                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                 Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 091064




Appellate Court            PATRICIA DUS, as Special Administrator of the Estate of Edward C.
Caption                    Dus, Deceased, Plaintiff-Appellant and Cross-Appellee, v. PROVENA
                           ST. MARY’S HOSPITAL, Defendant-Appellee and Cross-Appellant.



District & No.             Third District
                           Docket No. 3-09-1064


Filed                      April 23, 2012


Held                       Plaintiff’s appeal from the entry of a judgment with a damage award
(Note: This syllabus       reduced by 50% due to contributory negligence was dismissed on the
constitutes no part of     ground that plaintiff’s notice of appeal was filed more than 30 days after
the opinion of the court   the trial court’s denial of plaintiff’s motion for judgment n.o.v., since
but has been prepared      Supreme Court Rule 303 provides that a notice of appeal must be filed
by the Reporter of         within 30 days after the entry of the order disposing of the last pending
Decisions for the          postjudgment motion directed against that judgment or order and
convenience of the         plaintiff’s motion to reconsider the initial motion did not toll the 30-day
reader.)
                           period for filing a notice of appeal.


Decision Under             Appeal from the Circuit Court of Kankakee County, No. 02-L-33; the
Review                     Hon. Kendall O. Wenzelman, Judge, presiding.



Judgment                   Appeal dismissed.
Counsel on                  Daron A. Romanek, of Romanek & Romanek, of Chicago, and Neil D.
Appeal                      O’Connor (argued), of O’Connor & O’Connor, of River Forest, for
                            appellant.

                            Nancy G. Lischer (argued) and William Cassian, both of Hinshaw &
                            Culbertson, of Chicago, and Daniel Softcheck, of Hinshaw & Culbertson,
                            of Joliet, for appellee.


Panel                       JUSTICE HOLDRIDGE delivered the judgment of the court, with
                            opinion.
                            Presiding Justice Schmidt and Justice Carter concurred in the judgment
                            and opinion.




                                              OPINION

¶1          Plaintiff’s decedent, Edward C. Dus (Dus), an ambulance driver, sued defendant, Provena
        St. Mary’s Hospital (Provena), for knee injuries he claimed to have sustained while he was
        assisting in transporting a patient into Provena’s emergency room. Dus sued Provena on a
        theory of negligence, alleging that he was injured when a Provena employee negligently
        pushed a large laundry cart into him and knocked him down. The jury found Provena
        negligent and awarded Dus $300,000 in damages. However, the jury found that Dus was
        contributorily negligent by 50% and therefore reduced the damage award to $150,000.
¶2          Dus filed a posttrial motion for judgment notwithstanding the verdict (judgment n.o.v.)
        on the issue of contributory negligence. The trial court denied Dus’s motion because Dus’s
        counsel failed to appear to present the motion. Dus later filed a motion asking the trial court
        to reconsider its ruling, and the trial court granted Dus leave to refile his initial judgment
        n.o.v. motion. More than three months later, the trial court denied Dus’s judgment n.o.v.
        motion on the merits. This appeal followed.

¶3                                          BACKGROUND
¶4          The trial court entered judgment on the jury’s verdict on August 28, 2009. On September
        15, 2009, Dus timely filed a posttrial motion arguing that Dus was entitled to judgment
        notwithstanding the verdict on the issue of contributory negligence. In his motion, Dus
        argued that the trial court erred by instructing the jury on the issue of contributory negligence
        because the parties had presented no evidence suggesting that Dus was contributorily
        negligent. Dus also argued that the jury’s finding that he was contributorily negligent was
        speculative and not supported by the evidence.


