Barnes v. Southern Ry. Co.

• Decision Date: 20 February 1987
• Docket Number: No. 63350,63350
• Citation: 107 Ill.Dec. 581,116 Ill.2d 236,507 N.E.2d 494
• Parties: , 107 Ill.Dec. 581 Robert BARNES, Appellee, v. SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 494

507 N.E.2d 494

116 Ill.2d 236, 107 Ill.Dec. 581

Robert BARNES, Appellee, v. SOUTHERN RAILWAY COMPANY, Appellant.

No. 63350.

Supreme Court of Illinois.

Feb. 20, 1987.

Callis and Hartman, P.C. by Eric D. Jackstadt, Granite City, for appellee, Robert Barnes.

Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville Richard M. Roessler, Lisa A. Kuhn, of counsel), for appellant Southern Ry. Co.

Justice RYAN delivered the opinion of the court:

The plaintiff, Robert Barnes, brought this action in the circuit court of St. Clair County pursuant to the Federal Employers' Liability Act (FELA) (45 U.S.C. sec. 51 et seq. (1982)) for personal injuries allegedly caused by the negligence of his employer, the Southern Railway Company (Southern). The circuit court denied Southern's motion to reconsider a prior order denying its motion to decline jurisdiction on the grounds of forum non conveniens. Pursuant to Supreme Court Rule 306 (94 Ill.2d R. 306(a)(1)(ii)), Southern filed a petition for interlocutory appeal from this order, which was granted. The plaintiff then filed a motion to dismiss the appeal which was taken with the case. The appellate court granted the motion and dismissed the appeal for lack of jurisdiction. (141 Ill.App.3d 121, 95 Ill.Dec. 776, 490 N.E.2d 249.) We allowed Southern's petition for leave to appeal under our Rule 315 (103 Ill.2d R. 315(a)).

The plaintiff commenced this action by filing a complaint in the circuit court of St. Clair County on July 27, 1983. The complaint sought redress for alleged personal injuries purportedly arising from exposure to noxious and poisonous fumes while employed as a painter in Southern's "Gest Yard" in Cincinnati, Ohio. The action was predicated on alleged violations of Southern's duties under the FELA.

Southern was served with summons and a copy of the complaint on September 27, 1983. On October 31, 1983, Southern filed an answer denying the allegations. In an apparent effort to determine whether a factual basis existed to warrant the filing of a motion to decline jurisdiction because St. Clair County was not a convenient forum in which to litigate the cause, Southern also propounded interrogatories to the plaintiff and requested production of relevant documents, including income tax returns, hospital and doctor bills, and medical reports.

Approximately eight months after the filing of the plaintiff's complaint, Southern, on March 15, 1984, filed a motion asking the circuit court to decline jurisdiction of the cause and to dismiss it on the theory of forum non conveniens. Although Southern filed a memorandum in support of its motion, it did not file an affidavit or verified suggestions.

On October 5, 1984, almost one year after having served interrogatories on the plaintiff, Southern filed a motion to compel the plaintiff to answer the interrogatories and to produce the documents requested. Southern alleged in this motion that it was unable to file an affidavit in support of its prior forum motion because of its inability to determine the identity and place of residence of potential witnesses. The circuit court granted the motion on November 1, 1984, and ordered compliance with Southern's discovery pleadings within 28 days. On November 30, 1984, answers to the interrogatories and relevant discovery documents were filed by the plaintiff.

On January 29, 1985, Southern filed an affidavit in support of its prior motion to decline jurisdiction. In its affidavit, Southern alleged that: (1) the plaintiff was a resident of Florence, Kentucky; (2) the alleged injury was sustained in Cincinnati, Ohio; (3) Cincinnati, Ohio, is approximately 330 miles from Belleville, Illinois, the site of the St. Clair County courthouse; (4) the testimony of employee and nonemployee witnesses would be required and that these witnesses were residents of Kentucky and Ohio; (5) since the nonemployee witnesses were Kentucky and Ohio residents, they could not be compelled to appear in Illinois; (6) the railroad would incur large expenses if the case proceeded to trial in Illinois; (7) the absence of employee witnesses for unknown periods of time would disrupt the operation of the railroad; (8) there was a large backlog of cases in St. Clair County; and (9) jury duty would constitute an unreasonable burden to the citizens of St. Clair County.

After hearing arguments by counsel, the circuit court denied the forum motion on March 6, 1985. The court noted that the cause had absolutely no connection with St. Clair County other than being the place where the plaintiff chose to file his action. However, the court, relying on Herbert v. Louisville & Nashville R.R. Co. (1985), 130 Ill.App.3d 624, 85 Ill.Dec. 888, 474 N.E.2d 848, denied the forum motion because the motion was not filed within the time in which Southern was required to answer.

