Lakewood Urology, LLC v. Baber

Jun 30, 2023

1-22-0719

Versions:2023 IL App (1st) 220719-U

ORDER

¶ 1 Held: Defendant‘s appeal of the circuit court‘s denial of his motion to dismiss for lack of personal jurisdiction did not constitute a proper certified question pursuant to Illinois Supreme Court Rule 308 and is dismissed for lack of jurisdiction.

¶ 2 This case comes before us following our grant of defendant, Zeshawn Baber‘s application for leave to appeal pursuant to Supreme Court Rule 308 (eff. Oct. 1, 2019). Baber was named as a defendant in a case filed in the circuit court of Cook County, where the plaintiffs, who are multiple New Jersey residents and a New Jersey corporation, alleged that he posted and transmitted defamatory content against them across numerous social media and internet platforms. Following multiple attempts to serve Baber at various locations in Illinois and by electronic means, Baber filed a motion to dismiss the complaint on the basis of a lack of personal jurisdiction pursuant to sections 2-619, 2-203, and 2-301 of the Code of Civil Procedure (735 ILCS 5/2-619, 2-203, 2-301) (West 2020)). The circuit court granted the motion in part and denied it in part, determining that it had general jurisdiction over him. The circuit court also purported to certify a question of law to our court pursuant to Rule 308, in order to determine whether it had general jurisdiction over Baber.

¶ 3 Subsequently, Baber filed an application for leave to appeal pursuant to Rule 308 to our court, which we granted on June 21, 2022. Baber now appeals the denial of his motion to dismiss, arguing that the circuit court erred in denying his motion. For the reasons that follow, we vacate our June 21 order, and dismiss the appeal for lack of jurisdiction.

I. BACKGROUND¹

A. The Underlying Facts

¶ 6 The plaintiffs in this case are comprised of individuals and a medical practice, all of whom are residents of or are situated in New Jersey. Plaintiff, Moazam Gazi (Moazam), and Mukaram Gazi, M.D. (Mukaram), are siblings. Plaintiff, Tillee Lee Gazi (Tillee), is married to Moazam, and plaintiff, Poiyniba Jadeja, M.D. (Poiyniba), is married to Mukaram (collectively, the Gazis or Gazi family). Plaintiff, Lakewood Urology, LLC (Lakewood), doing business as “University Urology Associates of New Jersey,” is a New Jersey limited liability corporation providing urology services and treatment. Mukaram is a urologist and the founding member and manager of Lakewood. Moazam is the administrator and chief executive officer of Lakewood. Poiyniba is a physician at Lakewood and also served as its administrator between 2010 and 2012. Tillee is an accounts specialist at Lakewood.

¶ 7 Baber is alleged to be a resident of Cook County, Illinois. The remaining named defendants, “John Does #1-5,” are presently unknown, but are alleged to have “assisted or participated with Baber” by publicly disseminating false and disparaging statements regarding the Gazi family and Lakewood across multiple media platforms beginning around 2018. Among others, plaintiffs allege that Baber openly called the family “career criminals” and a “danger to the public at large as a consequence of their alleged criminal, violent, fraudulent, unethical, and life-threatening conduct.”² Baber is also alleged to have sent disparaging emails to multiple government employees, including law enforcement and animal control; local news media; Lakewood‘s referral sources, suppliers, contacts, and professional staff; and school administrators of schools attended by Mukaram and Poyiniba‘s children. Baber is also alleged to have created a website bearing the URL “thegazifamily.com,” which describes the Gazi family as “habitual,

dangerous criminals,” and specifically with regard to Mukaram and Poyiniba, “lacking professional integrity and/or ability as physicians.” The website, purportedly published in Chicago, Illinois, was taken down in 2019, but re-appeared with new and revised content on or about January 7, 2020. Finally, Baber is alleged to have threatened to disseminate similar content about Mukaram and Lakewood to various hospitals and medical licensing boards.

