Based upon questioning during last week’s oral argument, the Illinois Supreme Court seemed unlikely to forgive plaintiff’s counsel for filing a notice of appeal electronically in apparent violation of the Circuit Court’s local rules. Our preview of VC&M, Ltd. v. Andrews is here.

VC&M arises from a real estate dispute. The defendants, a husband and wife, signed a contract with the plaintiff to list their residence for sale. Plaintiff found a buyer, who put in a bid for less than the asking price. The wife made what she described in emails as an "offer" to buy out her soon-to-be ex-husband for $5 more than the third party’s offer; the wife said if the third party raised, she would too. Ultimately the defendants rejected the third party’s offer, making no counter offer. The defendants signed a deed and held what they called a "closing" to finalize the sale of the husband’s interest in the house to the wife. A few months after the listing agreement expired, the Circuit Court entered a judgment of divorce incorporating a property settlement which included as a line item real estate commissions due and owing. The agreement valued the marital home at $5 more than the rejected offer.

When the plaintiff sued for breach of contract, the defendant successfully moved to dismiss. The plaintiff e-filed a motion for reconsideration which was denied, and the plaintiff then e-filed a notice of appeal. The Second District held that because the case hadn’t been properly designated for e-filing, the e-filed motion for reconsideration was ineffective. Since the motion for reconsideration was ineffective, the notice of appeal was untimely. And even if the notice of appeal had been timely, since the local rules barred e-filing "appellate" documents, the filing was void anyway, meaning that the Appellate Court lacked jurisdiction over the appeal.

The Court peppered the appellant’s counsel with more than a dozen questions during his initial presentation. Justice Garman asked counsel whether he contested that his e-filings violated the court’s local rules. Counsel responded that the local rules defined neither filings intended to enforce the judgment — one class of filings which couldn’t be e-filed — nor "appellate" filings, so it was far from clear that his motion for reconsideration and notice of appeal were improperly filed. Counsel emphasized that the Supreme Court’s authorization of e-filing didn’t contain any such prohibitions as those found in the local rules. Justice Thomas asked whether the initial complaint had to be e-filed to make a case eligible for e-filing, and counsel responded that no such prohibition was found in the Supreme Court’s authorization either. According to counsel, since a notice of appeal is not filed in the Appellate Court, it is not an appellate document; and since his motion to reconsider was not an attempt to enforce the judgment, neither of his filings violated the local rules. Counsel argued that the Circuit Court’s authority in relation to e-filing was limited to complying with the mandates of the Supreme Court; any additional burdens placed on litigants were impermissible. Justice Thomas asked counsel whether the "burden" he was complaining of wasn’t the burden of following the local rules, but once again, counsel argued that the Circuit Court’s limitations on e-filing were beyond the Supreme Court’s mandate. Justice Thomas suggested that the Supreme Court’s earlier precedent seemed to require a showing of good cause to excuse a violation of the local rules. Counsel pointed out that the clerk had accepted the response for filing, giving him no chance to correct any deficiency. Justice Garman asked counsel whether the defendant had raised any objection to his e-filing the motion to reconsider, and counsel conceded that he had mentioned it in passing. In light of that, Justice Garman responded, why had counsel e-filed the notice of appeal? Counsel responded that his e-filing was appropriate. Justice Burke asked whether the clerk had accepted and docketed other e-filed notices of appeal, and counsel responded that he had heard anecdotally that the clerk had done so routinely. Counsel emphasized that the defendant had suffered no prejudice from the e-filing. Justice Garman asked counsel whether his position encouraged attorneys to violate local rules, and counsel responded that in fact, the local rules had been changed since the events at issue to authorizing e-filing notices of appeal.

The Court had almost no questions for the defendant. Counsel explained to the Court that at the hearing on plaintiff’s motion for reconsideration, he had deliberately offered no arguments at all in order to avoid reinvesting the court with jurisdiction. Counsel argued that there was nothing ambiguous about the rules, and counsel had failed to follow them. Justice Garman asked whether there was any prejudice to defendant, and counsel said there was — jurisdiction is the building block of everything that happens in court. Justice Theis wondered why the defective filing rose to the level of a jurisdictional issue, and counsel responded that it was because of the timing of the filing. Justice Theis raised the issue of prejudice again, pointing out that both the court and defendant had the paper filing. Counsel responded that the prejudice arose from subordinating the rights of a party whose lawyer followed the rules to those of a party whose lawyer didn’t. Counsel insisted that plaintiff hadn’t articulated a single viable reason why he didn’t follow the rule. When a rule is wrong or unwise, counsel seeks to change it, not disregard it.

On rebuttal, plaintiff pointed out that the local rule didn’t specifically say that "notices of appeal" couldn’t be e-filed. Justice Karmeier pointed out that the local rule referred to "notices" and asked what the rule referred to if not notices of appeal. Counsel responded that the rule was unclear. Justice Karmeier asked whether the local rules made all e-filings improper where counsel failed to qualify a case for e-filing at the outset, regardless of the notice of appeal issue, and counsel again responded that the e-filing limitation was not a mandate of the Supreme Court. Counsel pointed out that the revised local rule retained the ban on "appellate" documents, but specifically allowed e-filing of notices of appeal, so apparently the Circuit Court saw a distinction between the two. Justice Thomas suggested that rules were of no consequence if a party could defend the violation by arguing lack of prejudice. Counsel responded that if the clerk had promptly rejected the filing, he would have had an opportunity to rectify the problem. Justice Thomas asked whether that was counsel’s answer to the need for good cause to justify the local rules violation, and counsel agreed. Justice Thomas suggested that "good cause" referred to the initial rules violation, not what came later (the failure to reject the filing and give an opportunity for cure). Counsel responded that the rule was unduly vague and inconsistent with the court’s mandate.

VC&M should be decided within three to five months.