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Twardowski v. Holiday Hospitality Franchising

March 30, 2001

JOHN TWARDOWSKI, PLAINTIFF-APPELLANT
v.
HOLIDAY HOSPITALITY FRANCHISING, INC.; PAULA LANGE; AND KINSETH HOTEL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 99 M1 15831 The Honorable Wayne D. Rhine, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

In June 1998, the plaintiff filed a pro se complaint against the defendants for their alleged failure to honor a reservation he had made for a month-long stay at their facility in Dubuque, Iowa. On November 18, 1998, the trial court dismissed the complaint.

The defendant filed a second pro se complaint on May 10, 1999. On July 16, 1999, the defendant Bass Hotels and Resorts, as successor in interest to Holiday Hospitality Franchising, filed a motion to dismiss and a motion for sanctions in the amount of fees and costs. On July 26, 1999, the trial court granted the motion to dismiss the plaintiff's second complaint. The motion for sanctions was noticed for hearing on August 16, 1999. However, no hearing occurred on that date.

On August 27, 1999, the defendants filed a new motion for sanctions. The trial court entered an order for sanctions in the amount of $691.97 on September 3, 1999. The plaintiff filed a motion to vacate the order of sanctions, which the trial court denied on October 20, 1999.

On November 1, 1999, the plaintiff filed what was apparently a second motion to vacate. In response, the trial court entered an order that sanctioned the plaintiff for $1,000 and prohibited him from filing any more motions in the case.

The plaintiff filed pro se appeals of both the September 3, 1999, sanction order awarding defendant $691.97 in attorney fees and costs and the November 1, 1999, order requiring plaintiff to pay an additional $1,000. These appeals have been consolidated for review. We now vacate both orders of sanctions.

ANALYSIS

Initially, we note that the plaintiff's brief fails to adhere to the supreme court rules governing appellate review. The brief does not contain a proper summary statement, introductory paragraph or statement of the issue presented for review as required by Supreme Court Rule 341(e) (177 Ill. 2d R. 341(e)). The brief does not contain an appendix with the order appealed from and an index to the record as required by Supreme Court Rule 342 (155 Ill. 2d R. 342). However, while the insufficiency of the plaintiff's brief in this case hinders review, meaningful review is not precluded. The merits of the present case can be readily ascertained from the record on appeal and, accordingly, we choose to reach the merits.

Admittedly, plaintiff's pro se status does not relieve him of the burden of complying with the format for appeals as mandated by the supreme court rules. Bielecki v. Painting Plus, Inc., 264 Ill. App. 3d 344, 354 (1994). It is well established that this court is not required to search the record to determine what legal issues are involved in an appeal. Bielecki, 264 Ill. App. 3d at 354, citing Biggs v. Spader, 411 Ill. 42 (1951). Rather, a reviewing court is entitled to have briefs submitted that present an organized and cohesive legal argument in accordance with the Supreme Court Rules. In re Marriage of Souleles, 111 Ill. App. 3d 865, 869 (1982). However, along with these general rules, this court has held that "our jurisdiction to entertain the appeal of a pro se plaintiff is unaffected by the insufficiency of his brief," so long as we understand the issue plaintiff intends to raise and especially where the court has the benefit of a cogent brief of the other party. Bielecki, 264 Ill. App. 3d at 354, citing Tannenbaum v. Lincoln National Bank, 143 Ill. App. 3d 572, 575 (1986). Cf. Harvey v. Carponelli, 117 Ill. App. 3d 448, 451 (1983), cert. denied (1984), 466 U.S. 951, 80 L. Ed. 2d 539, 104 S. Ct. 2153 (court chose to entertain the pro se plaintiff's appeal despite its finding that plaintiff's brief was flagrantly deficient in many respects and violative of Supreme Court Rule 341).

Here, as in Bielecki and Harvey, plaintiff's pro se briefs fail to clearly articulate the errors relied upon for reversal or present an organized and cohesive argument in compliance with the supreme court rules. However, it is clear from plaintiff's briefs that he seeks to challenge both the trial court's September 3, 1999, sanction order and its November 1, 1999, contempt order. Irrespective of plaintiff's inarticulate briefs, even a cursory review of the record on appeal reveals that both of these orders are void. Courts have a duty to vacate and expunge void orders from court records and thus may sua sponte declare an order void. Gilchrist v. Human Rights Comm'n, 312 Ill. App. 3d 597, 601 (2000), citing Siddens v. Industrial Comm'n, 304 Ill. App. 3d 506, 511 (1999).

On July 26, 1999, the trial court dismissed plaintiff's cause of action. However, the defendants' characterization of the trial court's July 26, 1999, dismissal order as a "dismissal for want of prosecution" is misguided. The July 26 order was submitted to the court by the attorney for defendants. In filling out this form order, defendants' attorney checked the box next to the category "Case Dismissed for Want of Prosecution" and handwrote the words "WITH PREJUDICE" immediately following the preprinted language. Section 13-217 of the Code of Civil Procedure (Code) (735 ILCS 5/13-217 (West 1992)), which governs dismissals for want of prosecution, does not allow a dismissal for want of prosecution to be with prejudice. Walton v. Throgmorton, 273 Ill. App. 3d 353, 357 (1995). Thus, the July 26 order is ambiguous on its face.

Generally, the intention of the court is determined by the language in the order entered, but where the language of the order is ambiguous, it is subject to construction. Purcell & Wardrope, Chartered v. Hertz Corp., 279 Ill. App. 3d 16, 21 (1996). In cases of ambiguity, the orders appealed from should be interpreted in the context of the record and the situation that existed at the time of their rendition. Purcell, 279 Ill. App. 3d at 21, citing People v. Cooper, 132 Ill. 2d 347 (1989). The notice of motion in the record indicates that the July 26, 1999 hearing date was scheduled for defendants to obtain a ruling on their motion to dismiss. Defendants' motion sought to dismiss plaintiff's complaint pursuant to section 2-619 of the Code on the grounds that it was barred by principles of res judicata. Accordingly, the trial court's July 26 order should be construed as a "dismissal with prejudice." In fact, defendants concede this interpretation in their brief, arguing that the July 26 order was a dismissal with prejudice on res judicata grounds.

It is well established that a trial court loses jurisdiction to vacate or modify its judgment 30 days after entry of judgment unless a timely postjudgment motion is filed. Beck v. Stepp, 144 Ill. 2d 232, 238 (1991). In the present case, defendants had until August 26, 1999, to file a timely motion for sanctions pursuant to Rule 137 (134 Ill. 2d R. 137). Defendants would likely argue that their motion for sanctions was timely because it was filed on July 16, 1999, and was pending on July 26, 1999, when the dismissal order was entered. However, the motion for sanctions filed prior to judgment was scheduled for hearing on August 16, 1999, but was not heard.

Defendants' pleadings before the trial court indicate that a docketing error was the reason that their original motion for sanctions was not heard on August 16, 1999. However, the party filing a motion has the responsibility to bring it to the trial court's attention. Prather v. McGrady, 261 Ill. App. 3d 880, 885 (1994), citing Gordon v. Bauer, 177 Ill. App. 3d 1073, 1085 (1988). Unless circumstances indicate otherwise, where no ruling appears to have been made on a motion, the presumption is that the motion was waived or abandoned. Prather, 261 Ill. ...


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