{ "id": 4281339, "name": "JP MORGAN CHASE BANK, N.A., as Successor by Merger to Bank One, N.A., Plaintiff-Appellee, v. EARTH FOODS, INC., et al., Defendants (Leonard S. DeFranco, Defendant-Appellant)", "name_abbreviation": "JP Morgan Chase Bank, N.A. v. Earth Foods, Inc.", "decision_date": "2008-11-04", "docket_number": "No. 2\u201407\u20140045", "first_page": "316", "last_page": "327", "citations": [ { "type": "official", "cite": "386 Ill. App. 3d 316" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "57 N.E.2d 337", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "74 Ohio App. 23", "category": "reporters:state", "reporter": "Ohio App.", "case_ids": [ 1377384 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/ohio-app/74/0023-01" ] }, { "cite": "495 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "24 Ohio App. 3d 234", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 6712808 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ohio-app-3d/24/0234-01" ] }, { "cite": "311 Ill. App. 161", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3379864 ], "year": 1941, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/ill-app/311/0161-01" ] }, { "cite": "53 Ill. App. 3d 482", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3390758 ], "year": 1977, "pin_cites": [ { "page": "487", "parenthetical": "\"the guarantor of the note becomes a debtor when there is a default of the note\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0482-01" ] }, { "cite": "231 Ill. App. 3d 920", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5204175 ], "year": 1992, "pin_cites": [ { "page": "927", "parenthetical": "\"A guaranty *** is an absolute undertaking imposing liability upon the guarantor immediately upon the default of the principal debtor\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0920-01" ] }, { "cite": "33 S.E. 701", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1899, "pin_cites": [ { "page": "703", "parenthetical": "\"a guarantor warrants nothing but the solvency of the principal,\" and, \"[bjefore an action can be maintained against a guarantor, *** it must be shown that the principal is unable to perform\"" } ], "opinion_index": 0 }, { "cite": "108 Ga. 14", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 398126 ], "year": 1899, "pin_cites": [ { "page": "17-18", "parenthetical": "\"a guarantor warrants nothing but the solvency of the principal,\" and, \"[bjefore an action can be maintained against a guarantor, *** it must be shown that the principal is unable to perform\"" } ], "opinion_index": 0, "case_paths": [ "/ga/108/0014-01" ] }, { "cite": "377 Ill. 602", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2544424 ], "year": 1941, "pin_cites": [ { "page": "606", "parenthetical": "contract that required creditor to exhaust remedies against the principal was a guaranty" } ], "opinion_index": 0, "case_paths": [ "/ill/377/0602-01" ] }, { "cite": "197 Ill. 2d 337", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259052 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "343" }, { "page": "343", "parenthetical": "relying on same provision and previous version of Rule 303(a)(2) to hold that a court may consider a timely postjudgment motion filed after a notice of appeal" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0337-01" ] }, { "cite": "376 Ill. App. 3d 725", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273138 ], "year": 2007, "pin_cites": [ { "page": "728-34" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/0725-01" ] }, { "cite": "357 Ill. App. 3d 122", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136367 ], "year": 2005, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0122-01" ] }, { "cite": "378 Ill. App. 3d 57", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4274393 ], "year": 2007, "pin_cites": [ { "page": "68", "parenthetical": "trial court's decision to impose sanctions under Rule 219 reviewed for abuse of discretion" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/378/0057-01" ] }, { "cite": "344 Ill. App. 3d 1010", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3778083 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "1013" }, { "page": "1013" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/1010-01" ] }, { "cite": "365 Ill. App. 3d 653", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264454 ], "year": 2006, "pin_cites": [ { "page": "662", "parenthetical": "on matters of state law, federal cases are not binding on Illinois courts, but federal cases can act as persuasive