                                        2016 IL App (1st) 152830
                                             No. 1-15-2830
                                              July 26, 2016

                                                                             SECOND DIVISION



                                                IN THE

                                    APPELLATE COURT OF ILLINOIS

                                           FIRST DISTRICT


     MARTY BRENNAN and MEGAN                        )      Appeal from the Circuit Court
     BRENNAN, Individually and as the Executor      )      Of Cook County.
     of the Estate of Anne Flanagan,                )
                                                    )
           Plaintiffs-Appellants,                   )      No. 14 CH 19579
                                                    )
           v.                                       )      The Honorable
                                                    )      Kathleen M. Pantle,
     TRAVELERS HOME AND MARINE                      )      Judge Presiding.
     INSURANCE COMPANY and RUFINA                   )
     CUEVAS ROGEL,                                   )
                                                    )
           Defendants                               )
                                                    )
     (Travelers Home and Marine Insurance           )
     Company, Defendant-Appellee).                  )
                                                    )




                  JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                  Justices Simon and Hyman concurred in the judgment and opinion.


                                             OPINION

¶1         In Fultz v. Haugan, 49 Ill. 2d 131 (1971), our supreme court held that a postjudgment

        motion to amend the pleadings does not extend the time for filing a notice of appeal. In
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        Kingbrook, Inc. v. Pupurs, 202 Ill. 2d 24 (2002), our supreme court held that a motion

        nominally directed against the judgment extends the time for filing a notice of appeal, even

        when the motion includes no specific reasons for the requested relief. What happens when,

        following the dismissal of a complaint with prejudice, the plaintiffs file a postjudgment

        motion titled “Motion to Reconsider,” but seek as relief only permission to file an amended

        complaint?

¶2         The circuit court entered a judgment dated June 18, 2015, granting a motion of the

        defendant, Travelers Home and Marine Insurance Company, to dismiss the complaint filed

        by the plaintiffs, Marty and Megan Brennan. The plaintiffs filed a “Motion to Reconsider,”

        asking for leave to file an amended complaint. The circuit court denied the motion in October

        2015, and the plaintiffs promptly filed a notice of appeal. We hold that the plaintiffs’ motion

        to reconsider does not count as a motion directed against the judgment of June 18, 2015, and

        it did not extend the time for filing a notice of appeal. Therefore, the appellate court lacks

        jurisdiction to consider the arguments directed against the dismissal of the complaint with

        prejudice. This court has jurisdiction to review the circuit court’s October 2015 order

        denying the plaintiffs leave to amend their complaint, but the plaintiffs have not stated proper

        grounds for finding error in the denial of leave to amend. Accordingly, we dismiss the appeal

        in part and we affirm the circuit court’s judgment in part.

¶3                                          BACKGROUND

¶4         Anne Flanagan permitted her daughter, Megan Brennan, and Megan’s husband, Marty

        Brennan, to use a car Flanagan owned. Flanagan purchased insurance for the car from


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        Travelers Home and Marine Insurance Company. After Flanagan died in November 2013,

        the Brennans continued using Flanagan’s car and paying insurance premiums to Travelers.

        Flanagan’s estate transferred the car’s title to Megan in June 2014.

¶5         In October 2014, Marty got into an automobile accident while driving the car. When

        Travelers refused to pay their claim, the Brennans filed a complaint against Travelers.

        Travelers filed a motion to dismiss under section 2-619 of the Code of Civil Procedure (735

        ILCS 5/2-619 (West 2014)), arguing that the policy had terminated prior to the accident due

        to Flanagan’s death.

¶6         The circuit court entered an order dismissing the complaint with prejudice on June 18,

        2015. That same day the Brennans filed a “Motion to Reconsider Dismissal Order of June 18,

        2015,” in which they said:

                “Plaintiffs request that this Court grant [them] leave to file an amended

                complaint for several reasons:

                     a. Travelers has wrongfully retained Plaintiff[s’] car since the accident and

                Plaintiff[s] wish[ ] to amend the complaint to allege conversion; and

                     b. The Court’s dismissal order indicates that “Plaintiffs have not induced any

                facts that show that they relied on any of Travelers conduct…” *** Plaintiffs

                can allege sufficient facts to demonstrate reliance, and wish to amend their

                complaint to plead such causes of action.

