Fryzel v. Miller

2014 IL App (1st) 120597

12 N.E.3d 684

382 Ill.Dec. 405

Michael E. FRYZEL, Plaintiff–Appellee,

v.Sidney R. MILLER, Defendant–Appellant.

No. 1–12–0597.

Appellate Court of Illinois, First District, Second Division.

May 20, 2014.

Sidney R. Miller, of Chicago, appellant pro se.

Law Office of Robert C. Samko, of Chicago (Robert C. Samko, of counsel), for appellee.

OPINION

Justice LIU delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Michael E. Fryzel, filed a breach of contract complaint against the defendant, Sidney R. Miller, in May 2005. Following multiple continuances of the trial date and stays of the proceedings pending defendant's removal actions and bankruptcy cases, the court set a trial date of July 25, 2011. Defendant failed to appear at the jury trial. The trial proceeded in defendant's absence. Following a jury verdict in favor of plaintiff, the circuit court entered judgment against defendant in the amount of $38,074.43. On August 24, defendant filed a motion to stay and vacate the judgment. On January 13, 2012, at the hearing of defendant's motion to stay and vacate the judgment, the circuit court rejected defendant's motion and oral objection to jurisdiction, and ordered the judgment to issue. Defendant filed a timely notice of appeal on February 10, 2012. Ill. S.Ct. R. 303(a)(1) (eff. June 4, 2008).

¶ 2 On appeal, defendant asserts that the judgment should be reversed because it is "void by absence of Circuit Court jurisdiction at the time of trial and afterward." Defendant contends that the July 25, 2011 and January 13, 2012 orders are void because: (a) the circuit court proceedings should have been stayed pending the appeals of the dismissed bankruptcy cases; (b) the circuit court lacked jurisdiction pending the appeals of the removal actions and the "August 26 removal of the Judgment"; (c) plaintiff's counsel failed to notify him of the date and time of the trial, which resulted in defendant's absence at trial; and (d) the breach of contract claim lacks merit.

¶ 3 BACKGROUND

¶ 4 Plaintiff filed a breach of contract lawsuit against defendant on May 27, 2005, to recover payment for legal services rendered to defendant in conjunction with several currency exchanges that defendant owned and operated. Defendant, pro se, filed his appearance and jury demand on September 30, 2005.

¶ 5 Beginning in March 2010, defendant filed several pleadings in the United States District Court of the Northern District of Illinois, the United States Bankruptcy Court of the Northern District of Illinois, and the United States Court of Appeals for the Seventh Circuit.

¶ 6 On March 12, 2010, 10 days before the scheduled trial date in this matter, defendant filed his petition for removal pursuant to 28 U.S.C. § 1446.

¶ 7 On March 15, 2010, the federal district court remanded the case to the circuit court, stating, in pertinent part:

"Sidney Miller has just filed a pro se ‘Petition for Removal’ seeking to bring this several-year old state law action from the Circuit Court of Cook County to this District Court. Because defendant obviously labors under a total misunderstanding of the concept of federal subject matter jurisdiction, this sua sponte order sends the case back to its place of origin." Fryzel v. Miller, No. 10–C–01622, 2010 WL 9524798 (N.D.Ill. Mar. 15, 2010).¹

Defendant appealed the remand order.

¶ 8 On March 18, 2010, defendant filed his petition for chapter 13 bankruptcy (Miller Bankruptcy I ). The next day, he filed a motion to stay the state court case and continue the March 22 trial date. On March 22, the circuit court entered an order staying all proceedings.

¶ 9 On May 11, 2010, Miller Bankruptcy I was dismissed. Defendant appealed the dismissal.

¶ 10 On June 3, 2010, while the appeal in Miller Bankruptcy I was pending, defendant filed his second chapter 13 bankruptcy petition (Miller Bankruptcy II ).

¶ 11 On July 26, 2010, Miller Bankruptcy II was dismissed. Defendant appealed the dismissal.

¶ 12 On August 2, 2010, while the appeal in Miller Bankruptcy II was pending, defendant filed his third chapter 13 bankruptcy petition (Miller Bankruptcy III ).

¶ 13 On December 9, 2010, the United States Court of Appeals for the Seventh Circuit dismissed defendant's appeal of the March 15, 2010 remand order, stating, in relevant part:

"This court has consistently reminded litigants that an order remanding a case to state court based on a lack of subject matter jurisdiction or a defect in the removal procedure is not reviewable on appeal, whether or not the decision is correct. See, e.g., Rubel v. Pfizer, Inc., 361 F.3d 1016 (7th Cir.2004) ; Phoenix Container, L.P. v. Sokoloff, 235 F.3d 352, 354–55 (7th Cir.2000) ; In re Continental Casualty Co., 29 F.3d 292, 293 (7th Cir.1994)."

(Emphasis in original).

¶ 14 On March 15, 2011, the federal district court affirmed the dismissal of Miller Bankruptcy I, stating there was no evidence that the bankruptcy court abused its discretion.

¶ 15 On April 8, 2011, defendant filed his second petition for removal to the federal district court.

