Late Filing of a Petition for Leave to Appeal Presenting New Factual Information
Was Lack of Jurisdiction Justified in Dismissing a New Original Motion Which Gave Fresh Factual Information and Authorities that were Unavailable at the Time of Filing of Prior Motions ?
In Kemner v. Monsanto Co. 112 Ill. 2d 223, 238-40, 492 N.E.2d 1327, 97 Ill. Dec. 454 (1986), the appellate court dismissed the defendant's appeal for lack of jurisdiction, concluding that the petition for leave to appeal was untimely. Kemner, 112 Ill. 2d at 236.
Relying on reasoning in Leet v. Louisville & Nashville R.R. Co., 131 Ill. App. 3d 763, 475 N.E.2d 1340, 86 Ill. Dec. 773 (1985), the appellate court reasoned that the 30-day period within which to file a petition for leave to appeal from an order denying a motion to dismiss on forum non conveniens grounds may not be tolled by filing a motion to reconsider that order. Kemner, 112 Ill. 2d at 236.
Appealing to the supreme court, the defendant urged that the appellate court erred by relying on Leet because the defendant's contention was not that its motion to reconsider extended the 30-day jurisdictional period within which to appeal from the denial of its motion to dismiss. Kemner, 112 Ill. 2d at 237.
Instead, the defendant in Kemner argued that its motion to reconsider "was in the nature of a new original motion to dismiss" presenting new factual information and new authorities, which were unavailable at the time the prior motions were filed. Kemner, 112 Ill. 2d at 238.
The defendant in Kemner argued that since its petition for leave to appeal from the order denying its motion to reconsider was timely filed, the appellate court did have jurisdiction over its petition and erred in dismissing its appeal. Kemner, 112 Ill. 2d at 238.
The supreme court agreed with the defendant.
The supreme court reasoned that it is inequitable to place the defendant in a position of having to make the choice between filing a forum non conveniens motion when the basis of filing it may not be clear or waiting to file the motion at the risk of having the motion denied due to delay. Kemner, 112 Ill. 2d at 241-42.
The supreme court declined to place the defendant in such a situation and allowed the defendant to embrace the cloak of equity, "particularly where additional information is developed through discovery or where subsequent decisions are reported which may demonstrate the validity of the defendant's position on the renewed motion." Kemner, 112 Ill. 2d at 242.