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Assure that the record contains proof that a motion to reconsider was timely filed to extend the time to appeal

May 25, 2013 by in General

The plaintiff filed a complaint alleging negligence and later moved for voluntary dismissal pursuant to §2-1009 of the Code of Civil Procedure. A year later, the plaintiff filed a “motion to refile” the action. The defendant filed a “motion to dismiss” the “motion to refile” and the court granted the “motion to dismiss” on December 22, 2011. The plaintiff filed a motion to reconsider the dismissal, along with a proof of service stating that he had mailed and faxed the motion to all counsel on January 23, 2012, but not including a reference to having filed the motion with the court. The motion was file-stamped on January 26, 2012. The defendant filed a response addressing the motion on its merits and making no reference to timeliness. The court denied the motion to reconsider on the merits on March 6, 2012. The defendant filed a notice of appeal on April 5, 2012.

The appellate court found that the final judgment for purposes of the appeal was the order entered on December 22, 2011. With that premise in mind, the court concluded that it did not have jurisdiction to review the order because the appeal was filed too late.

Under Illinois Supreme Court Rule 303, a timely motion directed against the judgment extends the time to appeal. To be timely, such a motion must be filed within 30 days after the entry of judgment. The last day to file a motion to reconsider the order of December 22, 2011 (adjusted for the thirtieth day falling on a weekend) was January 23, 2012. A postjudgment motion is deemed filed when mailed to the court clerk. However, there was no proof of service in the record to show when (or whether) the motion was mailed to the clerk. Although the record contained a proof of service, the appellate court observed that case law does not allow the court to merely assume that a party filed a document at the same time it was served on opposing counsel. Therefore, the mailbox rule – under which the date of mailing would be treated as the date of filing – did not apply.

On appeal, the plaintiff asserted that she filed the motion by fax on January 23, 2011. The appellate court was unconvinced for several reasons. First, there is no rule that would allow fax filing with the clerk. Second, even if Illinois Supreme Court Rule 12 (dealing with service by fax) could be extended to include filing by fax, service is deemed effective on the day after the transmission so that faxing the document on January 23 would have still resulting in filing it one day late. Third, the fax transmission sheet was not part of the record so the appellate court could not properly consider it. For all of those reasons, the court had to consider the file stamp of January 26 to reflect the date of filing.

The final issue the court considered was whether the defendant’s failure to raise the untimeliness of the motion in the court below revested jurisdiction in the trial court so as to extend the time to appeal. The appellate court found that the revestment doctrine did not apply to extend the time to appeal. The revestment doctrine arises only when the parties ignore the judgment and proceed to retry the case thereby revesting jurisdiction in the circuit court. Although the defendant did not raise timeliness, it did not ignore the judgment, but instead opposed the plaintiff’s attempt to reopen the case.

For a final twist, the court addressed a line of decisions which hold that, in civil cases, “trial and appellate courts must treat a filing that is too late to be a postjudgment motion as a section 2-1401 petition.” If that rule were applied, the court would treat the plaintiff’s motion to reconsider as a §2-1401 petition and the plaintiff’s appeal would constitute a timely appeal from the denial of the petition. The court declined to do so for two reasons. First, the plaintiff did not request it and the court was not required to invoke the rule sua sponte. Second, the Illinois Supreme Court’s language in Keener v. City of Herrin calls into question the continued vitality of the rule, especially where the plaintiff’s late filing does not conform to any of the requirements for a §2-1401 petition.

The problems outlined in this decision would have been easily avoided if the plaintiff had filed the motion to reconsider earlier and/ or made sure to include a proof of filing in compliance with the rules. Because that was not done, the appellate court dismissed the appeal for lack of jurisdiction.

Shatku v. Wal-Mart Stores, Inc., 2013 IL App (2d) 120412.

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