Monday, January 4, 2016

Illinois Appellate Court Rules That Filing Via Kiosk Fails To Establish Timely Notice of Appeal

By Luke DeGrand
Shareholder, DeGrand & Wolfe, P.C.

In Daniel v. Ripoli, 2015 IL App (1st) 122607-U, the appellate court dismissed an appeal for lack of appellate jurisdiction because a date stamp obtained from a self-service filing kiosk utilized by the Cook County Clerk’s office was not a sufficiently reliable indicator that the notice of appeal had been filed in a timely manner.
The Daniel case involved a business dispute among members of an accounting firm formed as a limited liability company. The estate of a deceased member sued both the LLC and the other members to recover distributions allegedly owed under the LLC’s operating agreement. The defendants contended that the operating agreement had been modified by a subsequent written agreement that permanently changed the distribution percentages to account for disparities in business production. The trial court rejected this contention, held that the changes effected by the subsequent agreement were not permanent, and awarded judgment in favor of the estate and against the LLC in the amount of $179,089.75. The trial court also rejected the estate’s attempt to impose individual liability on the other members of the LLC, and its request for distributions owed upon the death of plaintiff’s decedent. Both parties appealed.
The appellate court originally ruled in favor of defendants. In a published decision dated January 28, 2015 (2015 IL App (1st) 122607), the court determined, among other things, that the parties’ later agreement permanently reduced the distributive share of the plaintiff’s decedent. The appellate court accordingly reversed the trial court’s judgment in favor of the plaintiff estate; the court affirmed the other aspects of the trial court’s rulings. Id. ¶¶ 106-109.

Regarding appellate jurisdiction, the appellate court observed in its original disposition that the defendants’ notice of appeal bore a filing stamp dated within thirty days of the trial court’s final judgment. Id. ¶ 56. Although it acknowledged that there was a “dearth of authority directly so holding,” the court observed that “the file-stamp date has generally been considered by this court as the time of receipt by the clerk of the court.” Id. ¶ 57. The appellate court rejected the estate’s argument that this general rule should not apply because the file-stamp in Daniel was obtained at a self-service kiosk: “We find no supreme court rule or precedent holding that such file stamps are somehow ineffective or are not construed in the same manner as having a court clerk physically file-stamp a notice of appeal.” Id. ¶ 58.
Following the issuance of its decision, the court reconsidered, and reversed, its determination that the record established the existence of appellate jurisdiction. Based in part of the Illinois Supreme Court’s 2014 decision in Huber v. American Accounting Association, 2014 IL 117293 (holding that a label purchased from an automated postal center was not sufficient to establish proof of mailing under Supreme Court Rule 373’s so-called “mailbox rule”), the appellate court in Daniel held on rehearing that a file stamp obtained from a self-service filing kiosk did not sufficiently establish that the notice of appeal was timely surrendered to the “exclusive control of the clerk.” Daniel, 2015 IL App (1st) 122607-U, ¶ 73. The absence of both security against abuse and meaningful procedures for the retrieval and filing of documents deposited in such kiosks, the court held, renders such filings unreliable, standing alone, to establish a filing date. The court noted several possibilities that undermined such reliability by allowing for a delay between a party’s stamping of the document and the clerk’s actual possession of it (for example, stamping a document one day and depositing it for filing on a subsequent day). Id. ¶ 74. The court also noted that the record did not contain a notice of filing or certificate of service regarding the notice of appeal, id. ¶ 81, a fact the court found “particularly vexing,” – “so that even if we decided that the word of an officer of the court overcomes our reluctance to rely on the kiosk stamp, in this case we do not have the documents of record to make that determination.” Id. ¶ 86.
The court thus dismissed the defendants’ appeal for lack of appellate jurisdiction. The court stated: “We caution that relying on the date stamp from a self-service kiosk, particularly on time-sensitive documents, without more, is an invitation to trouble.” Id. ¶ 57. The court then addressed, and affirmed the trial court’s rulings with respect to, the estate’s cross-appeal. Id. ¶¶ 87-109. The Rule 23 Order did not address appellate jurisdiction to entertain the cross-appeal where the primary appeal was dismissed.
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