In re Marriage of Sheth, 2014 IL App (1st) 132611, examines the technical requirements for filing a notice of appeal by mail. Respondent, Sushil Sheth, was a cardiologist in the Chicago area who had been federally charged with healthcare fraud on January 28, 2009, and sentenced to 60 months' imprisonment in the federal corrections center on August 10, 2010. His wife, Anita Sheth, filed a petition for dissolution of marriage approximately six months after Sushil was charged. Sushil was originally represented by an attorney in the dissolution proceedings, but eventually proceeded pro se. During the dissolution proceedings, a dispute regarding disbursement of monies to their children arose. On May 13, 2013, and while incarcerated, Sushil filed a motion by mail resisting the disbursement of funds and seeking a continuance. Sushil’s motion went ignored, and on May 15, 2013, the trial court granted Anita’s motion to disburse the children’s funds into a trust administered by her brother. On June 4, 2013, Sushil filed a motion to reconsider by mail. On June 28, 2013, the trial court denied the motion to reconsider.
Sushil filed a pro se notice of appeal by mail. The notice of appeal was received and filed by the clerk on August 13, 2013. The notice of appeal contained a “Certificate of Service,” which was signed by Sushil and dated July 22, 2013, certifying that he placed the notice of appeal in the prison’s legal mailbox, with United States “First Class Certified Mail, Return Receipt Requested,” postage affixed, addressed to the circuit clerk of Cook County. The Certificate of Service, which was also file-stamped with a date of August 13, 2013, was signed by Sushil but, important to this appeal, not notarized. Also attached to the notice of appeal and Certificate of Service was tracking information showing that documents had been processed through the USPS sort facility in Indianapolis on July 24, 2013, and delivered in Chicago on July 29, 2013.
Before reaching the merits, the reviewing court, as it was required to do, considered whether it had jurisdiction. This inquiry required the court to consider whether Sushil’s pro se notice of appeal received and filed by the clerk on August 13, 2013, was timely. The court noted that, under Illinois Supreme Court Rule 303(a)(1) (eff. May 30, 2008), Sushil’s notice of appeal was required to be filed within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against the judgment or order, which would have made the notice of appeal due on Monday, July 29, 2013. However, Sushil’s notice of appeal was not received and filed by the clerk until August 13, 2013, almost two weeks beyond the due date.
Nonetheless, the reviewing court noted that Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009) provides that, when a notice of appeal is mailed, the time of mailing shall be deemed the time of filing if it is received after the due date. Therefore, the court opined, Sushil had to rely on Rule 373 for his notice of appeal to be considered timely. For a party to rely on Rule 373, it must also file proper proof of mailing or delivery to a third-party commercial carrier as required by Rule 12(b)(3), which provides:
“(3) in case of service by mail or by delivery to a third-party commercial carrier, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the document in the mail or delivered the document to a third-party commercial carrier, stating the time and place of mailing or delivery, the complete address which appeared on the envelope or package, and the fact that proper postage or the delivery charge was prepaid[.]” Ill. S. Ct. R. 12(b)(3) (eff. Jan. 4, 2013).
The reviewing court concluded that Sushil’s certificate of service attached to the pro se notice of appeal, which was signed but not notarized, failed to meet the requirement of an “affidavit of a person other than the attorney” under Rule 12(b)(3). Citing Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009), and People v. Tlatenchi, 391 Ill. App. 3d 705 (2009), the court in Sheth emphasized affidavits must be sworn to by a party before a person who has legal authority to administer oaths. Because the certificate of service was signed but not notarized, the notice of appeal received by mail after the 30-day period was untimely, and the Sheth court dismissed the appeal for lack of jurisdiction.
Recommended Citation: Nate Nieman, You've Got Mail: First District Discusses the Requirements of Rules 373 and 12(b)(3) to Non-Attorneys, The Brief, (October 1, 2014), http://applawyers-thebrief.blogspot.com/2014/10/youve-got-mail-first-district-discusses.html.
