LEFF, KLEIN and KALFEN, LTD., Plaintiff-Appellant, v. WICZER & ASSOCIATES, LLC, Defendant-Appellee (Bernard Wiczer, Citation-Respondent-Appellee).
No. 2-22-0089
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
November 17, 2022
2022 IL App (2d) 220089-U
PRESIDING JUSTICE BRENNAN
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).
No. 13-AR-1440
Honorable Michael B. Betar Judge, Presiding.
PRESIDING JUSTICE BRENNAN delivered the judgment of the court. Justices Hutchinson and Jorgensen concurred in the judgment.
ORDER
Held: The trial court abused its discretion in finding that respondent showed good cause for filing his motion to reconsider beyond the 30-day deadline for postjudgment motions. Thus, because the trial court lacked jurisdiction to consider the motion, we reverse its judgment granting the motion.
I. BACKGROUND
¶ 4 Plaintiff filed a complaint against defendant, Wiczer & Associates, LLC, alleging that defendant failed to pay plaintiff for its accounting services. On August 9, 2015, the trial court entered a $9566 judgment for plaintiff.
¶ 5 On November 15, 2017, plaintiff filed against respondent a citation to discover assets. On March 4, 2019, plaintiff filed, under
¶ 6 On July 12, 2019, the trial court granted plaintiff‘s motion and entered a $15,337 judgment against respondent. In that order, the court also dismissed the citation to discover assets.
¶ 7 On August 16, 2019, respondent filed, via the trial court‘s electronic filing system, a motion to reconsider and vacate the July 12, 2019, judgment. Plaintiff filed a response to the motion to reconsider, contending, among other things, that the motion was untimely. Respondent filed a reply, asserting that the motion to reconsider was timely. Attached to the reply was respondent‘s counsel‘s affidavit.
¶ 9 The affidavit included a group exhibit consisting of e-mails and other documentation generated by the electronic filing system. The first e-mail, dated August 9, 2019, at 3:56 p.m., stated that the motion to reconsider had been “submitted to the clerk‘s office for review” and notified respondent‘s counsel to allow 24-48 hours for processing. The next e-mail, dated August 13, 2019, at 10:39 a.m., stated that the “filing below has been reviewed and has been returned for further action.” The reason stated for the return was that counsel had submitted multiple filings as one transaction; however, the electronic filing system allows only one document per filing.
¶ 10 The next document in the group exhibit was an “Envelope Details” page indicting that, on August 15, 2019, at 3:52 p.m., the motion to reconsider was rejected because no appearance had been filed on behalf of respondent. The next e-mail was dated August 15, 2019, at 4:45 p.m. It stated that a “NOF Appearance” had been submitted for review. The next e-mail, dated August 20, 2019, at 9:59 a.m., stated that the appearance had been rejected because it failed to include the correct filing fee. Finally, an e-mail dated August 20, 2019, at 10:29 a.m., showed that the motion to reconsider had been reviewed and accepted for filing on August 20, 2019, at 10:28 a.m. That e-mail further stated that the motion to reconsider was deemed submitted on August 16, 2019.
¶ 11 At the November 22, 2019, hearing on the motion to reconsider, after plaintiff argued that the motion had not been timely filed, the trial court asked respondent‘s counsel if he had, under
¶ 12 That same day, the trial court entered an order (1) finding that respondent‘s motion was timely even though filed four days beyond the 30-day deadline for posttrial motions (see
¶ 13 On March 3, 2020, plaintiff filed, under
¶ 14 On August 21, 2020, plaintiff filed its notice of appeal. The notice identified the two orders appealed from as (1) the November 22, 2019, order granting the motion to reconsider and vacating the July 12, 2019, judgment and (2) the July 24, 2020, order denying the Rule 308 motion to certify.
¶ 15 On appeal, plaintiff contended that the trial court erred in (1) finding that respondent timely filed his motion to reconsider and (2) granting the motion and vacating the July 12, 2019, judgment.
