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Shatku v. Wal-Mart Stores, Inc.

Court of Appeals of Illinois, Second District

May 10, 2013

MYQEREM SHATKU, Plaintiff-Appellant,
v.
WAL-MART STORES, INC., Defendant-Appellee.

Held [*]

Plaintiff’s appeal was dismissed for lack of jurisdiction, since the trial court’s final judgment was its grant of defendant’s motion to dismiss plaintiff’s motion to refile her negligence complaint, and plaintiff’s motion to reconsider the dismissal did not extend the 30-day deadline for filing her notice of appeal, because the “Proof of Mailing” of that motion showed it was mailed to opposing counsel within 30 days of the final judgment, but there was no mention of when the motion was mailed to the clerk of the court, and defendant’s opposition to the motion to reconsider without making a jurisdictional objection did not revest the trial court with jurisdiction.

Appeal from the Circuit Court of Kane County, No. 09-L-826; the Hon. F. Keith Brown, Judge, presiding.

Brian R. Porter, of Brian R. Porter Law Offices, of Chicago, for appellant.

James P. Balog, Heather E. Shea, and Elizabeth M. Bartolucci, all of O'Hagan Spencer LLC, of Chicago, for appellee.

Presiding Justice Burke and Justice Zenoff concurred in the judgment and opinion.

OPINION

JORGENSEN JUSTICE

¶ 1 Plaintiff, 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.

¶ 2 I. BACKGROUND

¶ 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.

¶ 6 II. ANALYSIS

ΒΆ 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 ...


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