On March 19, 1985, Southern filed a motion which was labeled a "Motion to Reconsider" the circuit court's denial of its forum motion. The circuit court denied this motion on April 3, 1985. Pursuant to Rule 306 (94 Ill.2d R. 306(a)(1)(ii)), Southern, on May 3, 1985, filed a petition for leave to appeal to the appellate court from the circuit court's April 3, 1985, order. The petition was granted on June 7, 1985. The plaintiff thereafter filed a motion to dismiss the appeal which was taken with the case. The appellate court granted the motion and dismissed the appeal on the ground that it lacked jurisdiction because the appeal was not taken within 30 days of the denial of the original forum motion. 141 Ill.App.3d 121, 95 Ill.Dec. 776, 490 N.E.2d 249.

Supreme Court Rule 306 governs interlocutory appeals from orders of the circuit court granting or denying certain motions. Following its amendment, Rule 306 provides in relevant part:

"An appeal may be taken in the following cases only on the allowance by the Appellate Court of a petition for leave to appeal:

* * *

* * *

(ii) from an order of the circuit court denying a motion to dismiss on the grounds of forum non conveniens * * * " (94 Ill.2d R. 306(a)(1)(ii).)

Under Rule 306, a petition for leave to appeal "shall be duplicated, served, and filed in the Appellate Court in accordance with the requirements for briefs within 30 days after the entry of the order." (Emphasis added.) (94 Ill.2d R. 306(a)(1).) Rule 306 contains no provision for the filing of motions which extend the time for filing the notice of appeal such as is contained in Rule 303(a)(1) and in Rule 307(b) (94 Ill.2d R. 303(a)(1); 87 Ill.2d R. 307(b)). Because the time limit for filing the petition for leave to appeal is jurisdictional, the failure to meet it or to secure a timely extension will result in dismissal of the appeal. See In re Adoption of Anderson (1980), 88 Ill.App.3d 42, 43 Ill.Dec. 374, 410 N.E.2d 374; Trophy-time, Inc. v. Graham (1979), 73 Ill.App.3d 335, 29 Ill.Dec. 391, 391 N.E.2d 1074 ; Seaman v. Lawn Savings & Loan Association (1970), 128 Ill.App.2d 181, 262 N.E.2d 823; Ill.Ann.Stat., ch. 110A, par. 306, Historical and Practice Notes, at 245 (Smith-Hurd 1985).

In dismissing Southern's appeal for lack of jurisdiction, the appellate court concluded that the petition for leave to appeal was untimely. As noted above, it relied on the fact that the petition was filed more than 30 days after the entry of the March 6, 1985, order denying Southern's motion to decline jurisdiction and to dismiss the cause on the grounds of forum non conveniens. Citing Leet v. Louisville & Nashville R.R. Co. (1985), 131 Ill.App.3d 763, 86 Ill.Dec. 773, 475 N.E.2d 1340, the appellate court reasoned that the 30-day period within which to file a petition for leave to appeal from an order denying a motion to dismiss on forum non conveniens grounds may not be tolled by filing a motion to reconsider the order denying the motion to dismiss.

It is Southern's position that the appellate court erred in relying on Leet. Although its March 19, 1985, motion to reconsider was filed within 30 days of the order denying its original forum motion, Southern emphasizes that it is not contending that its motion to reconsider tolled the 30-day jurisdictional period in which to appeal from an order denying a motion to dismiss on the grounds of forum non conveniens. Notwithstanding its label as a "motion to reconsider," Southern contends that its March 19, 1985, motion presented new factual information and, therefore, was in the nature of a new motion to dismiss. Because its petition for leave to appeal related only to the April 3, 1985, order denying its motion to reconsider, rather than the March 6, 1985, order denying its motion to dismiss, Southern argues that the appellate court had jurisdiction over its petition, timely filed after the April 3, 1985, order. It is also Southern's position that the circuit court abused its discretion in denying its motion to decline jurisdiction and to dismiss the cause on the grounds of forum non conveniens.

We first consider the propriety of the appellate court's dismissal for lack of jurisdiction of Southern's appeal from the April 3, 1985, order denying its motion to reconsider. We agree with Southern that the Leet decision is not dispositive of this appeal. The issue of tolling is not presented by the facts of this case. Accordingly, we hold that the appellate court erred in dismissing Southern's appeal for lack of jurisdiction.

Our recent decision in Kemner v. Monsanto Co. (1986), 112 Ill.2d 223, 97 Ill.Dec. 454, 492 N.E.2d 1327, supports Southern's contention that the raising of new matter in its March 19, 1985, motion placed that motion in the same status as its original forum motion. In that case, the plaintiffs brought an action in the circuit court of St. Clair County for damages against various defendants purportedly caused by exposure to chemicals released as a result of a railroad-tank-car derailment in Sturgeon, Missouri. Within the time for responsive pleadings, defendant Monsanto Company moved to...