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¶5       Dus’s motion was set for hearing on September 22, 2009. Although Provena’s counsel
     appeared on that date, Dus’s counsel did not appear. The trial court asked Provena’s counsel
     whether Dus’s counsel would be coming to court that day to present the motion. Provena’s
     counsel responded: “I don’t think they are coming, but I told them I would ask for time to
     probably respond *** and *** set a hearing date.” The trial court then denied Dus’s motion
     sua sponte because Dus’s counsel had failed to appear. The court stated that Dus’s attorneys
     were “SOL” because they filed a motion, noticed it up, and then failed to show up “without
     any explanation whatsoever.” Provena’s counsel informed the court that Dus’s counsel had
     a “doctor’s dep” and reiterated that he had told Dus’s counsel that he would “ask [for] time
     to respond.” The court repeated that Dus’s motion was “denied at this point in time”1 and
     ordered that a copy of the docket be sent to Dus’s counsel reflecting that the motion had been
     denied “due to nonappearance of movant.” The relevant docket entry states:
         “Case called for hearing on Post-Trial Motion. No one appears for plaintiff. Attorney
         Softcheck appears for defendant. By action of the Court motion is denied due to non-
         appearance of the movant.”
¶6       Two days later, Dus filed a “Motion for Reconsideration of Plaintiff’s Previously filed
     Post-Trial Motion,” in which Dus asked the court to “reconsider the ruling it issued” on
     September 22, 2009. Provena argued that the trial court lacked jurisdiction to rule on Dus’s
     motion to reconsider because it was a successive postjudgment motion. Although the trial
     court reiterated its policy that movants must appear on their own motions, it granted Dus
     “leave to file [his] previously filed post-trial motion” over Provena’s objection. In so ruling,
     the court noted that “the court’s ruling on September 22, 2009 on plaintiff’s motion to
     present the previously filed post-trial motion was not a ruling on the merits of the motion.”
¶7       On December 3, 2009, the trial court denied Dus’s posttrial motion on the merits. Dus
     filed his notice of appeal in this matter on December 30, 2009.

¶8                                          ANALYSIS
¶9       Before we address the merits of Dus’s appeal, we must first determine whether we have
     jurisdiction. Provena filed a motion to dismiss the appeal under Illinois Supreme Court Rule
     303(a)(2) (eff. May 30, 2008), arguing that this court lacks jurisdiction over Dus’s appeal
     because Dus filed his notice of appeal more than 30 days after his posttrial motion was
     denied by the trial court. We initially denied Provena’s motion. However, Provena has asked
     us to reconsider our ruling in its brief on appeal, and we have “[a] duty to consider [our]
     jurisdiction before proceeding to the merits of the case.” Almgren v. Rush-Presbyterian-St.
     Luke’s Medical Center, 162 Ill. 2d 205, 210 (1994); see also Ferguson v. Riverside Medical
     Center, 111 Ill. 2d 436, 440 (1985). This duty includes the obligation to reconsider the basis
     of our jurisdiction if our earlier ruling finding jurisdiction appears to be erroneous. Fair
     Automotive Repair, Inc. v. Car-X Service Systems, Inc., 128 Ill. App. 3d 763, 773 (1984).
     Accordingly, before turning to the merits, we must determine whether Dus’s notice of appeal
     was timely filed.

