                               Illinois Official Reports

                                      Appellate Court



                      In re Marriage of Sheth, 2015 IL App (1st) 132611



Appellate Court          In re MARRIAGE OF ANITA SHETH, Petitioner-Appellee, and
Caption                  SUSHIL SHETH, Respondent-Appellant.


District & No.           First District, Fifth Division
                         Docket No. 1-13-2611



Opinion filed            August 22, 2014
Opinion withdrawn        February 9, 2015
Modified
opinion filed            February 13, 2015

Held                       Respondent’s appeal from the denial of his motion to reconsider an
(Note: This syllabus order in respondent’s marriage dissolution proceedings changing the
constitutes no part of the custodian of four bank accounts belonging to respondent’s children
opinion of the court but was dismissed for lack of jurisdiction where the record showed that his
has been prepared by the notice of appeal was filed more than 30 days after the denial of the
Reporter of Decisions motion to reconsider, and respondent did not submit a “Certificate of
for the convenience of Service” sworn to before an authorized person that could be
the reader.)               considered an affidavit for purposes of showing that the notice was
                           placed in the mail of the prison in which he was incarcerated at the
                           time of mailing within the 30-day time limit in compliance with the
                           requirements of Supreme Court Rule 12(b)(3).




Decision Under           Appeal from the Circuit Court of Cook County, No. 09-D-007370; the
Review                   Hon. Leida Gonzalez-Santiago, Judge, presiding.


Judgment                 Dismissed for lack of jurisdiction.
     Counsel on                No brief filed for appellant.
     Appeal
                               Ariel Weissberg, of Weissberg & Associates, Ltd., of Chicago, for
                               appellee.



     Panel                     JUSTICE GORDON delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Palmer and Justice McBride 1 concurred in the
                               judgment and opinion.


                                                OPINION

¶1         The instant appeal arises from a trial court order changing the custodian of four bank
       accounts belonging to respondent Sushil Sheth’s children; prior to the order, Sushil served as
       custodian. Sushil claims he was denied due process, because he was not afforded an
       opportunity to timely respond to the motion of his ex-wife, petitioner Anita Sheth, to change
       the custodian, nor was he afforded an opportunity to argue his position before the trial court
       denied his motion to reconsider. By contrast, Anita claims that Sushil has no standing to bring
       the instant appeal and that his appeal is barred by res judicata. For the reasons that follow, we
       dismiss the appeal for lack of jurisdiction.

¶2                                           BACKGROUND
¶3          The following facts, up to the filing of the petition for dissolution of marriage, were
       stipulated to by the parties before the trial court on August 16, 2012. Anita and Sushil were
       married on November 23, 1991, and had two children, S.S. and R.S., born October 27, 1994,
       and March 10, 1996. Sushil is a physician, specializing in internal medicine and cardiology,
       and had hospital privileges at four hospitals in the Chicago area. Sushil had a business
       relationship with another doctor, Lokesh Chandra, and Sushil would treat Chandra’s patients
       when Chandra was unavailable. Beginning in 2006, Chandra began investigating Sushil’s
       billing practices after receiving reports from patients that Sushil had billed Medicare and other
       insurance carriers for treatments that the patients had not received; Chandra discovered that
       Sushil had been fraudulently billing since 2002. Chandra approached government officials and
       informed them of his discovery.
¶4          On April 19, 2006, a complaint was filed against Sushil in federal district court, in a case
       captioned United States ex rel. Chandra v. Sheth, No. 06 CV 02191 (N.D. Ill.). The complaint
       alleged violations of the Federal Civil False Claims Act (31 U.S.C. § 3729 et seq. (2000)) and




             1
          As Justice Taylor is no longer sitting in the Appellate Court, Justice McBride replaces him as a
       member of the panel in the instant case.

