Shatku v. Wal-Mart Stores, Inc.
990 N.E.2d 826
Ill. App. Ct.2013Background
- Plaintiff Myqerem Shatku filed a negligence action against Wal-Mart in Cook County; docket later transferred to Kane County.
- Final judgment entered December 22, 2011, granting defendant’s motion to dismiss the cause of action (Motion to Dismiss under section 2-1009) and sanctioning costs.
- Plaintiff moved to refiling the case (Motion to Refile) on October 27, 2011; court granted this motion to dismiss on December 22, 2011.
- Plaintiff filed a motion to reconsider; proof of service indicated mailing to opposing counsel, not to the clerk; filing date stamp was January 26, 2012.
- Defendant answered and argued the dismissal constituted the final judgment; trial court denied reconsideration on March 6, 2012 on merits.
- Plaintiff appeals April 5, 2012; court must determine timeliness of appeal and revestment of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion to reconsider was timely under Rule 303(a)(1) | Shatku contends revestment extended deadline. | Final judgment dated December 22, 2011; timely filing required. | No timely motion; appeal untimely. |
| Whether revestment occurred by defendant’s opposition to reconsider | Opposition preserved issue and revested jurisdiction. | Opposition alone does not revest jurisdiction when motion untimely. | Revestment did not occur; jurisdiction remains with appellate court. |
| Whether the filing could be treated as a 2-1401 petition by Hanson rule | Keener/Hanson line supports treating late motion as 2-1401 petition. | Keener undermines automatic 2-1401 treatment; not sua sponte. | Keener undermines automatic 2-1401 treatment; not applied here. |
| Whether the notice of appeal was timely under Rule 303(a)(1) | If revestment occurs, appeal could be timely. | Untimely since no timely postjudgment motion extended period. | Notice of appeal untimely; appellate jurisdiction lacks. |
Key Cases Cited
- Sears v. Sears, 85 Ill.2d 253 (1981) (revestment requires inconsistent proceedings not to retry the case)
- Bailey v. 2012 IL App (2d) 110209, 2012 IL App (2d) 110209 (2012) (adversarial reopening without jurisdictional objection does not revest)
- Keener v. City of Herrin, 235 Ill.2d 338 (2009) (supreme court narrowed redevelopment of revestment after untimely motion)
- Hanson v. DeKalb County State’s Attorney’s Office, 391 Ill. App. 3d 902 (2009) (treatment of late filing as 2-1401 petition not automatic)
- Baca v. Trejo, 388 Ill. App. 3d 193 (2009) (mailbox rule analogies require proof of mailing to clerk)
- People v. Minniti, 373 Ill. App. 3d 55 (2007) (re revestment issues in postjudgment motions)