¶ 8 According to the plaintiffs and as further revealed throughout the record, Baber‘s alleged conduct stems from a tumultuous and lengthy history with another member of the Gazi family, specifically Moazam and Mukaram‘s sister, Nibah Gazi. Although the details of the relationship are convoluted and unclear, what is apparent is that Baber has accused Nibah of various forms of harassment over the course of many years, which ultimately resulted in at least one formal criminal proceeding against her in New Jersey in 2019. According to the plaintiffs, due to the family‘s alleged inability to control Nibah‘s actions, Baber has threatened and defamed the rest of the family in retaliation.

B. Procedural history

1. Plaintiffs’ Complaint

¶ 11 On June 12, 2020, plaintiffs filed a twelve-count complaint in the circuit court of Cook County against Baber, also known as “Zeeshan Baber,” as well as “John Doe 1, John Doe 2, John Doe 3, John Doe 4, and John Doe 5.” The complaint stated that jurisdiction was proper in Cook County because Baber “reside[d] in Cook County and created or contributed to the creation of the content injuring the [p]laintiffs” while situated in Cook County.

¶ 12 Count I, brought by Lakewood, sought damages for “tortious interference with business expectancy.” According to the complaint, defendants “purposely and maliciously” made harmful statements against the individual plaintiffs and Lakewood, which interfered with the company‘s

prospective business and resulted in a decrease in new patient referrals, a “diminished ability to recruit new urologists,” and “a loss [of] its professional reputation” and morale at the office.

¶ 13 Count II, brought by Mukaram, Moazam, Poiyniba, and Tillee, alleged intentional infliction of emotional distress. Count III, brought by Mukaram, Moazam, and Poiyniba, alleged a “conspiracy to defame,” while count IV, also brought by the same three plaintiffs, alleged a “conspiracy to depict in a false light” through publication of information on websites, social media platforms, and through emails and text messages.

¶ 14 Counts V and VI, brought by Moazam, alleged defamation per se and “false light invasion of privacy,” respectively, with regard to two particular social media posts. Counts VII and VIII, also brought by Moazam, alleged defamation per se and “false light invasion of privacy,” respectively, with regard to the various allegations posted on the “Gazi Family Website.”

¶ 15 Counts IX and X, brought by Mukaram, alleged defamation per se and “false light invasion of privacy,” respectively, with regard to the publication of the website. Counts XI and XII, brought by Poiyniba, also alleged defamation per se and “false light invasion of privacy,” respectively, with regard to allegations made against her on the website.

2. Motion Practice

¶ 17 On August 26, 2020, in addition to filing a limited appearance, Baber filed a motion to quash service pursuant to sections 2-202 and 2-203 of the Code of Civil Procedure (735 ILCS 5/2-202, 2-203) (West 2020)). Baber argued that service on him was improper, because, among other reasons, service had been effectuated at his parents’ residence in Chicago, Illinois, which was not his usual place of abode and had not been since June 2011. Baber attached his own affidavit in support of the motion. Plaintiffs responded through the submission of two affidavits, which

purported to confirm proper service. On September 14, 2020, the circuit court granted Baber‘s motion and quashed service.

¶ 18 On January 13, 2021, following plaintiffs’ repeated attempts to re-serve Baber, the circuit court entered an order allowing plaintiffs to serve him by alternative means, including: (1) at his purported place of employment, “AMR Baber Research, Inc.,” in Naperville, Illinois; (2) through his personal and work email addresses; (3) by texting it to his purported phone numbers; and (4) serving him again at his parents’ Chicago residence. Following such attempts, plaintiffs filed a motion for default against Baber on May 24, 2021.

¶ 19 On June 10, 2021, Baber filed a motion for leave to file a special and limited appearance, as well as leave to file a motion for extension of time to answer or otherwise plead. The circuit court granted both motions on June 11, 2021, and entered and continued plaintiffs’ motion for default.

¶ 20 On July 12, 2021, Baber filed a motion to dismiss pursuant to sections 2-619,³ 2-209, and 2-301 of the Code of Civil Procedure (735 ILCS 5/2-619, 2-209, 2-301) (West 2020)). Baber argued that he had not been a resident of Chicago during the relevant time periods outlined in the complaint, had not resided in Chicago since early March 2017, and currently did not reside in Cook County. Baber attached his own affidavit to the motion, which averred that he had not resided in Chicago since at least March 2017; that he had been living in Portland, Oregon since August 2018;

and that he had sent one text message to a Lakewood employee while residing in Portland. The motion and affidavit further denied all the substantive allegations of the complaint.

