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                                   Appellate Court                         Date: 2019.07.15
                                                                           08:17:36 -05'00'



        Ritchie Multi-Strategies Global, LLC v. Huizenga Managers Fund LLC,
                               2019 IL App (1st) 182664



Appellate Court       RITCHIE MULTI-STRATEGIES GLOBAL, LLC, By and Through
Caption               Its Managing Member, RITCHIE CAPITAL MANAGEMENT, LLC,
                      Plaintiff-Appellant, v. HUIZENGA MANAGERS FUND LLC;
                      HUIZENGA CAPITAL MANAGEMENT, LLC; WILLIAMS
                      MONTGOMERY & JOHN, LTD.; CHRISTOPHER BARBER;
                      GARY GARNER; and JONATHAN D. MILLER, Defendants-
                      Appellees.



District & No.        First District, First Division
                      Docket No. 1-18-2664



Filed                 March 11, 2019



Decision Under        Appeal from the Circuit Court of Cook County, No. 18-CH-06001; the
Review                Hon. Sanjay T. Tailor, Judge, presiding.



Judgment              Appeal dismissed.


Counsel on            Dan K. Webb, Sean G. Wieber, and Michael S. Bergerson Jr., of
Appeal                Winston & Strawn LLP, of Chicago, for appellant.

                      Christopher C. Kendall and J’Aimee C. Crockett, of Law Office of
                      Christopher C. Kendall, P.C., and Christopher J. Barber, Gary W.
                      Garner, and Jonathan D. Miller, of Williams Montgomery & John,
                      Ltd., both of Chicago, for appellees.
     Panel                     PRESIDING JUSTICE MIKVA delivered the judgment of the court,
                               with opinion.
                               Justices Pierce and Walker concurred in the judgment and opinion.


                                                 OPINION

¶1         On December 21, 2018, the plaintiff in this case, Ritchie Multi-Strategies Global, LLC,
       filed a notice that it claimed was an interlocutory appeal as of right under Illinois Supreme
       Court Rule 307(d) (eff. Nov. 1, 2017). The appeal asked this court to overturn an order of the
       circuit court, entered on December 19, 2018, that “dissolved” a temporary restraining order
       that had been entered on March 13, 2018. However, at the time of that circuit court order, the
       ex parte temporary restraining order had expired long ago, by virtue of its own 10-day life
       span.
¶2         On December 28, 2018, we entered an order, on our own motion, dismissing this appeal for
       lack of jurisdiction. As we indicated that we would in that order, we are now issuing an opinion
       to explain why the interlocutory jurisdiction of Rule 307(a) and the expedited procedures
       provided by Rule 307(d) do not apply where, as here, there was no injunctive order in place
       that was being “dissolved” by the trial court.

¶3                                           I. BACKGROUND
¶4         The background of this litigation is long and tortured, and we will recite only those few
       facts that are relevant to this appeal. The primary parties are plaintiff Ritchie Multi-Strategies
       Global, LLC (Ritchie), an investment fund managed by Ritchie Capital Management, LLC
       (RCM), and defendant Huizenga Capital Management, LLC (Huizenga Capital), which
       manages defendant Huizenga Managers Fund, LLC (Huizenga Fund), a pooled investment
       fund (collectively, Huizenga). Additional defendants are Christopher Barber, Gary Garner, and
       Jonathan D. Miller, lawyers who work at the defendant law firm of Williams Montgomery &
       John, Ltd. (collectively, the WMJ defendants).
¶5         On March 8, 2018, Ritchie filed a complaint for injunctive relief against Huizenga and the
       WMJ defendants in St. Clair County, Illinois. In its complaint, Ritchie alleged that Huizenga
       Capital made investments in Ritchie on behalf of Huizenga Fund, thereby becoming a member
       of Ritchie, subject to the terms of the Ritchie operating agreement, and that the WMJ
       defendants “have provided legal representation on behalf of [Huizenga] in litigation against
       certain RCM Parties concerning Huizenga Capital’s investment in [Ritchie].” Ritchie further
       alleged in its complaint (1) that Huizenga had breached certain terms of the operating
       agreement, (2) that, as a result, Ritchie “has in the past, is in the present, and will in the future
       suffer immediate and irreparable harm to their respective business reputation for financial
       stability, investment acumen, and creditworthiness,” and (3) that Ritchie had no adequate
       remedy at law. Ritchie also filed a motion for an ex parte temporary restraining order (TRO).
¶6         On March 13, 2018, Judge Kievlan of the circuit court of St. Clair County granted the
       ex parte TRO, adopting the findings of fact and conclusions of law proposed by Ritchie and
       enjoining Huizenga from either (1) disparaging Ritchie, or (2) disclosing confidential
       documents and information in pleadings, motions, or oral argument in other cases that were
       pending between these same parties. By statute, this ex parte TRO could not “exceed 10 days.”

