pursuant to the rules of discovery and thus it was
insufficient to confer jurisdiction over this appeal under Rule 307(a)(1).
¶ 12 A. Propriety of Rule 307 Appeal
¶ 13 Defendants appeal the trial court’s refusal to vacate its May 30, 2014, order, under Rule
307(a)(1). Rule 307 covers interlocutory appeals as of right and states, pertinently: “An appeal
may be taken to the Appellate Court from an interlocutory order of court: (1) granting,
modifying, refusing, dissolving, or refusing to dissolve or modify an injunction[.]” Ill. S. Ct. R.
307(a)(1) (eff. Feb. 26, 2010). Under Rule 307, a motion to vacate an injunction is equivalent
to a motion to dissolve an injunction. Goodrich Corp. v. Clark, 361 Ill. App. 3d 1033, 1038
(2005). The key, of course, is whether the order that defendants sought to vacate is an
injunction or some other type of interlocutory order.
¶ 14 In order to determine whether an order is an appealable injunction, we look to its substance,
not its form, and our policy is to broadly construe the meaning of the term “injunction.” In re A
Minor, 127 Ill. 2d 247, 260-61 (1989). An injunction is a judicial process requiring a party to
do a particular thing, or to refrain from doing a particular thing, but not every order with such a
requirement is an injunction. Id. at 261-62. In particular, ministerial or administrative orders
that regulate only the procedural details of litigation cannot be the subject of an interlocutory
appeal. Id. at 262. Examples of such nonappealable orders include subpoenas, discovery
orders, and orders relating to the court’s control of its docket. Short Brothers Construction,
Inc. v. Korte & Luitjohan Contractors, Inc., 356 Ill. App. 3d 958, 960 (2005). These types of
1
The pertinent text of the order stated that the motion was denied “for the reasons set forth in the
record.” At the August 27, 2014, hearing, the court did not set forth any reasoning or even seemingly
address the motion to vacate. Nevertheless, the written order expressly denied the motion to vacate.
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orders can be considered noninjunctive because they do not form a part of the power
traditionally reserved to courts of equity; rather, they are a part of the inherent power possessed
by any court to compel the appearance of witnesses, to regulate their testimony, and to control
the court’s own docket. Id. These types of orders do not affect the relationship of the parties in
their everyday activities apart from the litigation, and this serves to distinguish such orders
from traditional forms of injunctive relief. Id.
¶ 15 Plaintiffs argue that the May 30, 2014, order is a garden-variety discovery order, requiring
defendants to preserve the specified evidence. We agree. In the order, the trial court required
duplication of the records, Bates stamping of the records, and return of the records thereafter to
defendants. This is akin to an order compelling production of documents. Because it is a
discovery order, or, at any rate, an order regulating the process of the litigation before the trial
court, it is not an injunction. Therefore, it is a nonappealable interlocutory order. Id.
¶ 16 Defendants argue that a preservation order “is clearly injunctive in nature.” In support of
this argument, defendants cite Anderson v. Taylor, 2006 UT 79, 149 P.3d 352. There are two
problems with defendants’ reliance on Anderson. First, Anderson is a foreign case: nonbinding
and only persuasive. In re Marriage of Moorthy, 2015 IL App (1st) 132077, ¶ 57 n.2.
However, our own research has uncovered no Illinois case expressly holding that an order to
preserve records is an injunctive order, so defendants’ resort to foreign authority is not
particularly remarkable. Second, and more importantly, Anderson, for which defendants do not
provide a pinpoint citation, does not stand for the proposition invoked by defendants, that
preservation orders are “clearly injunctive in nature.” In Anderson, the plaintiff sought the
issuance of an injunction requiring the police and the courts to follow Utah law requiring the
preservation of search warrants and supporting documentation. Anderson, 2006 UT 79, ¶ 6.
There was no issue of whether a particular order was or was not injunctive. Thus, while
defendants might have cited Anderson because they appropriately perceived that Illinois
authority was lacking, the case is nevertheless wholly unpersuasive because it deals with the
informal and improper procedures that Utah state courts were using to handle search warrants.
Defendants’ citation to Anderson, therefore, is inapposite.
¶ 17 In contrast, we believe that the May 30, 2014, order to preserve the evidence in this case is
most closely akin to a nonappealable discovery order. As noted, nonappealable orders like
discovery orders deal specifically with the conduct of the litigation and do not affect the parties
in their everyday activities apart from the litigation. In re A Minor, 127 Ill. 2d at 262.