                                                    -2-
     the Illinois Whistleblower Reward and Protection Act (740 ILCS 175/1-8 (West 2004)), and
     sought a civil judgment against Sushil in the amount of $30 million.2
¶5       Two years later, on January 28, 2009, Sushil was also criminally charged by information
     with healthcare fraud in federal court, in a case captioned United States v. Sheth, No. 09 CR
     069 (N.D. Ill.). The information charged that Sushil was a cardiologist who submitted claims
     to Medicare and other health benefit programs for services that he did not provide, to the extent
     of approximately $13.4 million, and sought forfeiture of Sushil’s real and personal property in
     addition to seeking a conviction. On August 19, 2009, Sushil entered a plea agreement in the
     criminal case, in which he agreed to enter a voluntary plea of guilty to the healthcare fraud, and
     further agreed to the entry of a forfeiture judgment. On August 10, 2010, the federal court
     sentenced Sushil to 60 months’ incarceration and entered a judgment for restitution in the
     amount of $13 million.3
¶6       On August 6, 2009, approximately six months after Sushil was criminally charged, Anita
     filed a petition for dissolution of marriage, citing irreconcilable differences. On October 22,
     2010, Sushil, through attorney Laurel Black Rector, filed an appearance in the dissolution of
     marriage action. Subsequently, the record contains a motion slip completed by Rector and a
     “motion call receipt,” which list a “motion to withdraw” as set for December 28, 2010.
     However, the record does not indicate that this motion was ever heard, and the sole court order
     entered on December 28, 2010, does not reference the motion to withdraw. Additionally,
     Rector continued to be involved with Sushil’s case, further indicating that the motion was
     never granted.
¶7       On October 4, 2012, the trial court entered a judgment for dissolution of the parties’
     marriage. One of the conclusions of law contained in the judgment concerned four custodial
     bank accounts established for the parties’ children:
                  “1.6. Upon the entry of this Judgment of Dissolution, all funds in the Custodial
              Accounts are owned by [the children], as follows: (a) owned by [S.S., the daughter]–a
              Roth individual retirement account at BMO Harris, with account ending 3290 for [S.S.]
              with the approximate amount of $8,147.41; (b) owned by [R.S., the son]–a Roth
              individual retirement account at BMO Harris, with account ending 3308 for [R.S.] with
              the approximate amount of $8,147.41; (c) owned by [S.S.]–an account at Wells Fargo
              Bank, with account ending 4080 for [S.S.] with the approximate amount of $34,581.70;
              and (d) owned by [R.S.]–an account at Wells Fargo Bank, with account ending 4098
              for [R.S.] with the approximate amount of $34,581.82. These funds shall be used for
              the payment of post high school educational expenses, and for no other purpose. These
              funds are free and clear of any right, title or interest of Sushil and Anita. A separate
              Order shall be entered by this Court directing BMO Harris and Wells Fargo Bank to
              tender the funds in the Custodial Accounts as provided in this paragraph 1.6 of this
              Order, and these financial institutions shall comply with the provisions of this
              paragraph 1.6.”

         2
           The complaint does not appear in the record on appeal. However, according to the trial court’s
     judgment for dissolution of marriage, a judgment was entered against Sushil in the amount of $20
     million on September 28, 2010.
         3
           Anita and the children later filed a petition asserting rights in a number of the assets that Sushil had
     forfeited, and their rights were settled by the trial court on June 22, 2011.