¶ 16 On April 19, 2011, the district court remanded the case to the circuit court. Defendant appealed this second remand order. The Seventh Circuit again dismissed the appeal on the basis of nonreviewability and issued an order with language virtually identical to its previous one.

¶ 17 On May 24, 2011, the federal district court entered an order reversing the dismissal in Miller Bankruptcy II and remanding the case to the bankruptcy court for further proceedings.

¶ 18 On June 15, 2011, the circuit court scheduled the trial in this case for July 25, 2011, at 9 a.m. The order provided that "plaintiff shall mail a copy of this order to Defendant."

¶ 19 On July 21, 2011, the circuit court rescheduled the time for commencement of the trial to 10 a.m. Plaintiff's counsel was ordered to send a copy of the July 21 order to defendant by mail. Plaintiff's counsel sent a copy of the order to defendant at Post Office Box 1965, Des Plaines, Illinois, 60017.

¶ 20 The jury trial proceeded on July 25, 2011. Defendant failed to appear at the trial. The jury returned a verdict in favor of plaintiff and against defendant in the amount of $38,074.43, and a judgment order was entered. Earlier that same day, at 9 a.m., defendant and plaintiff's counsel had also appeared in federal district court on a separate pending legal malpractice suit, Miller v. Fryzel, No. 11–CV–02395 (N.D.Ill.), that defendant, along with his currency exchange entities, had filed against plaintiff.

¶ 21 On August 24, 2011, defendant filed a motion to stay and vacate the judgment pursuant to sections 2–1301 and 2–1305 of the Code of Civil Procedure ( 735 ILCS 5/2–1301, 1305 (West 2010)), alleging that the judgment entered on July 25, 2011 should be vacated because (1) he was not notified of the trial date and time, (2) the case "was incontrovertibly within Bankruptcy jurisdiction," and (3) he had meritorious defenses pertaining to the lack of jurisdiction and stay of proceedings. Defendant also requested a "stay of further proceedings in this matter for probable cause pending review of pretrial circumstances."

¶ 22 On August 26, 2011, defendant filed a notice of removal, in his third attempt to remove the case to the federal district court. In doing so, defendant filed his pleading using the caption from the federal lawsuit, No. 11–CV–02395, supra, that he had initiated against Fryzel in May 2011.

¶ 23 On January 13, 2012, the court denied defendant's section 2–1301 motion to stay and vacate the judgment, and ordered execution on the judgment to issue.²

¶ 24 ANALYSIS

¶ 25 At the outset, we observe that defendant failed to comply with the mandatory procedures for the preparation of appellate briefs, in violation of Rule 341. Ill. S.Ct. R. 341 (eff. July 1, 2008). Defendant's appellate brief lacks specific parts required by Rule 341 : a statement of facts, a concise statement of the applicable standards of review for each issue, and a statement of compliance. ( Ill.S.Ct. R. 341(h)(1), (h)(3), (c) (eff. July 1, 2008)). Compliance with Rule 341 is mandatory, and this court has the discretion to strike an appellant's brief and dismiss an appeal for failure to comply with Rule 341. Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 77, 369 Ill.Dec. 659, 987 N.E.2d 1. Additionally, defendant fails to provide either a transcript of the jury trial or a bystander's report. Ill S.Ct. R. 323(a), (c) (eff. Dec. 13, 2005).

¶ 26 A party's status as a pro se litigant does not relieve him of his obligation to comply with the appellate practice rules. Holzrichter, 2013 IL App (1st) 110287 ¶ 78, 369 Ill.Dec. 659, 987 N.E.2d 1. While we acknowledge defendant's pro se status, we cannot excuse his failure to comply with the rules governing appellate procedures.

Coleman v. Akpakpan, 402 Ill.App.3d 822, 825, 342 Ill.Dec. 293, 932 N.E.2d 184 (2010). Despite the foregoing deficiencies, however, this court has jurisdiction to consider the merits of this appeal, and we elect to do so for the purpose of settling the issues of law raised by defendant.³

¶ 27 Whether the circuit court properly interpreted section 362(c) of the Bankruptcy Code (Code) ( 11 U.S.C. § 362(c) (2012) ) and section 1446 of the federal removal statute ( 28 U.S.C. § 1446 (2012) ) for purposes of maintaining jurisdiction is a question of law subject to de novo review. Abruzzo v. City of Park Ridge, 231 Ill.2d 324, 332, 325 Ill.Dec. 584, 898 N.E.2d 631 (2008). We also consider the denial of defendant's section 2–1301 motion to vacate for an abuse of discretion. Aurora Loan Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, ¶ 26, 372 Ill.Dec. 586, 992 N.E.2d 125. Furthermore, we will find impropriety in the denial of a stay in the trial court proceedings only if the court abused its discretion. CHB Uptown Properties, LLC v. Financial Place Apartments, LLC, 378 Ill.App.3d 105, 107, 317 Ill.Dec. 255, 881 N.E.2d 423 (2007).

¶ 28 A. Defendant's Removal Actions...