2020 IL App (1st) 191011

THIRD DIVISION June 24, 2020

No. 1-19-1011 _____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________ ANDREW DAVIS, and JAIRAME DAVIS as Independent ) Appeal from Administrator of the Estate of Lee Anthony Davis, Deceased, ) the Circuit Court ) of Cook County Plaintiffs-Appellants, ) ) 2018-L-064020 v. ) ) Honorable THE VILLAGE OF MAYWOOD, a Municipal Corporation, ) Cheryl D. Ingram, ) Judge Presiding Defendant-Appellee. )

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Ellis and Justice Cobbs concurred in the judgment and opinion.

OPINION

¶1 A problem arose for the two plaintiffs after they electronically transmitted their complaint

to the clerk of the court for filing on the last morning of the statute of limitations period, a Friday, within the first two weeks of Cook County’s mandated transition from paper to electronic court

files. The clerk did not notify the plaintiffs’ attorney until four days later, a Tuesday, that the document was being rejected because the accompanying e-filing envelope lacked counsel’s Cook

County Attorney Code. Counsel then immediately corrected the omission, resubmitted the complaint, and the clerk reviewed, accepted, and file-stamped it on that Tuesday. Subsequently, however, the trial court denied the plaintiffs’ motion to “excuse” the “tardy” filing pursuant to

Illinois Supreme Court Rule 9(d)(2) (eff. Dec. 13, 2017), which empowers the court to grant

1-19-1011 “appropriate relief *** upon good cause shown” when an e-filed “document is rejected by the clerk and is therefore untimely.” The trial court then granted the defendant’s motion to dismiss the action as time barred. The plaintiffs appeal.

¶2 Because the plaintiffs filed a notice of appeal that complied with Illinois Supreme Court

Rule 303 (eff. July 1, 2017), we have jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff.

Feb. ^[1], 1994) to review the final judgment of the trial court.

¶3 The plaintiffs’ personal injury and wrongful death action against Village of Maywood, Illinois stems from Gale Jackson’s alleged aggravated domestic battery of Andrew Davis and murder of Andrew’s father, Lee Anthony Davis, on July 13, 2017, despite police contact with

Jackson at the three men’s Maywood residence two days prior and on the day of the attack. Andrew and his father’s estate are the two plaintiffs seeking compensation based on the willful and wanton

negligence of Maywood’s police officers in performing their duties to assist and protect victims of domestic violence.

¶4 On the last day of the one-year statute of limitations period for initiating civil actions against government entities (see section 8-101 of the Local Governmental and Governmental

Employees Tort Immunity Act (745 ILCS 10/8-101 (West 2016))), the Davises’ attorney submitted the complaint to the court clerk through Cook County’s newly-adopted electronic filing system.

When the Davises’ attorney was finalizing his client’s pleading in mid-2018, Cook County’s mandated e-filing system had been implemented less than two weeks before, on Monday, July 2, 2018. 1

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1-19-1011 ¶5 The Davises’ attorney transmitted the complaint from the law firm’s offices on Friday, July

13, 2018, at 10:32 a.m. by using the Odyssey eFileIL portal maintained by Tyler Technologies, Inc. Cook County’s e-filing envelope required counsel to enter the unique seven-digit license number that is issued to attorneys by the Illinois Attorney Registration and Disciplinary

Commission (ARDC), as well as to twice enter the five-digit Cook County Attorney Code that is issued by the clerk of the circuit court to identify specific attorneys and law firms. Before submitting the complaint, the Davises’ attorney entered the ARDC number in the appropriate field.

Counsel also entered his Cook County Attorney Code as required in the “Lead Attorney” field

under the “Party Information” section of the e-filing envelope, but did not reenter that number in the data field labeled “Case Cross Reference Number.” The law firm’s credit card information had been previously stored in the Odyssey system. Counsel ticked the law firm’s payment information prior to transmitting the document to the clerk. The clerk’s system assigned the matter circuit court case number 2018-L-64020, which is the case number still in use.

¶6 On Tuesday, July 17, 2018, at either 12:52 p.m. or 1:52 p.m. (both times appear in the record on appeal), the court clerk reviewed and rejected the submission because there was no Cook

County Attorney Code in the “Case Cross Reference Number” field. That same afternoon, the Davises’ attorney resubmitted the document with the identifying number. The clerk accepted and file-stamped the resubmitted document as of 4:21 p.m. and charged the filing fee to the law firm’s credit card.