authority" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0653-01" ] }, { "cite": "175 Ill. App. 3d 600", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554781 ], "year": 1988, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0600-01" ] }, { "cite": "174 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223609 ], "year": 1996, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0077-01" ] }, { "cite": "200 F. 511", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6742534 ], "weight": 4, "year": 1912, "pin_cites": [ { "page": "513-14" }, { "page": "515" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/f/200/0511-01" ] }, { "cite": "236 Ill. App. 3d 1080", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5784574 ], "year": 1992, "pin_cites": [ { "page": "1091" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/1080-01" ] }, { "cite": "113 So. 2d 252", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9871411 ], "year": 1959, "pin_cites": [ { "page": "253", "parenthetical": "agreeing with parties that the distinction is academic" } ], "opinion_index": 0, "case_paths": [ "/so2d/113/0252-01" ] }, { "cite": "872 F. Supp. 523", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7846398 ], "year": 1995, "pin_cites": [ { "page": "524-25", "parenthetical": "\"A suretyship contract or surety bond is essentially an agreement to satisfy the contractual obligations of another party\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp/872/0523-01" ] }, { "cite": "281 Ill. App. 3d 309", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150151 ], "year": 1996, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0309-01" ] }, { "cite": "226 Ill. 2d 559", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610662 ], "year": 2007, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0559-01" ] }, { "cite": "356 Ill. 127", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5803901 ], "weight": 4, "year": 1934, "pin_cites": [ { "page": "131, 132" }, { "page": "132" }, { "page": "132" }, { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/ill/356/0127-01" ] }, { "cite": "229 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3615076 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "228" }, { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0217-01" ] }, { "cite": "221 Ill. 2d 453", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704382 ], "year": 2006, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0453-01" ] }, { "cite": "211 Ill. 2d 32", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451063 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "43" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0032-01" ] } ], "analysis": { "cardinality": 1175, "char_count": 27601, "ocr_confidence": 0.838, "pagerank": { "raw": 1.1722920177483862e-07, "percentile": 0.5867002284689184 }, "sha256": "9e8b36c2113f3d917c4fe9709c6c81411cf6a38bd344a9576686443d1a0c4fa0", "simhash": "1:ebb44c04620e34e9", "word_count": 4574 }, "last_updated": "2023-07-14T17:01:11.295177+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JP MORGAN CHASE BANK, N.A., as Successor by Merger to Bank One, N.A., Plaintiff-Appellee, v. EARTH FOODS, INC., et al., Defendants (Leonard S. DeFranco, Defendant-Appellant)." ], "opinions": [ { "text": "JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nDefendant Leonard S. DeFranco appeals the trial court\u2019s order denying his motion to dismiss and granting summary judgment against him and in favor of plaintiff, JP Morgan Chase Bank, on plaintiffs suit to recover from defendant as a guarantor of a defaulted loan. On appeal, defendant argues that the trial court should have entered judgment in his favor based on section 1 of the Sureties Act (Act) (740 ILCS 155/1 (West 2004)), that the trial court should have ruled in his favor as a sanction for plaintiff\u2019s discovery violations, and that an order the trial court entered nunc pro tunc to correct its original order should be considered invalid. For the reasons that follow, we affirm the decision of the trial court in part, reverse in part, and remand for further proceedings.\nThe parties do not dispute the basic facts underlying this case. In 2001, plaintiff extended a line of credit to Earth Foods, Inc. (Earth Foods), and the three co-owners of Earth Foods (defendant, Michael Jarvis, and Theodore Petrowich) all personally guaranteed the loan. Before plaintiff sent Earth Foods a notice of default, defendant sent plaintiff a letter that warned it that Earth Foods was depleting its inventory (which was to serve as collateral for the loan) and demanded that plaintiff take action.