                                                       -3-
¶8         On November 5, 2012, Sushil filed a motion to reconsider the judgment for dissolution of
       marriage, in which he challenged an earlier court order granting Anita’s motion to quash
       certain subpoenas sent to a number of financial institutions prior to trial. Sushil’s motion did
       not challenge the trial court’s conclusion concerning the custodial accounts.
¶9         On December 5, 2012, Sushil filed a pro se “Motion to Remove Laurel Black Rector as
       Attorney for Respondent.” Sushil claimed that he did not receive a copy of the trial court’s
       judgment for dissolution of marriage from Rector until October 29, 2012, and that he had had
       no communication with Rector since approximately September 24, 2012, at which time Rector
       had informed Sushil that she would file a “Motion for Reconsideration” with the trial court.
       Therefore, he asked the court to “dismiss Laurel Black Rector as his counsel.”
¶ 10       On January 29, 2013, Sushil filed a pro se letter addressed to the “Circuit Clerk of Cook
       County,” in which Sushil claimed that he had contacted the clerk’s office via telephone after
       receiving no response to his mailed motion and had verified that his motion to remove Rector
       had not been entered into the circuit court’s computer system. Sushil attached another copy of
       the motion and asked for it to be immediately filed if it had in fact not been previously filed.
       There is nothing in the record to indicate that Sushil’s motion to remove Rector as his attorney
       was ever acted upon.
¶ 11       On May 6, 2013, Anita filed a “Motion for Entry of Order Regarding Custodial Funds”; the
       service list included both Rector and Sushil, who was sent the motion by first class certified
       mail, return receipt requested. In the motion, Anita stated:
                    “Through this Motion, and pursuant to the Judgment, Petitioner is requesting the
               turnover of the funds in the Custodial Accounts from Respondent to Sandip
               Chandarana, Esq., who will act as the custodian of the funds in the Custodial Accounts
               for [R.S.] and [S.S.] Mr. Chandarana is Petitioner’s brother and an attorney. Sandip
               Chandarana will hold the funds in a newly-created custodial account, and he will
               maintain and disburse the funds in the newly-created custodial account on behalf of
               [the children].”
¶ 12       On May 13, 2013, 4 Sushil mailed a pro se response to Anita’s motion, asking for a
       continuance in light of his pending motion to remove his attorney. Sushil also expressed
       “concerns” about Anita’s motion, noting that the appointment of Anita’s brother as custodian
       should be “carefully evaluated,” because he was not a practicing attorney and had no
       experience serving in a fiduciary capacity to others, nor was there a statement in the motion
       that the brother had the time or inclination to accept the appointment as custodian.
       Additionally, Sushil noted that there was no accounting mechanism described in the motion to
       reflect the purposes for which the funds should be expended. As an alternative to Anita’s
       brother being named as custodian, Sushil suggested that the trust departments of BMO Harris
       and Wells Fargo be named as trustee of the accounts. Finally, Sushil argued that Anita’s
       motion “does not serve any purpose,” since “[t]he custodial bank accounts described in
       Petitioner’s Motion are already in the Children’s names. No one else has any ownership in
       these accounts. Initially, Respondent set up these accounts in his children’s names for the sole
       and exclusive benefit of his children. Respondent has no ability to access the funds in these

           4
            Sushil’s response was file-stamped on May 20, 2013, but it was mailed and faxed to the court and
       Anita’s counsel on May 13, 2013, and, according to Anita’s counsel, was brought to the court’s
       attention prior to its ruling on Anita’s motion.

