Detached trailer case dismissed at Fifth District due to untimely appeal; Plaintiff challenged order moving case to county where accident happened

By Heather Isringhausen Gvillo | Mar 26, 2015


The Fifth District Appellate Court has dismissed a woman’s auto accident case, concluding that it did not have jurisdiction because her petition for leave to appeal was untimely.

Justice Richard P. Goldenhersh delivered the Supreme Court Rule 23 decision on March 23 dismissing an appeal stemming from Madison County Circuit Judge Andreas Matoesian’s court.

Plaintiff Brittany R. Kruse had appealed Matoesian’s order denying her motion to reconsider the trial court’s earlier order transferring the case to Montgomery County - where the accident occurred - based on forum non conveniens.

On appeal, Kruse asked the court to determine “whether the trial court erred in denying the motion to reconsider on the basis that such a motion is not a legally recognized motion under Illinois law” and “whether the trial court abused its discretion in granting the motion to transfer venue.”

Defendants James R. Edwards and Maschhoff Transport, LLC, filed a motion to dismiss, arguing the appeals court lacked jurisdiction because Kruse’s petition for leave to appeal was untimely. The Fifth District agreed.

According to the complaint, Kruse, a resident of Montgomery County, filed a complaint in Madison County on March 21, 2013, against defendants Edwards, Maschhoff, Budget Truck Rental, LLC, and Michelle D. Martinez. In her complaint, Kruse blamed the defendants for injuries she allegedly sustained in an automobile accident on March 21, 2011.

Kruse claimed Martinez was operating a vehicle and pulling a dolly trailer, both owned by Budget, when the dolly detached and traveled into oncoming traffic.

Edwards struck the dolly, which then struck Kruse’s vehicle. Edwards was acting within the scope of his employment with Maschhoff when the incident occurred.

Kruse accused Martinez and Budget of failing to properly secure the dolly to the truck, failing to keep a proper lookout, driving the vehicle in a reckless manner and failing to drive her vehicle on the right half of the roadway as nearly as practicable.

Kruse also accused Martinez and Edwards of failing to keep a proper lookout, failing to sound an audible horn warning, failing to reduce speed to avoid colliding with other vehicles and driving their vehicles at a speed greater than is reasonable and proper with regard to traffic conditions and use of the highway.

In response, Edwards and Maschhoff filed a motion to transfer to Montgomery County, arguing that they were not residents of Madison County.

The trial court granted the defendants’ motion to transfer on Oct. 4, 2013. One month later, Kruse filed a motion to reconsider.

Matoesian denied Kruse’s motion five months later on March 21, 2014, holding that transfer to Montgomery County was proper.

Then on April 21, 2014, Kruse filed a petition for leave to appeal.

Edwards and Maschhoff responded with a motion to dismiss the appeal for lack of jurisdiction, because Kruse filed her petition more than 30 days after transfer was approved.

Goldenhersh agreed, concluding that Kruse’s motion to reconsider did not allege any new facts. Instead it included additional details to support earlier arguments. Those “new facts” were not even presented until two months after the 30-day period had expired.

Further, Kruse did not file a petition for leave to appeal until more than six months after the trial court granted the motion to transfer venue, court documents say.

“Even if a party files a motion to reconsider within the 30-day time period, he or she is still required to file a petition for leave to appeal within 30 days because ‘orders granting or denying a motion to transfer a case based on intrastate forum non conveniens are interlocutory in nature …” Goldenhersh wrote.

“After careful consideration, we find that plaintiff’s motion to reconsider filed in the trial court did not postpone the time in which to appeal. Accordingly, we are without jurisdiction to hear this appeal,” he added.

The appeals court concluded that the appeal was untimely and dismissed the action.

Justices Bruce D. Stewart and S. Gene Schwarm concurred in the judgment.

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