New Evidence In Reconsideration Motion Saves Appellate Jurisdiction

Jennifer Keener’s daughter was arrested by the City of Herrin Police for underage intoxication. The police allowed the daughter to leave the police station while she still was intoxicated. She was struck by an automobile and killed.

Jennifer sued the City of Herrin for wrongful death. Herrin moved to dismiss Jennifer’s complaint. Several weeks later, the trial court granted the motion to dismiss. But despite directing the order of dismissal to be mailed to the parties’ attorneys, they were not

Discovery in the case continued, including a deposition of the officer who arrested Jennifer’s daughter. The attorneys found out about the dismissal when they appeared in court for a status conference, about 11 months after the dismissal order was entered.

Apparently realizing that the time to appeal the dismissal had long passed, Jennifer’s lawyer filed a motion to reconsider the dismissal under § 2-1401 of the Illinois Code of Civil Procedure (relief from judgments more than 30 days old). The motion included testimony from the arresting officer’s deposition, evidence that was not available when the trial court ruled on Herrin’s the motion to dismiss.

Apparently realizing that the blown deadline to appeal was not Jennifer’s lawyer’s fault, the trial court granted the motion to reconsider, then immediately granted another dismissal of Jennifer’s complaint. Jennifer then filed a timely notice of appeal of the trial court’s second dismissal.

Herrin did not move to dismiss the appeal for lack of jurisdiction, but the Fifth District Illinois Appellate Court reviewed its jurisdiction to hear the appeal on its own motion. The issue was whether Jennifer could circumvent the 30-day rule to file an appeal by getting the trial court to vacate the original dismissal on a motion to reconsider, only to immediately dismiss the complaint again.

Herrin argued that the usual rules applied: (1) It was Jennifer’s responsibility to monitor the case, so the clerk’s failure to notify the parties about the original dismissal did not extend the time for Jennifer to appeal; (2) A party cannot get around the 30-day rule by asking for reconsideration under § 2-1401.

The appellate court sided with Jennifer. The usual rules did not apply to Jennifer’s case because she submitted new evidence that was not before the trial court when it made its original decision to dismiss her complaint. Here’s what the court said:

Jennifer’s section 2-1401 petition did not simply request the circuit court to reenter the same dismissal order to restart her appeal clock; instead, she presented the circuit court with new evidence (deposition testimony of Officer Laird) of which the court had no knowledge when it entered its first dismissal order. Jennifer was not seeking the reentry of the same order. She was urging the court to deny the defendant’s motion to dismiss. A section 2-1401 petition is the proper mechanism for bringing this additional evidence to the circuit court’s attention … Jennifer’s section 2-1401 petition was not filed merely as a subterfuge to extend the time requirement of Rule 303 (a) [30 days to file appeal].

Read the whole opinion, Keener v. City of Herrin, No. 5-06-0501 (10/6/08), by clicking here.

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