            1
                However, the court stated that Dus could “file a motion to reinstate it.”

                                                   -3-
¶ 10        The timely filing of a notice of appeal is both mandatory and jurisdictional. Archer
       Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984); Clark v. Han, 272 Ill. App. 3d
       981, 984 (1995). Accordingly, our supreme court commands strict compliance with its rules
       governing the time limits for filing a notice of appeal, and neither a circuit court nor an
       appellate court has the authority to excuse compliance with the filing requirements mandated
       by the supreme court’s rules. Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150 (1994); Clark,
       272 Ill. App. 3d at 984; see also People v. Lyles, 217 Ill. 2d 210, 216-17 (2005) (ruling that
       an appellate court’s jurisdiction turns on litigants’ compliance with the supreme court’s rules
       prescribing the time limits for filing appeals, and an appellate court has no authority to
       excuse compliance with those rules). When an appeal is untimely under a supreme court rule,
       the appellate court has “no discretion to take any action other than dismissing the appeal.”
       Id. at 217; see also Berg v. Allied Security, Inc., 193 Ill. 2d 186, 189 (2000) (ruling that only
       a timely notice of appeal confers jurisdiction on an appellate court).
¶ 11        Supreme Court Rule 303 mandates that a notice of appeal must be filed within 30 days
       of a final order, unless a “timely posttrial motion directed against the judgment is filed.” Ill.
       S. Ct. R. 303(a)(1) (eff. May 30, 2008). In that event, the notice of appeal is due “within 30
       days after the entry of the order disposing of the last pending postjudgment motion directed
       against that judgment or order.” Id. A motion to reconsider the trial court’s ruling on a
       postjudgment motion does not extend the time to appeal. See Ill. S. Ct. R. 303(a)(2) (eff.
       May 30, 2008) (“No request for reconsideration of a ruling on a postjudgment motion will
       toll the running of the time within which a notice of appeal must be filed under this rule.”).
¶ 12        In this case, the trial court denied Dus’s posttrial judgment n.o.v. motion on September
       22, 2009. Dus had 30 days from that date (i.e., until October 22, 2009) to file a notice of
       appeal. Dus did not file his notice of appeal until December 30, 2009, more than 2 months
       after the 30-day deadline prescribed by Rule 303 had expired. Although Dus filed a motion
       to reconsider the trial court’s initial denial of its posttrial motion, the filing of that motion
       did not “toll the running of the time within which” Dus was required to file its notice of
       appeal. Ill. S. Ct. R. 303(a)(2) (eff. May 30, 2008). Accordingly, regardless of how or when
       the trial court ruled on Dus’s motion to reconsider, if Dus wished to appeal the trial court’s
       judgment, he was required to file a notice of appeal within 30 days of the trial court’s initial
       ruling on his judgment n.o.v. motion. Id.
¶ 13        Dus raises three arguments in support of his claim that this appeal is timely. We address
       each of Dus’s arguments in turn.
¶ 14        First, Dus argues that the September 22 ruling was not a ruling on the merits of his
       posttrial motion but, rather, was “tantamount to ‘striking’ the motion from the calendar for
       failure of the movant to appear.” Citing Workman v. St. Therese Medical Center, 266 Ill.
       App. 3d 286 (1994), Dus maintains that a trial court has jurisdiction to reconsider and vacate
       an order striking a posttrial motion and to reinstate the motion within 30 days of the entry of
       the order striking the motion. This argument fails. As an initial matter, Workman is
       distinguishable. In Workman, the trial court struck the plaintiff’s posttrial motion from the
       call because the plaintiff’s counsel failed to appear but later granted the plaintiff’s motion
       to vacate the order striking the motion, reinstated the motion, and denied it on the merits. Id.
       at 289. Our appellate court held that the plaintiff’s notice of appeal, which was filed within

                                                 -4-
       30 days of the trial court’s final denial of the plaintiff’s posttrial motion on the merits, was
       timely. Id. at 291-92. Here, by contrast, the trial court did not strike Dus’s motion from the
       call on September 22. Rather, it expressly denied the motion. Both the trial court and Dus
       treated the trial court’s September 22 ruling as a denial of Dus’s posttrial motion. The court
       stated from the bench that the motion was “denied” “due to non-appearance of movant,” and
       the court’s written docket entry confirmed that the motion had been “denied.” Moreover, two
       days after the court denied Dus’s judgment n.o.v. motion, Dus filed a “Motion for
       Reconsideration of Plaintiff’s Previously filed Post-Trial Motion,” which asked the court to
       “reconsider the ruling” the trial court had issued regarding his posttrial motion on September
       22. By filing this motion, Dus acknowledged that the court had denied his motion on
       September 22. If Dus believed that the trial court had merely stricken his motion from the
       call, he would have filed a motion to reinstate the motion rather than a motion to reconsider
       (as did the plaintiff in Workman). As noted above, a motion to reconsider a trial court’s
       denial of a posttrial motion does not extend the deadline for filing an appeal under Rule
       303(a)(2). Further, contrary to Dus’s suggestion, the relevant question is not whether the trial
       court had jurisdiction to reconsider its order denying Dus’s judgment n.o.v. motion; rather,
       the question is whether Dus’s notice of appeal was timely filed. As noted above, Rule
       303(a)(2) makes it clear that the jurisdictional 30-day deadline for filing a notice of appeal
       ran from the date that the trial court denied Dus’s judgment n.o.v. motion and that Dus’s
       subsequently filed motion to reconsider that denial did not extend that deadline.2
¶ 15       Second, Dus notes that Provena filed a posttrial motion on September 28, 2009, which
       the court did not rule on until December 3. Dus argues that its notice of appeal was timely
       because it was filed within 30 days of the trial court’s ruling on Provena’s posttrial motion.
       We disagree. Rule 303(a)(1) provides that the notice of appeal is due “within 30 days after
       the entry of the order disposing of the last pending postjudgment motion directed against
       that judgment or order.” (Emphasis added.) Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008). Here,
       Provena’s posttrial motion was not directed against the trial court’s judgment. It did not
       challenge the trial court’s ruling on contributory negligence, the jury’s verdict, or the trial
       court’s judgment on the verdict. To the contrary, Provena’s motion made clear that Provena
       believed that the jury’s verdict was proper, and it merely argued that if the court was inclined
       to rule in Dus’s favor, the remedy should be a new trial on all issues, not judgment
       notwithstanding the verdict. Because this conditional posttrial motion was not “directed at
       the judgment,” Provena’s filing of the motion did not toll the 30-day deadline for filing the


