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                                      Appellate Court                             Date: 2018.04.25
                                                                                  10:58:37 -05'00'




                 Zitella v. Mike’s Transportation, LLC, 2018 IL App (2d) 160702



Appellate Court           ROBERT ZITELLA and RICHARD PIETRANEK, Plaintiffs-
Caption                   Appellees, v. MIKE’S TRANSPORTATION, LLC; RESTORATION
                          SERVICES, LLC; SUSAN MARINO; KEITH MARINO; and F.
                          MICHAEL MALONE, Defendants-Appellants.



District & No.            Second District
                          Docket No. 2-16-0702



Filed                     March 12, 2018



Decision Under            Appeal from the Circuit Court of Du Page County, No. 14-L-507; the
Review                    Hon. William I. Ferguson and the Hon. Robert G. Kleeman, Judges,
                          presiding.



Judgment                  Appeal dismissed.


Counsel on                James K. Borcia, of Tressler LLP, of Chicago, for appellants.
Appeal
                          Mark J. McAndrew, Kaitlyn Anne Wild, and Michael P. Adams, of
                          Rathje & Woodward, LLC, of Wheaton, for appellees.



Panel                     JUSTICE BIRKETT delivered the judgment of the court, with
                          opinion.
                          Justices Zenoff and Jorgensen concurred in the judgment and opinion.
                                              OPINION

¶1       Pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), defendants, Mike’s
     Transportation, LLC (Mike’s Transportation); Restoration Services, LLC (Restoration
     Services); Susan Marino; Keith Marino; and F. Michael Malone, appeal the judgment of the
     circuit court of Du Page County denying their April 7, 2016, motion to vacate a May 30, 2014,
     order requiring defendants to preserve all their books and records. We conclude that
     jurisdiction is lacking and dismiss the appeal.

¶2                                         I. BACKGROUND
¶3       In 2012, plaintiffs, Robert Zitella and Richard Pietranek, as principals for companies to be
     organized, purchased from defendants the assets of Mike’s Transportation and Restoration
     Services. In 2014, plaintiffs were disgruntled with the results of the sale. Susan Marino, Keith
     Marino, and Malone (the individual defendants) owned a property whose caretaker was
     potentially interested in purchasing it. The caretaker invited Pietranek to come to the property
     and consult with him about how he could best utilize the property according to his plans.
     Pietranek was left alone for approximately five minutes in a storage room containing a number
     of records. He looked inside a box and realized that it contained undisclosed records that
     pertained to the asset purchase. Pietranek rifled through the box, took at least 426 pages out of
     the box, and stored them in his car. He quickly ended the consultation with the caretaker and
     drove away with the records.
¶4       On May 21, 2014, plaintiffs sued defendants for breach of contract and fraudulent
     misrepresentation, based on defendants’ alleged withholding of the records that Pietranek had
     taken. Plaintiffs alleged that defendants had labeled certain expenditures as distributions to the
     individual defendants and then used them to pay their workers, thereby causing the profits of
     the businesses to be overstated and causing plaintiffs to overpay for the assets they purchased.
     (Defendants, in turn, accused Pietranek of breaking into the storage room and stealing the
     records and complained that plaintiffs had not sought to view records of that sort.)
¶5       Also on May 21, 2014, plaintiffs applied, ex parte, for a temporary restraining order (TRO)
     to prevent defendants from destroying any of the records located at the individual defendants’
     property or any other records that pertained to the asset purchase. The TRO was granted for a
     period of 10 days, expiring, on its own terms, at 3 p.m. on May 31. The trial court scheduled a
     hearing for May 30.
¶6       Defendants were served with the TRO by May 28. After being served, Keith Marino
     removed a number of boxes of records from the individual defendants’ property and took them
     into his personal residence; the trial court was not informed. On May 30, the parties appeared,
     and the trial court held a hearing. At the hearing, the trial court stated its intention to convert
     the TRO into a preservation order requiring defendants not to destroy any records. Defendants’
     attorney repeatedly stated that she had no objection to converting the TRO into a preservation
     order.
¶7       Following the hearing, the trial court entered the following order:
                 “All books and records of the defendants in any format will be preserved and the
             location of the books and records in any format will be immediately disclosed to the
             plaintiffs. The physical books and records will be available for pick up by F.E. Walsh


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               & Associates and Cintas today. An inventory of all books and records will be provided
               to all counsel of record. The costs of transport and storage will be born [sic] by plaintiff
               [sic] unless otherwise ordered by this court. The TRO will expire by its terms and the
               requirement of a bond is extinguished. The parties will meet and confer with respect to
               any electronically stored information by June 13, 2014.”
¶8         On June 12, 2014, defendants filed a motion to vacate the May 30, 2014, order, arguing
       that plaintiffs had not successfully alleged the elements necessary to secure a preliminary
       injunction. Frenetic motion practice ensued. On August 27, 2014, the trial court denied
       defendants’ motion to vacate the May 30, 2014, order.1
¶9         The case continued over the next two years in similar fashion. Much motion practice
       occurred, but the case advanced very little. On April 7, 2016, defendants once again filed a
       motion “to dissolve” the May 30, 2014, order, again arguing that plaintiffs had not properly
       alleged the elements necessary to secure a preliminary injunction. Following briefing and
       argument, on August 23, 2016, the trial court denied defendants’ motion to dissolve. On
       August 25, 2016, defendants filed their notice of appeal from the denial of the motion to
       dissolve.