¶ 21 On July 19, 2021, the court granted plaintiffs leave to conduct limited discovery in connection with Baber‘s motion.⁴ Following discovery and related motion practice, plaintiffs filed an amended response to Baber‘s motion to dismiss. Plaintiffs contended that the court had both specific and general jurisdiction over Baber pursuant to section 2-209(a)(2) of the Illinois long arm jurisdictional statute for the commission of tortious acts within the state (735 ILCS 5/2-209(a)(2) (West 2020)). With regard to general jurisdiction, plaintiffs argued that Baber had “unequivocally” admitted to being repeatedly injured in Chicago by Nibah Gazi, and that he had significant and continuous contacts with Illinois as he had been employed by an Illinois corporation since 2010. With regard to specific jurisdiction, plaintiffs contended that Baber had engaged in multiple tortious acts in Illinois by emailing and posting defamatory content while residing there.

¶ 22 Plaintiffs further argued that Baber‘s motion was insufficient to defeat the presumption of proper jurisdiction because it was unclear when Baber had allegedly left or returned to Illinois, as well as where he had been living for the past few years. Plaintiffs pointed out that Baber had made contrary statements about his residency during criminal proceedings against Nibah in New Jersey, specifically where he had stated that he had been harassed while living in Chicago.⁵ In support of these contentions, plaintiffs submitted various affidavits and exhibits. One included the

Certification of Martin J. Jennings, a New Jersey attorney who had represented Nibah. The affidavit purported to certify emails between himself and a Chicago news reporter concerning Baber‘s claims of harassment in July 2019. Jennings averred that Baber had filed a probable cause affidavit in the New Jersey proceedings, which indicated that at the time of filing, he had resided in Naperville, Illinois. The Jennings Certification also attached various documents relating to the criminal complaint against Nibah in New Jersey, including Baber‘s probable cause statement.

¶ 23 A second affidavit was proffered by Moazam Gazi, who averred that Baber had made or contributed to multiple police reports in both New Jersey and Chicago, in which he stated that he was a Chicago resident who had been harassed by Nibah between 2015 and October 2018. Moazam‘s affidavit attached various incident reports, including reports from March 3, 2016, with the complainant listed as “Zeshawn Baber,” and March 11, 2019, from a caller in Chicago. Finally, plaintiffs attached the transcript of a discovery deposition of Baber taken during the period allowed for limited jurisdictional discovery of the current case, wherein he denied that he provided an Illinois address for the criminal complaint filed against Nibah, and maintained that he had not been in Chicago at the time it was filed.

¶ 24 Baber‘s reply reiterated that the court did not have general jurisdiction over him because he had not been in Illinois when he was served, he was not domiciled in or was an Illinois resident where the cause of action arose or was commenced, and he was not doing business in the state. Baber further contended that being employed by an Illinois company was insufficient to establish systematic and continuous contacts. With regard to specific jurisdiction, Baber argued that he had not “directed any activities” in Illinois, and that plaintiffs’ complaint did not arise out of any limited activities he had in the state.

¶ 25 Baber also filed a motion to strike portions of the Jennings Certification and the Moazam Gazi affidavit. Baber contended that paragraphs 4 and 5 of the Jennings Certification, as well as paragraph 6(b) of the Moazam Gazi affidavit, were not based on either‘s personal knowledge and were inadmissible hearsay. Plaintiffs responded that none of the cited material or attached exhibits were hearsay and that the motion should be denied. Baber‘s reply maintained his hearsay objections, and pointed out that plaintiffs had failed to cite an applicable hearsay exception to support consideration of the affidavits.

3. Circuit Court Ruling

¶ 27 On April 25, 2022, the circuit court issued a written ruling on Baber‘s motion to dismiss and motion to strike.⁶ The court denied Baber‘s motion to strike the disputed portions of either affidavit, and noted that “it was not accepting those paragraphs as proof that *** Baber lived in Chicago[,] or what the police officer told Moazam Gazi about the complaint raised against his sister.”