                                                     -2-
       735 ILCS 5/11-101 (West 2016). Judge Kievlan set a preliminary injunction hearing for March
       23.
¶7         On March 19, 2018, Huizenga filed a motion to dissolve the TRO and for damages.
       Huizenga also filed a motion to transfer the case from St. Clair County to Cook County,
       arguing that St. Clair County was not a proper venue. After a hearing, on March 21, 2018,
       Judge Julie Katz of St. Clair County granted the motion to transfer the case to Cook County
       “immediately” and cancelled the hearing set for March 23. Judge Katz’s order makes no
       mention of the motion to dissolve the TRO and for damages. The case was transferred to Cook
       County and assigned to Judge Sanjay Tailor, and defendants renewed their motion to dissolve
       the ex parte TRO.
¶8         On December 19, 2018, Judge Tailor, after an extensive hearing, entered an order that
       imposed sanctions against Ritchie and granted Huizenga’s motion to dissolve the TRO. Judge
       Tailor recognized that the TRO was no longer in place but accepted Huizenga’s argument that
       it needed a dissolution order as a predicate to obtaining damages. Judge Tailor ruled that there
       was “no basis in fact or law for obtaining [the] TRO ex parte.”
¶9         Two days later, on December 21, 2018, Ritchie filed a notice of interlocutory appeal from
       the order dissolving the ex parte TRO, pursuant to Rule 307(d), asking us to reverse that order.
       As noted above, we issued an order on December 28, 2018, dismissing this appeal for a lack of
       jurisdiction, which we now explain.

¶ 10                                          II. ANALYSIS
¶ 11       Although no party objected to our jurisdiction, we have an independent duty to ensure that
       we do have jurisdiction and to dismiss an appeal if it is lacking. LB Steel, LLC v. Carlo Steel
       Corp., 2018 IL App (1st) 153501, ¶ 23 (citing Almgren v. Rush-Presbyterian-St. Luke’s
       Medical Center, 162 Ill. 2d 205, 210 (1994)). We have jurisdiction over final judgments and
       certain interlocutory orders as prescribed by our supreme court rules. See Ill. S. Ct. R. 304 (eff.
       Mar. 8, 2016); R. 306 (eff. Nov. 1, 2017); R. 307 (eff. Nov. 1, 2017); R. 308 (eff. July 1, 2017).
¶ 12       With respect to injunctions, Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017)
       allows a party to appeal as of right from an interlocutory order of the circuit court “granting,
       modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” And when a
       party is seeking review of the “granting or denial of a temporary restraining order or an order
       modifying, dissolving, or refusing to dissolve or modify a temporary restraining order,” the
       rules require notice of appeal to be filed within two days of that order, followed by an
       extraordinarily expedited briefing schedule. Id. § 307(d). This expedited briefing schedule
       allows the parties only two days to file legal memoranda in lieu of briefs and culminates with
       the appellate court being required to decide the appeal within five business days of the end of
       briefing. Id.
¶ 13       Obviously, when an injunctive order that has preserved that status quo has been put in
       place or has been dissolved, time is often of the essence. However, as our supreme court has
       repeatedly made clear: “ ‘To determine what constitutes an appealable injunctive order under
       Rule 307(a)(1) we look to the substance of the action, not its form. [Citation.] An apple calling
       itself an orange remains an apple.’ ” Marsh v. Illinois Racing Board, 179 Ill. 2d 488, 491
       (1997) (quoting In re A Minor, 127 Ill. 2d 247, 260 (1989)). In this case, although Judge Tailor
       issued an order “dissolving” the TRO, as the parties recognized when they appeared before
       Judge Tailor, the TRO had long ago expired pursuant to statute.

                                                    -3-
¶ 14       Section 11-110 of the Code of Civil Procedure (Code) (735 ILCS 5/11-110 (West 2016)),
       provides for damages “where a temporary restraining order *** is dissolved by the circuit
       court or by the reviewing court.” Huizenga asked the circuit court for an order “dissolving” the
       ex parte TRO as a predicate to damages under this statute, for what it claimed was an
       improperly obtained order. However, in this case, when the circuit court entered the order
       dissolving the TRO, there was no TRO in place. Rather, the ex parte TRO entered on March
       13, 2018, dissolved by operation of law under section 11-101 of the Code 10 days after it was
       issued. That section provides that any temporary restraining order entered without notice “shall
       expire by its terms within such time after signing of the order, not to exceed 10 days, as the
       court fixes.” Id. § 11-101.
¶ 15       In Emerson Electric Co. v. Sherman, 150 Ill. App. 3d 832, 836 (1986), we recognized that
       “an injunction that has expired can no longer be dissolved because a court cannot dissolve that
       which no longer exists.” We dismissed the appeal in that case, finding that because the
       preliminary injunction expired while the appeal was pending, the appeal of the injunction
       became moot.
¶ 16       Ritchie relies heavily on the language from Emerson cited above to support its argument
       for reversal in this case, contending that the circuit court should not have issued an order
       “dissolving” the TRO because it had already expired. Huizenga responds that Ritchie is taking
       this language out of context and that, in cases decided after Emerson, we have made clear that
       a motion to dissolve an ex parte TRO as a predicate to damages under section 11-110 of the
       Code does not have to be brought within the 10 days that the TRO is in place. As we have
       dismissed this interlocutory appeal, the merits of whether the order dissolving the TRO should
       have been entered by Judge Tailor will be decided, if at all, at a later date.
¶ 17       But our recognition in Emerson that there can be no true dissolution of an expired TRO
       seems unassailable. Simply put, absolutely nothing about the status quo was altered when the
       circuit court “dissolved” the TRO on December 19, 2018. In the words of our supreme court in
       Marsh, the “apple” remained an “apple.” Marsh, 179 Ill. 2d at 491. There was no need and no
       justification for applying the extraordinarily expedited procedures set out in Rule 307(d) here.
       Because there was no dissolution of a TRO, we had no jurisdiction, and this interlocutory
       appeal was dismissed without any prejudice to Ritchie’s right to appeal Judge Tailor’s order of
       December 19, 2018, at the conclusion of this case.

¶ 18                                     III. CONCLUSION
¶ 19      This appeal was dismissed for lack of jurisdiction on December 28, 2018.

¶ 20      Appeal dismissed.




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