De Bouse v. Bayer Ag
| Decision Date | 09 May 2007 |
| Docket Number | No. 5-06-0077.,5-06-0077. |
| Citation | 869 N.E.2d 365 |
| Parties | Teresa DE BOUSE, Individually and on Behalf of Others Similarly Situated, Plaintiff-Appellee, v. BAYER AG, Bayer Corporation, Smith-Kline Beecham Corporation, d/b/a GlaxoSmithKline, GlaxoSmithKline PLC, Marcy Grim, Michael Harvey Davidson, M.D., and Michael Lever, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
John J. Driscoll, Brown & Crouppen, P.C., St. Louis, MO, for Appellee.
A class action complaint sounding in consumer fraud was filed in the circuit court of St. Clair County by the plaintiff, Teresa De Bouse, individually and on behalf of all others similarly situated, alleging that Bayer AG, Bayer Corp., SmithKline Beecham Corp., doing business as GlaxoSmithKline, GlaxoSmithKline PLC, Marcy Grim, Michael Harvey Davidson, M.D., and Michael Lever (the defendants) committed common law fraud and violated the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)). The St. Clair County circuit court granted the plaintiff's motion to certify the cause as a class action. Subsequently, the circuit court denied the defendants' motion for a summary judgment, but it certified three questions of law for appellate review pursuant to Supreme Court Rule 308(a) (155 Ill.2d R. 308(a)). The defendants filed a petition for leave to appeal the class certification order pursuant to Supreme Court Rule 306(a)(8) (210 Ill.2d R. 306(a)(8)), and leave was granted. The defendants filed a separate application, petitioning this court to consider the questions that had been certified by the trial court, and that application was granted. The appeals were consolidated under cause No. 5-06-0077.
The defendants filed their petition for leave to appeal the class certification order pursuant to Supreme Court Rule 306(a)(8). The plaintiff then moved to dismiss the appeal for a lack of appellate jurisdiction. Initially, this court denied the plaintiff's motion to dismiss and granted the defendants' petition for leave to appeal. After reviewing the record, we determined that it was necessary to revisit the issue of jurisdiction. We have reconsidered the issue of jurisdiction in light of the record, and we have determined that the Rule 306(a)(8) appeal was untimely filed and must be dismissed.
The record shows that a hearing was held on the plaintiff's motion for class certification on July 29, 2005. At the close of the hearing, the circuit court announced that it would take the matter under submission. The circuit court entered a written order stating that the issue was under submission. The parties submitted proposed orders for the court's consideration. On September 1, 2005, the court signed a 12-page order granting certification of the class. The order is contained in the court file. It bears a file stamp of September 2, 2005. The court file also includes a computerized docket sheet that contains an entry dated September 2, 2005, indicating that a 12-page order was entered that date. There is no indication that the order was served personally or by mail on counsel of record.
The record shows that the parties appeared in open court on September 27, 2005, and December 29, 2005, in relation to the summary judgment motion that had been filed in the case. The order entered after the hearing on September 27, 2005, specifically states that all parties appeared by counsel on that date. The parties also appeared for a status conference on January 11, 2006.
On January 25, 2006, the defendants filed a motion to vacate or amend the class certification order nunc pro tunc on the grounds that they had not received notice of the entry of the order granting class certification, that the circuit court clerk failed to serve a copy of the order on all parties and failed to note any service in the file as required under Twentieth Judicial Circuit Rule 2.06 (20th Judicial Cir. Ct. R. 2.06 (eff. December 12, 1991)), and that they made diligent efforts to monitor the court file once the motion had been taken under advisement by the court. The defendants asserted that they first became aware that the order had been entered during the status conference on January 11, 2006, that their right to appeal was "severely prejudiced", and that the circuit court had the authority to enter a nunc pro tunc order to avoid the prejudice. The defendants attached affidavits from the defendants' attorneys and their staff members. The affidavits outlined the efforts undertaken to monitor the court file.
