No. 1-15-2789 Opinion filed June 16, 2017

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

LARRY ORUTA, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 2010-L-4355 ) BIOMAT USA, INC. and HARTFORD ) The Honorable INSURANCE c/o Sedgwick, CM ) James P. Flannery, Jr., ) Judge, presiding. Defendants ) ) (Biomat USA, Inc., ) ) Defendant-Appellee). )

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion. Justice Lampkin specially concurred, with opinion.

OPINION

¶1 On January 14, 2013, the trial court dismissed defendant Biomat USA, Inc., with

prejudice from the underlying case. Two and a half years later, on September 22, 2015, No. 1-15-2789

plaintiff Larry Oruta filed a motion with the trial court seeking to file a “service of summons

*** against Biomat USA previously returned.” On September 29, 2015, the trial court denied

plaintiff’s motion, stating that: “Biomat USA, Inc. was dismissed with prejudice by Court

order on January 14, 2013.”

¶2 On September 29, 2015, the same day that the trial court denied plaintiff’s motion,

plaintiff filed a notice of appeal. On May 20, 2016, plaintiff filed an “amended” notice.

¶3 For the following reasons, this instant appeal is dismissed for lack of jurisdiction.

¶4 First, plaintiff’s notices of appeal and his brief to this court all state that “final

judgment” was granted on January 23, 2012. To the extent that these statements are true, this

court lacks jurisdiction. A notice of appeal with respect to this final judgment had to be filed

within 30 days after it was entered—not years later. Supreme Court Rule 303 provides for the

30-day requirement, and the rule states in relevant part: “The notice of appeal must be filed

with the clerk of the circuit court within 30 days after the entry of the final judgment

appealed from ***.” Ill. S. Ct. R. 303(a) (eff. Jan. 1, 2015).

¶5 When an appellant fails to file a timely notice of appeal, this court lacks jurisdiction

to hear the appeal. Supreme Court Rule 301 states, in relevant part: “The appeal is initiated

by filing a notice of appeal. No other step is jurisdictional.” Ill. S. Ct. R. 301 (eff. Feb.1,

1994). Thus the timely filing of the notice of appeal is the only jurisdictional step required to

perfect the appeal. People v. Lewis,

(2009) (“The timely filing of a notice

of appeal is the only jurisdictional step required to initiate appellate review.”) Without it, this

court lacks jurisdiction and the appeal must be dismissed. Lewis,

(“A

reviewing court lacks jurisdiction and is obliged to dismiss an appeal if there is no properly

filed notice of appeal.”).

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¶6 Second, to the extent that defendant seeks to appeal the January 14, 2013, dismissal

order, we also lack jurisdiction. The trial court’s dismissal order, dated January 14, 2013,

stated in full:

“This matter coming before the Court on Biomat USA Inc.’s 735 ILCS 5/2-619

Motion to Dismiss and Quash Service (“Motion”), all parties having notice, Plaintiff

Larry Oruta having failed to appear and the Court being duly advised, IT IS

HEREBY ORDERED:

(1) Biomat USA, Inc.’s Motion is granted; and

(2) This matter is dismissed with prejudice as to Biomat USA, Inc.”

The “Jurisdiction Statement” in plaintiff’s brief does not suggest a basis for appellate

jurisdiction over the January 14, 2013, order or any other order. It states: “This appeal was

filed to reinstate citation proceedings against Hartford Ins. c\o Sedgwick CMS who were

served but filed [sic] to appear on 9-29-15 but trial court wrongfully denied motion in open

court on grounds of jurisdiction citing ex-parte proceedings yet, the new judge *** had

jurisdiction to rule upon reinstatement of citations.” Plaintiff does not cite a statutory section

or rule which provides appellate jurisdiction for “reinstatement of citations.”

¶7 Third, the trial court’s September 29, 2015, order, which merely observed that this

defendant was dismissed years ago, was not an appealable order. Both of plaintiff’s notices

of appeal state that it is the court’s September 29, 2015, order that he is appealing. The

September 29, 2015, order stated in full:

“This matter coming before the Court on Larry Oruta’s Motion filed on

9/22/2015, the Court being fully advised, IT IS HEREBY ORDERED:

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(1) The motion is denied. Biomat USA, Inc. was dismissed with prejudice by

Court order on January 14, 2013.”

¶8 We cannot discern a rule under which the above order is appealable. It is not a final

judgment; the final judgment was entered in 2012 according to plaintiff. It is not one of the

types of appeals listed in Supreme Court Rule 307 (Ill. S. Ct. R. 307 (eff. Nov. 1, 2016)) as

an interlocutory appeal as of right; and since plaintiff did not petition this court for leave to

appeal, it cannot be an interlocutory appeal by permission pursuant to Supreme Court Rule

306 (Ill. S. Ct. R. 306(a) (eff. Mar. 8, 2016) (“A party may petition for leave to appeal to the

Appellate Court from the following orders of the trial court[.]”)).

¶9 The September 29, 2015, order was simply an observation by the trial court that any

litigation with respect to this defendant had terminated years ago. The entry of such an

observation does not cause an abandoned appeal right to spring back to life.

¶ 10 Defendant’s sole argument in its appellate brief is that this court lacks jurisdiction,

and we must agree. For the foregoing reasons, this appeal is dismissed for lack of

jurisdiction.

¶ 11 In addition, Supreme Court Rule 375(b) permits this court to enter sanctions against a

party if an appeal is “frivolous” or “not taken in good faith” or “for an improper purpose,

such as to harass to cause unnecessary delay or needless increase in the cost of litigation.” Ill.

