Justice GORDON delivered the judgment of the court, with opinion.
¶ 1 The instant appeal arises from a trial court order changing the custodian of four bank accounts belonging to respondent Sushil Sheth's children; prior to the order, Sushil served as custodian. Sushil claims he was denied due process, because he was not afforded an opportunity to timely respond to the motion of his ex-wife, petitioner Anita Sheth, to change the custodian, nor was he afforded an opportunity to argue his position before the trial court denied his motion to reconsider. By contrast, Anita claims that Sushil has no standing to bring the instant appeal and that his appeal is barred by res judicata. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.
¶ 3 The following facts, up to the filing of the petition for dissolution of marriage, were stipulated to by the parties before the trial court on August 16, 2012. Anita and Sushil were married on November 23, 1991, and had two children, S.S. and R.S., born October 27, 1994, and March 10, 1996. Sushil is a physician, specializing in internal
¶ 4 On April 19, 2006, a complaint was filed against Sushil in federal district court, in a case captioned United States ex rel. Chandra v. Sheth, No. 06 CV 02191 (N.D.Ill.). The complaint alleged violations of the Federal Civil False Claims Act (31 U.S.C. § 3729 et seq. (2000)) and the Illinois Whistleblower Reward and Protection Act (740 ILCS 175/1-8 (West 2004)), and sought a civil judgment against Sushil in the amount of $30 million.
¶ 5 Two years later, on January 28, 2009, Sushil was also criminally charged by information with healthcare fraud in federal court, in a case captioned United States v. Sheth, No. 09 CR 069 (N.D.Ill.). The information charged that Sushil was a cardiologist who submitted claims to Medicare and other health benefit programs for services that he did not provide, to the extent of approximately $13.4 million, and sought forfeiture of Sushil's real and personal property in addition to seeking a conviction. On August 19, 2009, Sushil entered a plea agreement in the criminal case, in which he agreed to enter a voluntary plea of guilty to the healthcare fraud, and further agreed to the entry of a forfeiture judgment. On August 10, 2010, the federal court sentenced Sushil to 60 months' incarceration and entered a judgment for restitution in the amount of $13 million.
¶ 6 On August 6, 2009, approximately six months after Sushil was criminally charged, Anita filed a petition for dissolution of marriage, citing irreconcilable differences. On October 22, 2010, Sushil, through attorney Laurel Black Rector, filed an appearance in the dissolution of marriage action. Subsequently, the record contains a motion slip completed by Rector and a "motion call receipt," which list a "motion to withdraw" as set for December 28, 2010. However, the record does not indicate that this motion was ever heard, and the sole court order entered on December 28, 2010, does not reference the motion to withdraw. Additionally, Rector continued to be involved with Sushil's case, further indicating that the motion was never granted.
¶ 7 On October 4, 2012, the trial court entered a judgment for dissolution of the parties' marriage. One of the conclusions of law contained in the judgment concerned four custodial bank accounts established for the parties' children:
¶ 8 On November 5, 2012, Sushil filed a motion to reconsider the judgment for dissolution of marriage, in which he challenged an earlier court order granting Anita's motion to quash certain subpoenas sent to a number of financial institutions prior to trial. Sushil's motion did not challenge the trial court's conclusion concerning the custodial accounts.
¶ 9 On December 5, 2012, Sushil filed a pro se "Motion to Remove Laurel Black Rector as Attorney for Respondent." Sushil claimed that he did not receive a copy of the trial court's judgment for dissolution of marriage from Rector until October 29, 2012, and that he had had no communication with Rector since approximately September 24, 2012, at which time Rector had informed Sushil that she would file a "Motion for Reconsideration" with the trial court. Therefore, he asked the court to "dismiss Laurel Black Rector as his counsel."
¶ 10 On January 29, 2013, Sushil filed a pro se letter addressed to the "Circuit Clerk of Cook County," in which Sushil claimed that he had contacted the clerk's office via telephone after receiving no response to his mailed motion and had verified that his motion to remove Rector had not been entered into the circuit court's computer system. Sushil attached another copy of the motion and asked for it to be immediately filed if it had in fact not been previously filed. There is nothing in the record to indicate that Sushil's motion to remove Rector as his attorney was ever acted upon.
¶ 11 On May 6, 2013, Anita filed a "Motion for Entry of Order Regarding Custodial Funds"; the service list included both Rector and Sushil, who was sent the motion by first class certified mail, return receipt requested. In the motion, Anita stated:
¶ 12 On May 13, 2013,
¶ 13 On May 15, 2013, with "due and proper notice having been given to all parties in interest," the trial court granted Anita's motion and ordered: "BMO Harris, N.A., Wells Fargo Bank and Sushil Sheth shall immediately transfer to Sandip Chandarana all right, title and interest that they have" in the custodial accounts. The court further ordered that Chandarana was authorized to maintain and disburse funds contained in the newly created custodial accounts to fund the children's educational expenses.