\nEarth Foods stopped making payments to plaintiff in February 2004, and plaintiff sent a notice of default and demand for payment on April 23, 2004. Earth Foods failed to make any payments after the demand. On May 6, 2004, the largest shareholder of Earth Foods (a person who acquired the interest of one of the three co-owners and is not a party to this appeal) transferred all of the assets of Earth Foods to a new company. On June 9, 2004, plaintiff filed suit against Earth Foods as well as the three co-owners who had guaranteed the note.\nDefendant\u2019s answer claimed an affirmative defense on the ground that he was protected under section 1 of the Act. The matter was eventually set for arbitration on April 26, 2006. However, on the day of the hearing, plaintiff advised defendant that a witness, whom defendant intended to call as an adverse witness, was no longer in plaintiff\u2019s employ and therefore was not present at the hearing. Another witness defendant sought to question was also absent. The arbitrator continued the hearing.\nIn the meantime, on May 4, plaintiff filed a motion for summary judgment against defendant. The motion included an affidavit from one of plaintiffs employees who attested that plaintiff had incurred $64,826 in damages (including attorney fees, costs, and the principal and interest on the note) as of May 3, 2006. (With its reply to defendant\u2019s response, plaintiff included a petition detailing damages of $70,485 as of November 1, 2006.) Defendant responded with a motion to strike plaintiffs motion and to strike plaintiffs complaint, as sanctions for plaintiffs alleged discovery violations in failing to produce witnesses for the scheduled April 26 arbitration hearing (and also for failing to provide an address for the witness no longer employed by plaintiff). The trial court thereafter entered an order stating in pertinent part that \u201c[t]he motion to strike the motion for summary judgment is denied in part, the motion to dismiss the complaint included in said motion is reserved.\u201d The record contains no further ruling on the motion to dismiss the complaint.\nOn December 19, 2006, the trial court granted plaintiffs motion for summary judgment on the ground that defendant was a guarantor, not a surety, and thus the Act did not apply. The motion for summary judgment was thus \u201cgranted *** in the amount of $42,056.43 as of September 30, 2005, [szc] as set forth in the Affidavit *** filed in support of this Motion plus interest, attorneys fees and costs accruing after that date.\u201d The trial court added, pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), that there was no reason to delay appeal in the matter.\nOn January 9, 2007, defendant filed a notice of appeal. Later that same day, plaintiff filed a \u201cMotion to Modify Order Dated December 19, 2006 Nunc Pro Tunc\u201d Plaintiff asserted that the trial court erroneously entered judgment based on the amount of damages described in plaintiffs initial motion for summary judgment instead of the updated amount contained in plaintiffs reply. On January 19, the trial court entered an order stating that the December 19 order contained a clerical error to be \u201camended, nunc pro tunc, to provide that judgment is entered in favor of plaintiff in the amount of $73,478.51.\u201d We later granted defendant\u2019s motion to amend his notice of appeal to incorporate this January 19 order.\nDefendant\u2019s first argument on appeal is that the trial court erred in entering summary judgment in favor of plaintiff, because defendant was protected by section 1 of the Act. Summary judgment is appropriate only where the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 2004). The use of the summaiy judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit, but, because it is a drastic means of disposing of litigation, it should be used only when the right of the moving party is clear and free from doubt. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). A reviewing court considers a challenge to the propriety of a summary judgment ruling under the nondeferential de novo standard of review. Adams, 211 Ill. 2d at 43.