¶7 Tyler Technologies subsequently sent a clarifying e-mail on July 29, 2018 to inform its

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1-19-1011 clients that “[a] recent update to eFileIL now requires filers to enter their 5-digit, numeric Attorney

Code in the Case Cross Reference Number field” (emphasis in original) and “[i]f an Attorney Code is not entered, you will not be able to proceed with the filing.” We note that it is unclear from this wording whether the lack of a Case Cross Reference Number would make it impossible to transmit the filing or whether the document would be transmitted but later rejected by the clerk.

¶8 Defendant Maywood filed a motion to dismiss Davises’ pleading, arguing in part that the complaint was untimely filed four days after the lapse of the statute of limitations. The Davises responded to the substance of Maywood’s motion to dismiss. The Davises also filed a separate motion in which they cited Illinois Supreme Court Rule 9(d)(2) (eff. Dec. 13, 2017), which we will set out below. The Davises argued the circumstances were “good cause” for the trial court to

“excuse the allegedly late filing of the Complaint in this action, and hold that the Plaintiffs’ claims are not time-barred.”

¶9 After written and oral arguments, the trial court resolved both motions in Maywood’s favor.

The court reasoned that “the filing date [of the complaint] *** changes from the day that it was

[first electronically submitted to the clerk to] the date that it’s actually accepted by the Clerk’s

Office, which then makes the filing late.” Rule 9(d)(2) provides a potential remedy when submitted

documents are rejected and are therefore “untimely,” and the trial judge acknowledged that the rule itself does not state a timeframe in which the moving party must seek relief from the court.

Nevertheless, it was the judge’s opinion that the Davises should have sought relief under Rule

9(d)(2) either upon receiving notice of the late acceptance by the clerk’s office or at least “some time before the matter was brought up in the motion to dismiss.” In other words, “[t]he problem

[the judge identified] is the fact that the motion was not filed until the motion to dismiss was filed.”

The trial court limited its consideration to the timeliness arguments about the Davises’ complaint

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1-19-1011 and the Rule 9(d)(2) motion and did not rule on Maywood’s additional arguments for dismissal

regarding (1) the factual sufficiency of the allegations of willful and wanton conduct, (2) the governmental immunity that is afforded by sections 2-205 and 2-103 or section 2-109 of the Local

Government and Governmental Employees Tort Immunity Act (745 ILCS 10/2-205, 2-103, 2-109

(West 2016)), or (3) the good faith immunity in rendering emergency assistance that is set out in section 6-103(d) of the Mental Health and Developmental Disabilities Code (405 ILCS 5/6103(d)

(West 2016)).

¶ 10 Here, the Davises contend that the trial court misconstrued the facts and should have

characterized the complaint as timely filed when it was first transmitted to the clerk with the necessary electronic filing fee, despite the omission of the “Case Cross Reference Number” from the electronic filing envelope. They contend it was neither obvious nor intuitive that a Cook County

Attorney Code should have been entered in a data field that was labeled with some other name and that regardless, the failure to enter this number on the form was a minor mistake that did not render the complaint itself defective. Given that Tyler Technologies saw a need to caution e-filers about the significance of the “Case Cross Reference Number,” the Davises deduce that numerous other users had difficulty with that part of the filing form.

¶ 11 In the event we deem the complaint’s filing untimely, the Davises’ alternative argument is that the trial court had good cause to correct the filing date pursuant to Rule 9(d)(2). They contend it was a mistake for the clerk to reject the complaint four days after it was uploaded and timely

transmitted without incident, and that the clerk acted on criteria that is not published in a state law, supreme court rule, or local circuit court rule. They point out that the trial court denied the Rule

9(d)(2) motion solely because the court deemed the motion itself to be untimely after the defendant raised the statute of limitations defense. The Davises point out that plaintiffs generally do not file

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1-19-1011 any motions until after the defendant has been summoned and appeared and that there was a

possibility that Maywood would overlook and waive the statute of limitations argument. The Davises also contend there is no such thing as an untimely Rule 9(d)(2) motion, because the rule does not contain any reference to timing, which demonstrates that the trial court’s ruling was

unfair. Furthermore, the ruling is contrary to the committee comments for Rule 9, which state in part, “The implementation of electronic filing in Illinois courts should not impede a person’s access to justice.” Ill. S. Ct. R. 9, Committee Comments (Dec. 13, 2017).