¶ 28 Next, the court granted in part and denied in part Baber‘s motion to dismiss for lack of personal jurisdiction. The court found that it did not have specific jurisdiction over Baber, and granted the motion on that basis. However, the court found that it did have general jurisdiction over him “due to his representations in the certification he submitted in New Jersey, the certification of Martin Jennings[,] and the affidavit of Moazam Gazi,” as well as the fact that Baber was employed by a company in Illinois.

¶ 29 Finally, the court appeared to make a Supreme Court Rule 308 finding. Specifically, the court stated that:

“Pursuant to Illinois Supreme Court Rule 308, this [c]ourt finds that this order involves a question of law as to which there is substantial ground for difference of opinion[,] and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. The question of law involves whether or not the [c]ourt has general jurisdiction over *** Baber so this matter may proceed before this [c]ourt.”

4. Application for Leave to Appeal Pursuant to Rule 308

¶ 31 On May 23, 2022, Baber timely filed an application for leave to appeal pursuant to Supreme Court Rule 308. Baber characterized the “Statement of the Question for Review on Appeal” as:

“Whether the Circuit Court has general jurisdiction over Baber based on the representations he made in a certification he submitted in New Jersey in a criminal proceeding against Nibah Gazi, a non-party to this case, the certifications of Martin Jennings[,] and the affidavit of Moazam Gazi[,] which the Circuit Court claimed it was not accepting the applicable paragraphs as proof that Baber lived in Chicago[,] and whether Baber is subjected to general jurisdiction of the Circuit Court by being employed by a company in Illinois even though he did not render any work for that company in Illinois?”

¶ 32 Baber stated that a “substantial basis exist[ed] for a difference of opinions on the question of whether the Circuit Court has general jurisdiction over Baber.” Further, Baber asserted that “[a]n immediate appeal would materially advance the termination of the litigation” because granting the application would likely result in dismissal for lack of personal jurisdiction. Baber reiterated that the circuit court had “clearly erred when it held that it had general jurisdiction [over] Baber pursuant to [s]ection 2-209(b) of the Code.”

¶ 33 Plaintiffs did not file a response to Baber‘s application. On June 21, 2022, this court granted Baber‘s request, and Baber filed a formal Notice of Appeal on July 6, 2022. This appeal followed.⁷

II. ANALYSIS

¶ 35 On appeal, Baber contends that the circuit court erred in finding that it had general jurisdiction over him. Specifically, Baber argues that plaintiffs did not establish that he was domiciled in or a resident of Illinois, or that he had continuous and systematic affiliations with Illinois. Baber further contends that being employed by an Illinois company is insufficient to exercise jurisdiction over him. Last, Baber attacks the circuit court‘s ruling on his motion to strike the Jennings Certification and the affidavit of Moazam Gazi. Baber maintains that both filings contained inadmissible hearsay, and that the circuit court improperly considered both when determining that it had general jurisdiction over him.

¶ 36 Plaintiffs respond that the circuit court properly determined that it had general jurisdiction over Baber because he was domiciled and employed in Illinois during some of the relevant conduct outlined in the complaint. Further, plaintiffs contend that Baber had continuous and systematic contacts with Illinois through his publication of defamatory content. Finally, plaintiffs point out that Baber‘s presence in Illinois was confirmed in sworn documents in his now-dismissed case against Nibah Gazi in New Jersey.

¶ 37 We have reviewed the underlying application for leave to appeal and supporting record pursuant to Supreme Court Rule 308, as well as the parties’ briefs and what appears to be the full

trial court record submitted after the request was granted. Ultimately, we do not reach any disposition on the merits because, as we discuss below, we do not have the requisite jurisdiction over this matter pursuant to Rule 308.