               2
                 We acknowledge that, as a general matter, a “trial court retains jurisdiction to reconsider
       judgments and orders within 30 days of their entry.” Workman, 266 Ill. App. 3d at 291-92; see also
       People v. Heil, 71 Ill. 2d 458, 461 (1978); Weilmuenster v. H.H. Hall Construction Co., 72 Ill. App.
       3d 101, 105 (1979). However, this does not change the fact that a motion to reconsider a ruling on
       a postjudgment motion does not toll the time for filing a notice of appeal. See Department of
       Transportation v. Roodhouse, 104 Ill. App. 3d 880, 882 (1982) (ruling that, although the trial court
       “had the inherent power to vacate its final judgment within 30 days of entry,” it could not extend the
       deadline for filing an appeal by granting the defendants’ motion to reconsider the denial of their
       posttrial motion).

                                                    -5-
       notice of appeal. Ill. S. Ct. R. 303(a)(1), (2) (eff. May 30, 2008); Marsh v. Evangelical
       Covenant Church of Hinsdale, 138 Ill. 2d 458, 462 (1990) (a “postjudgment motion” within
       the meaning of Rule 303(a)(1) must be “ ‘directed against the judgment’ ” (quoting 107 Ill.
       2d R. 303(a))); Heiden v. DNA Diagnostics Center, Inc., 396 Ill. App. 3d 135, 138 (2009)
       (“A postjudgment motion extends the time for filing a notice of appeal under Rule 303(a)(1)
       only when it seeks rehearing, retrial, modification or vacation of the judgment, or other
       similar relief.”).
¶ 16       Third, Dus argues that, because he refiled his judgment n.o.v. motion within 30 days of
       the trial court’s judgment, the motion was “timely” under Rule 303, and his notice of appeal
       was not due until 30 days after the trial court entered an order disposing of the motion. Ill.
       S. Ct. R. 303(a)(1) (eff. May 30, 2008). We disagree. Dus filed a timely posttrial motion
       directed against the judgment on September 15. That motion was denied on September 22.
       At that moment, the 30-day time period for filing a notice of appeal began to run. A motion
       to reconsider the denial of Dus’s timely posttrial motion would not toll or extend the time
       for filing an appeal, regardless of when such a motion was filed. Ill. S. Ct. R. 303(a)(2) (eff.
       May 30, 2008); see generally Benet Realty Corp. v. Lisle Savings & Loan Ass’n, 175 Ill. App.
       3d 227, 231-32 (1988) (holding that the filing of a second postjudgment motion which
       merely repeats arguments made in the first motion is not a “timely” posttrial motion under
       Rule 303 and “cannot serve to extend the time for filing a notice of appeal,” even if the
       second motion is filed within 30 days of the final judgment).
¶ 17       One of the purposes of Rule 303 is to promote the finality of trial court judgments. See
       Sears v. Sears, 85 Ill. 2d 253, 259 (1981) (noting that “[t]here is no provision in the Civil
       Practice Act or the supreme court rules which permits a losing litigant to return to the trial
       court indefinitely, hoping for a change of heart,” and ruling that “[t]here must be finality, a
       time when the case in the trial court is really over and the loser must appeal or give up”).
       “Successive post-judgment motions interfere with that policy.” Id.3 Allowing Dus’s motion
       to reconsider the denial of his posttrial motion to toll the time period for filing a notice of
       appeal would have the same effect. Moreover, as noted above, it would contravene the plain
       terms of Rule 303(a)(2).

¶ 18                                     CONCLUSION
¶ 19       For the foregoing reasons, we hold that Dus failed to file a timely notice of appeal. We
       therefore dismiss the appeal for lack of jurisdiction.

¶ 20       Appeal dismissed.




               3
                Accordingly, such motions are now prohibited under our supreme court’s rules. See Ill. S.
       Ct. R. 274 (eff. Jan. 1, 2006) (“A party may make only one postjudgment motion directed at a
       judgment order that is otherwise final.”).

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