Kilpatrick v. Baxter Healthcare Corp.

2023 IL App (2d) 230088, 241 N.E.3d 1006

• Court: Appellate Court of Illinois
• Decided: November 7, 2023
• Docket: 2-23-0088
• Status: Published

Opinion

2023 IL App (2d) 230088 No. 2-23-0088 Opinion filed November 7, 2023 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

KELLY KILPATRICK, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 22-LA-453 ) BAXTER HEALTHCARE CORPORATION, ) Honorable ) Charles W. Smith, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE MULLEN delivered the judgment of the court, with opinion. Justices Jorgensen and Birkett concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Kelly Kilpatrick, appeals from an order of the circuit court of Lake County,

granting the motion of defendant, Baxter Healthcare Corporation, to dismiss her personal injury

complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5)

(West 2022)). On appeal, plaintiff argues that the circuit court abused its discretion when it

determined that plaintiff failed to demonstrate good cause shown under Illinois Supreme Court

Rule 9(d)(2) (eff. Feb. 4, 2022) and therefore refused to backdate her complaint nunc pro tunc. For

the reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 Plaintiff filed a complaint against defendant alleging that on September 13, 2020, she was 2023 IL App (2d) 230088

injured after she slipped and fell at a facility maintained by defendant. Plaintiff’s complaint was

file stamped in Lake County on September 15, 2022, via the Odyssey EFileIL (Odyssey) portal.

Defendant moved to dismiss under section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS

5/2-619(a)(5) (West 2022)), alleging that plaintiff failed to file her complaint by September 13,

2022, the last day within the applicable two-year statute of limitations period. Id. § 13-202.

¶4 In her response to the motion, plaintiff alleged that she had originally submitted her

complaint on September 13, 2022, at 1:06 p.m., using the Odyssey portal. That submission was

rejected the next day, with an accompanying rejection notification from Odyssey. Counsel for

plaintiff alleged in the response that, after receiving the rejection notice, he realized that he had

inadvertently included his law firm’s attorney number rather than the attorney registration number

issued by the Illinois Attorney Registration and Disciplinary Commission (ARDC). Counsel

alleged that he then fixed the submission to include his ARDC number and resubmitted the

corrected complaint via the Odyssey portal on September 15, 2022, at which point the complaint

was accepted and filed.

¶5 Additionally, in her response to defendant’s motion to dismiss, plaintiff requested relief

under Illinois Supreme Court Rule 9(d)(2) (eff. Feb. 4, 2022), arguing that there was good cause

for the untimely submission because she had attempted to file the complaint within the applicable

limitations period and the rejection was due to a “minute” error tantamount to a scrivener’s error.

Plaintiff argued that, because there was good cause for the error in the original complaint, the

complaint should be corrected nunc pro tunc to show that it was filed on September 13, 2022.

¶6 In support of her claims, plaintiff attached to her response the following: an e-mail reply

from Odyssey sent September 13, 2022, indicating that a filing had been submitted on September

13, 2022, at 1:06 p.m. and that the document had been filed as a complaint; an email from Odyssey

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stating that the submission had been rejected, that the “Returned Reason” was a “Format Error,”

and reading, in a box labeled “Returned Comments,” “Local rule 1-1.12B-All documents filed or

served in any cause shall contain the attorney’s name, address, e-mail address, telephone number

and State of Illinois attorney registration number. YA”; and lastly, a copy of the complaint, file-

stamped September 15, 2022.

¶7 At a hearing on the motion to dismiss, the circuit court granted defendant’s motion. While

the record contains no transcript of the motion hearing, an order was entered stating, in relevant

part, that “plaintiff was unable to demonstrate good cause to modify her complaint nunc pro tunc

to comply with the statute of limitations,” and citing O’Gara v. O’Gara, 2022 IL App (1st) 210013,

and Leff, Klein & Kalfen, Ltd. v. Wiczer & Associates, LLC, 2022 IL App (2d) 220089-U. Plaintiff

appealed.

¶8 II. ANALYSIS

¶9 Before considering the merits of plaintiff’s appeal, we must first address the record on

appeal and defendant’s motions to strike. First, in its appellee’s brief, defendant urges that we

strike plaintiff’s opening brief and dismiss her appeal. Defendant also filed a motion to strike

portions of plaintiff’s reply brief, which we ordered be taken with the case. In both motions,

defendant contends that plaintiff improperly attached exhibits, exhibits A and B, to her opening

brief and to her reply brief that were not in the common law record and also that she failed to cite

to the common law record in her statement of facts and in her argument. Plaintiff asserts that

exhibits A and B were taken directly from the common law record and “were relied upon by the

circuit court.”

¶ 10 An appellant “ ‘has the burden of presenting a sufficiently complete record of the

proceedings’ ” to support a claim of error. Fraser v. Jackson, 2014 IL App (2d) 130283, ¶ 22

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(quoting Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 319 (2003), citing Foutch v.

