Failure By Trial Court Clerk To Mail Order Does Not Relieve 30-Day Deadline To Appeal

Teresa De Bouse brought a class action case against Bayer AG, claiming that Bayer misrepresented Baycol, a pharmaceutical that Bayer marketed to consumers. Teresa’s class certification motion was granted in the trial court. But the trial court clerk neglected to mail the order to the parties. Bayer’s lawyers did not learn about the order granting certification until long past the 30-day deadline to petition for appeal of class certification rulings in Illinois Supreme Court Rule 306(a)(8).

To give Bayer the opportunity to appeal the certification ruling, the trial court vacated its original order nunc pro tunc and reentered it. That action by the trial court came more than 30 days after the original ruling.

Bayer appealed the certification order. The Fifth District Illinois Appellate Court dismissed the appeal of the class certification ruling, and rejected each of Bayer’s arguments:

• Coming more than 30 days after its original ruling, the “… trial court lacked authority to vacate and reenter the same order … in order to excuse compliance with the filing requirements of Rule 306.”
• The appellate court also ruled that the nunc pro tunc order was improper because it was not entered to “conform the order to the ruling actually rendered … Its only purpose was to restart the 30-day appeals clock.”
• The trial court clerk’s neglect in mailing the certification order to Bayer, despite a local rule requiring the clerk to do so, did not provide the trial court with authority to allow additional time to seek an appeal. “… [L]ocal rules may not be construed to modify, limit, abrogate, or otherwise conflict with the Illinois Supreme Court rules and the existing laws of Illinois.”
• The appellate court did not believe Bayer’s claims of detrimental reliance on the trial court clerk. The court stated that Bayer had “ample opportunities” to inspect the court record and to inquire about the status of the certification motion.

The daunting lesson here is: You are responsible for learning when rulings are issued. The failure of the court clerk to mail a ruling to you does not give you a basis to extend a deadline to appeal, a friendly and sympathetic judge notwithstanding. Read the whole case, De Bouse v. Bayer AG, No. 5-06-0077 (6/13/07), by clicking here.

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