                                                          ***




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                       WHEREFORE, Plaintiffs *** pray this Honorable Court reconsider its

                  dismissal with prejudice and allow the plaintiffs 28 days to file an amended

                  complaint, and any further relief this Court may deem fair and just.” (Emphasis

                  in original.)

¶7           The motion did not present any reasons for relief other than permission to file an

          amended complaint. On October 2, 2015, the circuit court entered an order in which it stated,

          “Motion to Reconsider and for Leave to File Amended Complaint is denied.” The Brennans

          filed their notice of appeal on October 6, 2015. In their brief, they argue that the circuit court

          should not have dismissed the complaint on June 18, 2015, and the court should have granted

          them leave to file the proposed amended complaint with the new counts added.

¶8                                               ANALYSIS

¶9           Travelers, citing Fultz, contends that this court lacks jurisdiction to consider the challenge

          to the order dated June 18, 2015. The Brennans cite Muirfield Village-Vernon Hills, LLC v.

          K. Reinke, Jr. & Co., 349 Ill. App. 3d 178 (2004), as authority showing that this court has

          jurisdiction to consider the challenge to the order of June 18, 2015, as well as the order of

          October 2, 2015.

¶ 10         In Fultz, the circuit court granted a motion to dismiss the complaint on March 31, 1970.

          The plaintiff filed a motion to vacate on April 21, 1970, and the circuit court denied the

          motion on April 24, 1970. On May 18, 1970, the plaintiff filed a motion for leave to file an

          amended complaint, and the circuit court denied the motion on July 2, 1970. The plaintiff

          subsequently filed a notice of appeal. The Fultz court said:


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                “It is plaintiff’s position that the motion for leave to file an amended

          complaint *** extended the time within which to file further motions attacking

          the original order. With this we do not agree. [Supreme Court] Rule 303(a) [Ill.

          S. Ct. R. 303(a) (eff. July 1, 1971)] provides for extending the time for filing

          notices of appeal to 30 days after the disposition of a motion ‘directed against

          the judgment.’ *** A motion for leave to file an amended complaint is not *** a

          motion ‘directed against the judgment.’

                *** The appeal from the order of March 31 and the order of April 24 will be

          dismissed.

                On this appeal we can therefore only consider the propriety of the two orders

          entered on July 2. ***

                After judgment a pleading may be amended only to conform the pleadings to

          the proofs. (Ill. Rev. Stat. 1969, ch. 110, par. 46(3) [(now codified at 735 ILCS

          5/2-616(c) (West 2014))]; [citation]. The judgment of March 31 was a final

          order disposing of the case. It was never vacated or set aside. Plaintiff could

          therefore only amend the complaint to make the same conform to the proof.

          However, the order of March 31 was entered pursuant to the defendant’s motion

          to dismiss and no evidence by way of testimony or otherwise was presented, and

          thus no proof with which to make the complaint conform after judgment.

                The amended complaint tendered was in three counts. The first count was

          identical with the original complaint dismissed, and counts II and III added new


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                  parties and new causes of action. Such an amendment would have been

                  appropriate before final judgment [citation], but is not proper after judgment.

                  The trial court properly denied plaintiff’s motion for leave to file the amended

                  complaint.” Fultz, 49 Ill. 2d at 135-37.

¶ 11         In Muirfield Village, the circuit court dismissed the complaint with prejudice, and the

          plaintiffs filed a motion to reinstate the case and for leave to file an amended complaint. The

          circuit court denied the plaintiffs leave to file the amended complaint, and the plaintiffs filed

          a notice of appeal. The defendants argued that the appellate court lacked jurisdiction to

          review the order dismissing the case with prejudice because the plaintiffs had not filed a

          motion directed against the judgment, which would have extended the time for filing the

          notice of appeal. The Muirfield Village court said:

                       “Substantively, plaintiffs’ motion to reinstate and for leave to file an

                  amended complaint seeks only leave to file a fourth amended complaint. ***

                       Our resolution of this issue is guided by the recent case of Kingbrook, Inc. v.

                  Pupurs, 202 Ill. 2d 24 (2002). There, our supreme court addressed the issue of

                  what degree of detail must be included in a motion to reconsider for such a

                  motion to qualify as a postjudgment motion. Kingbrook, 202 Ill. 2d at 25. Our

                  supreme court held that neither the Code nor the supreme court rules require any

                  degree of specificity in a postjudgment motion. ***

                       This case presents a step beyond Kingbrook—what happens when a party

                  presents a motion with considerable detail, but the motion substantively is


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          directed only at securing leave to file an amended complaint. Ordinarily, we

          would find that this would not be directed at the judgment and, therefore, would

          not be a postjudgment motion for purposes of the Code and supreme court rules.