¶ 12 Maywood responds that what occurred was a user error, not a technical problem with the e-filing system that actually prevented the timely filing, and that a user error is not grounds for granting Rule 9(d)(2) relief. Maywood contends the court clerk appropriately exercised discretion to “receive” but not “file” the Davises’ complaint when the pleading was first submitted without the Case Cross Reference Number, and that if the Davises believed the clerk erred, the Davises could have filed a mandamus action at the time. Or, if the Davises preferred to rely on a Rule

9(d)(2) motion, they should have filed it much earlier, such as (1) in October 2018 when Maywood was served, (2) in December 2018 when Maywood filed its appearance, or (3) in December 2018

when Maywood filed its motion to dismiss relying in part on the statute of limitations, instead of filing in March 2019 (with leave of court), only after Maywood’s motion was fully briefed.

Maywood argues that reliance on Rule 9(d)(2) should be subject to the doctrines of laches or waiver and that granting the Davises’ motion would have been “highly unusual” and improper, as well as “extremely inconvenient” and “extremely prejudicial” to Maywood. Maywood concludes that the Davises’ access to justice has not been impeded as they argue, because the Davises “[do] not possess one of the exemptions listed in Rule 9, such as disability, self-representation, or lack of computer or internet access.”

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1-19-1011 ¶ 13 Section 2-619(a) of the Code of Civil Procedure allows for the involuntary dismissal of an action that “was not commenced within the time limited by law.” 735 ILCS 5/2-619(a)(5) (West

2016). Whether a cause of action was properly dismissed under section 2-619(a)(5) of the Code of Civil Procedure based on the statute of limitations is a matter we review de novo. Ferguson v. City of Chicago, 213 Ill.2d 94, 99, 820 N.E.2d 455, 459 (2004). The abuse of discretion standard governs our review of the trial court’s denial of the plaintiffs’ Rule 9(d) motion. See Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 354, 875 N.E.2d 1065, 1079 (2007) (abuse of discretion standard applies when reviewing whether good cause exists under Illinois Supreme Court Rule

183 (eff. Jan. ^[1], 1964) to grant additional time to remedy an unintentional noncompliance with the procedural requirement of signing discovery responses).

¶ 14 Our resolution of the parties’ arguments depends upon Rule 9(d)’s “Timely Filing” language. Ill. S. Ct. R. 9(d) (eff. Dec. 13, 2017).

¶ 15 The principles for construing the supreme court’s rules are familiar and well established, as they are the same standards that govern the interpretation of statutes. Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 22, 90 N.E.3d 400.

“When construing a rule of the supreme court, a court’s primary goal is to ascertain and give effect to the intent of the drafters. The most reliable indicator of that intent is the language used, given its plain and ordinary meaning. In determining the plain meaning of the rule’s terms, a court must consider the rule in its entirety, keeping in mind the subject it addresses and the apparent intent of the drafters in enacting it. Courts will also interpret the rule so that no part of it is rendered meaningless or superfluous and will not depart from the plain language of the rule by reading into it exceptions, limitations, or conditions that conflict with the expressed intent.” Ferris, 2017 IL 121297, ¶ 22, 90 N.E.3d 400.

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1-19-1011 ¶ 16 Rule 9(d) states:

“(d) Timely Filing. Unless a statute, rule, or court order requires that a document be filed by a certain time of day, a document is considered timely if submitted before midnight

(in the court’s time zone) on or before the date on which the document is due. A document submitted on a day when the clerk’s office is not open for business will, unless rejected, be file stamped as filed on the next day the clerk’s office is open for business. The filed document shall be endorsed with the clerk’s electronic file mark setting forth, at a minimum, the identification of the court, the clerk, the date, and the time of filing.

(1) If a document is untimely due to any court-approved electronic filing system technical failure, the filing party may seek appropriate relief from the court, upon good cause shown.

