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Myqerem Shatku v. Wal-Mart Stores

May 10, 2013


Appeal from the Circuit Court of Kane County. No. 09-L-826 Honorable F. Keith Brown, Judge, Presiding.

The opinion of the court was delivered by: Justice Jorgensen

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Zenoff concurred in the judgment and opinion.


¶ 1 Plantiff, Myqerem Shatku, appeals following the trial court's denial of her motion to reconsider the dismissal of her "Motion to Refile" her negligence action against defendant, Wal-Mart Stores, Inc. Because plaintiff filed her motion to reconsider more than 30 days after the dismissal, we hold that the motion and the notice of appeal were both late. We reject plaintiff's argument that jurisdiction revested in the trial court as a result of the parties' addressing plaintiff's motion on the merits. In so holding, we follow Sears v. Sears, 85 Ill. 2d 253, 260 (1981), over later appellate court cases that broadened the revestment doctrine.


¶ 3 On March 19, 2009, plaintiff filed a negligence complaint against defendant in the Cook County circuit court. Defendant moved for a forum non conveniens transfer of the case to Kane County, and the court granted the motion. Defendant then answered. Plaintiff moved pursuant to section 2-1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2010)) to dismiss the cause of action voluntarily. The court granted the motion on October 27, 2010, also granting defendant leave to file instanter a motion asking the court to involuntarily dismiss the case or bar plaintiff from presenting evidence, as a sanction for noncompliance with discovery. The court required defendant to send plaintiff a copy of the order. On November 1, 2010, "defendant's counsel being present," the court entered an order stating that the hearing was again on plaintiff's section 2-1009 motion to dismiss: the order "dismissed [defendant] as a party from this cause of action" and required "Plaintiff *** to pay Defendant's costs as required by statute."

¶ 4 On October 27, 2011, plaintiff filed a "Motion to Refile," citing sections 2-1301 and 2-1401 of the Code as bases for relief. See 735 ILCS 5/2-1301, 2-1401 (West 2010). Defendant responded with a "Motion to Dismiss" plaintiff's "Motion to Refile." The court, on December 22, 2011, granted the "Motion to Dismiss."

¶ 5 Plaintiff filed a motion to reconsider; the "Proof of Service" stated that counsel certified that he had mailed and faxed it to "all counsel of record" on January 23, 2012 (a Monday). That paper did not allude to the motion's filing. The motion received a "filed" stamp on January 26, 2012. On February 1, 2012, defendant filed a response, addressing the motion entirely on the merits. The court denied the motion on March 6, 2012, addressing it entirely on the merits. The court ruled that, under Kahle v. John Deere Co., 104 Ill. 2d 302, 305 (1984), plaintiff's only option was to refile the case as a new case, and that neither section 2-1301 relief nor section 2-1401 relief was available. Defendant filed a notice of appeal on April 5, 2012.


¶ 7 On appeal, plaintiff asserts that the trial court erred when it granted her section 2-1009 motion for voluntary dismissal, as defendant was the one that prosecuted the motion. Defendant responds that the court entered the final judgment in this case no later than December 22, 2011. (It holds open the possibility that the true final judgment was the grant of the section 2-1009 motion.) It argues that, after December 22, 2011, plaintiff had no more than 30 days to file a motion to reconsider or a notice of appeal, and that plaintiff filed her motion to reconsider after that deadline. In her reply, plaintiff accepts December 22, 2011, as the date of the final judgment, but argues that she filed her motion to reconsider by fax on January 23, 2012, a Monday and the effective thirtieth day. She attaches to her reply a purported copy of a fax transmission sheet, purportedly showing transmission to the Kane County circuit clerk. The sheet also says that a "hard copy will follow in the mail." In the alternative, plaintiff notes "the complete and utter dearth of any suggestion [by defendant in its response to the motion] or in the [trial court's] 6 page March 6, 2012 Order that plaintiff's Motion for Reconsideration was not filed in a timely manner." In oral argument, she more specifically argued that jurisdiction revested in the trial court with argument on the merits of the motion to reconsider.

¶ 8 We assume here that, consistent with the parties' arguments, the court's final judgment for purposes of this appeal was entered on December 22, 2011. With that assumption, we now explain why plaintiff's motion to reconsider did not extend the time to appeal the dismissal of the "Motion to Refile."

¶ 9 Under Illinois Supreme Court Rule 303(a)(1) (eff. June 4, 2008), only a timely motion directed against the judgment extends the time in which to file a notice of appeal. To be timely, absent a proper extension granted by the court, the motion must be filed within 30 days after the entry of the judgment, with the deadline extended to the next business day if the thirtieth day falls on a weekend or court holiday. 5 ILCS 70/1.11 (West 2010); 735 ILCS 5/2-1203(a) (West 2010). Here, the court file-stamped plaintiff's motion to reconsider on January 26, 2012, when the last day to file, adjusted for the weekend, was January 23, 2012.

¶ 10 Under our case law, a postjudgment motion may be deemed filed when it is mailed to the circuit clerk. See Baca v. Trejo, 388 Ill. App. 3d 193, 195-96 (2009). Here, however, plaintiff's "Proof of Mailing" shows service on opposing counsel, but says nothing about mailing to the clerk. See Baca, 388 Ill. App. 3d at 197 (requiring, by analogy to Illinois Supreme Court Rule 373 (eff. Feb. 1, 1994), a proof of mailing under Illinois Supreme Court Rule 12(b)(3) (eff. Nov. 15, 1992) for a postjudgment motion received by the clerk after the due date). Moreover, no authority allows us to assume that a party filed a document at the same time he or she served it. Thus, the mailbox rule does not apply here.

ΒΆ 11 Plaintiff asserts that she filed the motion by fax on January 23, 2011. At least three things are wrong with that assertion. First, plaintiff provides no support for her implication that the clerk may accept documents for filing by fax. We find nothing in state or local rules to support that claim; Illinois Supreme Court Rules 11 and 12 (eff. Dec. 29, 2009) provide for service by fax, but not for filing. Second, Rule 12 further provides that service by fax is effective the day after transmission, so that, even if the rule applied to filing, the filing would have been a day late. See Ill. S. Ct. R. 12(e) (eff. Dec. 29, 2009). Third, and in any event, the transmission sheet on which plaintiff relies is not part ...

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