Defendants assert that the May 30, 2014, order applied to literally all of their records, like
school records, dental records, and anything else extraneous to this litigation. A reasonable
construction of the May 30, 2014, order should quell that concern, and the fact that defendants
sold the businesses and retired to Florida suggests that the order has no effect on their everyday
activities apart from the litigation. Thus, while not directly on point, In re A Minor is
authoritative, binding, and persuasive.
¶ 18 Defendants contend that, pursuant to In re African-American Slave Descendants’
Litigation, No. 1491, 02 C 7764, 2003 WL 24085346, at *2 (N.D. Ill. July 15, 2003), an order
to preserve evidence is an injunctive remedy. We acknowledge that the case makes that
assertion based on several citations to other federal district court cases. As noted above,
because the case is foreign authority, it is not binding on this court. Moorthy, 2015 IL App (1st)
132077, ¶ 57 n.2. It also is apparently not published, so its persuasiveness is diminished.
Finally, the case does not purport to analyze the difference between an injunctive order and a
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noninjunctive discovery order. Thus, it is of little value on the question presented here under
Illinois law.
¶ 19 Defendants also assail authority cited by plaintiffs. Specifically, defendants attempt to
distinguish People ex rel. Scott v. Silverstein, 87 Ill. 2d 167 (1981), People v. Kladis, 403 Ill.
App. 3d 99 (2010), and Kilburg v. Mohiuddin, 2013 IL App (1st) 113408. However, we do not
rely on those cases; rather, our own understanding of In re A Minor and Short Brothers guides
our determination.
¶ 20 Defendants also note that Short Brothers recites the rule that the term “injunction” is to be
construed broadly. Short Brothers, 356 Ill. App. 3d at 960. We agree. We also note that the
appellate court in that case applied a pragmatic consideration of an order that stayed the
pending litigation while the matter was referred to mediation, concluding that, despite the stay,
the order implicated the trial court’s ability to manage its own docket. Id. We believe that the
order preserving the evidence here can be viewed similarly: it is a nonappealable discovery
order ensuring that the case can, eventually, be tried. Thus, we find no conflict with the general
rule that the term “injunction” is to be broadly construed.
¶ 21 Because the May 30, 2014, order is not injunctive, it cannot be the basis for an appeal under
Rule 307(a)(1). Accordingly, we lack jurisdiction and must dismiss the appeal.
¶ 22 B. Motion for Sanctions
¶ 23 On May 22, 2017, plaintiffs filed a motion to dismiss the appeal and for sanctions. As a
basis for the motion to dismiss, plaintiffs complained that defendants were improperly
delaying the filing of their opening brief on appeal, purely to harass and to prevent this case
from advancing in the trial court. On May 25, 2017, defendants, after having filed six previous
motions to extend the due date for their opening brief on appeal, filed a motion to file their
opening brief instanter. On June 8, 2017, we granted defendants’ motion to file instanter, and
we denied plaintiffs’ motion to dismiss the appeal and directed that the motion for sanctions be
taken with the case.
¶ 24 Turning to plaintiffs’ motion for sanctions, plaintiffs note that sanctions are justified where
an appeal is frivolous or where a party has employed abusive tactics in the conduct of an
appeal. Plaintiffs base their argument for sanctions solely on the allegedly abusive tactics
employed by defendants in requesting numerous extensions of time in which to file their
opening brief and the alleged insufficiency of defendants’ reasons for requesting more time.
Plaintiffs have not indicated how these extensions have impacted them. In light of the parties’
ultimate presentations of the issues in this appeal, we do not believe that sanctions are
warranted, and certainly not for the defendants’ alleged dilatoriness in adhering to the briefing
schedule. We do note, however, that, in making six requests for extensions of time, defendants
were perhaps beginning to hew more closely to the line of abusive tactics than is comfortable
and our decision here is best viewed as a one-off, based on the unique facts before us. We also
note that plaintiffs do not argue that the appeal is substantively frivolous. Accordingly, we
deny plaintiffs’ motion for sanctions.
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¶ 25 III. CONCLUSION
¶ 26 For the foregoing reasons, jurisdiction is lacking, and the appeal is dismissed.
¶ 27 Appeal dismissed.
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