\nDefendant argues that the Act applies here, even though the contract lists him as a guarantor and not a surety. Plaintiff counters that the Act does not apply because the Act does not apply to guarantors. As this argument hinges on the application of section 1 of the Act, we begin our analysis with that section, which provides as follows:\n\u201cWhen any person is bound, in writing, as surety for another for the payment of money, or the performance of any other contract, apprehends that his principal is likely to become insolvent or to remove himself from the state, without discharging the contract, if a right of action has accrued on the contract, he may, in writing, require the creditor to sue forthwith upon the same; and unless such creditor within a reasonable time and with due diligence, commences an action thereon, and prosecutes the same to final judgment and proceeds with the enforcement thereof, the surety shall be discharged; but no such discharge shall not [sic] in any case affect the rights of the creditor against the principal debtor.\u201d 740 ILCS 155/1 (West 2004).\nThe fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature. Wisniewski v. Kownacki, 221 Ill. 2d 453, 460 (2006). The most reliable indicator of legislative intent is the language of the statute, which \u201cmust be afforded its plain, ordinary, and popularly understood meaning.\u201d Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008). Both parties here rely on the same statutory language \u2014 the statute\u2019s use of the word \u201csurety\u201d \u2014 to support their respective arguments. Defendant argues that the term \u201csurety\u201d includes guarantors, and plaintiff argues that it does not.\nCourts often turn to dictionaries to supply the plain and popularly understood meanings of statutory terms (see Alvarez, 229 Ill. 2d at 225). According to Black\u2019s Law Dictionary, a \u201csurety\u201d is \u201c[a] person who is primarily liable for the payment of another\u2019s debt or the performance of another\u2019s obligation.\u201d Black\u2019s Law Dictionary 1455 (7th ed. 1999). \u201cA surety differs from a guarantor, who is liable to the creditor only if the debtor does not meet the duties owed to the creditor; the surety is directly liable.\u201d Black\u2019s Law Dictionary 1455 (7th ed. 1999). Thus, the dictionary definition of the word \u201csurety\u201d supports plaintiffs argument that sureties are distinct from guarantors.\nHowever, the dictionary definition does not in this case provide the \u201cpopularly understood\u201d meaning of the term. \u201c \u2018The terms \u201csuretyship\u201d and \u201cguaranty\u201d are often confounded from the fact that the guarantor is in common acceptation a surety for another,\u2019 \u201d and thus \u201c[t]he word \u2018guarantee\u2019 is frequently used interchangeably with the word \u2018surety.\u2019 \u201d Vermont Marble Co. v. Bayne, 356 Ill. 127, 131, 132 (1934), quoting 27 Am. & Eng. Ency. of L. 432-33 (2d ed.); see also F. Bae & M. McGrath, The Rights of a Surety (or Secondary Obligor) Under the Restatement of the Law, Third, Suretyship and Guaranty, 122 Banking L.J. 783 (2005) (\u201cThere is still considerable dispute about the distinction between a surety and a guaranty,\u201d and \u201c[s]ometimes the words are used interchangeably\u201d (emphases omitted)); Restatement (Third) of Suretyship & Guaranty \u00a71, Comment d, at 77 (1996) (\u201cSometimes the term \u2018suretyship\u2019 is used narrowly and in contradistinction to \u2018guaranty,\u2019 while, at other times, the term \u2018suretyship\u2019 refers genetically to both types of transaction\u201d). Indeed, Illinois cases can be read to use the term \u201csurety\u201d in both its general sense and its specific sense. Thus, a surety has been described in the general sense as a relationship in which a \u201cperson undertakes an obligation of another person who is also under an obligation or duty to the creditor/ obligee\u201d (Rosewood Care Center, Inc. v. Caterpillar, Inc., 226 Ill. 2d 559, 576 (2007)) or as \u201c \u2018a contractual relation resulting from an agreement whereby one person, the surety, engages to be answerable for the debt, default, or miscarriage of another, the principal\u2019 \u201d (Chandler v. Maxwell Manor Nursing Home, Inc., 281 Ill. App. 3d 309, 321 (1996), quoting 74 Am. Jur. 2d Suretyship \u00a71, at 12 (1974)). See also Credit General Insurance Co. v. Midwest Indemnity Co., 872 F. Supp. 523, 524-25 (N.D. Ill. 1995) (\u201cA suretyship contract or surety bond is essentially an agreement to satisfy the contractual obligations of another party\u201d). The term has also been defined more specifically as a contract in which the surety \u201c \u2018is in the first instance answerable for the debt for which he makes himself responsible,\u2019 \u201d as opposed to a guarantor, who \u201c \u2018is only liable where default is made by the party whose undertaking is guaranteed.