¶ 10                                          II. ANALYSIS
¶ 11       On appeal, defendants argue that plaintiffs failed to sufficiently allege facts entitling them
       to the injunctive relief granted in the May 30, 2014, order. Plaintiffs argue that the May 30,
       2014, order was a preservation order pursuant to the rules of discovery and thus it was
       insufficient to confer jurisdiction over this appeal under Rule 307(a)(1).

¶ 12                                   A. Propriety of Rule 307 Appeal
¶ 13       Defendants appeal the trial court’s refusal to vacate its May 30, 2014, order, under Rule
       307(a)(1). Rule 307 covers interlocutory appeals as of right and states, pertinently: “An appeal
       may be taken to the Appellate Court from an interlocutory order of court: (1) granting,
       modifying, refusing, dissolving, or refusing to dissolve or modify an injunction[.]” Ill. S. Ct. R.
       307(a)(1) (eff. Feb. 26, 2010). Under Rule 307, a motion to vacate an injunction is equivalent
       to a motion to dissolve an injunction. Goodrich Corp. v. Clark, 361 Ill. App. 3d 1033, 1038
       (2005). The key, of course, is whether the order that defendants sought to vacate is an
       injunction or some other type of interlocutory order.
¶ 14       In order to determine whether an order is an appealable injunction, we look to its substance,
       not its form, and our policy is to broadly construe the meaning of the term “injunction.” In re A
       Minor, 127 Ill. 2d 247, 260-61 (1989). An injunction is a judicial process requiring a party to
       do a particular thing, or to refrain from doing a particular thing, but not every order with such a
       requirement is an injunction. Id. at 261-62. In particular, ministerial or administrative orders
       that regulate only the procedural details of litigation cannot be the subject of an interlocutory
       appeal. Id. at 262. Examples of such nonappealable orders include subpoenas, discovery
       orders, and orders relating to the court’s control of its docket. Short Brothers Construction,
       Inc. v. Korte & Luitjohan Contractors, Inc., 356 Ill. App. 3d 958, 960 (2005). These types of
           1
            The pertinent text of the order stated that the motion was denied “for the reasons set forth in the
       record.” At the August 27, 2014, hearing, the court did not set forth any reasoning or even seemingly
       address the motion to vacate. Nevertheless, the written order expressly denied the motion to vacate.

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       orders can be considered noninjunctive because they do not form a part of the power
       traditionally reserved to courts of equity; rather, they are a part of the inherent power possessed
       by any court to compel the appearance of witnesses, to regulate their testimony, and to control
       the court’s own docket. Id. These types of orders do not affect the relationship of the parties in
       their everyday activities apart from the litigation, and this serves to distinguish such orders
       from traditional forms of injunctive relief. Id.
¶ 15       Plaintiffs argue that the May 30, 2014, order is a garden-variety discovery order, requiring
       defendants to preserve the specified evidence. We agree. In the order, the trial court required
       duplication of the records, Bates stamping of the records, and return of the records thereafter to
       defendants. This is akin to an order compelling production of documents. Because it is a
       discovery order, or, at any rate, an order regulating the process of the litigation before the trial
       court, it is not an injunction. Therefore, it is a nonappealable interlocutory order. Id.
¶ 16       Defendants argue that a preservation order “is clearly injunctive in nature.” In support of
       this argument, defendants cite Anderson v. Taylor, 2006 UT 79, 149 P.3d 352. There are two
       problems with defendants’ reliance on Anderson. First, Anderson is a foreign case: nonbinding
       and only persuasive. In re Marriage of Moorthy, 2015 IL App (1st) 132077, ¶ 57 n.2.
       However, our own research has uncovered no Illinois case expressly holding that an order to
       preserve records is an injunctive order, so defendants’ resort to foreign authority is not
       particularly remarkable. Second, and more importantly, Anderson, for which defendants do not
       provide a pinpoint citation, does not stand for the proposition invoked by defendants, that
       preservation orders are “clearly injunctive in nature.” In Anderson, the plaintiff sought the
       issuance of an injunction requiring the police and the courts to follow Utah law requiring the
       preservation of search warrants and supporting documentation. Anderson, 2006 UT 79, ¶ 6.
       There was no issue of whether a particular order was or was not injunctive. Thus, while
       defendants might have cited Anderson because they appropriately perceived that Illinois
       authority was lacking, the case is nevertheless wholly unpersuasive because it deals with the
       informal and improper procedures that Utah state courts were using to handle search warrants.
       Defendants’ citation to Anderson, therefore, is inapposite.
¶ 17       In contrast, we believe that the May 30, 2014, order to preserve the evidence in this case is
       most closely akin to a nonappealable discovery order. As noted, nonappealable orders like
       discovery orders deal specifically with the conduct of the litigation and do not affect the parties
       in their everyday activities apart from the litigation. In re A Minor, 127 Ill. 2d at 262.
       Defendants assert that the May 30, 2014, order applied to literally all of their records, like
       school records, dental records, and anything else extraneous to this litigation. A reasonable
       construction of the May 30, 2014, order should quell that concern, and the fact that defendants
       sold the businesses and retired to Florida suggests that the order has no effect on their everyday
       activities apart from the litigation. Thus, while not directly on point, In re A Minor is
       authoritative, binding, and persuasive.
¶ 18       Defendants contend that, pursuant to In re African-American Slave Descendants’
       Litigation, No. 1491, 02 C 7764, 2003 WL 24085346, at *2 (N.D. Ill. July 15, 2003), an order
       to preserve evidence is an injunctive remedy. We acknowledge that the case makes that
       assertion based on several citations to other federal district court cases. As noted above,
       because the case is foreign authority, it is not binding on this court. Moorthy, 2015 IL App (1st)
       132077, ¶ 57 n.2. It also is apparently not published, so its persuasiveness is diminished.
       Finally, the case does not purport to analyze the difference between an injunctive order and a