                                                     -4-
       accounts for himself since he does not have any ownership in these accounts. *** Specifically,
       the question is how are the children benefited by any modification in these accounts which are
       already under their ownership[?]”
¶ 13        On May 15, 2013, with “due and proper notice having been given to all parties in interest,”
       the trial court granted Anita’s motion and ordered: “BMO Harris, N.A., Wells Fargo Bank and
       Sushil Sheth shall immediately transfer to Sandip Chandarana all right, title and interest that
       they have” in the custodial accounts. The court further ordered that Chandarana was authorized
       to maintain and disburse funds contained in the newly created custodial accounts to fund the
       children’s educational expenses.
¶ 14        On June 4, 2013,5 Sushil mailed a motion for reconsideration of the order granting Anita’s
       motion for entry of an order regarding the custodial funds. The motion claimed that Anita’s
       motion regarding the custodial funds had been sent to Sushil at the federal correctional center
       through first class mail, and not through the federal prison’s legal mail procedures, which
       delayed receipt of the motion until May 9, 2013. Upon receipt of the motion, Sushil prepared a
       response and sought a continuance, as he had been “abandoned” by Rector, his attorney, and a
       motion to remove her was pending before the trial court. On May 13, 2013, the earliest day that
       Sushil could send outgoing mail after receiving the motion, Sushil mailed his response to the
       clerk’s office and to Anita’s counsel. Additionally, since there would not be enough time for
       the response to arrive through mail in time for the May 15 hearing, Sushil faxed copies of the
       response to the clerk’s office and to Anita’s counsel; a note attached to the copy sent to Anita’s
       counsel stated that “you cannot present argument before [the court] without addressing my
       [enclosed] Response. I recommend, as an Office of the Court, you obtain a Continuance
       tomorrow, as I am entitled Due Process of Law.” Sushil confirmed with the clerk’s office that
       the fax had been received and had been brought to the attention of the trial court.
¶ 15        On June 14, 2013, Anita filed a response to Sushil’s motion to reconsider. In her response,
       Anita argued that Sushil had “no right to object to the concept or substance” of Anita’s motion
       concerning the custodial accounts, since Sushil admitted that he did not own the funds and that
       they were solely owned by the children; Anita also noted that turnover of the funds in the
       custodial accounts had been ordered in the judgment for dissolution of marriage and claimed
       that the separate order was only the procedural step to effectuate this mandated turnover. Anita
       further stated that prior to the hearing on her motion, Anita’s counsel informed the court that
       Sushil had filed a response and showed a copy of Sushil’s response to the court.
¶ 16        On June 20, 2013, the date set for hearing on Sushil’s motion to reconsider,6 the motion
       was entered and continued to June 28, 2013. On June 28, the trial court denied Sushil’s motion,
       finding that paragraph 1.6 of the judgment for dissolution of marriage stated “that the type of
       order entered on May 15, 2013[,] shall be entered” (emphasis in original), and that the May 15,
       2013, order “was a mandatory execution” of the judgment for dissolution of marriage.
¶ 17        Sushil filed a pro se notice of appeal, challenging the trial court’s order concerning the
       custodial accounts and its denial of his motion to reconsider. The notice of appeal is
       file-stamped with a date of August 13, 2013. However, the notice of appeal contains a
       “Certificate of Service” signed by Sushil and dated July 22, 2013, which states that Sushil

          5
           The motion was file-stamped June 12, 2013.
          6
           Although the motion for reconsideration was Sushil’s motion, the record indicated that Anita’s
       counsel set the matter for hearing on June 20, 2013.

                                                   -5-
       certified that on July 22, 2013, he placed the notice of appeal in the federal correctional
       center’s legal mailbox, with United States “First Class Certified Mail, Return Receipt
       Requested” postage affixed, addressed to the office of the circuit clerk of Cook County. The
       “Certificate of Service,” which is also file-stamped with a date of August 13, 2013, is signed
       by Sushil but is not notarized. Immediately following the notice of appeal and “Certificate of
       Service,” the record contains a document that appears to be a printout from the United States
       Postal Service website of the tracking information for the certified mail number listed on the
       “Certificate of Service.” This printout states that the item was “Processed through USPS Sort
       Facility” in Indianapolis on July 24, 2013, and was “Delivered” in Chicago on July 29, 2013.

¶ 18                                               ANALYSIS
¶ 19        On appeal, Sushil claims that he was denied due process because he was not afforded an
       opportunity to timely respond to Anita’s motion to change the custodian of the children’s bank
       accounts, nor was he afforded an opportunity to argue his position before the trial court denied
       his motion to reconsider. By contrast, Anita claims that Sushil has no standing to bring the
       instant appeal and that his appeal is barred by res judicata. Before we consider either party’s
       arguments, we must first determine whether we have jurisdiction to decide the instant case.
¶ 20        “A reviewing court must ascertain its jurisdiction before proceeding in a cause of action,
       regardless of whether either party has raised the issue.” Secura Insurance Co. v. Illinois
       Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009). In the case at bar, although neither party
       discusses it, we must determine whether Sushil’s notice of appeal was timely filed.
¶ 21        “The timely filing of a notice of appeal is both jurisdictional and mandatory.” Secura, 232
       Ill. 2d at 213. In the case at bar, the trial court denied Sushil’s motion to reconsider on June 28,
       2013. Thus, under Supreme Court Rule 303(a)(1), Sushil’s notice of appeal was required to be
       filed by Monday, July 29, 2013. See Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008) (notice of
       appeal must be filed within 30 days after the entry of the order disposing of the last pending
       postjudgment motion directed against the judgment or order); 5 ILCS 70/1.11 (West 2012) (if
       the last day of a time period within which an act is to be done falls on a Saturday or Sunday, the
       Saturday or Sunday is not included in the computation). Sushil’s notice of appeal was
       file-stamped with a date of August 13, 2013, more than 30 days after the denial of Sushil’s
       motion to reconsider.
¶ 22        However, in the case at bar, Sushil mailed his notice of appeal. Supreme Court Rule 373
       provides that, when filing by mail, “[i]f received after the due date, the time of mailing ***
       shall be deemed the time of filing.” Ill. S. Ct. R. 373 (eff. Dec. 29, 2009). Here, the “Certificate
       of Service” attached to Sushil’s notice of appeal states that the notice of appeal was placed in
       the legal mail system at the federal correctional center on July 22, 2013, within the 30-day
       period. Thus, Sushil must rely on the mailing rule in Rule 373 in order for his notice of appeal
       to be considered timely filed.
¶ 23        “[W]hile Rule 373 relaxes the requirement of timely filing where a party takes advantage
       of the convenience of mailing a document, a party can only take advantage of Rule 373 if it
       files proper proof of mailing as required by Rule 12(b)(3)” (Secura, 232 Ill. 2d at 216), and,
       indeed, Rule 373 expressly instructs that “[p]roof of mailing or delivery to a third-party
       commercial carrier shall be as provided in Rule 12(b)(3)” (Ill. S. Ct. R. 373 (eff. Dec. 29,
       2009)). Rule 12(b)(3), in turn, provides in relevant part:


