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12/01/88 Jeremias N. Ayala, v. Robert L. Goad Et Al.

December 1, 1988

JEREMIAS N. AYALA, PLAINTIFF-APPELLANT

v.

ROBERT L. GOAD ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

531 N.E.2d 1040, 176 Ill. App. 3d 1091, 126 Ill. Dec. 413 1988.IL.1736

Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. DUNN and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Jeremias N. Ayala, appeals from an order which dismissed his complaint against defendants, Robert L. Goad and Northern Illinois Gas Company, as an action which was not commenced within the time limited by law. (Ill. Rev. Stat. 1987, ch. 110, par. 2-619(a)(5).) Plaintiff contends that his complaint was in fact timely filed in the circuit clerk's office, and that it was thereafter improperly refiled by the circuit clerk at a time beyond the two-year statute of limitations for personal injury cases, and that the trial court abused its discretion in denying a rehearing. We reverse and remand.

On January 28, 1985, plaintiff was involved in an accident with a vehicle alleged to have been driven by defendant Robert Goad and owned by defendant Northern Illinois Gas Company. By cover letter dated December 30, 1986, addressed to the "Clerk of Kane County, Geneva, Illinois," plaintiff's attorney in Chicago sent the complaint in this case for filing, "along with our check in the sum of $52.00" and requested the clerk to forward to counsel stamped copies and forms to issue summons. It is undisputed between the parties that the circuit clerk received the letter and complaint and on January 5, 1987, stamped the complaint as filed at 2:35 p.m. that day and assigned case number L -- KA -- 87 -- 19 to it. It further appears from the record that at some time after the initial filing of plaintiff's complaint an unknown employee of the circuit clerk's office crossed out the January 5, 1987, filing date and the complaint was restamped as having been filed on March 25, 1987, at 2:51 p.m. and the new docket number of L -- KA -- 87 -- 260 was assigned by the circuit clerk. Summons was issued for service upon the defendants on April 17, 1987, and on June 4, 1987, defendants filed their motion to dismiss on the grounds that it appeared on the face of the complaint that the action was barred by the statute of limitations.

At the hearing of defendants' motion to dismiss, deputy circuit clerk Michael Fitzpatrick testified that the circuit clerk requires payment of the statutory filing fee before a complaint will be accepted, but that the office has a procedure noted in the circuit clerk's directive No. 84 -- 7 which was developed as a courtesy to the attorneys. It provides that where the appropriate fee is not submitted with any document sought to be filed, the office staff will telephone the sender of the document to so advise them. The sender will also be advised that the clerk will hold the document for five business days and, if the fee has not yet been received, it will be returned to the sender. Fitzpatrick further testified he had reviewed the cash receipt records of the clerk's office and could locate no record of money received from plaintiff in the present case for filing on January 5, 1987, but did find a copy of a check which corresponded to the revised filing of the case on March 25, 1987.

Terry Bonye, an employee of the clerk's office, testified that she had entered the plaintiff's complaint in the computer on January 9, 1987, but had deleted it seven minutes later. The witness had no independent recollection of the matter, or of advising plaintiff's attorneys the filing fee was missing, but her initials and terminal number appeared on the computer printout. She acknowledged that a check could be misplaced.

Jan Carlson, the clerk of the circuit court, testified to the courtesy policy, developed several years previously, to notify a lawyer who filed a complaint by mail if the filing fee was not enclosed. A telephone call is to be made to the attorney on the day such a complaint is received advising of that fact and that the paperwork would be held for five days for remission of the fee. It was the clerk's policy to file stamp such documents when received and, if payment is not received, to scratch out or otherwise remove the filing notations from the document.

Marilyn Kennedy, a deputy circuit clerk, testified that her handwriting and signature appeared on the front of the cover letter dated December 30, 1986, which was sent by plaintiff's attorneys when they mailed the complaint to the clerk's office. The signature followed a notation on the letter regarding service of summons, but no mention was made of a missing filing fee. Kennedy had no personal recollection as to whether the filing fee had been included with the complaint. She further testified that the file stamp on the complaint of January 5, 1987, was the official stamp of the circuit clerk, and that she had processed the complaint on March 25, 1987, and a check for the filing fee had been received by the clerk at that time. The letter was admitted in evidence for the limited purpose of showing that the circuit clerk returned it to plaintiff's attorneys with a notation as to summons, but made no mention of a missing filing fee.

The trial court concluded that receipt of the filing fee by the clerk is a condition precedent to the filing of a complaint and, as plaintiff offered no direct evidence that a check had been sent with the complaint, that it was not taken into the custody of the circuit clerk until the March 25 filing date, after the limitations period had run.

Plaintiff moved for a rehearing, representing that he wished to offer evidence that the check for the filing fee was sent with the complaint; however, the trial court found that as such evidence could have been offered at the original hearing it was not newly discovered and denied the rehearing.

We consider first whether plaintiff's complaint was timely filed on January 5, 1987, within ...


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