Yesterday I left off with an assertion that the case law on efiling that has so far come down should be terrifying for those of us practicing in Cook County. There are two cases of particular import, both from the Second District, one published -- and the other decided under Rule 23. (In a blog a lawyer can cite a Rule 23 Order. And I intend to.)
The published case is Peraino v. County of Winnebago, 2018 IL App (2d) 170368.
Summary judgment was entered against Plaintiff in a personal injury case on December 2. His motion to reconsider or a notice of appeal was due on January 3. Plaintiff's counsel chose to file a motion to reconsider. But, with one thing or another, including the attorney's illness and deadlines in other cases, the motion wasn't ready to be filed until 11:58 p.m. on January 3. And then the attorney's assistant had difficulty uploading the exhibits, so the motion wasn't file-stamped until 12:04 a.m. on January 4.
Plaintiff's counsel next filed a motion on January 5, this one seeking to have his motion to reconsider filed nunc pro tunc as of January 3. This motion was briefed in the trial court, the trial court ultimately deciding to deny the motion. Plaintiff appealed.
And the Appellate Court held that the trial court was wrong to deny the motion for leave to file nunc pro tunc -- but that did not help the plaintiff any.
No, the Appellate Court determined that it did not have jurisdiction to hear the appeal in the first place, since the trial court lost jurisdiction over the case at the stroke of midnight on January 4.
Moreover, the late-filed motion was not a proper motion for nunc pro tunc relief. The Appellate Court explained (2018 IL App (2d) 170368, ¶16) (internal citations omitted):
[I]f there is proper evidence of a clerical error, the court may use a nunc pro tunc order at any time to correct the mistake.... Stated differently, nunc pro tunc orders incorporate into the record judicial actions taken by the court that were inadvertently omitted due to a clerical error.... However, such a correction must be based on a note, memorandum, or paper remaining in the court record, and it cannot rest on a recollection of an individual or on a new affidavit or testimony.... Here, plaintiff did not seek to correct a clerical error in the trial court's judgment, and the evidence he sought to rely on surrounding the filing date of his motion to reconsider came from outside of the established court record. Accordingly, plaintiff's January 5, 2017, motion could not be resolved on a nunc pro tunc basis.Nor did the doctrine of revestment apply (2018 IL App (2d) 170368, ¶23): "The revestment doctrine causes the trial court to regain jurisdiction of a case even after 30 days have passed following the entry of a final judgment if both parties actively participate, without objection, in proceedings that are inconsistent with the merits of the prior judgment." However, where "a party opposes setting aside the prior judgment, jurisdiction will not be revested, even if the party does not raise a timeliness objection." Here, because Winnebago County opposed the nunc pro tunc motion, "the parties' actions did not revest the trial court with jurisdiction."
"We acknowledge," the Peraino court concluded, "that the outcome in this case might appear harsh, as plaintiff has lost both his chance to have the trial court reconsider its grant of summary judgment in favor of the County and his chance to have this court review that ruling. However, plaintiff's attorney had 30 days in which to file a motion to reconsider and could even have obtained an extension during those 30 days. He instead waited until less than two minutes before the deadline to attempt to electronically file the motion and unfortunately was unable to upload the motion within that time. As that deadline was jurisdictional, the trial court lacked authority to consider the untimely motion to reconsider and plaintiff's subsequent request to backdate that motion. Plaintiff's notice of appeal was correspondingly untimely, and we lack jurisdiction to consider the merits of this case. (2018 IL App (2d) 170368, ¶24).
So, sure, you say, Peraino isn't that scary. You'd never wait until two minutes before midnight to begin efiling a motion to protect a hard and fast jurisdictional deadline. And, besides, what kind of a person keeps staff working at the office at 11:58 p.m., especially during the holiday season? Karma jumped up and bit that lawyer, but that's not a reason to fear efiling, even into a slow and unpredictable efiling system such as we appear to have in Cook County.
To which I respond, please see In re Marriage of Bordyn, 2018 IL App (2d) 180017-U.
Bordyn concerned a notice of appeal, not a motion to reconsider. And the petitioner didn't wait until nearly the stroke of midnight before making his attempted filing.
No, in Bordyn, the petitioner submitted his notice of appeal for efiling at 2:37 p.m. on the afternoon of the 30th day -- receiving confirmation that the DuPage County Circuit Clerk's office had received the papers with that timely time stamp thereon. However, next morning, at 9:40 a.m., the Clerk rejected the filing. Why? Because the notice of appeal and notice of filing of the notice of appeal were submitted as one document instead of two documents -- the clerk thought they should be filed separately -- and the filing contained counsel's ARDC number instead of his DuPage County attorney ID number. (2018 IL App (2d) 180017-U, ¶¶3-4.)
Petitioner immediately corrected these "errors" and resubmitted the filing -- but now the notice of appeal was file stamped on the 31st day, not the 30th (2018 IL App (2d) 180017-U, ¶4.)
