Buckland v. Lazar

• Decision Date: 30 June 1986
• Docket Number: No. 84-2057,84-2057
• Citation: 99 Ill.Dec. 519,145 Ill.App.3d 436,495 N.E.2d 1254
• Parties: , 99 Ill.Dec. 519 Colette A. BUCKLAND, Plaintiff-Appellant, v. Paul LAZAR, M.D., S.C., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1254

495 N.E.2d 1254

145 Ill.App.3d 436, 99 Ill.Dec. 519

Colette A. BUCKLAND, Plaintiff-Appellant, v. Paul LAZAR, M.D., S.C., Defendant-Appellee.

No. 84-2057.

Appellate Court of Illinois,

First District, First Division.

June 30, 1986.

Wildman, Harrold, Allen & Dixon, Chicago (Mark C. Fedota, Dorothy A. Denniston, of counsel), for defendant-appellee.

Ross & Hardies, James K. Toohey, David C. Bohrer, Chicago, for plaintiff-appellant.

Presiding Justice QUINLAN delivered the opinion of the court:

In this case, we have granted plaintiff leave to appeal pursuant to Supreme Court Rule 306(a)(1)(ii) (94 Ill.2d R. 306 (a)(1)(ii)), from the order of the circuit court of Cook County which granted defendant's motion to transfer this case from Cook County to Lake County on the basis of intrastate forum non conveniens.

Colette Buckland filed suit in the circuit court of Cook County on October 6, 1983, naming Paul Lazar, M.D., S.C., as the sole defendant. The complaint alleges that Dr. Lazar rendered negligent medical care to the plaintiff causing her damage. On February 24, 1984, Dr. Lazar filed a motion to transfer jurisdiction on the grounds of forum non conveniens, which was granted by the trial court on April 27, 1984. On June 18, 1984, Colette Buckland filed a motion for reconsideration, which was denied on July 25, 1984. On August 23, 1984, Ms. Buckland filed her petition for leave to appeal pursuant to Supreme Court Rule 306(a)(1)(ii) which, as stated above, this court granted.

Dr. Lazar is a physician licensed to practice in Illinois. He maintains offices in both Cook and Lake counties, and holds a teaching position at Northwestern University Medical School in Chicago. It is undisputed that all treatment rendered by Dr. Lazar to the plaintiff was rendered in Lake County, and that the plaintiff's medical records and all subsequent treatment were received by the plaintiff in Lake County. Both Dr. Lazar and Ms. Buckland have resided in Lake County at all times material to this lawsuit and presently continue to reside there.

Before we consider the merits of Ms. Buckland's argument that the trial court abused its discretion in granting defendant's motion to transfer, we must first determine whether this court has jurisdiction to hear the appeal. (People v. Biederman (1981), 100 Ill.App.3d 558, 559, 55 Ill.Dec. 851, 426 N.E.2d 1225.) Upon review of the record here, we find that this appeal must be dismissed because Ms. Buckland failed to file her petition for leave to appeal within 30 days after the entry of the trial court's order granting defendant's motion to transfer this case to Lake County. Supreme Court Rule 306 is specific in its requirement that, in order to vest the appellate court with jurisdiction, the petition for leave to appeal must be filed within 30 days after entry of the trial court's order or within such extension of time as may be granted by the reviewing court. The order granting defendant's motion was entered on April 27, 1984. In accordance with Supreme Court Rule 306, therefore, Ms. Buckland had up to and including May 28, 1984, to file a petition for leave to appeal to this court. The record reveals, however, that Ms. Buckland did not file her petition for leave to appeal until August 3, 1984, 118 days after the entry of the order transferring this case to Lake County. She further never petitioned this court for an extension of time. Hence, we are without jurisdiction to hear this appeal.

However, it is Ms. Buckland's contention that the July 25, 1984 order represents the trial court's final determination that the defendant be allowed to transfer this case to Lake County on the basis of intrastate forum non conveniens. She disputes the applicability of the rule set forth in Trophytime, Inc. v. Graham (1979), 73 Ill.App.3d 335, 29 Ill.Dec. 391, 391 N.E.2d 1074, that "[a] motion directed against an interlocutory order will not toll the running of the 30-day deadline for the filing of a motion [to] appeal." Rather, Ms. Buckland maintains that the Trophytime rule is applicable solely to interlocutory orders that fall within Supreme Court Rules 307 and 308. She appears to argue here that she did file a motion to reconsider which tolled the 30-day time period for filing an appeal, and therefore, the operative order from which any appeal could be taken in this case is the July 25, 1984 order denying her motion for reconsideration.