\u2019 \u201d Vermont Marble, 356 Ill. at 132, quoting 27 Am. & Eng. Ency. of L. 432, 433 (2d ed.). Thus, the term \u201csurety\u201d has more than one popularly understood meaning: the word is sometimes used to refer to any situation in which a person agrees to be held liable for the debt of another, whether the liability is primary as a surety or secondary as a guaranty, and it is sometimes used to refer strictly to a surety who is primarily liable.\nA surety\u2019s primary liability stems from the idea that \u201ca contract of suretyship is the joint and several contract of the principal and the surety.\u201d 38 Am. Jur. 2d Guaranty \u00a712, at 881 (1999). A guarantor, on the other hand, undertakes a contractual obligation separate from the principal\u2019s, and thus his liability is secondary to the principal\u2019s. 38 Am. Jur. 2d Guaranty \u00a712 (1999).\nAlthough some cases have indicated that a guarantor\u2019s secondary liability is triggered only after the creditor has proceeded against the principal and failed to receive full satisfaction, the stronger weight of authority holds that a guarantor\u2019s secondary liability is triggered by the principal\u2019s default, regardless of whether the creditor makes any attempt thereafter to recover from the principal. (We note that, if the distinction were that guarantors are not liable until after the creditor has sued the principal, the contract in this case, which provides that plaintiff could \u201cproceed against one or more of the undersigned without proceeding against [the principal] or another Guarantor,\u201d would either eviscerate the distinction or establish defendant as a surety.)\nBecause in either case the creditor will have no cause of action until the principal has defaulted, the actual difference between the primary liability of a surety and the secondary liability of a guarantor would at first glance appear to be academic. See Edward Corp. of Miami v. David M. Wollin & Son, Inc., 113 So. 2d 252, 253 (Fla. App. 1959) (agreeing with parties that the distinction is academic). Indeed, aside from the parties\u2019 status as parties to the original or a collateral contract, the most significant implications of the distinction for our purposes are that (1) some jurisdictions do not allow guarantors, who are not parties to the original contract, to be joined in the creditor\u2019s suit against the principal; and (2) guarantors are often entitled to notice of the principal\u2019s default. 38 Am. Jur. 2d Guaranty \u00a712 (1999). Beyond those effects, the difference between a surety and a guarantor (and the difference between their primary and secondary liability) is in fact largely academic, and, likely for that reason (and to avoid the type of confusion we confront here), some jurisdictions have abolished the distinction altogether. See 38 Am. Jur. 2d Guaranty \u00a711 (1999).\nThe question for us is whether the legislature intended to invoke any of the above distinctions by using the word \u201csurety\u201d in section 1 of the Act, or whether it meant to use the term \u201csurety\u201d in its general sense to describe all of the above situations. Our above discussion indicates that the terms \u201cguarantor\u201d and \u201csurety\u201d are unusually intertwined in legal parlance and that the distinctions between them are arcane and often ignored. In light of the confusion surrounding the term \u201csurety\u201d and its meanings, the legislature\u2019s plain use of the word as it appears in section 1 of the Act, unadorned by explanation, definition, or detail, indicates rather strongly to us that the legislature did not mean to draw the type of precise distinctions we discussed above, but instead used the word in its general sense.\nThat conclusion comports with the purpose of the Act, which was created \u201cto compel diligence by a creditor to make certain a surety is protected against loss.\u201d City National Bank of Murphysboro v. Reiman, 236 Ill. App. 3d 1080, 1091 (1992). As defendant notes, it is difficult to conceive how this legislative purpose would be served by extending the protection of section 1 to sureties but not to guarantors. Indeed, the Act\u2019s purpose applies with equal force to guarantors as it does to sureties: both sureties and guarantors are, as the statute puts it, \u201cbound\u201d on the obligation of the principal and thus liable for the principal\u2019s unpaid debt. As defendant states, \u201c[i]f the statute clearly protects a surety who would otherwise stand hable for the principal, how then could the statute not be intended to protect the guarantor as well, should the guarantor do everything the [ ]surety[ ] would do?