O’Bryant, 99 Ill. 2d 389, 391-92 (1984)). The record on appeal is prepared and certified by the

clerk of the circuit court. (Ill. S. Ct. R. 324 (eff. July 1, 2017)). It consists of the judgment appealed

from, the notice of appeal, and the entire original common law record. (Ill. S. Ct. R. 321 (eff. Oct.

1, 2021)). The common law record includes “every document filed, judgment, and order entered

and any exhibit offered and filed by any party.” Id. Illinois Supreme Court Rule 323 (eff. July 1,

2017) requires that the record on appeal contain a report of the circuit court proceedings, consisting

of a transcript or, if no transcript is available, a bystander’s report or an agreed statement of facts.

¶ 11 An appellate court may not consider documents that are not part of the certified record on

appeal, and attachments to appellate briefs that are not contained in the certified record on appeal

cannot be used to supplement the record and are not properly before a reviewing court.

Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1,

14 (2009). References to evidence outside the record are not permitted and should be stricken.

Reddick v. Murray, 266 Ill. App. 3d 333, 334 (1994). “In the absence of a complete record, the

reviewing court will presume that the order entered by the trial court was in conformity with the

law and had a sufficient factual basis.” Fraser, 2014 IL App (2d) 130283, ¶ 22. But we will not

strike a party’s statement of facts unless it includes such flagrant improprieties that it hinders our

review of the issues. John Crane Inc. v. Admiral Insurance Co., 391 Ill. App. 3d 693, 698 (2009).

¶ 12 Turning to defendant’s motions to strike, although plaintiff asserts that her exhibits A and

B are “taken directly from the Common Law Record,” our examination shows that only a portion

of exhibits A and B are properly before this court. Specifically, each exhibit is two to three pages

long, but the certified record contains only the first page of each exhibit. Plaintiff’s opening brief

contains no direct references to the additional material that appears in exhibits A and B. For that

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reason, the brief does not warrant striking; rather, any unsupported statements shall be disregarded.

See id. However, when arguing in her reply brief that the exhibits are the same documents

contained in the common law record, plaintiff discusses matter de hors the certified record. That

is improper. DiMaggio v. Crossings Homeowners Ass’n, 219 Ill. App. 3d 1084 (1991).

Accordingly, we grant defendant’s motion to strike portions of plaintiff’s reply brief and strike all

references to facts in plaintiff’s reply brief not contained in the record. See Reddick, 266 Ill. App.

3d at 335.

¶ 13 Turning to the merits, plaintiff contends that the circuit court erred in finding that she failed

to show good cause pursuant to Rule 9(d)(2). Plaintiff argues that, in finding that she did not

demonstrate good cause, the circuit court did not properly assess the totality of the circumstances

in accordance with Davis v. Village of Maywood, 2020 IL App (1st) 191011. In so doing, she

contends, the circuit court misread O’Gara and Leff.

¶ 14 Rule 9(d)(2) provides relief for certain untimely filings, stating “If a document is rejected

by the clerk and is therefore untimely, the filing party may seek appropriate relief from the court,

upon good cause shown.” Ill. S. Ct. R. 9(d)(2) (eff. Feb. 4, 2022). Illinois Supreme Court Rule 9(d)

(eff. Feb. 4, 2022) provides flexibility to litigants and the courts to address problems with e-filing

“upon good cause shown.” See Davis, 2020 IL App (1st) 191011, ¶ 18. The broad language of

Rule 9(d)(2) indicates that a court must consider the totality of the circumstances in assessing good

cause. Id. ¶ 21.

¶ 15 Whether the circuit court properly denied a plaintiff’s Rule 9(d)(2) motion is a matter that

we review for an abuse of discretion. Id. ¶ 13 (citing Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d

334, 354 (2007) (abuse of discretion standard applies when reviewing whether good cause exists

under Illinois Supreme Court Rule 183 (eff. Feb. 16, 2011) to grant additional time to remedy an

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unintentional noncompliance with the procedural requirement of signing discovery responses)).

An abuse of discretion exists where no reasonable person would take the position adopted by the

circuit court, or where the circuit court acts arbitrarily, fails to employ conscientious judgment,

and ignores recognized principles of law. See In re Possession & Control of the Commissioner of

Banks & Real Estate of Independent Trust Corp., 327 Ill. App. 3d 441, 476 (2001); see also

Hachem v. Chicago Title Insurance Co., 2015 IL App (1st) 143188, ¶ 34 (a circuit court “abuses

its discretion when its ruling is arbitrary, fanciful, or unreasonable or when no reasonable person

would adopt its view”). In determining whether there has been an abuse of discretion, we may not

substitute our judgment for that of the circuit court, nor may we even determine whether the circuit

court exercised its discretion wisely (Simmons v. Garces, 198 Ill. 2d 541, 568 (2002)) and whether

this court might have decided the issue differently is irrelevant. Doe v. Johnston, 2022 IL App

(1st) 220210, ¶ 15.

