LISA CASTLETON v. STORAGE CONCEPTS, INC., d/b/a All Seasons Ice Rink
No. 2-21-0487
Appellate Court of Illinois, Second District
March 28, 2022
2022 IL App (2d) 210487-U
PRESIDING JUSTICE BRIDGES delivered the judgment of the court. Justices Hutchinson and Hudson concurred in the judgment.
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).s. Appeal from the Circuit Court of Du Page County. No. 19-L-231. Honorable Robert G. Kleeman, Judge, Presiding.
¶ 1 Held: We lack jurisdiction over this appeal where defendant‘s motion to reconsider was not filed within 30 days of the summary judgment entered for plaintiff, and, thus, the motion did not toll the time for appeal. Although the motion was initially submitted within 30 days of the summary judgment, the clerk‘s office properly exercised its discretion to reject the motion because the required filing fee was not included. Also, nunc pro tunc relief was not appropriate because the motion to reconsider did not seek to rectify a clerical error in the summary judgment.
¶ 2 Plaintiff, Lisa Castleton, appeals from (1) the summary judgment entered in the circuit court of Du Page County in favor of defendant, Storage Concepts, Inc., d/b/a All Seasons Ice Rink,
I. BACKGROUND
¶ 3 In February 2019, plaintiff filed a one-count negligence complaint against defendant, alleging that she was at defendant‘s ice rink when she fell and injured her shoulder due to a defect in the floor.
¶ 4 In December 2020, defendant moved for summary judgment, contending that, as a matter of law, plaintiff could not establish that a defect in the floor caused her fall. On March 11, 2021, following a hearing on the motion, the court granted summary judgment for defendant on plaintiff‘s complaint.
¶ 5 On April 12, 2021, at 2:15 p.m., plaintiff electronically submitted a motion to reconsider the grant of summary judgment. The responsive e-mail from the electronic filing system stated near the top that the “filing below has been submitted to the clerk‘s office for review. Please allow 24-48 hours for clerk office processing.” Plaintiff‘s counsel did not include a filing fee with the electronically submitted motion to reconsider.
¶ 6 On April 13, 2021, at approximately 8:31 a.m., an e-mail from the electronic filing system notified plaintiff‘s counsel that the April 12, 2021, submission had been reviewed and returned for further action. It further stated that the submission had been rejected because it did not include a $75 fee for filing a motion to reconsider. Later on the morning of April 13, 2021, plaintiff (1) resubmitted the motion to reconsider along with the $75 filing fee and (2) submitted a motion for an extension of time (the clerk‘s office accepted both documents for filing that day). The motion for an extension of time relied exclusively on
¶ 8 Defendant responded that, because the motion to reconsider was not filed within 30 days of the summary judgment, as required by
¶ 9 The trial court held a hearing on the motions to reconsider and for an extension of time. The court construed the latter as “a motion to deem as timely filed.” In arguing that “good cause” existed for the late filing, plaintiff‘s counsel reiterated that, due to the wording of the fee schedule and his experience in other courts, he did not think that a filing fee was required for a motion to reconsider. In its response, defendant relied on Peraino v. County of Winnebago, 2018 IL App (2d) 170368, to argue that the court lost jurisdiction because the motion to reconsider was filed more than 30 days after the entry of the summary judgment.
¶ 10 Relying on Peraino, the court found that, because the motion to reconsider was filed more than 30 days after the final judgment, the court no longer had jurisdiction to rule on the motion to reconsider. Although plaintiff did not seek such relief, the court noted that the motion to reconsider could not be corrected nunc pro tunc, because there was nothing in the record to show that it was filed late because of a clerical error. Although plaintiff‘s counsel “understandably” did not realize that a filing fee was required for a motion to reconsider, that misapprehension did not constitute a
¶ 11 The court entered a written order denying the motions to reconsider for an extension of time. Plaintiff filed this timely appeal.
II. ANALYSIS
¶ 13 On appeal, plaintiff contends that the trial court erred in (1) denying her motion for an extension of time to file the motion to reconsider and (2) granting summary judgment, because there was circumstantial evidence that a defect in the floor was the cause in fact of plaintiff‘s fall.
¶ 14 Defendant argues that we lack jurisdiction over this appeal, and we agree.
¶ 15 The summary judgment entered on March 11, 2021, was a final judgment for purposes of
¶ 16 Plaintiff, however, contends that, had the trial court granted her nunc pro tunc relief, her motion to reconsider would have been timely and, hence, the court would have had jurisdiction to rule on the motion to reconsider. Because nunc pro tunc relief was not available, we disagree.
¶ 17 Although a trial court loses jurisdiction to review the substance of its final judgment after 30 days, if there is proper evidence of a clerical error, the court may apply nunc pro tunc relief at any time to correct the clerical mistake. Peraino, 2018 IL App (2d) 170368, ¶ 16. Put another way, a nunc pro tunc order incorporates into the record judicial actions taken by the court that were inadvertently omitted due to clerical error. Peraino, 2018 IL App (2d) 170368, ¶ 16 (citing People v. Melchor, 226 Ill. 2d 24, 32 (2007)). However, such a correction must be based on a note, memorandum, or paper contained in the court record, and it cannot rest on a recollection of an individual or on a new affidavit or testimony. Peraino, 2018 IL App (2d) 170368, ¶ 16.
¶ 18 Here, as in Peraino, plaintiff did not allege any error in the summary judgment, much less a clerical error in that judgment. Moreover, the evidence she sought to rely on—pertaining to the clerk‘s rejection based on the missing filing fee—came from outside the record. Thus, plaintiff was not entitled to nunc pro tunc relief.
¶ 20 We also reject plaintiff‘s argument that her motion to reconsider was timely because she submitted it to the clerk, and served it on defendant, within 30 days of the summary judgment. First, plaintiff has offered no supporting legal authority for that argument. Thus, she has forfeited it. See
¶ 21 Plaintiff further asserts that it would have “been more prudent to accept the filing and then request payment or sent Plaintiff‘s counsel a bill.” As we stated in Ayala, it is well established that the statutory requirement that filing fees be paid in advance is directory rather than mandatory. Ayala, 176 Ill. App. 3d at 1095. Accordingly, the payment of a filing fee is not a necessary condition precedent to the filing of a complaint for statute of limitations purposes (Ayala, 176 Ill. App. 3d at 1095)—nor, we think, to the filing of a postjudgment motion that extends the time for
¶ 22 Here, the clerk had the authority to reject the motion to reconsider that was submitted without the filing fee. The clerk was under no obligation to accept the submission as filed without first obtaining the filing fee.
¶ 23 We note that
III. CONCLUSION
¶ 26 For the reasons stated, we dismiss this appeal for lack of jurisdiction.
¶ 27 Appeal dismissed.