A notice of appeal received late may be deemed timely if mailed within the requisite 30 days as shown by an attorney's certificate or a nonattorney's affidavit; but where this was not done, a mailing date was not established by the date shown on a postage label from a self-service kiosk, which indicated only a purchase date rather than placement in the mail--appeal properly dismissed for lack of jurisdiction.
William D. Huber, of Miami, Florida, Appellant Pro se.
Donald R. Tracy, Stephanie R. Hammer, of Brown, Hay & Stephens, LLP, of Springfield, for Appellee.
JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.
[¶1] At issue is the timeliness of plaintiff's notice of appeal, which was received by the clerk of the circuit court after the 30-day deadline. Plaintiff argued before the appellate court that a clear postmark on the envelope proved that it was mailed prior to the deadline, and the notice was thus timely. The appellate court held that plaintiff provided insufficient proof of timely mailing, and dismissed plaintiff's appeal for lack of jurisdiction. 2014 IL App. (4th) 130278-U.
[¶2] For the reasons that follow, we affirm the judgment of the appellate court.
[¶4] On August 11, 2011, plaintiff, William Huber, filed a petition in the circuit court of Sangamon County seeking judicial dissolution of defendant corporation, American Accounting Association. In January 2013, defendant filed a motion to dismiss plaintiff's then second-amended petition pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)). On March 6, 2013, the trial court held a telephone conference with the parties, and heard argument on defendant's motion. The trial court granted the motion and dismissed plaintiff's petition.
[¶5] Plaintiff appealed, challenging the merits of defendant's motion. Defendant argued, however, that the appeal should be dismissed for lack of jurisdiction. Defendant observed that plaintiff's notice of appeal was due no later than April 5, 2013, but that the clerk of the circuit court did not receive the notice until April 9, 2013. Relying on this court's rules governing notices of appeal, defendant maintained that where a notice of appeal is mailed and received after the 30-day deadline, the notice will be deemed timely filed only if timely mailed, and timely mailing may only be proven by a certificate of the attorney or affidavit of a nonattorney, neither of which plaintiff provided. Plaintiff countered that a clear, legible postmark is the best proof of mailing, and that the postmark on the envelope in which he mailed his notice of appeal (a copy of which appears in the record) discloses a timely mailing date of April 3, 2013, two days before the deadline. The appellate court dismissed plaintiff's ...