Roth v. Illinois Farmers Ins. Co.

• Decision Date: 05 December 2002
• Docket Number: No. 92338.,92338.
• Parties: Brenda ROTH, Ind. Adm'r of the Estate of Angela Roth, Deceased, Appellee, v. ILLINOIS FARMERS INSURANCE COMPANY, Appellant.
• Court: Illinois Supreme Court

782 N.E.2d 212

202 Ill.2d 490

270 Ill.Dec. 18

Brenda ROTH, Ind. Adm'r of the Estate of Angela Roth, Deceased, Appellee, v. ILLINOIS FARMERS INSURANCE COMPANY, Appellant.

No. 92338.

Supreme Court of Illinois.

December 5, 2002.

David C. Knieriem, of Morgan & Associates, St. Louis, Missouri, for appellant.

Joanne T. Stevenson, of Lackey & Lackey, P.C., Centralia, for appellee.

Justice FREEMAN delivered the opinion of the court:

Plaintiff, Brenda Roth, acting as the administrator of the estate of her daughter, Angela, brought a declaratory judgment action in the circuit court of St. Clair County against defendant, Illinois Farmers Insurance Company. The circuit court found in plaintiff's favor, and defendant appealed. The appellate court affirmed the circuit court's judgment (324 Ill.App.3d 293, 257 Ill.Dec. 781, 754 N.E.2d 439), and we subsequently allowed defendant's petition for leave to appeal (177 Ill.2d R. 315(a)). For the reasons that follow, we hold that leave to appeal in this matter was improvidently granted and dismiss the appeal.

BACKGROUND

Due to our disposition of the case, we will detail only those facts necessary to an understanding of our holding. The appellate court filed its opinion in this case on August 7, 2001. On August 24, 2001, defendant filed a document, in the appellate court, entitled "Affidavit of Intent to File Petition For Leave to Appeal." The document reads as follows:

"Comes now Defendant/Appellant, Illinois Farmers Insurance Company, and hereby states it intends to file a Petition for Leave to Appeal with the Illinois Supreme Court pursuant to Supreme Court Rule 315.

Respectfully submitted, Law Offices of Morgan & Associates"

The document was signed by one of the law firm's attorneys and was accompanied by a certificate of service. Defendant thereafter filed in this court its petition for leave to appeal on September 11, 2001. Plaintiff filed a response, and we granted leave to appeal on December 5, 2001.

ANALYSIS

Plaintiff contends that this appeal must be dismissed because defendant failed to comply with the requirements of Supreme Court Rule 315(b). Plaintiff argues that the affidavit of intent filed by defendant was a nullity and that, as a result, the petition for leave to appeal was untimely. Defendant, on the other hand, responds that, because the affidavit required under Rule 315(b) is one designed to "serve as notice of an action," the deficiencies of its affidavit of intent are inconsequential. Defendant also contends this issue is moot given the fact that this court has granted leave to appeal.

We begin our analysis with Rule 315(b), which states that

"[u]nless a timely petition for rehearing is filed in the Appellate Court, a party seeking leave to appeal must file the petition for leave in the Supreme Court within 21 days after entry of the judgment of the Appellate Court, or within the same 21 days file with the Appellate Court an affidavit of intent to file a petition for leave, and file the petition within 35 days after the entry of such judgment." (Emphasis added.) 177 Ill.2d R. 315(b).

We interpret a supreme court rule in the same manner in which we interpret a statute, namely, by ascertaining and giving effect to the intent of the drafter. In re Estate of Rennick, 181 Ill.2d 395, 404, 229 Ill.Dec. 939, 692 N.E.2d 1150 (1998). The most reliable indicator of intent is the language used, which should be given its plain and ordinary meaning. Rennick, 181 Ill.2d at 405, 229 Ill.Dec. 939, 692 N.E.2d 1150. When the language is clear and unambiguous, we will apply the language used without resort to further aids of construction. Rennick, 181 Ill.2d at 405, 229 Ill.Dec. 939, 692 N.E.2d 1150.

In the case of Rule 315(b), the import of the language cannot be clearer— the rule requires that an "affidavit" be filed in order to secure a 35-day period in which to file a petition for leave to appeal in this court. Therefore, we must determine whether defendant filed an "affidavit" in the appellate court as is contemplated by Rule 315(b).

