                                                                            Digitally signed by
                             Illinois Official Reports                      Reporter of Decisions
                                                                            Reason: I attest to the
                                                                            accuracy and integrity
                                                                            of this document
                                    Appellate Court                         Date: 2016.09.29
                                                                            10:33:20 -05'00'




        Brennan v. Travelers Home & Marine Insurance Co., 2016 IL App (1st) 152830



Appellate Court         MARTY BRENNAN and MEGAN BRENNAN, Individually and as
Caption                 Executor of the Estate of Anne Flanagan, Plaintiffs-Appellants, v.
                        TRAVELERS HOME AND MARINE INSURANCE COMPANY
                        and RUFINA CUEVAS ROGEL, Defendants (Travelers Home and
                        Marine Insurance Company, Defendant-Appellee).



District & No.          First District, Second Division
                        Docket No. 1-15-2830


Filed                   July 26, 2016


Decision Under          Appeal from the Circuit Court of Cook County, No. 14-CH-19579; the
Review                  Hon. Kathleen M. Pantle, Judge, presiding.



Judgment                Appeal dismissed in part and affirmed in part.



Counsel on              James P. Newman & Associates, LLC, of St. Charles (James P.
Appeal                  Newman, of counsel), for appellants.

                        Smith Amundsen LLC, of Chicago (Michael Resis and Richard T.
                        Valentino, of counsel), for appellee.



Panel                   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
     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
     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.

                                                -2-
                                                   ***
                    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:
                   “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. [Illinois Supreme Court] Rule 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 parties and new
               causes of action. Such an amendment would have been appropriate before final



                                                   -3-
               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 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 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

                                                    -4-
       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 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.




                                                   -5-
