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Oruta v. Biomat USA, Inc.

Court of Appeals of Illinois, First District, Fifth Division

June 16, 2017

LARRY ORUTA, Plaintiff-Appellant,
v.
BIOMAT USA, INC. and HARTFORD INSURANCE c/o Sedgwick, CM Defendants Biomat USA, Inc., Defendant-Appellee.

         Appeal from the Circuit Court of Cook County. No. 2010-L-4355 The Honorable James P. Flannery, Jr., Judge, presiding.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion. Justice Lampkin specially concurred, with opinion.

          OPINION

          GORDON PRESIDING JUSTICE

         ¶ 1 On January 14, 2013, the trial court dismissed defendant Biomat USA, Inc., with prejudice from the underlying case. Two and a half years later, on September 22, 2015, plaintiff Larry Oruta filed a motion with the trial court seeking to file a "service of summons *** against Biomat USA previously returned." On September 29, 2015, the trial court denied plaintiff's motion, stating that: "Biomat USA, Inc. was dismissed with prejudice by Court order on January 14, 2013."

         ¶ 2 On September 29, 2015, the same day that the trial court denied plaintiff's motion, plaintiff filed a notice of appeal. On May 20, 2016, plaintiff filed an "amended" notice.

         ¶ 3 For the following reasons, this instant appeal is dismissed for lack of jurisdiction.

         ¶ 4 First, plaintiff's notices of appeal and his brief to this court all state that "final judgment" was granted on January 23, 2012. To the extent that these statements are true, this court lacks jurisdiction. A notice of appeal with respect to this final judgment had to be filed within 30 days after it was entered-not years later. Supreme Court Rule 303 provides for the 30-day requirement, and the rule states in relevant part: "The notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from ***." Ill. S.Ct. R. 303(a) (eff. Jan. 1, 2015).

         ¶ 5 When an appellant fails to file a timely notice of appeal, this court lacks jurisdiction to hear the appeal. Supreme Court Rule 301 states, in relevant part: "The appeal is initiated by filing a notice of appeal. No other step is jurisdictional." Ill. S.Ct. R. 301 (eff. Feb.1, 1994). Thus the timely filing of the notice of appeal is the only jurisdictional step required to perfect the appeal. People v. Lewis, 234 Ill.2d 32, 37 (2009) ("The timely filing of a notice of appeal is the only jurisdictional step required to initiate appellate review.") Without it, this court lacks jurisdiction and the appeal must be dismissed. Lewis, 234 Ill.2d at 37 ("A reviewing court lacks jurisdiction and is obliged to dismiss an appeal if there is no properly filed notice of appeal.").

         ¶ 6 Second, to the extent that defendant seeks to appeal the January 14, 2013, dismissal order, we also lack jurisdiction. The trial court's dismissal order, dated January 14, 2013, stated in full:

"This matter coming before the Court on Biomat USA Inc.'s 735 ILCS 5/2-619 Motion to Dismiss and Quash Service ("Motion"), all parties having notice, Plaintiff Larry Oruta having failed to appear and the Court being duly advised, IT IS HEREBY ORDERED:
(1)Biomat USA, Inc.'s Motion is granted; and
(2)This matter is dismissed with prejudice as to Biomat USA, Inc."

The "Jurisdiction Statement" in plaintiff's brief does not suggest a basis for appellate jurisdiction over the January 14, 2013, order or any other order. It states: "This appeal was filed to reinstate citation proceedings against Hartford Ins. c\o Sedgwick CMS who were served but filed [sic] to appear on 9-29-15 but trial court wrongfully denied motion in open court on grounds of jurisdiction citing ex-parte proceedings yet, the new judge *** had jurisdiction to rule upon reinstatement of citations." Plaintiff does not cite a statutory section or rule which provides appellate jurisdiction for "reinstatement of citations."

         ¶ 7 Third, the trial court's September 29, 2015, order, which merely observed that this defendant was dismissed years ago, was not an appealable order. Both of plaintiff's notices of appeal state that it is the court's September 29, ...


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