A. Jurisdiction

¶ 39 In his Notice of Appeal to our court, Baber stated that he sought review of the circuit court‘s April 25, 2022 order, on the basis that the circuit court “erred in finding that it had general jurisdiction over Baber.” In his docketing statement, Baber characterized the issue before this court as “[w]hether the [c]ircuit [c]ourt has general jurisdiction over [him]?” Finally, in his opening brief, Baber framed the sole issue on appeal as “[w]hether the [c]ircuit [c]ourt of Cook County erred in holding that it had general jurisdiction over Baber?”

¶ 40 Despite not filing a response to Baber‘s prior application for leave to appeal, in this court plaintiffs initially challenge the propriety of Baber‘s appeal, inquiring as follows:

“Is Baber‘s appeal proper pursuant to Illinois Supreme Court Rule 308 where he merely asks the court to reweigh the evidence presented to the trial court and apply the law to the particular facts of the case?

A. Are the evidentiary issues raised by Baber which are not included in the certified question supporting this Rule 308 appeal proper subjects for review?

B. Are the hearsay issues claimed by Baber, which are cumulative to evidence he failed to object to in the trial court[,] proper subjects for review?”

¶ 41 Within their brief, plaintiffs expound upon their contention that Baber‘s appeal is procedurally improper. According to plaintiffs, Baber‘s appeal does not raise a question of law that is reviewable pursuant to Rule 308, and instead seeks review of the underlying facts of the case as applied to settled principles of law.

¶ 42 In reply, Baber argues that plaintiffs have waived any argument that his appeal is improper because they did not contest his motion for leave to appeal before the circuit court, and also did not object to his application to our court. However, even assuming that plaintiffs’ challenge to the propriety of this appeal may be considered, Baber maintains that we may still review his appeal because an order concerning personal jurisdiction over a defendant is still a proper question of law pursuant to Rule 308. In support of this contention, Baber cites two appellate court opinions, Wesly v. National Hemophilia Foundation, 2020 IL App (3d) 170569, and Adams ex rel. Adams v. Harrah‘s Maryland Heights Corp., 338 Ill. App. 3d 745 (2003), wherein both courts considered the denial of a motion to dismiss for lack of personal jurisdiction on the merits following a Rule 308 certification and application.

¶ 43 We first address whether plaintiffs have “waived” any ability to challenge the Rule 308 appeal by examining the language of the rule. Supreme Court Rule 308 (eff. Oct. 1, 2019) governs the resolution of certified questions, which is a type of permissive interlocutory appeal that is “an exception to the general rule that only final orders from a court are subject to appellate review.” Morrissey v. City of Chicago, 334 Ill. App. 3d 251, 257 (2002). The rule provides that:

“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order on the court‘s own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.” (Emphasis added.) Ill. S. Ct. R. 308(a).

¶ 44 The application for leave to appeal under Rule 308 must be filed within 30 days after the entry of the trial court order or the making of the statement by the trial court, whichever is later. Ill. S. Ct. R. 308(b). The application “shall contain a statement of the facts necessary to an understanding of the question of law determined by the order of the trial court; statement of the question itself; and a statement of the reasons why a substantial basis exists for a difference of opinion on the question and why an immediate appeal may materially advance the termination of the litigation.” Ill. S. Ct. R. 308(c). The application shall also contain an “original supporting record” which contains the order appealed from and other necessary parts of the trial record to determine whether the appeal should be allowed. Id. Additionally, “an adverse party may file an answer in opposition” to the application within 21 days of the application‘s due date, along with a “supplementary supporting record containing any additional parts of the record the adverse party desires to have considered[.]” Id. A reviewing court shall then decide whether to allow the appeal within 30 days following the expiration of time to file an answer. Ill. S. Ct. R. 308(d). Once leave to appeal is allowed, a party may also request that the complete record on appeal be filed, or the court may order it on its own accord. Ill. S. Ct. R. 308(e).

¶ 45 We first observe that, contrary to Baber‘s contention, nothing in the record shows that Baber sought a Rule 308 finding by written motion. There is also no report of proceedings that indicates if an oral motion was presented. Instead, the first mention of a Rule 308 finding is within the circuit court‘s April 25, 2022 order. However, even that order‘s language does not indicate whether the finding was in response to any motion made by Baber or by the court, sua sponte, let alone if any objection had been raised by the plaintiffs. However, Baber is correct that plaintiffs did not file an objection to the Rule 308 application to our court. Indeed, it does not appear that plaintiffs challenged the propriety of the appeal until briefing was underway.

