306(a)(2) Appeal from the Circuit Court of Cook County. Consolidated Case Nos. 02 L 4552, 02 L 4559, 02 L 4562, 02 L 4565, 02 L 4566, 02 L 4567, 02 L 4568, 02 L 4569, 02 L 4570, 02 L 4571, 02 L 4572, 02 L 4573, 02 L 4574, 02 L 4575, 02 L 4576, 02 L 4577, 02 L 4578, 02 L 4579, 02 L 4580, 02 L 4581, 02 L 4582, 02 L 4747, 02 L 4758, 02 L 4761 Honorable Kathy M. Flanagan, Judge Presiding. 306(a)(2) Appeal from the Circuit Court of Cook County. No. 00 L 9599 Honorable Kathy M. Flanagan, Judge Presiding.
The opinion of the court was delivered by: Justice Neville
OPINION MODIFIED UPON DENIAL OF REHEARING May 6, 2005
These consolidated appeals arise out of two lawsuits filed in the trial court on behalf of 113 plaintiffs who were Philippine decedents who died as a result of a plane crash on April 19, 2000, in the Philippines. The defendants, AAR Parts Trading, Inc. (hereinafter AAR), a parts company, and Fleet Business Credit, LLC (hereinafter Fleet), a financing company, filed motions to dismiss predicated on the doctrine of forum non conveniens in order to dismiss the plaintiffs' consolidated cases in Cook County, Illinois, so that the cases could be litigated in the Philippines. In this appeal, we are called upon to review two trial court orders: (1) the trial court's November 20, 2002, order denying the defendants' motion to dismiss the "02L" Katherine A. Ellis (hereinafter Ellis) cases; and (2) the trial court's April 8, 2003, order denying AAR's renewed motion to dismiss Jovy Layug (hereinafter Layug) and Fleet's initial motion to dismiss Layug. The defendants' interlocutory appeals were filed on December 21, 2002 (the Ellis appeal) and on April 8, 2003 (the Layug appeal), pursuant to Illinois Supreme Court Rule 306(a)(2) (134 Ill. 2d R. 306(a)(2)), and were consolidated on June 5, 2003, by the appellate court.
In 1978, the Boeing Company, located in Seattle, Washington, manufactured a Boeing 737 jet. In 1998, the Boeing 737 was purchased by AAR, an Illinois corporation with its principal place of business in Illinois. AAR leased the Boeing 737 to the Air Philippines Corporation. Later, AAR sold the Boeing 737 and assigned its rights, title and interests to Fleet, a Delaware corporation with its principal place of business in Illinois.
On April 19, 2000, the Boeing 737 jet, Air Philippines Flight 541, crashed into a 577-foot-high hill, located in Samal Island, while on a domestic flight from Manila to Davao City in the Republic of the Philippines. At the time of the crash, Air Philippines Flight 541 was in the process of making a second attempt to land on the runway. Everyone on the flight, including seven crew members and 124 passengers, died in the crash.
On August 2, 2000, Layug filed a complaint as an individual plaintiff, against AAR. Layug is a resident of Cook County, but the decedent, her mother, was a resident of the Philippines. In the initial, one-count, products liability complaint, among other allegations, Layug alleged that the Boeing 737: (1) lacked proper and current manuals for operation, maintenance and/or repair; (2) was beyond its safe operational life expectancy; (3) was comprised of structures that were fatigued, cracked, corroded and otherwise in a condition that would likely lead to failure of the aircraft; and (4) contained a flap control system that was fatigued and likely to fail. Layug alleged that as a direct and proximate cause of these defective, unreasonably dangerous and unfit conditions, the aircraft crashed and caused the decedent to be fatally injured.
On September 19, 2000, Layug filed her first amended complaint, which contained three counts. In addition to the products liability count in her initial complaint, the plaintiff added count II based upon negligence, and count III for breach of warranty. On November 22, 2000, AAR filed its answer to Layug's first amended complaint, and on January 19, 2001, AAR filed a motion to dismiss based upon the doctrine of forum non conveniens pursuant to Supreme Court Rule 187. 134 Ill. 2d R. 187. However, before the trial court could rule on AAR's motion to dismiss the first amended complaint, Layug filed a second amended complaint on February 13, 2001, adding an allegation in the complaint that she had been appointed the administrator of the decedent's estate.
