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Patricia Dus, As Special Administrator of the Estate of C. Dus, Deceased v. Provena St. Mary's Hospital

April 23, 2012


Appeal from the Circuit Court of the 21st Judicial Circuit, Edward Kankakee County, Illinois Honorable Kendall O. Wenzelman, Judge, Presiding. Circuit No. 02-L-33

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

Presiding Justice Schmidt and Justice Carter concurred in the judgment and opinion.


¶ 1 Plaintiff's decedent, Edward C. Dus (Dus), an ambulance driver, sued defendant, Provena St. Mary's Hospital (Provena), for knee injuries he claimed to have sustained while he was assisting in transporting a patient into Provena's emergency room. Dus sued Provena on a theory of negligence, alleging that he was injured when a Provena employee negligently pushed a large laundry cart into him and knocked him down. The jury found Provena negligent and awarded Dus $300,000 in damages. However, the jury found that Dus was contributorily negligent by 50% and therefore reduced the damage award to $150,000.

¶ 2 Dus filed a posttrial motion for judgment notwithstanding the verdict (judgment n.o.v.) on the issue of contributory negligence. The trial court denied Dus's motion because Dus's counsel failed to appear to present the motion. Dus later filed a motion asking the trial court to reconsider its ruling, and the trial court granted Dus leave to refile his initial judgment n.o.v. motion. More than three months later, the trial court denied Dus's judgment n.o.v. motion on the merits. This appeal followed.


¶ 4 The trial court entered judgment on the jury's verdict on August 28, 2009. On September 15, 2009, Dus timely filed a posttrial motion arguing that Dus was entitled to judgment notwithstanding the verdict on the issue of contributory negligence. In his motion, Dus argued that the trial court erred by instructing the jury on the issue of contributory negligence because the parties had presented no evidence suggesting that Dus was contributorily negligent. Dus also argued that the jury's finding that he was contributorily negligent was speculative and not supported by the evidence.

¶ 5 Dus's motion was set for hearing on September 22, 2009. Although Provena's counsel appeared on that date, Dus's counsel did not appear. The trial court asked Provena's counsel whether Dus's counsel would be coming to court that day to present the motion. Provena's counsel responded: "I don't think they are coming, but I told them I would ask for time to probably respond *** and *** set a hearing date." The trial court then denied Dus's motion sua sponte because Dus's counsel had failed to appear. The court stated that Dus's attorneys were "SOL" because they filed a motion, noticed it up, and then failed to show up "without any explanation whatsoever." Provena's counsel informed the court that Dus's counsel had a "doctor's dep" and reiterated that he had told Dus's counsel that he would "ask [for] time to respond." The court repeated that Dus's motion was "denied at this point in time"*fn1 and ordered that a copy of the docket be sent to Dus's counsel reflecting that the motion had been denied "due to nonappearance of movant." The relevant docket entry states:

"Case called for hearing on Post-Trial Motion. No one appears for plaintiff. Attorney Softcheck appears for defendant. By action of the Court motion is denied due to non-appearance of the movant."

¶ 6 Two days later, Dus filed a "Motion for Reconsideration of Plaintiff's Previously filed Post-Trial Motion," in which Dus asked the court to "reconsider the ruling it issued" on September 22, 2009. Provena argued that the trial court lacked jurisdiction to rule on Dus's motion to reconsider because it was a successive postjudgment motion. Although the trial court reiterated its policy that movants must appear on their own motions, it granted Dus "leave to file [his] previously filed post-trial motion" over Provena's objection. In so ruling, the court noted that "the court's ruling on September 22, 2009 on plaintiff's motion to present the previously filed post-trial motion was not a ruling on the merits of the motion."

¶ 7 On December 3, 2009, the trial court denied Dus's posttrial motion on the merits. Dus filed his notice of appeal in this matter on December 30, 2009.


¶ 9 Before we address the merits of Dus's appeal, we must first determine whether we have jurisdiction. Provena filed a motion to dismiss the appeal under Illinois Supreme Court Rule 303(a)(2) (eff. May 30, 2008), arguing that this court lacks jurisdiction over Dus' s appeal because Dus filed his notice of appeal more than 30 days after his posttrial motion was denied by the trial court. We initially denied Provena's motion. However, Provena has asked us to reconsider our ruling in its brief on appeal, and we have "[a] duty to consider [our] jurisdiction before proceeding to the merits of the case." Almgren v. Rush-Presbyterian-St. Luke's Medical Center, 162 Ill. 2d 205, 210 (1994); see also Ferguson v. Riverside Medical Center, 111 Ill. 2d 436, 440 (1985). This duty includes the obligation to reconsider the basis of our jurisdiction if our earlier ruling finding jurisdiction appears to be erroneous. Fair Automotive Repair, Inc. v. Car-X Service Systems, Inc., 128 Ill. App. 3d 763, 773 (1984). Accordingly, before turning to the merits, we must determine whether Dus's notice of appeal was timely filed.

¶ 10 The timely filing of a notice of appeal is both mandatory and jurisdictional. Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984); Clark v. Han, 272 Ill. App. 3d 981, 984 (1995). Accordingly, our supreme court commands strict compliance with its rules governing the time limits for filing a notice of appeal, and neither a circuit court nor an appellate court has the authority to excuse compliance with the filing requirements mandated by the supreme court's rules. Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150 (1994); Clark, 272 Ill. App. 3d at 984; see also People v. Lyles, 217 Ill. 2d 210, 216-17 (2005) (ruling that an appellate court's jurisdiction turns on litigants' compliance with the supreme court's rules prescribing the time limits for filing appeals, and an appellate court has no authority to excuse compliance with those rules). When an appeal is untimely under a supreme court rule, the appellate court ...

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