¶ 17 Following the dismissal of the appeal, on December 3, 2021, plaintiff filed a motion to “resume” the third-party citation proceeding against respondent. Respondent, relying on
¶ 18 On February 18, 2022, the trial court denied plaintiff‘s motion to resume. In doing so, the court noted that, in its July 12, 2019, judgment, it had dismissed the citation proceeding against respondent. The court further found that, when it vacated the July 12, 2019, judgment via its November 22, 2019, order, it “did not mention” the citation proceeding against respondent. The court added that the November 22, 2019, order “did not include a provision that [r]espondent was to produce more documents or answer more questions in the [c]itation proceeding.” The court further noted that the July 12, 2019, judgment was based on information gathered from respondent via the citation proceeding and that the vacatur of the judgment did “not per se mean that there was more information to gather from [r]espondent.” The court also commented that it had
II. ANALYSIS
¶ 20 On appeal, plaintiff contends that the trial court erred in (1) finding that respondent timely filed his motion to reconsider and vacate the July 12, 2019, judgment, (2) vacating the July 12, 2019, judgment, and (3) denying plaintiff‘s motion to resume the citation proceeding.
¶ 21 Because it is dispositive of this appeal, we first address plaintiff‘s assertion that the trial court erred in finding the motion to reconsider timely, because it was not filed until after the 30-day deadline for such motions. Generally, we review de novo whether the trial court had subject-matter jurisdiction over proceedings. Chicago Tribune v. College of Du Page, 2017 IL App (2d) 160274, ¶ 29. However, we review for an abuse of discretion whether the trial court properly found that respondent had good cause under Rule 9(d)(2) for the late filing of his motion to reconsider. See Davis v. Village of Maywood, 2020 IL App (1st) 191011, ¶ 13.
¶ 22
¶ 24 Plaintiff contends that the trial court lacked jurisdiction to entertain the motion to reconsider because the clerk did not accept respondent‘s motion until August 16, 2019—four days after the 30-day deadline and, hence, after the trial court lost jurisdiction over the case. Respondent counters that (1) he timely filed the motion because he submitted it to the clerk, via the electronic filing system, before the 30-day deadline, and (2) even if the motion was untimely, he showed good cause to excuse the late filing. We conclude that the trial court lacked jurisdiction to entertain respondent‘s motion to reconsider.
¶ 25 Initially, we reject plaintiff‘s argument that his motion to reconsider was timely because it was submitted to the clerk within 30 days of the judgment order. The mere submission of a motion to the clerk for filing does not render it filed. It is well established that a submission must first be accepted by the clerk to be considered filed. See Ayala v. Goad, 176 Ill. App. 3d 1091, 1094 (1988) (a submission is considered filed once the clerk reviews and accepts it for filing); see also Ganja v. Johnson, 6 Ill. App. 3d 701, 703 (1972) (where the clerk accepts a document for filing, the court acquires jurisdiction over the subject matter). Although respondent here submitted the motion to reconsider before the 30-day deadline, the clerk did not accept the motion until after the deadline due several deficiencies, to wit: multiple filings in one transaction; the absence of a
¶ 26 In the alternative respondent asserts that, even if he did not file the motion to reconsider on time, he showed—as the trial court found—good cause to excuse the late filing. Again, we disagree.
¶ 27
¶ 28 Relying on Davis, however, respondent asserts that he showed good cause under
¶ 29 In Davis, the plaintiff‘s electronically-submitted complaint was untimely because the clerk rejected it since the required attorney code had been entered in one section of the e-filing envelope
¶ 30 Here, unlike in Davis, the electronic filing system was not in its infancy when respondent‘s counsel had trouble filing the motion to reconsider. Rather, the system had been in place for about a year. See
¶ 31 Additionally, the failure to submit the document individually was not as “minor” as the mere failure to insert an attorney code in one section of an e-filing when that same code had been provided in another section. Also, the clerk here rejected the motion to reconsider for the additional reasons that respondent‘s counsel did not file an appearance or pay the filing fee. Thus, counsel‘s failure to comply with the e-filing requirements was more egregious than merely failing to submit the motion individually. Davis is distinguishable on this basis as well.
¶ 33 Because respondent failed to timely file the motion to reconsider and show good cause to excuse the late filing, the trial court erred in finding that the motion to reconsider was timely. Accordingly, the court lacked jurisdiction to rule on the motion to reconsider and vacate the July 12, 2019, judgment. The July 12, 2019, judgment stands.
¶ 34 As the trial court lacked jurisdiction to vacate the July 12, 2019, judgment, we need not decide whether the court erred in granting the motion to reconsider or in denying plaintiff‘s motion to resume the citation proceeding.
III. CONCLUSION
¶ 36 For the reasons stated, we reverse the judgment of the circuit court of Lake County.
¶ 37 Reversed.