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Wilk v. Wilmorite

June 30, 2004

[5] JOHN WILK, PLAINTIFF-APPELLANT,
v.
WILMORITE, INC., D/B/A GENESEE MANAGEMENT, ALSO D/B/A CHARLESTOWNE MALL, AND CHARLESTOWNE MALL, LLC., D/B/A GENESSE MANAGEMENT, D/B/A CHARLESTOWNE MALL, LLC., DEFENDANTS-APPELLEES.



[6] Appeal from the Circuit Court of Kane County. No. 01-LK-507. Honorable Donald J. Fabian, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Byrne

[8]  Plaintiff, John Wilk, was injured after he tripped over a rope in a public area of Charlestowne Mall. Plaintiff filed a complaint one day before the two-year statute of limitations was to run on his personal injury claim (see 735 ILCS 5/13--202 (West 2000)). The complaint named only "Wilmorite Inc., d/b/a Genesee Management also d/b/a Charlestowne Mall," as defendant. Wilmorite moved to dismiss the complaint on the grounds that it did not own the mall on the date of the injury. Plaintiff obtained leave to amend the complaint and named "Charlestowne Mall, LLC., d/b/a Genesee Management, d/b/a Charlestowne Mall," as a second defendant. The trial court dismissed the amended complaint, concluding that it did not relate back to the original complaint. Plaintiff appeals, and we reverse the dismissal pursuant to section 2-- 616(d) of the Code of Civil Procedure (Code) (735 ILCS 5/2--616(d) (West 2000)). We remand the cause with directions.

[9]  FACTS

[10]   On October 23, 2001, plaintiff filed a one-count complaint naming "Wilmorite Inc., d/b/a Genesee Management also d/b/a Charlestowne Mall," as defendant. The complaint alleged that Wilmorite negligently caused the personal injuries plaintiff suffered from tripping on a rope at the mall on October 24, 1999. Plaintiff alleged that Wilmorite, as owner of the mall, breached its duty to plaintiff by (1) permitting a "tripping hazard in the public space of the mall," (2) tying a rope at ankle level in the mall, (3) obstructing and obscuring the view of the rope, and (4) failing to warn the public of the hazard.

[11]   Joe Balcer, Wilmorite's registered agent, was served with the complaint at the mall on November 2, 2001, which was nine days after the limitations period expired. Patrick Kinnally of Murphy, Hupp & Kinnally filed an appearance on behalf of Wilmorite. On December 19, 2001, Wilmorite moved to dismiss the complaint, arguing that it was not the owner of the mall on the date of plaintiff's injury. Plaintiff's counsel was out of the country and did not appear for a case management hearing on January 17, 2002. The trial court continued the case several times and eventually ordered plaintiff to respond to the motion to dismiss by July 22, 2002.

[12]   The trial court granted Wilmorite's motion to dismiss on July 30, 2002. However, the court granted plaintiff leave to amend his complaint, and on August 12, 2002, plaintiff filed a first amended complaint naming "Charlestowne Mall, LLC., d/b/a Genesee Management, d/b/a Charlestowne Mall," as a second defendant. There is no proof of a second service in the record.

[13]   Kinnally, the attorney who had previously filed an appearance on behalf of Wilmorite, filed a second appearance on behalf of Charlestowne Mall, LLC. According to the two appearances filed by Kinnally, Wilmorite and Charlestowne Mall, LLC, share the same address in New York. However, it is unclear from the record whether Balcer, who accepted service on behalf of Wilmorite, is also an agent of Charlestowne Mall, LLC.

[14]   On August 19, 2002, defendants moved to dismiss the amended complaint under sections 2--619(a)(5) and 2--619(a)(9) of the Code (735 ILCS 5/2--615(a)(5), 2--615(a)(9) (West 2002)), contending that it did not relate back to the original filing. Plaintiff has not provided this court with a transcript, certified bystander's report, or agreed statement of facts as a record of the hearing. On November 5, 2002, the trial court entered a brief written order dismissing the amended complaint with prejudice.

[15]   Plaintiff filed a motion to reconsider, but there is some question as to whether it was timely. The record contains a notice of filing which plaintiff dated December 5, 2002, but there is no evidence of a postmark. The clerk of the circuit court stamped the notice and motion as received on December 9, 2002. Following extensive briefing and argument, the trial court denied the motion to reconsider on April 9, 2003. Plaintiff filed a notice of appeal less than 30 days later on May 6, 2003.

[16]   ANALYSIS

[17]   The trial court granted defendants' motion to dismiss under sections 2--619(a)(5) and 2--619(a)(9) of the Code. On appeal, plaintiff argues that the amended complaint relates back to the original complaint, and therefore, the trial court erroneously dismissed the cause of action. Defendants apparently question our appellate jurisdiction by responding that "there are no appealable issues before this court" because plaintiff's motion to reconsider was untimely.

[18]   Under Supreme Court Rule 303(a)(1), a notice of appeal must be filed within 30 days after the entry of the final judgment from which the appeal is taken, or, if a timely posttrial motion directed at the judgment is filed, within 30 days after entry of the order disposing of the last pending posttrial motion. 134 Ill. 2d R. 303(a)(1). Under section 2--1203 of the Code, a posttrial motion must be filed within 30 days of a final judgment. 735 ILCS 5/2--1203 (West 2002). Otherwise, the trial court will lose jurisdiction to modify or vacate the final order that it entered after the lapse of 30 days. Lajato v. AT&T, Inc., 283 Ill. App. 3d 126, 131 (1996). A motion to reconsider is a posttrial motion and therefore " 'falls within the purview of post-judgment motions which must be filed within 30 days after the challenged judgment is entered.' " Lajato, 283 Ill. App. 3d at 132, quoting Sho-Deen, Inc. v. Michel, 263 Ill. App. 3d 288, 290 (1994). The time for filing the notice of appeal under Rule 303(a) will be extended only if a posttrial motion is timely filed under section 2--1203. Lajato, 283 Ill. App. 3d at 132.

[19]   In A. S. Schulman Electric Co. v. Village of Fox Lake, 115 Ill. App. 3d 746 (1983), this court held that the mailing of a posttrial motion on the twenty-ninth day after entry of the final order was timely even though the circuit court did not receive the motion until the thirty-first day after the entry of the final order. The timeliness of the filing was shown only by an affidavit in which the attorney attested that he mailed the motion on the twenty-ninth day. Schulman, 115 Ill. App. 3d at 748.

[20]   In In re Marriage of Morse, 143 Ill. App. 3d 849 (1986), the Appellate Court, Fifth District, relied upon Schulman when considering whether the deposit of a posttrial motion in the mail constituted filing of the motion pursuant to section 2--1203 of the Code. The respondent in Morse deposited his posttrial motion in the mail on the thirtieth day following the judgment as attested to by a proof of service stamp. However, the envelope was not postmarked until the thirty-first day and was not filed by the clerk of the court until the thirty-third day following the judgment. Acknowledging that a proof of service stamp is more easily tampered with than a postmark, the Fifth District emphasized that the trial court had found no reason to suspect that the respondent's attorney would postdate the proof of service. Morse, 143 Ill. App. 3d at ...


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