Roach v. Coastal Gas Station

363 Ill. App. 3d 674
CourtAppellate Court of Illinois
DecidedDecember 14, 2005
DocketNo. 5-04-0293
StatusPublished
Cited by2 cases

This text of 363 Ill. App. 3d 674 (Roach v. Coastal Gas Station) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roach v. Coastal Gas Station, 363 Ill. App. 3d 674 (Ill. Ct. App. 2005).

Opinion

JUSTICE HOPKINS

delivered the opinion of the court:

The plaintiff, Marjorie Lynn Roach, filed a personal injury action against the defendants, Coastal Gas Station, Union County Oil Company, and Rose Bailey. The circuit court dismissed the plaintiffs complaint as untimely. On appeal, the plaintiff argues that the circuit court erred in dismissing her complaint because the complaint was delivered to the clerk’s office on the day of the deadline and that the circuit court should have entered an order nunc pro tunc correcting the incorrect file-stamped date on the complaint. We affirm.

FACTS

On November 3, 2001, the plaintiff allegedly suffered personal injuries on the defendants’ property. According to affidavits filed by Robert M. Wright, the courier for the plaintiffs attorney, on November 3, 2003, at 4:02 p.m., Wright appeared at the Union County circuit court clerk’s office to file the plaintiffs complaint within the statute of limitations period. Wright placed the plaintiffs complaint “into the hands of’ Lorraine Moreland, clerk of the Union County circuit court. Moreland looked at the document and inquired about its contents. Wright told Moreland that the document was a complaint that required filing. After reviewing the complaint, Moreland returned it to Wright and told him that the clerk’s office closed at 4 p.m. Moreland instructed Wright to return the following day to file the complaint. On the following day, at 12:01 p.m., Wright appeared at the courthouse and instructed Moreland to file the complaint, and the complaint was file-stamped November 4, 2003.

On November 25, 2003, the defendants filed a motion to dismiss, pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 619(a)(5) (West 2002)), arguing that the plaintiff failed to file her complaint within the two-year statute of limitations (see 735 ILCS 5/13 — 202 (West 2002)). On December 23, 2003, the plaintiff filed a motion for leave to file nunc pro tunc and to modify the filing date of the complaint, requesting the court to determine that the complaint was properly filed when presented to the clerk on November 3, 2003, or that filing the complaint on November 4, 2003, was proper.

On February 4, 2004, after hearing arguments on the defendants’ motion to dismiss, the circuit court dismissed the plaintiffs action. On February 25, 2004, the plaintiff filed a motion to reconsider. On March 3, 2004, the plaintiff filed her reply to the defendants’ response to her motion to reconsider, along with Wright’s supplemental affidavit. On April 12, 2004, noting that Wright’s supplemental affidavit was self-serving and that the court was highly skeptical of its veracity, the circuit court denied the plaintiffs motion to reconsider. On May 10, 2004, the plaintiff filed a timely notice of appeal.

ANALYSIS

The circuit court’s comments regarding the veracity of Wright’s supplemental affidavit were unnecessary and served only to create confusion regarding the appropriate standard of review. The defendants did not file a counteraffidavit contradicting Wright’s affidavits, and therefore, the facts set forth in Wright’s affidavits are taken as true. See Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 572 (2002). Thus, on appeal, we consider the undisputed facts in light of the statute of limitations and circuit court rule to determine the propriety of the circuit court’s dismissal pursuant to section 2 — 619 of the Code. See In re Estate of Lum, 298 Ill. App. 3d 791, 793 (1998) (when facts are not in dispute, appellate review is de novo); E.A. Cox Co. v. Road Savers International Corp., 271 Ill. App. 3d 144, 148 (1995) (when the court’s determination is made solely from the face of the documents with no weighing of the evidence or determinations of credibility, review is de novo); see also Robidoux v. Oliphant, 201 Ill. 2d 324, 332 (2002) (the construction of a statute or rule is a question of law and is reviewed de novo); Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997); Krilich, 334 Ill. App. 3d at 569; Merritt v. Randall Painting Co., 314 Ill. App. 3d 556, 559-60 (2000) (appellate review of a dismissal in response to a motion pursuant to section 2 — 619 of the Code is de novo). We review this case de novo.

The plaintiff argues that the circuit court erred in dismissing her complaint as untimely. Specifically, the plaintiff argues that although her courier arrived after the official closing time, the clerk physically accepted the complaint before handing it back to the plaintiff’s courier; the plaintiff argues, therefore, that she effectively filed her complaint at 4:02 p.m. on November 3, 2003, within the statute of limitations period. We disagree.

Actions for damages for personal injury shall be commenced within two years after the cause of action accrued. 735 ILCS 5/13— 202 (West 2002). To commence such an action, the proper documents should be filed with the clerk at his official office and during usual business hours. Daniels v. Cavner, 404 Ill. 372, 378 (1949) (presenting nominating papers to the clerk at his residence after office hours did not constitute a filing with the clerk within the meaning of the Election Code). While delivery alone may constitute sufficient filing and ministerial tasks such as stamping a pleading “filed” are unnecessary to perfect a filing (In re Estate of Davison, 102 Ill. App. 3d 644, 645 (1981)), “[t]he uniform practice in the trial court has been to require actual receipt by the circuit clerk, as evidenced by the file stamp, before a paper is considered filed” (Wilkins v. Dellenback, 149 Ill. App. 3d 549, 553 (1986)). Although policy favors the acceptance of the mailing date as the filing date for certain documents, such as a posttrial motion or a notice of appeal, this policy has never been applied to the filing of pleadings such as a complaint. Wilkins, 149 Ill. App. 3d at 553. “A complaint is considered timely filed only when it is filed in compliance with the rules of the circuit court.” McReynolds v. Hartley, 251 Ill. App. 3d 1038, 1041 (1993).

In McReynolds, 251 Ill. App. 3d at 1040, the petitioners’ attorney arrived at the clerk’s office at 4:30 p.m. on the day of the deadline, and a deputy clerk told the petitioners’ attorney that state law prevented her from accepting documents for filing after 4:30 p.m. The petition was accepted for filing the next day, and the trial court dismissed the petition as untimely. McReynolds, 251 111. App. 3d at 1040.

The appellate court in McReynolds distinguished In re Estate of Davison, 102 Ill. App. 3d at 645, which the plaintiff has also cited here and which held that the delivery of a document may constitute filing because the person filing has no control over the clerk receiving the documents and that the clerk’s subsequent ministerial tasks, i.e., file-stamping the document, evidence the filing of a document but are not essential to its perfection. The McReynolds court held that the In re Estate of Davison rule of law implicitly required a finding that the deputy clerk should have performed the ministerial task of filing the petition. McReynolds, 251 Ill. App. 3d at 1041.

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363 Ill. App. 3d 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roach-v-coastal-gas-station-illappct-2005.