¶ 16 In Davis, the court found that the plaintiffs had shown good cause to backdate a complaint

where their attorney e-filed the complaint on the last morning of the limitations period, and the

submission was subsequently rejected for failure to input an attorney code into one subsection of

the e-filing envelope. Davis, 2020 IL App (1st) 191011, ¶ 1. The attorney had properly input his

ARDC number into one section of the e-filing software, had properly submitted his Cook County

attorney code into another section, and then failed to enter that same Cook County attorney code

into a third section of the e-filing envelope labeled “ ‘Case Cross Reference Number.’ ” Id. ¶ 5. In

assessing good cause, the court considered a number of factors leading to its conclusion that the

rejection was the result of “a minor, understandable error that cannot be attributed entirely to the

attorney who submitted a properly formatted and complete complaint and a near-perfect e-filing

envelope.” Id. ¶ 31.

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¶ 17 First, the attorney’s error in Davis occurred less than two weeks into the transition from

paper filing to e-filing in Cook County. Id. ¶ 21. The court also noted that the original submission

was nearly identical to the accepted submission, save for the input of the attorney code. Id. ¶ 22.

Davis considered that counsel’s error was a “minor” failure of “form rather than substance” in that

the attorney omitted a second duplicative entry of the attorney code into the e-filing envelope. Id.

¶ 23. The court found that the e-filing envelope was, “for the most part, correct and complete.” Id.

¶ 27. Davis attributed counsel’s error to an “imperfection in the e-filing system” in that the e-filing

system’s requirement of inputting “the same number twice on the same form” in a field labeled

“ ‘Case Cross Reference Number’ ” was neither “obvious nor intuitive” and “confusing at best and

misleading at worst.” Id. ¶ 28. Finally, Davis looked at the time of plaintiff’s submission. The fact

that counsel attempted to submit the rejected filing mid-morning, rather than late at night in the

final hours of the limitations period, weighed slightly in favor of finding good cause: “this was not

a midnight filing.” Id. ¶ 32.

¶ 18 But two years later, in O’Gara, the court affirmed a trial court’s rejection of relief under

Rule 9(d)(2). In that case, the plaintiff’s counsel attempted to file a motion to reconsider at 11:52

p.m. on the last day of the window to file a postjudgment motion but ultimately failed to file the

document before midnight. O’Gara, 2022 IL App (1st) 210013, ¶ 36. Thus, the motion was not

filed until the next day, after the time to file a postjudgment motion had expired. Id. The plaintiff

sought relief under Rule 9(d)(2), alleging that he was unfamiliar with the e-filing system and the

failure to timely file the motion was “an honest mistake.” Id. Before assessing whether there was

good cause, the court considered the function of nunc pro tunc motions: to remedy clerical errors.

Id. ¶ 38. The court then noted that, in the case before it, there was no clerical error but, rather, the

submission was rejected due to “an entirely avoidable attorney error.” Id.

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¶ 19 O’Gara distinguished Davis in that the e-filing system had been “functional for years”

before the plaintiff’s counsel attempted to use it in November 2020. Id. ¶ 41. O’Gara also saw the

error leading to the rejection there differently than the error in Davis. Rather than the omission of

a number on the filing as in Davis, the mistake in O’Gara was that counsel failed to select the

correct filing and pay the filing fee. Id. And counsel’s attempt to file “in the nick of time” (id.) was

viewed negatively: “Last-minute filings are insufficient to establish good cause under Rule 9(d)(2).

This factor does not weigh in favor of a good cause showing.” Id. (discussing Davis and Peraino

v. County of Winnebago, 2018 IL App (2d) 170368 (midnight motion to reconsider e-filed four

minutes after deadline resulted in a lapse of circuit court jurisdiction and nunc pro tunc relief was

not available because the error was not clerical)).

¶ 20 In Leff, this court overturned a circuit court’s ruling allowing relief under Rule 9(d)(2).

Leff, 2022 IL App (2d) 220089-U. In that case, counsel for the respondent in a citation proceeding

filed—four days after the deadline—a motion to reconsider judgment entered against it. Id. ¶ 7.

Counsel for the respondent established that he had initiated the e-filing process three days before

the deadline. Id. ¶ 8. But the e-filing was rejected by the clerk’s office for a series of reasons,

including that counsel had failed to file an appearance, failed to include the filing fee, and

submitted multiple filings as one transaction, when the system allowed only one document per

filing. Id. ¶¶ 8-10. The circuit court found that the respondent had shown good cause under Rule

9(d)(2) and allowed the motion to reconsider and vacated the judgment. Id. ¶¶ 11-12. The plaintiff

appealed that ruling. We reversed, rejecting the argument that the motion to reconsider was timely

because it was submitted before the deadline, and noting that the mere submission of a motion for

filing does not render it filed: “It is well established that a submission must first be accepted by

the clerk to be considered filed.” Id. ¶ 25.