                                                    -6-
                    “(b) Manner of Proof. Service is provided:
                                                      ***
                        (3) in case of service by mail or by delivery to a third-party commercial carrier,
                    by certificate of the attorney, or affidavit of a person other than the attorney, who
                    deposited the document in the mail or delivered the document to a third-party
                    commercial carrier, stating the time and place of mailing or delivery, the complete
                    address which appeared on the envelope or package, and the fact that proper
                    postage or the delivery charge was prepaid[.]” Ill. S. Ct. R. 12(b)(3) (eff. Jan. 4,
                    2013).
¶ 24        In the case at bar, as noted, the notice of appeal contains a “Certificate of Service” signed
       by Sushil and dated July 22, 2013, which states that Sushil certified that on July 22, 2013, he
       placed the notice of appeal in the federal correctional center’s legal mailbox, with United
       States “First Class Certified Mail, Return Receipt Requested” postage affixed, addressed to the
       office of the circuit clerk of Cook County. The “Certificate of Service,” which is also
       file-stamped with a date of August 13, 2013, is signed by Sushil but is not notarized.
       Unfortunately for Sushil, we must find that the lack of notarization deprives the appellate court
       of jurisdiction.
¶ 25        Our supreme court considered the requirements of Rules 373 and 12(b)(3) in Secura, a case
       in which it determined that the plaintiff’s notice of appeal was untimely due to failure to
       comply with the proof-of-mailing requirements of Rule 12(b)(3). There, the plaintiff mailed its
       notice of appeal to the trial court, which received the notice of appeal more than 30 days after
       the denial of the plaintiff’s motion to reconsider. Secura, 232 Ill. 2d at 212. The appellate court
       initially granted the defendant’s motion to dismiss for lack of jurisdiction, but later permitted
       the plaintiff to supplement the record with a cover letter dated within the 30-day period.
       Secura, 232 Ill. 2d at 212. However, no affidavit or certificate of service was filed. Secura, 232
       Ill. 2d at 212.
¶ 26        Our supreme court determined that the cover letter submitted by the plaintiff was
       insufficient to prove mailing under Rule 12(b)(3). The court found that “[t]he cover letter does
       not provide ‘proof of mailing’ such that it is competent evidence under the rule. The letter does
       not contain an affidavit or a certificate and nothing is certified or sworn to.” (Emphases in
       original.) Secura, 232 Ill. 2d at 216. The supreme court rejected the plaintiff’s argument that
       the only element required by Rule 12(b)(3) that was missing was the time of the mailing,
       stating that “[t]his is not true, as Rule 12(b)(3) also requires a certificate or affidavit of mailing
       to the clerk.” Secura, 232 Ill. 2d at 217.
¶ 27        The supreme court “emphasize[d] that the timely filing of an appeal is both jurisdictional
       and mandatory and the court must determine its own jurisdiction even if no party objects.”
       Secura, 232 Ill. 2d at 217. It further rejected the reasoning applied by the appellate court in
       finding jurisdiction, stating that “[t]he issue in this case is not, as the appellate court believed,
       merely about a slight defect in the form of the notice. This is not a case where a certificate or an
       affidavit was submitted which had a typographical error, misspelling, or other inadvertent
       mistake. Rather, this case concerns [the plaintiff’s] failure to prove by certificate or affidavit
       that it complied with the jurisdictional 30-day notice requirement in Rule 303.” (Emphasis in
       original.) Secura, 232 Ill. 2d at 217. Finally, the court noted that “[h]armless-error analysis is
       not applicable here,” since “[t]he appellate court’s ruling may be well intentioned, but the