                                                    -4-
       noninjunctive discovery order. Thus, it is of little value on the question presented here under
       Illinois law.
¶ 19        Defendants also assail authority cited by plaintiffs. Specifically, defendants attempt to
       distinguish People ex rel. Scott v. Silverstein, 87 Ill. 2d 167 (1981), People v. Kladis, 403 Ill.
       App. 3d 99 (2010), and Kilburg v. Mohiuddin, 2013 IL App (1st) 113408. However, we do not
       rely on those cases; rather, our own understanding of In re A Minor and Short Brothers guides
       our determination.
¶ 20        Defendants also note that Short Brothers recites the rule that the term “injunction” is to be
       construed broadly. Short Brothers, 356 Ill. App. 3d at 960. We agree. We also note that the
       appellate court in that case applied a pragmatic consideration of an order that stayed the
       pending litigation while the matter was referred to mediation, concluding that, despite the stay,
       the order implicated the trial court’s ability to manage its own docket. Id. We believe that the
       order preserving the evidence here can be viewed similarly: it is a nonappealable discovery
       order ensuring that the case can, eventually, be tried. Thus, we find no conflict with the general
       rule that the term “injunction” is to be broadly construed.
¶ 21        Because the May 30, 2014, order is not injunctive, it cannot be the basis for an appeal under
       Rule 307(a)(1). Accordingly, we lack jurisdiction and must dismiss the appeal.

¶ 22                                     B. Motion for Sanctions
¶ 23       On May 22, 2017, plaintiffs filed a motion to dismiss the appeal and for sanctions. As a
       basis for the motion to dismiss, plaintiffs complained that defendants were improperly
       delaying the filing of their opening brief on appeal, purely to harass and to prevent this case
       from advancing in the trial court. On May 25, 2017, defendants, after having filed six previous
       motions to extend the due date for their opening brief on appeal, filed a motion to file their
       opening brief instanter. On June 8, 2017, we granted defendants’ motion to file instanter, and
       we denied plaintiffs’ motion to dismiss the appeal and directed that the motion for sanctions be
       taken with the case.
¶ 24       Turning to plaintiffs’ motion for sanctions, plaintiffs note that sanctions are justified where
       an appeal is frivolous or where a party has employed abusive tactics in the conduct of an
       appeal. Plaintiffs base their argument for sanctions solely on the allegedly abusive tactics
       employed by defendants in requesting numerous extensions of time in which to file their
       opening brief and the alleged insufficiency of defendants’ reasons for requesting more time.
       Plaintiffs have not indicated how these extensions have impacted them. In light of the parties’
       ultimate presentations of the issues in this appeal, we do not believe that sanctions are
       warranted, and certainly not for the defendants’ alleged dilatoriness in adhering to the briefing
       schedule. We do note, however, that, in making six requests for extensions of time, defendants
       were perhaps beginning to hew more closely to the line of abusive tactics than is comfortable
       and our decision here is best viewed as a one-off, based on the unique facts before us. We also
       note that plaintiffs do not argue that the appeal is substantively frivolous. Accordingly, we
       deny plaintiffs’ motion for sanctions.




                                                    -5-
¶ 25                                   III. CONCLUSION
¶ 26   For the foregoing reasons, jurisdiction is lacking, and the appeal is dismissed.

¶ 27   Appeal dismissed.




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