Court of Appeals of Illinois, First District, Second Division
SYLVIA VINES and SELLARS VINES, Individually and as Parents and Next Friends of Sellars Vines II, a minor, Plaintiffs-Appellants,
THE VILLAGE OF FLOSSMOOR, a Municipal Corporation, and THE FLOSSMOOR LIBRARY, a Unit of Local Government, Defendants-Appellees.
from the Circuit Court of Cook County. No. 14 L 4383 The
Honorable Kathy Flanagan, Judge, presiding.
JUSTICE delivered the judgment of the court, with opinion.
Justices Pucinski and Mason concurred in the judgment and
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.
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
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
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
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 ...