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¶ 21 We then considered whether the respondent had shown good cause to excuse the late filing.

Distinguishing Davis, we held that the e-filing system was “not in its infancy” and “counsel should

have been familiar with the e-filing requirements.” Id. ¶ 30. We also found that the errors of

counsel were not “minor” as in Davis, where the court considered “the mere failure to insert an

attorney code in one section of an e-filing when that same code had been provided in another

section.” Id. ¶ 31. We took issue with the Davis court’s consideration of the fact that the

noncompliance did not affect the substance of the document filed, because then “any submission

requirements that do not impact the document’s substance would excuse a failure to comply with

those requirements.” Id. ¶ 32. We concluded that there was not good cause shown to excuse the

untimely motion, leaving the circuit court without jurisdiction to reconsider its judgment. Id. ¶ 33.

¶ 22 Considering the facts established in the record in this matter, we note that, as in O’Gara,

the e-filing system has been functional for years. An appellate court may take judicial notice of

readily verifiable facts if doing so will aid in the efficient disposition of a case. Aurora Loan

Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, ¶ 37. Here, we take judicial notice of the fact

that Lake County has required e-filing for all civil filings since January 1, 2018, pursuant to the

statewide e-filing initiative. 19th Judicial Cir. Ct. R. 1-2.02(A) (Dec. 21, 2017); see Ill. S. Ct., M.R.

18368 (eff. Jan. 22, 2016). Thus, at the time of filing, e-filing for Lake County had been required

for well over four years.

¶ 23 And—as far as we can tell from the scant record before us—the nature of the error is unlike

that in Davis. Instead of showing an “understandable error” not entirely attributable to an attorney

dealing with a new system that was “confusing at best and misleading at worst” (Davis, 2020 IL

App (1st) 191011, ¶¶ 28, 31), the record does not establish any mitigating reason for the inability

to enter the proper attorney registration number. This was “an entirely avoidable attorney error ”

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(see O’Gara, 2022 IL App (1st) 210013, ¶ 38) and, unlike in Davis, not an error we can attribute

to an “imperfection in the e-filing system.” Davis, 2020 IL App (1st) 191011, ¶ 28.

¶ 24 As for the timing of the attempt to file, like Waukegan Hospitality Group, LLC v. Stretch’s

Sports Bar & Grill Corp., 2022 IL App (2d) 210179, ¶ 18, this case exposes “the perils of waiting

until the [last] day to file a [complaint],” and thus, the late filing does not weigh in favor of the

late filer. There is no mailbox rule applicable here (see Kelly v. Mazzie, 207 Ill. App. 3d 251, 253

(1990) (finding no “mailbox rule” for filing complaints in the circuit court)), and Rule 9(d) makes

clear that a document is not filed until it has the clerk’s approval. Ill. S. Ct. R. 9(d) (eff. Feb. 4,

2022) (the filed document shall be endorsed with the clerk’s electronic file mark setting forth, at a

minimum, the identification of the court, the clerk, the date, and the time of filing); see Leff, 2022

IL App (2d) 220089-U, ¶ 25. Plaintiff’s exhibit A demonstrates this very proposition, as the

automated response for filing submissions states that the user will be notified “within 24-48 hours

whether [the] filing has been accepted or rejected.” Based on these facts, we can hardly conclude

that the circuit court’s ruling was arbitrary, fanciful, or unreasonable or that no reasonable person

would adopt its view. Hachem, 2015 IL App (1st) 143188, ¶ 34.

¶ 25 In sum, plaintiff failed to timely file her complaint, and, in requesting relief under Rule

9(d)(2), she provided little, if any, substantive evidence to the circuit court that would demonstrate

good cause. Accordingly, we do not believe that the circuit court abused its discretion in finding

that plaintiff was unable to demonstrate good cause.

¶ 26 III. CONCLUSION

¶ 27 We affirm the judgment of the circuit court of Lake County.

¶ 28 Affirmed.

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Kilpatrick v. Baxter Healthcare Corp., 2023 IL App (2d) 230088

Decision Under Review: Appeal from the Circuit Court of Lake County, No. 22-LA-453; the Hon. Charles W. Smith, Judge, presiding.

Attorneys Alan H. Bender, of Goldstein, Bender & Romanoff, of Chicago, for for appellant. Appellant:

Attorneys Stephanie F. Jones and Jonathan L. Federman, of Gordon Rees for Scully Mansukhani LLP, of Chicago, for appellee. Appellee:

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