2023 IL App (2d) 230088
Ill. App. Ct.2023Background:
- Plaintiff Kelly Kilpatrick alleged a slip-and-fall on September 13, 2020; the two-year statute of limitations expired September 13, 2022.
- Kilpatrick attempted to e-file her complaint via Odyssey on September 13, 2022 at 1:06 p.m.; Odyssey generated a rejection notice the next day citing a "Format Error" because counsel entered the law firm attorney number instead of his ARDC registration number.
- Counsel corrected the envelope and resubmitted; the complaint was accepted and file-stamped on September 15, 2022.
- Defendant Baxter moved to dismiss under 735 ILCS 5/2-619(a)(5) as time-barred; plaintiff sought nunc pro tunc relief under Ill. S. Ct. R. 9(d)(2), arguing good cause because the initial submission showed a timely attempt and the error was ministerial.
- The trial court denied Rule 9(d)(2) relief, citing O’Gara and Leff, and granted dismissal; plaintiff appealed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kilpatrick showed "good cause" under Ill. S. Ct. R. 9(d)(2) to treat the complaint as filed on Sept. 13, 2022 (nunc pro tunc) | Kilpatrick: she timely attempted to e-file on the last day; rejection was a minute scrivener/e-filing-envelope error (wrong attorney number) and therefore excusable; Rule 9(d)(2) permits correction on good cause. | Baxter: the filing was not accepted before the deadline; e-filing has been required for years; the error was an avoidable attorney mistake and not a clerical defect; last-day attempts weigh against relief. | The appellate court affirmed. No abuse of discretion in denying Rule 9(d)(2) relief; plaintiff failed to show good cause and the complaint remained untimely. |
Key Cases Cited
- Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334 (2007) (abuse-of-discretion standard for discretionary determinations)
- Simmons v. Garces, 198 Ill. 2d 541 (2002) (limits on appellate substitution of judgment for trial court)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (1984) (appellant's burden to present a sufficiently complete record)
- Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314 (2003) (scope of the record on appeal)
- John Crane Inc. v. Admiral Ins. Co., 391 Ill. App. 3d 693 (2009) (when briefs may be pared for improper record references)
- Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1 (2009) (attachments not in certified record are not considered)
- Reddick v. Murray, 266 Ill. App. 3d 333 (1994) (references to evidence outside the record should be stricken)
- Kelly v. Mazzie, 207 Ill. App. 3d 251 (1990) (no mailbox rule for filing complaints in circuit court)