\u201d Given the Act\u2019s purpose, which applies to sureties and guarantors alike, and given the exceptionally close relationship between those two terms, we agree with defendant\u2019s position that the legislature must have intended the word \u201csurety\u201d in the Act to encompass a guarantor.\nWe find support for our interpretation in a decision from the First Circuit of the United States Court of Appeals, which has interpreted the Act in the way defendant urges. See Continental & Commercial National Bank, Chicago v. Cobb, 200 F. 511 (1st Cir. 1912). In Cobb, the defendant invoked section 1 of the Act (which had the same relevant language then as now) for protection against the plaintiff\u2019s action for an unpaid debt the defendant had guaranteed. Cobb, 200 F. at 513-14, quoting Ill. Rev. Stat. 1911, ch. 132, par. 1. The plaintiff argued that \u201cthe statute [had] relation only to sureties in the special sense of the word [and] that the defendant *** [was] a guarantor.\u201d Cobb, 200 F. at 515. The First Circuit disagreed:\n\u201cThis is altogether too narrow a construction of a remedial statute to meet the approval of any court of justice. The word \u2018surety\u2019 is a generic word, while \u2018guaranty\u2019 is specific. Guarantors have certain specific protected rights which other sureties do not have, but they are entitled to every equitable right of protection which any surety has.\u201d Cobb, 200 F. at 515.\nPlaintiff argues that we should ignore Cobb because \u201c[a]ppellate court decisions issued prior to 1935 have no binding authority.\u201d Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 95 (1996). It is indeed quite true that decisions of the Illinois Appellate Court prior to 1935 are not binding authority, because those cases predate an amendment to the Courts Act that conferred precedential authority to Illinois Appellate Court decisions. See Chicago Title & Trust Co. v. Vance, 175 Ill. App. 3d 600, 606 (1988), citing Ill. Rev. Stat. 1935, ch. 37, par. 41. However, that rule has no application here, because Cobb is a decision from the First Circuit of the United States Court of Appeals, not the Illinois Appellate Court. Plaintiff further asserts that Cobb is not helpful because \u201cat no point throughout the case is the Act ever referenced or made mention of.\u201d In response to this argument, we can only refer plaintiff to page 514 of Cobb, which quotes section 1 of the Act in its entirety before applying it as we described above. Finally, plaintiff argues that we should not follow Cobb because it is \u201coutdated.\u201d We see no indication that Cobb has been overruled, and a case\u2019s age is alone no reason to ignore it. The discussion in Cobb accords with our analysis of this issue above, and we deem it persuasive authority. Cf. Zahl v. Krupa, 365 Ill. App. 3d 653, 662 (2006) (on matters of state law, federal cases are not binding on Illinois courts, but federal cases can act as persuasive authority).\nBased on the above discussion, we conclude that the term \u201csurety,\u201d as used in section 1 of the Act, encompasses both an agreement in which a person agrees to be held primarily liable for the debt of another (strictly speaking, a surety), and an agreement in which a person agrees to be held secondarily liable for the debt of another (strictly speaking, a guaranty). We therefore hold that the trial court erred in granting plaintiff summary judgment on the ground that defendant could not seek refuge in section 1 of the Act because he was a guarantor.\nBy this decision, however, we do not mean to imply that defendant is necessarily covered by section 1 of the Act. In presenting their cases to the trial court, the parties disputed whether defendant had satisfied the timing requirements set forth in section 1 of the Act, which requires that the surety\u2019s written notification to the creditor be sent \u201cif a right of action has accrued on the contract.\u201d 740 ILCS 155/1 (West 2004). The parties have not argued this question to us on appeal, and we therefore express no opinion on it or any other question regarding the applicability of the Act not addressed in this decision. Our opinion today is confined to the issue of whether guarantors may be covered under section 1 of the Act.