On August 17, 2001, the trial court denied AAR's motion to dismiss. The court ruled "that the moving defendant, [had] not met its burden as to the relevant factors for consideration" and that the private and public interest factors, "when viewed in their totality, did not strongly favor the suggested forum." AAR then filed a motion to reconsider and to clarify the court's order, which was also denied on October 25, 2001. The court ruled that AAR had failed to provide the court with changes in existing law or with any newly discovered evidence that was unavailable when the court ruled on the original motion to dismiss. AAR did not file an appeal from the trial court's October 25, 2001, order denying its motion to reconsider the motion to dismiss the Layug case.
On March 14, 2002, Layug filed a third amended complaint with new matters, including eight new counts: negligent entrustment, count I (wrongful death) and count II (survival action); strict products liability, count III (wrongful death) and count IV (survival action); Illinois common law of bailment, count V (wrongful death) and count VI (survival action); negligence, count VII (wrongful death) and count VIII (survival action); breach of warranty, count IX (wrongful death) and count X (survival action); and spoliation of evidence, count XI (damages). Fleet Business Credit, LLC, was also joined as an additional defendant.
One month later, on April 16, 2002, Layug filed a fourth amended complaint joining 32 new plaintiffs representing 53 decedents (hereinafter referred to as the Pinol plaintiffs and the complaints involving Layug and the 32 Pinol plaintiffs will be referred to as the Layug/Pinol plaintiffs' cases). The fourth amended complaint contained the same counts as those contained in the third amended complaint. On June 25, 2002, both AAR and Fleet filed answers to the Layug/Pinol plaintiffs' fourth amended complaint. Neither defendant filed a motion to dismiss the Layug/Pinol plaintiffs' complaint based upon the doctrine of forum non conveniens within the 90-day period prescribed by Rule 187. 134 Ill. 2d R. 187. However, before the 90-day period expired, on August 15, 2002, the Layug/Pinol plaintiffs filed their fifth amended complaint adding additional allegations to counts III and IV B strict products liability; count V B Illinois common law of bailment; and count XI - for spoliation of evidence.
THE AAR AND FLEET APPEAL OF THE ELLIS PLAINTIFFS' CASES
On May 10, 2002, the defendants filed a joint motion to consolidate; the motion referred to 24 complaints with different case numbers, filed on behalf of 59 additional decedents who are the "02L" Ellis plaintiffs; *fn1 and the motion sought to consolidate the "02L" Ellis cases with the Layug/Pinol cases. The motion to consolidate was granted on May 16, 2002, "for discovery purposes only."The "02L" Ellis cases were never consolidated with the Layug/Pinol cases for trial. On August 10, 2002, the "02L" Ellis plaintiffs filed their first amended complaint. On August 27, 2002, AAR and Fleet filed a joint motion to dismiss the "02L" Ellis plaintiffs' complaint on the grounds of forum non conveniens. The trial court denied the motion to dismiss on November 20, 2002, for the same reasons that AAR's motion to dismiss Layug's first amended complaint was denied in August 2001. On December 20, 2002, the defendants filed a joint petition for interlocutory appeal, pursuant to Supreme Court Rule 306 (a)(2) (166 Ill. 2d R. 306(a)(2)), from the November 20, 2002, order which was granted by the appellate court.