Are you scared yet? You should be. Respondent seized the opportunity and moved to dismiss the appeal as untimely. And the Appellate Court granted the motion on March 1, probably as a matter of course. It presumably did not take a full appellate panel to consult a calendar and determine that January 5 was more than 30 days after December 4.
The Rule 23 Order here under discussion arises prom Petitioner's motion to vacate that order -- which the Appellate Court denied.
After reviewing the language of the Supreme Court's efiling order, including language specifying that "multiple documents combined into one PDF document shall not be accepted (2018 IL App (2d) 180017-U, ¶7), the court acknowledged (2018 IL App (2d) 180017-U, ¶8), "We recognize that this result is harsh, and we are not without empathy for petitioner's circumstances. His arguments hold emotional appeal. Indeed, there appear to be no deadlines with which the clerk's office must comply in the process of accepting or rejecting submitted jurisdictional documents. Here, (unlike the plaintiff in Peraino), petitioner did not submit his documents at the proverbial '11th hour,' resulting in receipt on day 31. Clearly, the documents were received on day 30, early-to-mid afternoon. However, petitioner did not receive from the clerk's office a rejection until the next day, a response time that had jurisdictional implications."
The Appellate Court was not blind to the consequences of its reasoning (2018 IL App (2d) 180017-U, ¶8): "One might imagine scenarios wherein a litigant submits his or her documents even earlier than day 30, but a combination of weekends, court holidays, or even a busy or short-staffed clerk's office nevertheless operate to delay a rejection notice of rejection until after the jurisdictional period has expired. Here, petitioner was not alerted to his mistake until 18 hours after his submission was received by the clerk, and he could not timely correct the basis for the rejection and preserve his jurisdiction. While petitioner's suggestion—that we should treat at least the jurisdictional portion of his submission (the notice of appeal) as filed when it was received into the custody of the clerk's office—is tempting, we have no authority to do so. It is simply not for this court to make exceptions to jurisdictional requirements, re-write supreme court rules, or create new rules in this situation."
Besides, the Appellate Court suggested, petitioner was not entirely without recourse. He might have filed a motion under Supreme Court Rule 303(d) for the late filing of a notice of appeal. But such a motion would have been due within 30 days of January 4... and even if petitioner's motion to vacate the March 1 dismissal was deemed a 303(d) motion, it would have been late. (2018 IL App (2d) 180017-U, ¶9.)
Rule 303(d) is something that we all need to burn into our memory banks at this point -- but, in Bordyn, I could not help but notice that the court did not mention when respondent filed her motion to dismiss the appeal -- something that would have alerted petitioner to the mortal peril threatening his appeal. I don't know, of course, one way or the other, but if you were to tell me that the motion to dismiss wasn't filed until mid-February I wouldn't be at all surprised.
Presiding Justice Donald C. Hudson filed a separate concurrence in the Bordyn case. He was "compelled to concur in the majority's decision" primarily because petitioner didn't timely invoke Rule 303(d). But, he said, he wanted to write separately to "highlight the problematic implications this decision portends." (2018 IL App (2d) 180017-U, ¶13.)
Justice Hudson observed, 2018 IL App (2d) 180017-U, ¶14, emphasis mine, "Like most technological innovations, e-filing was supposed to make things easier and more efficient. Yet in this case the opposite seems to have occurred. Before e-filing, had petitioner submitted two documents that were improperly stapled together, the clerk would likely have simply removed the staple and filed the documents."
Perhaps, Justice Hudson continued, 2018 IL App (2d) 180017-U, ¶15, "It might be advisable to clarify the scope of the clerk's power of rejection. Perhaps, the filing date of a document that is rejected under the circumstances that exist in this case and then correctly resubmitted should automatically relate back to the date of its original submission."
That strikes me as a reasonable place to start.
It would be far better, however, to make it clear that Clerks of the Circuit Court do not have the power to "reject" documents submitted for filing, particularly documents submitted by attorneys, who are, after all, subject to Rule 137 sanction if they submit wholly improper pleadings. Otherwise, we are forcing our clerks to assume evaluative roles, not just engaging in the unauthorized practice of law, but, indeed, exercising judicial powers.
Even in DuPage County, where efiling has been the norm for some time now, and appears to be working fairly well, there will be more cases like Bordyn, Justice Hudson warned.
And here in the County of Cook, with our miserable system, we are heading over a cliff.
The Supreme Court will need to reconsider the details of its efiling orders -- and, please, do so soon.
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Postscript: In yesterday's post I wrote about how long it took to file a lengthy motion with voluminous exhibits and the various problems I encountered along the way. And although six days seems unconscionably long, it was not surprising that it that took a significant amount of time to get such a long, complicated document like that on file. So... why should I complain? That could have been merely a special case.
However, this past Tuesday morning, I filed a much simpler notice regarding the filing of a hearing transcript. It took until Thursday evening at 5:05 p.m. to get an acceptance back on that, much simpler document -- almost 55 hours. That can not be acceptable to anyone... can it? But my efiling problems pale compared to those presented by a colleague of mine. I'll report on his issue tomorrow. And it's a doozy.
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