¶ 46 Generally, “[a] party‘s failure to raise an issue in the petition for leave to appeal may be deemed a waiver of that argument.” Central Illinois Light Co. v. Home Ins. Co., 213 Ill. 2d 141, 152 (2004); see also Razavi v. Walkuski, 2015 IL App (1st) 151435, ¶ 10 (plaintiff‘s failure to file an objection to a rule 308 petition for leave to appeal deemed “forfeited“).⁸ However, “waiver and forfeiture rules serve as an admonition to litigant[s], rather than a limitation upon the jurisdiction of the reviewing court,” and as such, we may “sometimes override considerations of waiver and forfeiture in order to achieve a just result and maintain a sound and uniform body of precedent.” Pinske v. Allstate Property and Casualty Insurance Co., 2015 IL App (1st) 150537, ¶ 19. Thus, although plaintiffs were provided time to file an objection to the Rule 308 application, we do not find that their failure to do so is fatal to our review of the argument now raised in their response brief. Moreover, even assuming that plaintiffs had not raised such a concern, we would still have an obligation to assess our overall jurisdiction to review Baber‘s appeal. See Rozsavolgyi v. City of Aurora, 2017 IL 121048, ¶ 27 (even if party forfeited argument that form of certified question was not proper, “such forfeiture would not persuade this court to proceed in addressing an improperly formulated certified question[.]“); see also In re Marriage of Padilla and Kowalski, 2022 IL App (1st) 200815, ¶ 16 (“As an appellate court, we are required to consider our jurisdiction, even if the parties do not raise the issues.“).

¶ 47 Accordingly, we now assess whether Baber‘s appeal is proper pursuant to Rule 308. “By definition, certified questions are questions of law subject to de novo review.” Rozsavolgyi, 2017 IL 121048, ¶ 21. Generally, review pursuant to Rule 308 “is limited to the questions certified, and the propriety of any particular order of the trial court is not before us.” (Emphasis added.) Combs

v. Schmidt, 2015 IL App (2d) 131053, ¶ 6. Put another way, “[c]ertified questions must not seek an application of the law to the facts of a specific case.” Rozsavolgyi, 2017 IL 121048, ¶ 21; see also Walker v. Carnival Cruise Lines, Inc., 383 Ill. App. 3d 129, 133 (2008) (Rule 308 “was not intended to allow for an interlocutory appeal of merely an application of the law to the facts of a specific case.“). As such, “we are ordinarily limited to the question certified and are not to rule on the propriety of the underlying order.” Walker, 383 Ill. App. 3d at 133; see also In Re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 32 (“As too often happens, a certified question is framed as a question of law, but the ultimate disposition depends on the ‘resolution of a host of factual predicates.’ “) (citing Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 469 (1998)). Further, “[i]f addressing a certified question will result in an answer that is advisory or provisional, the certified question should not be reached.” Rozsavolgyi, 2017 IL 121048, ¶ 21; see also Luccio, 2012 IL App (1st) 121153, ¶ 32 (“The courts of Illinois do not issue advisory opinions to guide future litigation[.]“).

¶ 48 Rule 308 “was intended to be used sparingly” and not “to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation.” (Emphasis added.) Morrissey, 334 Ill. App. 3d at 257; Voss v. Lincoln Mall Management Co., 166 Ill. App. 3d 442, 450 (1988) (“[T]he strong policy in this district and in the Illinois Supreme Court is to construe Rule 308 strictly and sparingly.“); see also Rozsavolgyi, 2017 IL 121048, ¶ 21 (Rule 308 appeals “should be reserved for exceptional circumstances[.]“).⁹ ”Rule 308 was [also] not intended to be a mechanism

for expedited review of an order that merely applies the law to the facts of a particular case[.]” (Internal quotations and citations omitted.) Combs, 2015 IL App (2d) 131053, ¶ 6. “These rules are jurisdictional.” Id.; see also Voss, 166 Ill. App. 3d at 443 (“[E]ven after the trial court has made the required finding and the application has stated why an immediate appeal is justified, allowance of the appeal is discretionary and depends on the concurrence of this court.“).