\nThough we agree with defendant\u2019s first argument on appeal, his remaining arguments do not become moot, because his second argument asks that we require sanctions to be imposed against plaintiff, and his third argument indirectly challenges our jurisdiction. We therefore address defendant\u2019s remaining arguments.\nDefendant\u2019s second argument is that the trial court should have stricken plaintiff\u2019s summary judgment motion or its complaint as a sanction for plaintiff\u2019s failure to produce certain witnesses at the arbitration hearing. Defendant directs us to Supreme Court Rule 237(b) (210 Ill. 2d R. 237(b)), which requires that, upon notice, a party produce its employees to testify. Rule 237(b) states that, in response to a party\u2019s failure to comply with the rule, a \u201ccourt may enter any order that is just, including any sanction or remedy provided for in Rule 219(c).\u201d 210 Ill. 2d R. 237(b). Defendant argues that striking plaintiff\u2019s complaint or motion for summary judgment is an appropriate sanction under both Rule 237(b) and Rule 219(c). We disagree.\nAlthough the record does not contain an explicit ruling from the trial court on defendant\u2019s sanctions motion, we infer based on the trial court\u2019s eventual entry of judgment in plaintiff\u2019s favor that the trial court denied defendant\u2019s motion for sanctions. A trial court\u2019s decision regarding sanctions will not be disturbed on appeal absent an abuse of the trial court\u2019s discretion. State Farm Mutual Insurance Co. v. Santiago, 344 Ill. App. 3d 1010, 1013 (2003); see also Boyd v. City of Chicago, 378 Ill. App. 3d 57, 68 (2007) (trial court\u2019s decision to impose sanctions under Rule 219 reviewed for abuse of discretion). \u201cAn abuse of discretion occurs when the court\u2019s ruling is arbitrary or exceeds the bounds of reason.\u201d Santiago, 344 Ill. App. 3d at 1013.\nDefendant offers little to establish an abuse of discretion by the trial court. He notes that he was ready to proceed at the scheduled arbitration hearing but was forced to accept a continuance instead of being allowed to prosecute the hearing with his opponent sanctioned for failing to produce the witnesses. However, defendant does not explain why the decision to continue the hearing so that all witnesses could be produced was an unreasonable one. Nor does he explain why the trial court should have imposed the drastic remedy he now seeks when there has been no showing that plaintiff\u2019s violations (if indeed plaintiffs actions constituted violations) prevented the parties from fairly litigating either the summary judgment motion or the case as a whole. Given the strong deference accorded the trial court on decisions regarding sanctions, along with the lack of justification for the remedy defendant now advocates, we see no grounds for overturning the trial court\u2019s decision here.\nDefendant\u2019s final argument is that the trial court\u2019s January 19 order was invalid, because it came after defendant\u2019s timely notice of appeal divested the trial court of jurisdiction over the cause. On this argument, the parties devote their attention to the question of whether the trial court\u2019s January 19 order nunc pro tunc actually corrected a clerical error or whether the order constituted a substantive reconsideration after defendant\u2019s notice of appeal had been filed. However, we need not address this issue, because, even accepting defendant\u2019s argument that plaintiffs motion to modify the trial court\u2019s order nunc pro tunc was actually a postjudgment motion challenging the trial court\u2019s judgment, we would deem the trial court\u2019s January 19 order valid. Defendant is correct when he cites the general rule that a trial court is divested of jurisdiction over a cause upon the filing of a notice of appeal. See, e.g., Illinois Health Maintenance Organization Guaranty Ass\u2019n v. Shapo, 357 Ill. App. 3d 122, 141 (2005). However, the newly amended version of Illinois Supreme Court Rule 303(a)(2) (eff. May 1, 2007), which governs the time for appeals under Rule 304(a) (see 210 Ill. 2d R. 304(a)), and which applies retroactively to this appeal (see In re Marriage of Duggan, 376 Ill. App. 3d 725, 728-34 (2007)), provides a specific rule that governs here:\n\u201cWhen a timely postjudgment motion has been filed by any party *** a notice of appeal filed before the entry of the order disposing of the last pending postjudgment motion *** becomes effective when the order disposing of said motion *** is entered.\u201d Ill. S. Ct. R. 303(a)(2) (eff. May 1, 2007).