                                                     -7-
       appellate court does not have the authority to excuse the filing requirements of the supreme
       court rules governing appeals.” Secura, 232 Ill. 2d at 217-18.
¶ 28       In the case at bar, as in Secura, there was no certificate by an attorney or affidavit by a
       nonattorney as required by Rule 12(b)(3). While Sushil submitted a “Certificate of Service,”
       that document was not notarized, meaning that it cannot be considered an affidavit. Our
       supreme court has stated that “Illinois courts have defined the term [‘affidavit’] in consistent
       fashion for over 100 years,” and that “an affidavit must be sworn to, and statements in a writing
       not sworn to before an authorized person cannot be considered affidavits.” Roth v. Illinois
       Farmers Insurance Co., 202 Ill. 2d 490, 493-94 (2002). Here, since Sushil’s “Certificate of
       Service” was not sworn to before an authorized person, it cannot be considered an affidavit
       and, therefore, Sushil has not complied with Rule 12(b)(3)’s requirement that proof of mailing
       be in the form of a certificate by an attorney or an affidavit of a nonattorney.
¶ 29       We note that this exact issue was before this court in People v. Tlatenchi, 391 Ill. App. 3d
       705 (2009), where we determined that a lack of notarization on a proof of service submitted by
       a nonattorney results in a failure to comply with Rule 12(b)(3) and deprives the appellate court
       of jurisdiction. There, we were presented with an incarcerated litigant who submitted a “proof
       of service” that followed the requirements of Rule 12(b)(3) but was not notarized. We noted
       that “Rule 12(b)(3) states that service by mail is proved by an ‘affidavit of a person other than
       the attorney, who deposited the paper in the mail, stating the time and place of mailing, the
       complete address which appeared on the envelope, and the fact that proper postage was
       prepaid.’ ” (Emphasis in original.) Tlatenchi, 391 Ill. App. 3d at 714 (quoting Ill. S. Ct. R.
       12(b)(3) (eff. Nov. 15, 1992)). We further noted that “[o]ur supreme court has explained that
       an affidavit has been consistently defined for over 100 years as simply ‘ “a declaration, on
       oath, in writing, sworn to by a party before some person who has authority under the law to
       administer oaths” ’ ” (Tlatenchi, 391 Ill. App. 3d at 714 (quoting Roth v. Illinois Farmers
       Insurance Co., 202 Ill. 2d 490, 493 (2002), quoting Harris v. Lester, 80 Ill. 307, 311 (1875))),
       and, “[t]hus, a writing that has not been sworn to before an authorized person does not
       constitute an affidavit” (Tlatenchi, 391 Ill. App. 3d at 714 (citing Roth, 202 Ill. 2d at 494)).
       Therefore, since the proof of service did not constitute an “affidavit” as required by Rule
       12(b)(3), we found that the defendant could not use the date of mailing as the date of filing.
       Tlatenchi, 391 Ill. App. 3d at 716. We note that a petition for leave to appeal was filed with the
       supreme court in Tlatenchi and was denied. People v. Tlatenchi, 234 Ill. 2d 547 (2009) (table).
¶ 30       Given our supreme court’s instruction in Secura and our earlier decision in Tlatenchi, we
       must find that while Sushil’s “Certificate of Service” otherwise tracks the language of
       Rule 12(b)(3), it is not notarized and therefore does not constitute an “affidavit” as required by
       Rule 12(b)(3). While here, the record contains a document purporting to show the tracking
       information of the item that was mailed, we cannot read exceptions into the rule’s clear
       requirement of an affidavit.7 See People v. Blalock, 2012 IL App (4th) 110041, ¶ 11 (finding a