Although the term "affidavit" is not defined within Rule 315, Illinois courts have defined the term in consistent fashion for over 100 years. For example, in Harris v. Lester, 80 Ill. 307, 311 (1875), this court noted that "[a]n affidavit is simply a declaration, on oath, in writing, sworn to by a party before some person who has authority under the law to administer oaths. It does not depend on the fact whether it is entitled in any cause or in any particular way. Without any caption whatever, it is nevertheless an affidavit." See also Figge v. Rowlen, 185 Ill. 234, 238, 57 N.E. 195 (1900) (citing Harris definition with approval); People ex rel. McCline v. Meyering, 356 Ill. 210, 214, 190 N.E. 261 (1934) (defining affidavit as a declaration on oath, in writing, sworn to by a party before some person who has authority, under the law, to administer oaths). More recently, our appellate court has noted that "`[a]n affidavit is simply a declaration, on oath, in writing sworn to before some person who has authority under the law to administer oaths. A writing which does not appear to have been sworn to before any officer does not constitute an affidavit.'" People v. Smith, 22 Ill.App.3d 377, 380, 317 N.E.2d 300 (1974), quoting 2 Ill. L. & Prac. Affidavits § 2, at 648 (1953). Thus, an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits. See Kehoe v. Rounds, 69 Ill. 351 (1873); Kohls v. Maryland Casualty Co., 144 Ill.App.3d 642, 98 Ill.Dec. 847, 494 N.E.2d 1174 (1986); 1 Ill. L. & Prac. Affidavits § 3, at 436 (1988). In light of this precedent, we agree with plaintiff that defendant did not file an "affidavit" in this case because the document filed with the appellate court does not consist of a statement sworn to before a person who has authority under the law to administer oaths. Rather, the document takes the form of a simple pleading. Notwithstanding the above, defendant argues that the signature of its attorney on its filing substantially complies with the requirements of Rule 315(b) because the purpose of the affidavit is merely to give "notice" of the party's intention to seek leave to appeal. Defendant notes that an attorney is ethically bound to sign legal papers that are truthful. In essence, defendant asks this court to relax the affidavit requirement contained in Rule 315(b) in this case and allow for a general notice of intent to suffice. However, "[t]he rules of court we have promulgated are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written." Bright v. Dicke, 166 Ill.2d 204, 210, 209 Ill.Dec. 735, 652 N.E.2d 275 (1995). To hold as defendant suggests would require that we ignore completely the affidavit requirement contained in Rule 315(b). We deem such a course of action imprudent for several reasons. As an initial matter, were we to so hold, we would provide litigants with little incentive to follow our rules. More importantly, our rules would have little force if the legal community perceived that we, as a court, do not enforce the rules or tailor them to fit the exigencies of the moment. Accordingly, we must emphasize that the supreme court rules are rules of procedure and that it is incumbent upon litigants to follow them. Furthermore and contrary to defendant's argument, the affidavit of intent does not serve only to give notice to the opposing party of the intention to seek leave to appeal. The affidavit of intent also serves to stay, automatically, the mandate of the appellate court. See 155 Ill.2d R. 368. Thus, the filing of the sworn document prevents the prevailing party from proceeding on the appellate court's judgment. Given this dual purpose, we cannot agree with defendant's suggestion that the affidavit-of-intent requirement is nothing more than a notice provision to the opposing party.

We note that our recent opinion in Robidoux v. Oliphant, 201 Ill.2d 324, 266 Ill. Dec. 915, 775 N.E.2d 987 (2002), in which we addressed what is required for compliance with the affidavit requirements of Supreme Court Rule 191(a), provides little assistance to us in the context of addressing the affidavit of intent required under Rule 315. In Robidoux, we held that an affidavit need not be notarized in order to comply with the requirements of Supreme Court Rule 191(a). In so holding, we looked at the specific requirements for affidavits as set forth in Rule 191 and noted that, in contrast to traditional rule that notarization accompany an affidavit, Rule 191 contained no express requirement that the affidavit be notarized. What was required under Rule 191, we held, was that the affidavit must be signed by the affiant or that his or her name must appear as the person having taken an oath. Our analysis in Robidoux necessarily applies only to affidavits filed pursuant to Rule 191(a), which itself applies only to specified proceedings under the Code of Civil Procedure, such as motions for summary judgment, involuntary dismissal, and to special appearances to contest personal jurisdiction. In this case, we are dealing with an affidavit required under Rule 315, which is not a rule used to implement practice under the Code of Civil Procedure. Even if it were, Rule 191(a) is markedly different from Rule 315. Rule 191 expressly provides what is required of the affidavit, stating that affidavits:

"shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto." 145 Ill.2d R. 191(a).

In contrast,...