2019 IL App (1st) 180360
Ill. App. Ct.2019Background
- In November 2014 Joseph bought a used vehicle and a vehicle service contract (VSC) from Evergreen and financed the purchases through a dealer-arranged retail installment contract.
- Plaintiff later discovered the VSC had been cancelled for nonpayment despite her financing and payments; she sued Evergreen (and West Lake, later settled) in February 2016 asserting breach of contract, consumer fraud, and conversion.
- Plaintiff disclosed an expert (Donald Szczesniak) in 2016 but served new, previously undisclosed opinions in June 2017; Evergreen moved to bar the expert and the trial court granted that motion on September 15, 2017.
- Evergreen moved for summary judgment on July 14, 2017; the court struck plaintiff’s affidavit responding to summary judgment on October 16, 2017 and granted summary judgment to Evergreen on plaintiff’s consumer-fraud and conversion counts (plaintiff voluntarily dismissed the remaining breach count the same day).
- Plaintiff filed a motion to reconsider on November 15, 2017 (timely), which the circuit court struck on December 4, 2017 for failure to provide courtesy copies; plaintiff then filed a new notice of motion for the same motion on December 27, 2017 and the court denied reconsideration on January 16, 2018; plaintiff filed a notice of appeal on February 13, 2018.
- The appellate court dismissed the appeal for lack of jurisdiction, concluding the postjudgment motion had been stricken and plaintiff’s later refiling of a notice of motion did not toll the deadline for filing a notice of appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in barring plaintiff's expert | Joseph: expert's newly disclosed opinions should be permitted | Evergreen: opinions were untimely and should be excluded under Rule 213 and evidentiary rules | Not reached on the merits — appeal dismissed for lack of jurisdiction |
| Whether trial court erred in striking plaintiff's affidavit under section 2-1005 | Joseph: affidavit satisfied requirements and should defeat summary judgment | Evergreen: affidavit was improper and should be stricken | Not reached on the merits — appeal dismissed for lack of jurisdiction |
| Whether plaintiff stated facts sufficient to defeat summary judgment on consumer fraud | Joseph: factual submission supported Consumer Fraud Act claim | Evergreen: plaintiff failed as a matter of law | Not reached on the merits — appeal dismissed for lack of jurisdiction |
| Whether the appeal was timely and appellate court has jurisdiction | Joseph: postjudgment motion tolled appeal period (via refiling) | Evergreen: original postjudgment motion was stricken and refiling/notice of motion did not toll the appeal deadline | Appeal dismissed — court lacked jurisdiction because the timely postjudgment motion was stricken and plaintiff’s later filing did not extend the 30‑day appeal period |
Key Cases Cited
- Yazzin v. Meadox Surgimed, Inc., 224 Ill. App. 3d 288 (1991) (striking a posttrial motion leaves no motion pending and a later refiling of a notice of motion does not toll the appeal period)
- Workman v. St. Therese Medical Ctr., 266 Ill. App. 3d 286 (1994) (distinguishable: court vacated order striking posttrial motion and reinstated it)
- Yang v. Chen, 283 Ill. App. 3d 80 (1996) (postjudgment motion filed within 30 days that remains pending preserves trial court jurisdiction and tolls appeal period)
- Sears v. Sears, 85 Ill. 2d 253 (1981) (a second postjudgment motion filed more than 30 days after judgment and repeating the first does not extend the time to appeal)