(2) If a document is rejected by the clerk and is therefore untimely, the filing party may seek appropriate relief from the court, upon good cause shown.” Ill. S. Ct. R. 9(d)

(eff. Dec. 13, 2017).

¶ 17 This rule specifies that a document will be considered timely filed if it is electronically transmitted to the court clerk by midnight of the date the document is due, and that a transmission on a day when the clerk’s office is closed (i.e., on a holiday or weekend) will shift the filing date to the next business day. Given the rule’s interchanging use of the words “filing” or “filed” with the word “submitted” in the first two sentences, we read the rule to generally equate a document’s filing with the litigant’s electronic submission of a document to the court clerk. The two numbered paragraphs that follow indicate that a submission/filing may be rendered “untimely” by a technical problem that prevents the clerk from receiving it (paragraph (1)) or a rejection by the clerk

(paragraph (2)). The rule specifies that if either of these two problems results in a document being

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1-19-1011 resubmitted to the clerk after a filing deadline, then the filing party may pursue “appropriate relief from the court, upon good cause shown.”

¶ 18 The “appropriate relief” language is broad and it makes the trial court’s determination fact- dependent. The rule, for instance, does not limit “good cause” to particular grounds for the clerk’s rejection of a document, does not suggest that requests for relief are disfavored, does not list factors that the trial court should take into consideration, and does not specify the type of relief that may be granted by the court. Also, the rule does not specify a timeframe for litigants to seek relief. Rule

9(d) provides flexibility to litigants and the court “upon good cause shown” to accommodate problems that occur while using Cook County’s electronic system of filing and maintaining court records.

¶ 19 Applying Rule 9(d) as a whole, if the document the Davises successfully submitted through

the electronic portal on Friday, July 13, 2018, at 10:32 a.m. had been accepted by the court clerk, its filing date and time would have coincided with the attorney’s transmission date and time, which

was within the limitations period that expired at midnight that day. The rule next indicates that the clerk’s rejection of the document on Tuesday, July 17, 2018, meant that counsel’s electronic transmission the prior Friday had no effect, unless the trial court subsequently granted “appropriate relief.” The plaintiffs resubmitted the document with the necessary correction to the filing envelope during the afternoon of July 17, 2018, and the clerk reviewed, accepted, and file-stamped the document at 4:21 p.m. that same day. Thus, according to the plain language of this rule which is specifically about e-filing, the complaint was filed, but not timely filed, when it was stamped by the clerk with Tuesday’s date instead of the previous Friday’s date.

¶ 20 It is also our opinion, however, that the Davises’ Rule 9(d)(2) motion demonstrated good cause for the trial court to correct the date that was stamped by the clerk so that the pleading was

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1-19-1011 considered filed as of the date it was first submitted to the clerk.

¶ 21 Rule 9(d)(2)’s broad relief language indicates that we must consider the totality of the circumstances. From that perspective, good cause for the court to correct the filing date is demonstrated in part by the fact that the problem occurred during Cook County’s first two weeks

of switching from conventional paper filing to an electronic system. During this transition period, the e-filing procedures that would be followed by the clerk and litigants were unfamiliar to all

involved and had not been fully tested through experience. There were bound to be questions and issues as the clerk and litigation counsel became accustomed to the nuances of the new and dramatically different method of preparing, submitting, and processing legal documents.

Accordingly, we give counsel the benefit of any doubt about the accuracy and completeness of his electronic submission during this timeframe. See, e.g., Geer v. Cox, 219 F.R.D. 527, 528 (D. Kan

2003) (granting motion for reconsideration in order to “give [the] plaintiff benefit of the doubt” where case management and electronic court filing system had been implemented for only one month).

¶ 22 Good cause is demonstrated primarily by the fact that the submission the clerk rejected was identical to the document that the clerk later accepted, with the exception of a minor change that counsel was asked to make only to the e-filing envelope for the second submission. That is, there was no defect in the complaint itself when the clerk chose to reject counsel’s first submission due to a flaw in the e-filing envelope. Counsel’s error was limited to omitting a five-digit number

required for Cook County’s e-filing envelope. The e-filing envelope is not part of a complaint and is not required by our rules of civil procedure, the law that sets out the limitations period for filing a tort suit, or the additional law that shortens the limitations period against a local government