S. Ct. R. 375(b) (eff. Feb. 1, 1994). “A reviewing court applies an objective standard to

determine whether an appeal is frivolous; ‘the appeal is considered frivolous if it would not

have been brought in good faith by a reasonable, prudent attorney.” Parkway Bank and Trust

Co. v. Korzen,

, ¶ 87 (quoting Dreisilker Electric Motors, Inc. v.

Rainbow Electric Co.,

(1990)). “Sanctions may be awarded against

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pro se litigants under sufficiently egregious circumstances.” Parkway,

, ¶ 87. “The imposition of Rule 375 sanctions is left entirely to the discretion of the

reviewing court.” Parkway,

, ¶ 87.

¶ 12 We find that the appeals filed by this pro se litigant present the type of “sufficiently

egregious circumstances” that warrant sanctions. The appellant in this case has filed multiple

appeals in this court that are frivolous or not taken in good faith. For example, just last year,

in Oruta v. B.E.W.,

, ¶ 1, we observed: “This court has dismissed

three prior appeals by plaintiff in this same case for lack of jurisdiction. Oruta v. B.E.W.,

(Dec. 5, 2014) (Oruta 3); Oruta v. Bobby E. Wright

Comprehensive Behavioral Health Center, Inc.,

(Aug. 1, 2014)

(Oruta 2); Oruta v. B.E.W.,

(Dec. 20, 2013) (Oruta 1).” In that

same case, we observed in a footnote: “We also dismissed at least two other appeals by

plaintiff for want of prosecution. Oruta v. Continental Air Transport, No. 1-14-0404 (Nov.

24, 2014) (for failure to file a brief), petition for leave to appeal denied, No. 118911 (Sept.

30, 2015); Oruta v. Continental Air Transport, No. 1-14-3224 (Apr. 2, 2015) (for failure to

file the record).” Oruta,

, ¶ 1 n.3.

¶ 13 In a subsequent footnote in that same opinion, we further observed: “Plaintiff has

filed not only numerous appeals in this case in the last few years, but also appeals in other

unrelated cases. E.g. Oruta v. BEK, [2011] IL App (1st) 092651-U, ¶¶ 1, 6 (another appeal,

which consolidated two separate circuit court cases, was also dismissed for lack of

jurisdiction).” Oruta,

, ¶ 36 n.9.

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¶ 14 Thus, our 2016 opinion put defendant on notice that this court was concerned with his

onslaught of seemingly endless, frivolous filings. For example, in the 2016 opinion, we

described the background of that appeal as follows:

“We provide a description of the prior appeals in this opinion so that issues do not

repeat themselves. We quote from the documents themselves because the events of

this case are so bizarre that they would be hard to believe without documentation. Just

for example, plaintiff was able to obtain from the trial court an $80,000 garnishment

order on a nonexistent judgment; and a defendant was forced to file a motion to

dismiss—multiple times—although there was never any record of a complaint being

filed which named it as a defendant.” Oruta,

, ¶ 4.

¶ 15 The above description of that appeal is indicative of the type of conduct present in

most of these appeals. Thus, for example, in a 2013 order entered pursuant to Supreme Court

Rule 23 (Ill. S. Ct. R. 23 (eff. July 1, 2011)), this court summarized the 2013 appeal as

follows: “Plaintiff Larry Oruta filed a series of pro se complaints, that were completely

unintelligible *** seeking to enforce a judgment that never existed.” Oruta 1,

, ¶ 2.

¶ 16 Similarly, in the case at bar, plaintiff appears to be cleverly trying to use the device of

filing a motion for a subpoena as a means to resurrect the appeal rights for a years-old

dismissal.

¶ 17 This court can no longer countenance the wrongful gamesmanship exhibited by this

pro se plaintiff. Appeals are not a game, but a serious matter which consumes the time and

attention of both this court and the other litigants. As a result, we are considering imposing

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sanctions on plaintiff which would involve barring plaintiff from filing any appeals again in

this court without approval of this court to determine whether the appeal is in good faith.

¶ 18 Supreme Court Rule 375(b) provides: “If the reviewing court initiates the sanction, it

shall require the party or attorney, or both, to show cause why such a sanction should not be

imposed before imposing the sanction.” (Emphasis added.) Ill. S. Ct. R. 375(b) (eff. Feb. 1.

1994); Parkway,

, ¶ 96 (directing defendants to show cause why

we should not impose a fine on them under Supreme Court Rule 375). Normally, we would

issue a separate order setting a briefing schedule. Parkway,

, ¶ 96.

However, in the case at bar, we find that is not necessary, since we are contemplating a fine

rather than a payment of attorney fees or costs to the other side. Parkway,

, ¶ 96 (setting a briefing schedule on any petition for attorney fees, as well as the rule

to show cause). Thus, we order plaintiff to show cause within 30 days of the date of this

order why sanctions should not be imposed.

¶ 19 Supreme Court Rule 375(b) further provides: “Where a sanction is imposed, the

reviewing court will set forth the reasons and basis for the sanction in its opinion or in a

separate written order.” Ill. S. Ct. R. 375(b) (eff. Feb. 1. 1994). We have set forth the reasons

and basis for why we are considering a sanction in this order, as well in all the other orders

and opinions cited in this order.

¶ 20 As we have stated in the past, “[t]his court is especially solicitous of self-represented

parties who do not display punctilious compliance with our rules, particularly in cases where

the issues are clear even though the brief is deficient. However, when the line is crossed, we

have enforced our sanction rules.” Parkway,

, ¶ 85. With this

pro se litigant, we find that the line has been crossed time after time.

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¶ 21 Appeal dismissed; order to show cause entered.

¶ 22 JUSTICE LAMPKIN, specially concurring.

¶ 23 I concur only in the judgment reached by the majority.

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