          [Citation.] However, in addition to requesting leave to amend their complaint,

          plaintiffs also specifically request that the trial court reinstate their cause of

          action. We interpret plaintiffs’ request to reinstate their cause to be a request to

          modify or vacate the trial court’s judgment of dismissal with prejudice, so as to

          allow the cause to continue. *** [A] motion seeking a modification or vacation

          of the judgment qualifies as a postjudgment motion. Thus, plaintiffs’ motion

          possesses no proper substance or detail, but properly requests appropriate relief

          to qualify as a postjudgment motion. Under Kingbrook, a motion that does no

          more than request to strike or vacate the ‘with prejudice’ portion of the order

          would be sufficient to toll the 30-day time period in which to file a notice of

          appeal. Kingbrook, 202 Ill. 2d at 33. We believe that it would be contrary to the

          supreme court’s intent in Kingbrook to hold that a motion with no detail but

          requesting the appropriate relief is sufficient to toll the 30-day time period,

          while a motion with plenty of irrelevant detail requesting the same relief is

          insufficient to qualify as a postjudgment motion. We will not penalize plaintiffs

          for incorporating more than they needed to in the motion ***. We find,

          therefore, that plaintiffs’ motion to reinstate and for leave to file an amended




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                    complaint was sufficient to toll the 30-day period to file a notice of appeal.”

                    Muirfield Village, 349 Ill. App. 3d at 185-86.

¶ 12         We cannot reconcile Muirfield Village with Fultz, which the Muirfield Village court did

          not discuss. Every time a plaintiff files a motion for leave to file an amended complaint after

          the circuit court has dismissed the complaint with prejudice, the plaintiff implicitly requests

          reinstatement of the case and modification of the dismissal order to eliminate the “with

          prejudice” clause. If the request for such relief makes the motion one “directed against the

          judgment,” then every postjudgment motion for leave to file an amended complaint would

          count as a motion directed against the judgment and it would extend the time for filing the

          notice of appeal. But the Fultz court held that a motion for leave to file an amended

          complaint does not extend the time for filing the notice of appeal, because the motion does

          not qualify as a motion directed against the judgment.

¶ 13         The Kingbrook court did not overrule Fultz, which controls our disposition of this case.

          The “Motion to Reconsider,” in which the Brennans requested only leave to file an amended

          complaint, did not extend the time to file a notice of appeal from the final judgment entered

          on June 18, 2015. We hold that the appellate court lacks jurisdiction to review that judgment.

          Fultz, 49 Ill. 2d at 135-37; Shutkas Electric, Inc. v. Ford Motor Co., 366 Ill. App. 3d 76, 81

          (2006).

¶ 14         The Fultz court held that the notice of appeal in that case preserved for review challenges

          to the order denying the plaintiffs’ request for leave to file an amended complaint. Following

          Fultz, we find that we have jurisdiction to decide whether the circuit court erred when it


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          denied the Brennans leave to file their amended complaint. However, under Fultz, a proper

          postjudgment motion for leave to file an amended complaint must request leave to make the

          pleadings conform to the proofs. Fultz, 49 Ill. 2d at 136-37; see Mandel v. Hernandez, 404

          Ill. App. 3d 701, 707-08 (2010). The Brennans sought to add new factual allegations to the

          complaint so they could state new causes of action for conversion and any cause, like

          promissory estoppel, based on their reliance on Travelers’s conduct. Because the Brennans

          did not seek to make the pleadings conform to the proofs, we must affirm the judgment

          denying them leave to file an amended complaint.

¶ 15                                            CONCLUSION

¶ 16         The motion for leave to file an amended complaint did not extend the time for filing a

          notice of appeal from the judgment entered on June 18, 2015. Therefore, the notice of appeal

          filed on October 6, 2015, did not give this court jurisdiction to consider the Brennans’

          challenges to that judgment. This court has jurisdiction to review the order denying the

          motion for leave to file an amended complaint, but because the Brennans do not seek to make

          their pleadings conform to the proofs, they have not presented grounds for reversing the

          circuit court’s decision. Accordingly, we affirm the circuit court’s denial of the motion for

          leave to file an amended complaint.

¶ 17         Appeal dismissed in part and affirmed in part.




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