¶ 49 After reviewing the briefs and record in this case, we do not believe that the order entered by the circuit court or Baber‘s issue on appeal involves a proper certified question, of which there is a substantial ground for difference of opinion, or that resolution of this appeal materially advances the ultimate termination of the litigation. See Rozsavolgyi, 2017 IL 121048, ¶ 23 (“[T]he appellate court serves as gatekeeper and must carefully question whether the case before it warrants consideration outside of the usual process of appeal.“). With regard to the former, Baber‘s question presented quite literally asks us to review the propriety of the order entered by the circuit court. Indeed, the question presented is “[w]hether the Circuit Court of Cook County erred in holding that it had general jurisdiction over Baber?” Baber also asks us to find that the circuit court‘s ruling on his motion to strike, which in turn affected the ruling on the motion to dismiss, was also made in error.¹⁰ The scope of our review pursuant to Rule 308 is not so broad. If we were to resolve the question as framed by Baber, we would need to assess the facts of the case and ultimately consider whether the court‘s rulings were in error.

¶ 50 Rule 308 also requires that resolution of the certified question materially advances the ultimate termination of the litigation, and review of Baber‘s appeal would not fulfill the express language or spirit of the rule. Plaintiffs’ case is not just brought against Baber, but also against

four other defendants who have yet to be named and who are alleged to have worked in concert with Baber to produce defamatory content. At this juncture, the record reveals that the case has only progressed to the stage of jurisdictional discovery; thus, there is still much to be done in the case, including determination of who the remaining individuals are and their alleged relationship with Baber, if at all. See, e.g., Rozsavolgyi, 2017 IL 121048, ¶ 33 (answering of certified question of whether tort immunity statute applied to a cause of action under a separate statute would still leave issues of liability to be further determined, and thus did not terminate the litigation).

¶ 51 We recognize that our supreme court has carved out an informal exception to the strict jurisdictional limits of Rule 308, where, “in the interest of judicial economy and the need to reach an equitable result,” a court may “consider the propriety of the circuit court order that gave rise to th[e] proceedings.” De Bouse v. Bayer, 235 Ill. 2d 544, 550 (2009); see also Combs, 2015 IL App (2d) 131053, ¶ 8 (“An exception exists under which a court may exceed the usual bounds of review set by Rule 308” to “consider the appropriateness of the order giving rise to the appeal” if “the interests of judicial economy and the need to reach an equitable result require[.]“). However, we do not find that the circumstances of this case call for our review outside the bounds of the rule. See Rozsavolgyi, 2017 IL 121048, ¶¶ 21, 28 (Rule 308 appeals “should be reserved for exceptional circumstances” and even if a “court has modified a certified question before [to correct an impropriety] does not mean that we will do so in every case.“). For instance, Baber does not frame his appeal as a question of law that has not yet been directly addressed by the appellate or supreme court, and does not contend that there is a conflict between appellate districts or with our supreme court progeny regarding the issue of personal jurisdiction. See id. ¶ 32 (discussing circumstances where the “substantial grounds for difference of opinion” prong in Rule 308 has been satisfied).

¶ 52 Putting aside the fact that Baber‘s appeal does not constitute a proper certified question, there was also a perhaps more viable basis for Baber‘s attack on the circuit court‘s ruling, which was seemingly overlooked by plaintiffs in their challenge of the procedural posture of Baber‘s appeal. Our supreme court rules specifically provide for a direct avenue to challenge the denial of a motion to dismiss for lack of personal jurisdiction. Supreme Court Rule 306(a)(3) (eff. Oct. 1, 2020) provides that “[a] party may petition for leave to the Appellate Court from *** an order of the circuit court denying a motion to dismiss on the grounds that the defendant has done nothing which would subject defendant to the jurisdiction of the Illinois courts[.]“. See also Healy v. Vaupel, 133 Ill. 2d 295, 306 (1990) (noting that Rule 306(a)(3) applies to motions challenging personal jurisdiction); Rosier v. Cascade Mountain, Inc., 367 Ill. App. 3d 559, 560 (2006) (reviewing appeal of a denial of a motion to dismiss for lack of personal jurisdiction pursuant to Rule 306(a)(3)). As such, we do not find Baber‘s contention that we may still review his appeal pursuant to Rule 308 to be persuasive. Upon closer examination of Baber‘s cited authority, it does not appear that any party in those cases challenged the propriety of the courts’ purported authority under Rule 308 to take up the issue of personal jurisdiction on a certified question. See Wesly, 2020 IL App (3d) 170569, ¶¶ 8-9; see also Adams, 338 Ill. App. 3d at 747. Further, we reiterate that it is always our duty to independently assess our own jurisdiction.

