From JL–Court orders are voidable if Opposing Counsel has not filed an appearance or Leave to File an Appearance

http://illinoiscourts.gov/Opinions/AppellateCourt/2012/1stDistrict/1112401.pdf
Illinois Association of Defense Trial Counsel
Springfield, Illinois | http://www.iadtc.org | 800-232-0169
IDC Quarterly | Volume 23, Number 1 (23.1.36)
Civil Practice and Procedure
By: Edward K. Grassé
Busse, Busse & Grassé, Chicago
Leave to File an Appearance?
Yes, it is Required.
A recent Illinois Appellate Court First District decision has found that leave of court is required to file an appearance if 30 days has lapsed since service was perfected, and this is true even if the appearance is an additional appearance for a party already having appeared.
In J.P. Morgan Mortg. Acquisition Corp. v. Straus, 2012 IL App (1st) 112401, an attorney
attempted to vacate an order of foreclosure which had been entered against his clients after the attorney had filed an appearance for his clients. The court reviewed the order of foreclosure and sale and found that since the attorney had not sought leave of court to file his appearance, notice to the mortgagors was sufficient to validate the foreclosure order. J.P. Morgan had issued a mortgage to Joseph Straus and his wife, Alice. J.P. Morgan obtained service of process on both Joseph and Alice.
Joseph Straus filed a pro se appearance and answer. Subsequently, an attorney filed an ”additional appearance” on behalf of Joseph Straus and then a short time later an appearance for Alice Straus.  There was no dispute that the attorney’s additional appearance was in fact filed with the court. There was a dispute as to whether or not the additional appearance was served on opposing counsel. It was undisputed that the only appearance filed within 30 days of service was the pro se appearance filed by
Mr. Straus. J.P. Morgan, 2012 IL App (1st) 112401, ¶¶ 3-4.
After filing the additional appearance for Mr. Straus but before the appearance was filed for Mrs. Straus, J.P. Morgan filed and presented a motion for judgment of foreclosure and sale. This motion was purportedly served on Mr. and Mrs. Straus, but was admittedly not served on counsel for Mr. Straus. The court granted the motion for foreclosure and sale. The judicial sale was held and a motion was filed for approval of the judicial sale. Id. ¶ 6. Counsel for Mr. Straus filed a motion to vacate the judgment based on the fact that he was not served with notice of the motion pursuant to the additional appearance that he previously filed. J.P. Morgan argued that the additional appearance was never
served and that leave was never obtained to file the appearance in the first place. The trial court denied the motion to vacate and approved the judicial sale. Id.
On appeal, defendants asserted a single issue: that the trial court erred in denying the motion to vacate as the foreclosure judgment and all subsequent orders were void for lack of complete notice.
Defendants pointed to Illinois Supreme Court Rule 11 which states “[i]f a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service “shall” be made upon the party.” J.P. Morgan, 2012 IL App (1st) 112401, ¶ 7. Defendants argued that the use of the word “shall” makes this language mandatory and that this cannot be disregarded by the court. Id.
The court first considered whether the order was considered void or voidable. After considering several Illinois supreme and appellate court cases, the court determined that the order was voidable, not void. The court found that it properly had jurisdiction, therefore, the order was simply voidable and only subject to direct appeal. Id. ¶ 13. Defendants also disputed plaintiff’s argument that leave was required to file an appearance. Defendants cited to Rule 13 which states “[a]n attorney shall file
his written appearance or other pleading before he addresses the court unless he is presenting a motion for leave to appear by intervention or otherwise.” Ill. S. Ct. R. 13(c) (1) (“Rule 13(c)(1)”); J.P. Morgan, 2012 IL App (1st) 112401, ¶ 15. The court then addressed the need to seek leave prior to filing an appearance. The court analyzed Rule 13 which requires leave to file an appearance unless “presenting a motion for leave to appear by intervention or otherwise.” Ill. S. Ct. R. 13(c) (1). The court held that this language “leads us to the conclusion that leave of court must be sought prior to filing an appearance after 30 days.” J.P. Morgan, 2012 Il. App. 112401, ¶ 15. The court went on to state that “leave of court is regularly sought when an additional appearance is filed whether to replace an attorney or for a pro se defendant who has secured representation.” Id. The court concluded that the
arguments raised by the defendants did not demonstrate an abuse of discretion by the trial court. Id. ¶ 14. This opinion raises several issues.
First, is leave of court truly required under Rule 13? The court makes the definitive statement that “leave of court must be sought prior to filing an appearance after 30 days.” Id. ¶ 15 (emphasis added). However, Rule 13 (c) (1) has two parts. The first part makes the filing of an appearance mandatory before addressing the court: “an attorney shall file his written appearance or other pleading before he addresses the court.” Ill. S. Ct. R. 13 (c) (1). The second part provides for situations wherein an attorney may address the court without filing an appearance: “unless he is presenting a motion for leave to appear by intervention or otherwise.” Id. The mandatory “shall” of the first part does not make the permissive of the second part correspondingly mandatory. It appears that the court could
have reached its decision in a more narrow context—limiting its ruling to situations involving additional or substitute appearances, without requiring leave of court in all instances where an appearance has not been filed within 30 days of service.
Second, does this ruling only apply in situations where an additional appearance or substitute appearance is being filed? The court seems to hold that leave is required in all instances after the passage of 30 days but the court’s reference to authority is limited to scenarios involving additional or substitute appearances. J.P. Morgan, 2012 IL App (1st) 112401, ¶ 15. Commonsense considerations would seem to dictate that additional or substitute appearances should require leave of court.
Unfortunately, the court’s ruling here ostensibly requires leave in all instances where 30 days have elapsed. It should be noted that the court based its ruling also upon the failure of the defendants to establish that their attorney’s additional appearance was properly served upon the plaintiff.
Lastly, what is the impact of failing to seek leave to file an appearance? If leave is not sought to file an appearance but an appearance is filed, is the attorney entitled to notice? Is an order entered without notice to an attorney who has filed an appearance and properly served the appearance on opposing counsel subject to a Rule 11 defense? These questions remain unanswered.
About the Author
Edward K. Grassé is a partner at the law firm of Busse, Busse & Grassé, P.C. He has practiced in the area of tort litigation for over 10 years and concentrates his practice in the defense of personal injury, construction, fire and explosion and premises liability suits.
He is presently the co-chair of the IDC Civil Practice Committee and is a former chair of the Civil Practice and Procedure Committee of the Chicago Bar Association.
About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at http://www.iadtc.org.

Illinois Association of Defense Trial Counsel, PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, idc@iadtc.org

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