¶ 14 On June 4, 2013,
¶ 15 On June 14, 2013, Anita filed a response to Sushil's motion to reconsider. In her response, Anita argued that Sushil had "no right to object to the concept or substance" of Anita's motion concerning
¶ 16 On June 20, 2013, the date set for hearing on Sushil's motion to reconsider,
¶ 17 Sushil filed a pro se notice of appeal, challenging the trial court's order concerning the custodial accounts and its denial of his motion to reconsider. The notice of appeal is file-stamped with a date of August 13, 2013. However, the notice of appeal contains a "Certificate of Service" signed by Sushil and dated July 22, 2013, which states that Sushil certified that on July 22, 2013, he placed the notice of appeal in the federal correctional center's legal mailbox, with United States "First Class Certified Mail, Return Receipt Requested" postage affixed, addressed to the office of the circuit clerk of Cook County. The "Certificate of Service," which is also file-stamped with a date of August 13, 2013, is signed by Sushil but is not notarized. Immediately following the notice of appeal and "Certificate of Service," the record contains a document that appears to be a printout from the United States Postal Service website of the tracking information for the certified mail number listed on the "Certificate of Service." This printout states that the item was "Processed through USPS Sort Facility" in Indianapolis on July 24, 2013, and was "Delivered" in Chicago on July 29, 2013.
¶ 19 On appeal, Sushil claims that he was denied due process because he was not afforded an opportunity to timely respond to Anita's motion to change the custodian of the children's bank accounts, nor was he afforded an opportunity to argue his position before the trial court denied his motion to reconsider. By contrast, Anita claims that Sushil has no standing to bring the instant appeal and that his appeal is barred by res judicata. Before we consider either party's arguments, we must first determine whether we have jurisdiction to decide the instant case.
¶ 20 "A reviewing court must ascertain its jurisdiction before proceeding in a cause of action, regardless of whether either party has raised the issue." Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill.2d 209, 213, 327 Ill.Dec. 541, 902 N.E.2d 662 (2009). In the case at bar, although neither party discusses it, we must determine whether Sushil's notice of appeal was timely filed.
¶ 21 "The timely filing of a notice of appeal is both jurisdictional and mandatory." Secura, 232 Ill.2d at 213, 327 Ill.Dec. 541, 902 N.E.2d 662. In the case at bar, the trial court denied Sushil's motion
¶ 22 However, in the case at bar, Sushil mailed his notice of appeal. Supreme Court Rule 373 provides that, when filing by mail, "[i]f received after the due date, the time of mailing * * * shall be deemed the time of filing." Ill. S.Ct. R. 373 (eff. Dec. 29, 2009). Here, the "Certificate of Service" attached to Sushil's notice of appeal states that the notice of appeal was placed in the legal mail system at the federal correctional center on July 22, 2013, within the 30-day period. Thus, Sushil must rely on the mailing rule in Rule 373 in order for his notice of appeal to be considered timely filed.
¶ 23 "[W]hile Rule 373 relaxes the requirement of timely filing where a party takes advantage of the convenience of mailing a document, a party can only take advantage of Rule 373 if it files proper proof of mailing as required by Rule 12(b)(3)" (Secura, 232 Ill.2d at 216, 327 Ill.Dec. 541, 902 N.E.2d 662), and, indeed, Rule 373 expressly instructs that "[p]roof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3)" (Ill. S.Ct. R. 373 (eff. Dec. 29, 2009)). Rule 12(b)(3), in turn, provides in relevant part:
¶ 24 In the case at bar, as noted, the notice of appeal contains a "Certificate of Service" signed by Sushil and dated July 22, 2013, which states that Sushil certified that on July 22, 2013, he placed the notice of appeal in the federal correctional center's legal mailbox, with United States "First Class Certified Mail, Return Receipt Requested" postage affixed, addressed to the office of the circuit clerk of Cook County. The "Certificate of Service," which is also file-stamped with a date of August 13, 2013, is signed by Sushil but is not notarized. Unfortunately for Sushil, we must find that the lack of notarization deprives the appellate court of jurisdiction.
¶ 25 Our supreme court considered the requirements of Rules 373 and 12(b)(3) in Secura, a case in which it determined that the plaintiff's notice of appeal was untimely due to failure to comply with the proof-of-mailing requirements of Rule 12(b)(3). There, the plaintiff mailed its notice of appeal to the trial court, which received the notice of appeal more than 30 days after the denial of the plaintiff's motion to reconsider. Secura, 232 Ill.2d at 212, 327 Ill.Dec. 541, 902 N.E.2d 662. The appellate
¶ 26 Our supreme court determined that the cover letter submitted by the plaintiff was insufficient to prove mailing under Rule 12(b)(3). The court found that "[t]he cover letter does not provide `proof of mailing' such that it is competent evidence under the rule. The letter does not contain an affidavit or a certificate and nothing is certified or sworn to." (Emphases in original.) Secura, 232 Ill.2d at 216, 327 Ill.Dec. 541, 902 N.E.2d 662. The supreme court rejected the plaintiff's argument that the only element required by Rule 12(b)(3) that was missing was the time of the mailing, stating that "[t]his is not true, as Rule 12(b)(3) also requires a certificate or affidavit of mailing to the clerk." Secura, 232 Ill.2d at 217, 327 Ill.Dec. 541, 902 N.E.2d 662.