¶ 53 Having reviewed the trial court record and considered the question as presented, we now vacate our order of June 21, 2022, which allowed for this interlocutory appeal to proceed. See Voss, 166 Ill. App. 3d at 450-51, 453 (vacating order allowing leave to appeal as having been improvidently entered because addressing certified question would not materially advance the ultimate termination of the litigation); see also Kincaid v. Smith, 252 Ill. App. 3d 618, 622-24 (1993) (dismissal of appeal as improvidently granted following review of the briefs, because

resolution of certified question would not materially advance the litigation). We also decline to consider the certified question and dismiss the instant appeal.

III. CONCLUSION

¶ 55 For the reasons stated, this court‘s order of June 21, 2022, is vacated, and the appeal is dismissed for lack of jurisdiction.

¶ 56 Order vacated; appeal dismissed.

Notes

Because this case comes to us following the denial of a motion to dismiss based on lack of personal jurisdiction, the factual background in this case is limited to the pleadings, supporting affidavits, and exhibits contained in the record. Moreover, because our disposition does not reach the merits of the case, our summary of the facts is truncated. We also do not express any opinion on the merits of the underlying motion or the parties’ substantive arguments on appeal.

The allegations and specific events relating to Baber‘s conduct are numerous and detailed. Because we do not reach the merits of the case, our summary of the alleged instances of defamation are brief and do not express any opinion on their sufficiency.

Notably, Baber did not designate which subsection of section 2-619 upon which his motion was based. Further, although Baber discussed principles of both general and specific jurisdiction within the motion, he did not clearly state that neither type applied to him, and instead contended that “there [was] no personal jurisdiction under any section of the Illinois long arm statute.” It was not until Baber‘s reply brief did he expressly note that neither applied.

Although not designated in the order, Supreme Court Rule 201(l) (eff. March 17, 2023) allows for the conducting of discovery pursuant to a motion contesting personal jurisdiction.

Plaintiffs further argued that Baber‘s motion was precluded by the doctrine of “judicial estoppel” because Baber had maintained a “factually inconsistent position” in the New Jersey case versus his position in Cook County.

The order states that the court “heard argument of counsel,” but no transcript of the hearing appears in the record.

On July 8, 2022, on this court‘s own motion, we entered an order striking a separate and improperly filed Notice of Appeal filed by Baber, docketed as appeal no. 1-22-1001. Baber apparently filed this separate Notice of Appeal in the circuit court of Cook County, which was then transmitted to our appellate court. However, in that order, we noted that Baber had “properly filed” a Rule 308 application for the current appeal.

Although the concepts of waiver and forfeiture are commonly used interchangeably by both the parties and our courts, the two are distinct. . “Waiver” is the “voluntary relinquishment of a known right,” whereas “forfeiture” refers to the “failure to make the timely assertion of the right.” Id. (quoting ).

To that end, appropriate questions for Rule 308 review have involved questions of law that have not been directly addressed by the appellate or supreme court, or where there is a conflict between appellate districts or with our supreme court‘s progeny. See (discussing cases that appropriately bring forth “substantial grounds for difference of opinion“); see also (commenting that “Illinois decisions have provided comparatively little guidance for determining whether an immediate appeal may materially advance the ultimate termination of litigation“).

Further, the court‘s ruling on the motion to strike was not a question that was expressly certified by the circuit court.