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Vines v. The Village of Flossmoor

Court of Appeals of Illinois, First District, Second Division

October 31, 2017

SYLVIA VINES and SELLARS VINES, Individually and as Parents and Next Friends of Sellars Vines II, a minor, Plaintiffs-Appellants,
v.
THE VILLAGE OF FLOSSMOOR, a Municipal Corporation, and THE FLOSSMOOR LIBRARY, a Unit of Local Government, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. No. 14 L 4383 The Honorable Kathy Flanagan, Judge, presiding.

          HYMAN JUSTICE delivered the judgment of the court, with opinion. Justices Pucinski and Mason concurred in the judgment and opinion.

          OPINION

          HYMAN JUSTICE

         ¶ 1 A "deadline" is the date or time before which a task must be completed. When it comes to appellate court jurisdiction, missing a deadline can plunge an otherwise promising appeal into a nightmare. That is what has occurred here. The plaintiffs missed both the deadline for filing their notice of appeal and for filing a late notice of appeal. Defendants caught the oversight and took proper advantage of the appellate rules. We have no choice but to dismiss this appeal for lack of jurisdiction.

         ¶ 2 Background

         ¶ 3 Fourteen-year-old Sellars Vines II went to the Flossmoor Library after school to work on his homework. When the library closed at 5 p.m., Sellars and a friend waited outside for a ride home near heavy metal grates placed atop ventilation shafts. Because it was chilly, the boys stood on one of the grates warming themselves with the exhaust air. The grate gave way, and Sellars fell 20 feet onto concrete, fracturing his scapula and three ribs and puncturing his lung. Sellars stayed in the hospital for two weeks, followed by rehabilitation.

         ¶ 4 Sellars's parents sued the Village of Flossmoor seeking damages for their son's injuries. Later they added the Flossmoor Library as a defendant. The defendants moved for summary judgment, denying all the allegations in the amended complaint. On August 31, 2016, the trial court granted summary judgment to both the Library and the Village. On September 30, the Vineses moved to reconsider, asserting the trial court erred and seeking leave to file a third amended complaint. On November 14, the trial court denied the motions to reconsider and for leave to file a third amended complaint.

         ¶ 5 Notice of appeal was due on December 14, 2016. The Vineses did not file until December 21. No Illinois Supreme Court Rule 303(d) motion for leave to file a late notice of appeal was filed. Ill. S.Ct. R. 303(d) (eff. Jan. 1, 2015) ("On motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, accompanied by the proposed notice of appeal and the filing fee, filed in the reviewing court within 30 days after expiration of the time for filing a notice of appeal, the reviewing court may grant leave to appeal and order the clerk to transmit the notice of appeal to the trial court for filing." (Emphasis added.)).

         ¶ 6 On January 17, 2017, the Library moved to dismiss the appeal for lack of jurisdiction. The deadline had passed for filing a late notice of appeal under Rule 303(d). Three days later, on January 20, the Vineses' counsel received the motion to dismiss. That same day, counsel filed a "Motion to Amend" the December 21, 2016, notice of appeal. A different panel of this court denied the Library's motion to dismiss on January 31, 2017. That same panel, on February 15, 2017, denied the Village's motion to dismiss and granted the Vineses' motion to amend.

         ¶ 7 Analysis

         ¶ 8 This court has an independent duty to review our jurisdiction over an appeal and dismiss when it does not exist. Archer Daniels Midland Co. v. Barth, 103 Ill.2d 536, 539 (1984). We are without jurisdiction to review an untimely filed notice of appeal. Tunca v. Painter, 2012 IL App (1st) 093384, ¶ 23. The question of jurisdiction presents a question of law, which we review de novo (In re Marriage of Demaret, 2012 IL App (1st) 111916, ¶ 25), performing the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill.App.3d 564, 578 (2011).

         ¶ 9 Filing of a timely notice of appeal is both mandatory and jurisdictional. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill.2d 209, 213 (2009). Illinois Supreme Court Rule 303(a) (eff. Jan. 1, 2015) requires a party appealing from a trial court's judgment to file the notice of appeal within 30 days after entry of the trial court's final judgment. Additionally, when a timely postjudgment motion against the judgment has been filed, the notice of appeal must be on file within 30 days from the entry of the order disposing of the last postjudgment motion.

         ¶ 10 Under Rule 303(d), when a party fails to file a timely notice of appeal, we may grant that party leave to appeal if, within 30 days after expiration of the time to file the notice of appeal, the party has filed a motion providing a reasonable excuse for its failure to timely file the notice, "accompanied by the proposed notice of appeal." Ill. S.Ct. R. 303(d) (eff. Jan. 1, 2015). "The notice of appeal may be amended without leave of court within the original 30-day period to file the notice as set forth in paragraph (a) above." Ill. S.Ct. R. 303(b)(5) (eff. Jan. 1, 2015). Thereafter amendment is by motion only. Id. "Amendments relate back to the time of the filing of the notice of appeal." Id.

         ¶ 11 The deadline by which the Vineses had to file their motion to amend expired on January 13, 2017. " 'If litigation is to have some finality, acts must be accomplished within the time prescribed by law.' " Gaynor v. Walsh, 219 Ill.App.3d 996, 1004 (1991) (quoting People v. Wilk, 124 Ill.2d 93, 108 (1988)). Instead of filing the required Rule 303(d) motion, the Vineses' counsel filed a "motion to amend" asking that the December 21, 2016, notice of appeal stand or, alternatively, amending the December 21 filing to "incorporate a request for leave to file a late Notice of appeal." The ...


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