We disagree with Ms. Buckland's argument and find that, in any event, Trophytime is not actually pertinent to the disposition of this appeal because it is clear from the record that no motion at all was filed by the plaintiff within the 30-day time period following the entry of the April 27, 1984 order which could even arguably be claimed to have tolled the 30-day filing period. The only step taken by Ms. Buckland concerning the April 27, 1984 order occurred on May 15, 1984, when her attorney reserved a date with the trial judge for presentation of an asserted "motion for rehearing." It is undisputed that no motion or notice of motion was ever filed on May 15, 1984. Ms. Buckland merely obtained a hearing date for the presentation of a motion on July 24, 1984. She did not file her motion for reconsideration until July 18, 1984, 21 days after the expiration of the 30-day period for filing a petition for leave to appeal as required under Rule 306.

We further note that, even if Ms. Buckland had filed her motion for reconsideration within the 30-day time period, she was still required to file her petition for leave to appeal within 30 days of the April 27, 1984 order. It is clear, contrary to Ms. Buckland's contention, that orders granting or denying a motion to transfer a case based on intrastate forum non conveniens are interlocutory in nature, and the law is well settled in Illinois that a motion filed subsequent to the entry of an interlocutory order will not postpone the time in which to file a timely notice of appeal. (See Barnes v. Southern Ry. Co. (1986), 141 Ill.App.3d 121, 122, 95 Ill.Dec. 776, 490 N.E.2d 249; Leet v. Louisville & Nashville R.R. Co. (1985), 131 Ill.App.3d 763, 764, 86 Ill.Dec. 773, 475 N.E.2d 1340; Baird & Warner, Inc. v. Gary-Wheaton Bank (1984), 122 Ill.App.3d 136, 138, 77 Ill.Dec. 536, 460 N.E.2d 840; Lake Shore Oil Co. v. Sovereign Oil Co. (1981), 98 Ill.App.3d 553, 555, 54 Ill.Dec. 106, 424 N.E.2d 856.) Therefore, the time limitation for seeking leave to appeal from the granting or denying of forum non conveniens motions is governed exclusively by the requirements of Supreme Court Rule 306. This time limitation for filing a petition for leave to appeal, as set forth in Rule 306, fosters expediency in disposing of appeals from interlocutory orders by requiring litigants to perfect an appeal within 30 days from the entry of the order. As a result of the 30-day time limitation, a final determination on the merits of the case itself may be obtained more quickly and with more certainty.

The case before us is very similar to Leet v. Louisville & Nashville R.R. Co. (1985), 131 Ill.App.3d 763, 86 Ill.Dec. 773, 475 N.E.2d 1340. In Leet, the defendant brought a motion in the trial court seeking a transfer on the grounds of forum non conveniens which the trial court denied on July 18, 1983. On May 5, 1984, the defendant filed its motion for reconsideration, and that motion was denied on May 23, 1984. The defendant then filed its petition for leave to appeal pursuant to Supreme Court Rule 306(a)(1)(ii) on June 22, 1984, nearly nine months after the trial court's denial of defendant's forum non conveniens motion. The appellate court dismissed the defendant's appeal because his petition for leave to appeal was not filed within the 30-day period following the entry of the July 18, 1983 order denying transfer of the case. There the Leet court additionally observed that the rule set forth in Trophytime applied to Rule 306 orders as well, and that, there was no provision for extending the time for filing a petition for leave to appeal other than by permission of the reviewing court under Rule 306. Most recently in Barnes v. Southern Ry. Co. (1986), 141 Ill.App.3d 121, 95 Ill.Dec. 776, 490 N.E.2d 249, the fifth district applied its earlier ruling in Leet, and held that although the motion for reconsideration there had been filed within 30 days of the order denying the motion based on forum non conveniens, the defendant, nevertheless, was required to file his petition for leave to appeal within 30 days of the original order denying the motion.

The Illinois Supreme Court also recently sought to further the goal of providing for the more expeditious disposition of forum non conveniens motions through its adoption of Rule 187, which provides that a forum non conveniens motion must be filed by a party "not later than 90 days after the last day allowed for the filing of that party's answer." (109 Ill.2d R. 187.) Rule 187 was adopted by the supreme court in conjunction with its holding in Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill.2d 135, 88 Ill.Dec. 69, 478 N.E.2d 384, that had condemned the filing of a motion based on forum non conveniens grounds at a stage late in the litigation. (See 109 Ill.2d R. 187, Committee Comments.) The court in Bell recognized that an undue delay in the filing of a motion to dismiss on forum non conveniens grounds causes undue delay in obtaining a final disposition of a case, and therefore, forum motions should be decided early in the proceedings.

Similarly, an undue delay in...