\nThis amended rule replaced the old rule, which dictated that a timely postjudgment motion filed after a notice of appeal would cause the notice of appeal to \u201chave no effect\u201d and to be \u201cwithdrawn.\u201d 155 Ill. 2d R. 303(a)(2); see John G. Phillips & Associates v. Brown, 197 Ill. 2d 337, 343 (2001).\nNeither party disputes that plaintiffs January 9 postjudgment motion was timely filed. See 735 ILCS 5/2 \u2014 1301(e) (West 2004) (post-judgment motions may be filed within 30 days of final judgment); see also Brown, 197 Ill. 2d at 343 (relying on same provision and previous version of Rule 303(a)(2) to hold that a court may consider a timely postjudgment motion filed after a notice of appeal). Therefore, because plaintiff filed a timely postjudgment motion, the previously filed notice of appeal became effective on January 19, after the trial court ruled on that postjudgment motion. Accordingly, even if the trial court\u2019s January 19 order was, as defendant asserts, a substantive reconsideration of its previous order, the order was valid under Rule 303(a)(2).\nFor the foregoing reasons, we reverse the judgment of the circuit court of Kane County and remand the cause for further proceedings consistent with this opinion.\nAffirmed in part and reversed in part; cause remanded.\nBOWMAN and SCHOSTOK, JJ., concur.\nSee Vermont Marble, 356 Ill. at 132, quoting 21 R.C.L. 951 (contrasting a guarantor from a surety, who is obligated \u201c \u2018to pay, absolutely and wholly, irrespective of his solvency or insolvency, all damages which may result to the obligee from his default, and by which they expressly stipulate that the obligee need not exhaust his remedies against their principal before proceeding against them\u2019 \u201d); see also People v. Depositors State Bank, 377 Ill. 602, 606 (1941) (contract that required creditor to exhaust remedies against the principal was a guaranty); Manry v. Waxelbaum Co., 108 Ga. 14, 17-18, 33 S.E. 701, 703 (1899) (\u201ca guarantor warrants nothing but the solvency of the principal,\u201d and, \u201c[bjefore an action can be maintained against a guarantor, *** it must be shown that the principal is unable to perform\u201d).\nSee Vermont Marble, 356 Ill. at 132, quoting 27 Am. & Eng. Ency. of L. 432, 433 (2d ed.) (\u201c \u2018a guarantor is only liable where default is made by [the principal]\u2019 \u201d); Hensler v. Busey Bank, 231 Ill. App. 3d 920, 927 (1992) (\u201cA guaranty *** is an absolute undertaking imposing liability upon the guarantor immediately upon the default of the principal debtor\u201d); National Bank of Austin v. First Wisconsin National Bank of Milwaukee, 53 Ill. App. 3d 482, 487 (1977) (\u201cthe guarantor of the note becomes a debtor when there is a default of the note\u201d); Kreizelman v. Stevens, 311 Ill. App. 161, 168 (1941), quoting 28 C.J. Guaranty \u00a7125, at 972 (\u201c \u2018a guaranty *** is an absolute undertaking imposing liability upon the guarantor immediately upon the default of the principal debtor\u2019 \u201d); 23 R. Lord, Williston on Contracts \u00a761:2 (4th ed. 2002) (stating that, although some authorities refer to a guaranty as an agreement in which the guarantor insures the solvency of the debtor, the correct view is that a guarantor becomes liable upon the principal\u2019s failure to perform, not the principal\u2019s inability to pay).\nThough neither party directs us to any foreign authority beyond Cobb, we note that our interpretation puts us at odds with Ohio courts\u2019 interpretation of a similar statute, in Ohio Savings Ass\u2019n v. Cortell, 24 Ohio App. 3d 234, 495 N.E.2d 33 (1985), and Galloway v. Barnesville Loan, Inc., 74 Ohio App. 23, 57 N.E.2d 337 (1943).", "type": "majority", "author": "JUSTICE O\u2019MALLEY" } ], "attorneys": [ "William P. Danna, of William P. Danna Ltd., of Western Springs, and Robert G. Black, of Law Offices of Robert G. Black, of Naperville, for appellant.", "James M. Crowley and Christopher S. Fowler, both of Crowley & Lamb, PC., of Chicago, for appellee." ], "corrections": "", "head_matter": "JP MORGAN CHASE BANK, N.A., as Successor by Merger to Bank One, N.A., Plaintiff-Appellee, v. EARTH FOODS, INC., et al., Defendants (Leonard S. DeFranco, Defendant-Appellant).\nSecond District\nNo. 2 \u2014 07\u20140045\nOpinion filed November 4, 2008.\nWilliam P. Danna, of William P. Danna Ltd., of Western Springs, and Robert G. Black, of Law Offices of Robert G. Black, of Naperville, for appellant.\nJames M. Crowley and Christopher S. Fowler, both of Crowley & Lamb, PC., of Chicago, for appellee." }, "file_name": "0316-01", "first_page_order": 334, "last_page_order": 345 }