THE AAR AND FLEET APPEAL OF LAYUG'S CASE
On November 26, 2002, AAR and Fleet filed a joint motion to dismiss Layug, the individual plaintiff's case, but not the 32 Pinol plaintiffs' cases, based upon the doctrine of forum non conveniens. *fn2 The motion was entitled "Defendant, Fleet Business Credit LLC's Initial Motion to Dismiss the Claims of Jovy Layug Set Forth in the fifth amended complaint Based Upon Forum Non Conveniens" (emphasis added) and "Defendant, AAR Parts Trading, Inc.'s Renewed Motion to Dismiss the Claims of Jovy Layug Set Forth in the fifth amended complaint Based Upon Forum Non Conveniens" (emphasis added). In response to the defendants' joint motion to dismiss, Layug filed a motion to strike and objections to the defendants' joint motion to dismiss on December 6, 2002. Layug asserted that the "defendants' motions *** [were] untimely and in violation of Supreme Court Rule 187 which requires that forum non conveniens motions must be filed 'not later than 90 days after the last day allowed for the filing of that party's answer'." In reply, the defendants argued that Layug's motion to strike was untimely; that her interpretation of Rule 187 was erroneous; and that after the fifth amended complaint was filed, they had a de novo time period for filing a new forum non conveniens motion. Before the trial court ruled on the defendants' motion to dismiss, the Layug/Pinol plaintiffs, on March 18, 2003, filed a motion for leave to file an amendment to count I (negligent entrustment) and count X (breach of warranty) of the fifth amended complaint, which was granted.
On April 8, 2003, the trial court held a hearing on the defendants' joint motions to dismiss. The court found that Fleet's motion to dismiss was untimely because Fleet filed its motion to dismiss Layug's case 154 days after filing an answer to the fourth amended complaint which joined Fleet as a defendant in the lawsuit. The court found that AAR's motion to dismiss was also untimely because its " 'renewed' motion *** was filed one year and two days after this court denied the first forum non conveniens motion." The trial court stated that for "purposes of completeness of the record on appeal," however, it would rule on the defendants' motions to dismiss. The court found that the motions failed to delineate new facts, information, discovery, or data which in any way altered the court's prior findings and rulings. Therefore, the court denied the "initial" motion of defendant Fleet and the "renewed" motion of defendant AAR to dismiss Layug's case on the grounds of forum non conveniens. Consequently, on April 21, 2003, the defendants filed a second joint interlocutory appeal.
This appeal presents one issue for our review: whether the trial court erred and abused its discretion: (a) when it entered the November 20, 2002, order denying the defendants' motion to dismiss the "02L" Ellis cases on the grounds of forum non conveniens; and (b) when it entered the April 8, 2003, order denying AAR's renewed motion to dismiss Layug and Fleet's initial motion to dismiss Layug on the grounds of forum non conveniens. Additionally, the Pinol plaintiffs have filed a motion to dismiss the defendants' appeal as to the Pinol plaintiffs for lack of jurisdiction, which has been taken with this case.
The threshold question we must address in this appeal is the question of jurisdiction. While the parties agree that this court has jurisdiction over the Ellis plaintiffs' cases, the 33 Pinol plaintiffs and Layug question whether this court has jurisdiction over their cases. The appellate court must always address the jurisdiction question, even when the parties agree, before it addresses the other issues raised on appeal, because it has "an independent duty to consider [its] jurisdiction before considering the merits of any case." Gibson v. Belvidere National Bank & Trust Co., 326 Ill. App. 3d 45, 47-48 (2001), citing Almgren v. Rush-Presbyterian-St. Luke's Medical Center, 162 Ill. 2d 205, 210 (1994). Therefore, we will decide if the appellate court can exercise jurisdiction over the Ellis plaintiffs, as well as the Pinol and Layug plaintiffs.
The "02L" Ellis Plaintiffs
On August 10, 2002, the "02L" Ellis plaintiffs filed their first amended complaint. AAR and Fleet filed a joint motion to dismiss the "02L" Ellis cases on the grounds of forum non conveniens on August 27, 2002, which was denied on November 20, 2002. As such, AAR's and Fleet's forum non conveniens motion to dismiss was timely because it was filed within 90 days after the last day allowed for the defendants to file their answer. See 134 Ill. 2d R. 187(a). On December 20, 2002, the defendants filed a joint petition for interlocutory appeal from the November 20, 2002, order, pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)), which was granted by the appellate court. Therefore, we find that we have jurisdiction over the Ellis plaintiffs because the defendants' petition for leave to appeal was filed within 30 days of the trial court's ...