           7
             Although it does not apply to Sushil in the instant case, we note that our supreme court has recently
       amended Rule 12. Rule 12(b)(4) provides service is proved “in case of service by mail by a pro se
       petitioner from a correctional institution, by affidavit, or by certification as provided in section 1-109 of
       the Code of Civil Procedure (735 ILCS 5/1-109 (West 2012)) of the person who deposited the
       document in the institutional mail, stating the time and place of deposit and the complete address to
       which the document was to be delivered.” Ill. S. Ct. R. 12(b)(4) (eff. Sept. 19, 2014). Furthermore, we

                                                        -8-
       postmark and notarized statement that the attached motion was true and correct insufficient to
       comply with the affidavit requirement); Tlatenchi, 391 Ill. App. 3d at 716 (finding that a
       verification under section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West
       2006)) was not a substitute for the requirement of an affidavit); People v. Lugo, 391 Ill. App.
       3d 995, 1004 (2009) (finding a postmark an insufficient substitute for the affidavit
       requirement). But see People v. Hansen, 2011 IL App (2d) 081226, ¶ 14 (finding a postmark to
       be a sufficient proof of mailing). We also cannot find that the lack of notarization was
       harmless, as our supreme court has instructed that “[h]armless-error analysis is not applicable
       here,” since “the appellate court does not have the authority to excuse the filing requirements
       of the supreme court rules governing appeals.” Secura, 232 Ill. 2d at 217-18. Accordingly, we
       must find that Sushil’s failure to comply with the proof of mailing requirements of
       Rule 12(b)(3) means that he cannot take advantage of Rule 373’s mailing rule. Therefore, the
       date that the notice of appeal was received by the clerk’s office serves as the date of filing
       which, in this case was August 13, 2013. As this date is more than 30 days after the June 28,
       2013, denial of Sushil’s motion to reconsider, Sushil’s notice of appeal was untimely and we
       lack jurisdiction to consider his appeal.
¶ 31       Moreover, we also note that even if we had jurisdiction over his appeal, Sushil would not
       prevail, as we find his arguments meritless. Sushil’s response to Anita’s motion concerning the
       custodial accounts was presented to the trial court before it ruled on the order and, therefore,
       the trial court had the opportunity to consider the arguments made in the response. Further,
       there is nothing in the record to indicate that Anita’s attorney in any way “manipulated the
       system” concerning the date of the hearing on the motion to reconsider, and, according to his
       brief, Sushil was present via telephone during the hearing. While Sushil argues that he was
       prevented from presenting his “key argument” during the hearing on the motion to reconsider,
       that “key argument” was merely that the court had made its decision to grant Anita’s motion
       concerning the custodial accounts without having an opportunity to review Sushil’s response,
       an argument that is belied by the record and Anita’s counsel’s representations before this court.
       Finally, while Sushil argues that he should have been granted continuances in light of his
       search for an attorney, a trial court’s decision on a requested continuance is reviewed for an
       abuse of discretion (Henderson-Smith & Associates, Inc. v. Nahamani Family Service Center,
       Inc., 323 Ill. App. 3d 15, 28 (2001)), and the record does not contain anything to indicate that
       the trial court here abused its discretion in ruling on Anita’s motion and Sushil’s motion to
       reconsider on the scheduled hearing dates.

¶ 32                                        CONCLUSION
¶ 33      Since Sushil’s notice of appeal was filed more than 30 days after the denial of Sushil’s
       motion to reconsider, we lack jurisdiction to consider Sushil’s appeal.

¶ 34       Dismissed for lack of jurisdiction.




       note that even if the amended rule did apply to Sushil’s case, his “Certificate of Service” does not
       comply with section 1-109, so the result would remain the same.

                                                    -9-