¶ 27 The supreme court "emphasize[d] that the timely filing of an appeal is both jurisdictional and mandatory and the court must determine its own jurisdiction even if no party objects." Secura, 232 Ill.2d at 217, 327 Ill.Dec. 541, 902 N.E.2d 662. It further rejected the reasoning applied by the appellate court in finding jurisdiction, stating that "[t]he issue in this case is not, as the appellate court believed, merely about a slight defect in the form of the notice. This is not a case where a certificate or an affidavit was submitted which had a typographical error, misspelling, or other inadvertent mistake. Rather, this case concerns [the plaintiff's] failure to prove by certificate or affidavit that it complied with the jurisdictional 30-day notice requirement in Rule 303." Secura, 232 Ill.2d at 217, 327 Ill.Dec. 541, 902 N.E.2d 662. Finally, the court noted that "[h]armless-error analysis is not applicable here," since "[t]he appellate court's ruling may be well intentioned, but the appellate court does not have the authority to excuse the filing requirements of the supreme court rules governing appeals." Secura, 232 Ill.2d at 217-18, 327 Ill.Dec. 541, 902 N.E.2d 662.
¶ 28 In the case at bar, as in Secura, there was no certificate by an attorney or affidavit by a nonattorney as required by Rule 12(b)(3). While Sushil submitted a "Certificate of Service," that document was not notarized, meaning that it cannot be considered an affidavit. Our supreme court has stated that "Illinois courts have defined the term [`affidavit'] in consistent fashion for over 100 years," and that "an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits." Roth v. Illinois Farmers Insurance Co., 202 Ill.2d 490, 493-94, 270 Ill.Dec. 18, 782 N.E.2d 212 (2002). Here, since Sushil's "Certificate of Service" was not sworn to before an authorized person, it cannot be considered an affidavit and, therefore, Sushil has not complied with Rule 12(b)(3)'s requirement that proof of mailing be in the form of a certificate by an attorney or an affidavit of a nonattorney.
¶ 29 We note that this exact issue was before this court in People v. Tlatenchi, 391 Ill.App.3d 705, 330 Ill.Dec. 485, 909 N.E.2d 198 (2009), where we determined that a lack of notarization on a proof of service submitted by a nonattorney results in a failure to comply with Rule 12(b)(3) and deprives the appellate court of jurisdiction. There, we were presented with an incarcerated litigant who submitted a "proof of service" that followed the requirements of Rule 12(b)(3) but was not
¶ 30 Given our supreme court's instruction in Secura and our earlier decision in Tlatenchi, we must find that while Sushil's "Certificate of Service" otherwise tracks the language of Rule 12(b)(3), it is not notarized and therefore does not constitute an "affidavit" as required by Rule 12(b)(3). While here, the record contains a document purporting to show the tracking information of the item that was mailed, we cannot read exceptions into the Rule's clear requirement of an affidavit.
¶ 31 Moreover, we also note that even if we had jurisdiction over his appeal, Sushil would not prevail, as we find his arguments meritless. Sushil's response to Anita's motion concerning the custodial accounts was presented to the trial court before it ruled on the order and, therefore, the trial court had the opportunity to consider the arguments made in the response. Further, there is nothing in the record to indicate that Anita's attorney in any way "manipulated the system" concerning the date of the hearing on the motion to reconsider, and, according to his brief, Sushil was present via telephone during the hearing. While Sushil argues that he was prevented from presenting his "key argument" during the hearing on the motion to reconsider, that "key argument" was merely that the court had made its decision to grant Anita's motion concerning the custodial accounts without having an opportunity to review Sushil's response, an argument that is belied by the record and Anita's counsel's representations before this court. Finally, while Sushil argues that he should have been granted continuances in light of his search for an attorney, a trial court's decision on a requested continuance is reviewed for an abuse of discretion (Henderson-Smith & Associates, Inc. v. Nahamani Family Service Center, Inc., 323 Ill.App.3d 15, 28, 256 Ill.Dec. 488, 752 N.E.2d 33 (2001)), and the record does not contain anything to indicate that the trial court here abused its discretion in ruling on Anita's motion and Sushil's motion to reconsider on the scheduled hearing dates.
¶ 33 Since Sushil's notice of appeal was filed more than 30 days after the denial of Sushil's motion to reconsider, we lack jurisdiction to consider Sushil's appeal.
¶ 34 Dismissed for lack of jurisdiction.
Presiding Justice PALMER and Justice McBRIDE