The plaintiff filed a response in opposition to the defendants' motion for an order nunc pro tunc. Therein, the plaintiff stated that her attorneys had obtained a copy of the class certification order by appearing in person at the circuit clerk's office on or about September 5, 2005, and making an inquiry about the status of the class certification motion. The plaintiff attached affidavits from its attorneys and a copy of the computerized docket sheet that revealed an entry of September 2, 2005, referencing a 12-page order.
On January 30, 2006, the court held a hearing on the defendants' motion to vacate or amend the class certification order nunc pro tunc. After considering the arguments of counsel, the judge said, "It's only just that I enter an order nunc pro tunc if that in some way can protect your right to appeal this thing if that's the right thing to do." The court then entered the following order:
The defendants filed their petition for leave to appeal the certification order on February 10, 2006.
Supreme Court Rule 306(a)(8) allows a party to petition for leave to appeal from an order granting or denying the certification of a class action. Supreme Court Rule 306(c) (210 Ill.2d R. 306(c)) requires the petition to be filed in the appellate court within 30 days after the entry of the order granting or denying certification. The 30-day time limit under Rule 306 is jurisdictional. Kemner v. Monsanto Co., 112 Ill.2d 223, 236, 97 Ill.Dec. 454, 492 N.E.2d 1327, 1333 (1986); Leet v. Louisville & Nashville R.R. Co., 131 Ill.App.3d 763, 765, 86 Ill.Dec. 773, 475 N.E.2d 1340, 1341-42 (1985). There is no provision for extending the time for filing a petition for interlocutory appeal other than by permission of the reviewing court pursuant to Rule 306(f) (210 Ill.2d R. 306(f)).
In this case, the certification order was entered on September 2, 2005. By our calculation, the petition for leave to appeal should have been filed no later than Monday, October 3, 2005. The defendants' petition for leave to appeal was not filed until February 10, 2006, and they did not seek permission from this court to file an untimely petition for leave to appeal. In accordance with the time limits set forth in Supreme Court Rule 306, the defendants' petition for leave to appeal was filed out of time. However, the defendants presented a number of legal and equitable arguments to the trial court in support of their motion to vacate or amend the certification order nunc pro tunc. We have considered those arguments, and for the reasons discussed below, we have concluded that the defendants have not established any basis for excusing their failure to file the petition for leave to appeal within the 30-day time limit.
The defendants have argued that an order to vacate or amend the certification order nunc pro tunc is proper because the circuit clerk's failure to provide notice of the entry of the certification order prejudiced their right to file a petition for leave to appeal. The Illinois Supreme Court has considered and rejected similar arguments. Mitchell v. Fiat-Allis, Inc., 158 Ill.2d 143, 198 Ill.Dec. 399, 632 N.E.2d 1010 (1994); Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill.2d 122, 152 Ill.Dec. 247, 565 N.E.2d 929 (1990).
In Mitchell v. Fiat-Allis, Inc., the trial court signed an order disposing of the case on February 27, 1991. The order was file-stamped March 1, 1991, and included instructions to the circuit court clerk to send a copy of the order to the attorneys of record. Mitchell's attorney first learned of the order on April 25, 1991. After conferring with opposing counsel and the trial court, Mitchell's counsel filed a petition to withdraw or vacate the order. On April 29, 1991, the trial court granted the petition, withdrew the judgment dated February 27, 1991, and reentered the same order, effective April 29, 1991. The appellate court upheld jurisdiction and considered the merits of the appeal. The Illinois Supreme Court reversed, finding that the trial court lacked authority to vacate and reenter its order more than 30 days after it had been entered. The supreme court held that trial courts lacked the authority to excuse compliance with the supreme court rules governing the time for filing a notice of appeal. Fiat-Allis, Inc., 158 Ill.2d at 150, 198 Ill.Dec. 399, 632 N.E.2d at 1012.
The supreme court had clearly stated that the parties bear the responsibility to monitor the status of a...
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