Posted On: June 10, 2013 by Steven R. Merican

Fax Filing Of Reconsideration Request Insufficient To Toll Time To Appeal

Myqerem Shatku sued Wal-Mart Stores for negligence. The trial court granted her motion to voluntarily dismiss the case in October 2010. A little more than a year later, Myqerem asked the trial court for permission to re-file her complaint.Wal-Mart responded by asking the court to dismiss Myqerem’s request. The trial court granted Wal-Mart’s request.

Myqerem asked the trial court to reconsider the order that dismissed her request to re-file the case. She served her motion to reconsider on Wal-Mart by fax. But her notice of service did not say anything about when she filed her request in court. The court’s records showed her written request was stamped received after the 30-day deadline.

Even though the request to reconsider was filed after the deadline, Wal-Mart opposed the request on the merits, and did not argue that Myqerem’s request was too late. The trial court denied Myqerem’s reconsideration request, and also did not address the untimeliness of her request.

So Myqerem appealed. Wal-Mart argued Myqerem’s appeal was too late because: (1st) her request to reconsider was filed after the 30-day deadline, and (2nd) because it was late, the reconsideration request did not toll the time to appeal, and (3rd) the appeal was too late to give the appellate court jurisdiction becasuse it was filed long after the case had been dismissed. Myqerem argued that her request should be considered filed on the day she served it by fax on Wal-Mart, which would have put her just under the deadline and made her reconsideration request, and thus her appeal, timely.

But the Second District Illinois Appellate Court agreed with Wal-Mart. Here is how the appellate court explained it:

Plaintiff [Myqerem] asserts that she filed the motion by fax on January 23, 2011. At least three things are wrong with that assertion. First, plaintiff provides no support for her implication that the clerk may accept documents for filing by fax. We find nothing in state or local rules to support that claim; Illinois Supreme Court Rules 11 and 12 … provide for service by fax, but not for filing. Second, Rule 12 further provides that service by fax is effective the day after transmission, so that, even if the rule applied to filing, the filing would have been a day late …Third, and in any event, the transmission sheet on which plaintiff relies is not part of the record, and so we must discount it.

Myqerem also argued that the trial court was revested with jurisdiction because Wal-Mart opposed the reconsideration request on its merits and did not raise the lateness of the request in the trial court. The appellate court rejected that argument, too. “[W]hen a party opposes a motion to reconsider, a simple failure to note the untimeliness of the motion is not inconsistent with the merits of the judgment and does not cause jurisdiction to revest in the trial court.”

Finally, Myqerem argued that if her reconsideration request were late, the trial court should have considered it to be a petition under rules that allow a party to re-open a judmgment that is more than 30 days old. But the appellate court also rejected that position because Myqerem had neither requested the court to do so nor demonstrated that her request fell within the boundaries of a request to re-open a judgment.

Read the whole case, Shatku v. Wal-Mart Stores, 2013 IL App (2d) 120412 (5/10/13), by clicking here.

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