Docket No. 92338–Agenda 16–March 2002.

BRENDA ROTH, Ind. Adm’r of the Estate of Angela Roth,

Deceased, Appellee, v. ILLINOIS FARMERS INSURANCE

								COMPANY, Appellant.

Opinion filed July 3December 5, 2002.

	JUSTICE FREEMAN delivered the opinion of the court:

	Plaintiff, Brenda Roth, acting as the administrator of the estate

of her daughter, Angela, brought a declaratory judgment action in

the circuit court of St. Clair County against defendant, Illinois

Farmers Insurance Company. The circuit court found in plaintiff’s

favor, and defendant appealed. The appellate court affirmed the

circuit court’s judgment (324 Ill. App. 3d 293), and we

subsequently allowed defendant’s petition for leave to appeal (177

Ill. 2d R. 315(a)). For the reasons that follow, we hold that leave

to appeal in this matter was improvidently granted and dismiss the

appeal.

BACKGROUND

	Due to our disposition of the case, we will detail only those

facts necessary to an understanding of our holding. The appellate

court issued its opinion in this case on August 7, 2001. On August

24, 2001, defendant filed a document, in the appellate court,

entitled “Affidavit of Intent to File Petition For Leave to Appeal.”

The document reads as follows:

			“Comes now Defendant/Appellant, Illinois Farmers

Insurance Company, and hereby states it intends to file a

Petition for Leave to Appeal with the Illinois Supreme

Court pursuant to Supreme Court Rule 315.

			Respectfully submitted,

			Law Offices of Morgan & Associates”

The document was signed by one of the law firm’s attorneys and

was accompanied by a certificate of service. Defendant thereafter

filed in this court its petition for leave to appeal on September 11,

2001. Plaintiff filed a response, and we granted leave to appeal on

December 5, 2001.

ANALYSIS

	Plaintiff contends that this appeal must be dismissed because

defendant failed to comply with the requirements of Supreme

Court Rule 315(b). Plaintiff argues that the affidavit of intent filed

by defendant was a nullity and that, as a result, the petition for

leave to appeal was untimely. Defendant, on the other hand,

responds that, because the affidavit required under Rule 315(b) is

one designed to “serve as notice of an action,” the deficiencies of

its affidavit of intent are inconsequential. Defendant also contends

this issue is moot given the fact that this court has granted leave to

appeal.

	We begin our analysis with Rule 315(b), which states that

			“[u]nless a timely petition for rehearing is filed in the

Appellate Court, a party seeking leave to appeal must file

the petition for leave in the Supreme Court within 21 days

after entry of the judgment of the Appellate Court, or

within the same 21 days file with the Appellate Court an affidavit of intent to file a petition for leave, and file the

petition within 35 days after the entry of such judgment.” (Emphasis added.) 177 Ill. 2d R. 315(b).

We interpret a supreme court rule in the same manner in which we

interpret a statute, namely, by ascertaining and giving effect to the

intent of the drafter. In re Estate of Rennick, 181 Ill. 2d 395, 404 (1998). The most reliable indicator of intent is the language used,

which should be given its plain and ordinary meaning. Rennick, 181 Ill. 2d at 405. When the language is clear and unambiguous, we

will apply the language used without resort to further aids of

construction. Rennick, 181 Ill. 2d at 405.

	In the case of Rule 315(b), the import of the language cannot

be clearer–the rule requires that an “affidavit” be filed in order to

secure a 35-day period in which to file a petition for leave to appeal

in this court. Therefore, we must determine whether defendant filed

an “affidavit” in the appellate court as is contemplated by Rule

315(b).

	Although the term “affidavit” is not defined in the rules, within Rule 315,

Illinois courts have defined the term in consistent fashion for over

100 years. For example, in Harris v. Lester, 80 Ill. 307, 311 (1875), this court noted that “[a]n affidavit is simply a declaration,

on oath, in writing, sworn to by a party before some person who

has authority under the law to administer oaths. It does not depend

on the fact whether it is entitled in any cause or in any particular

way. Without any caption whatever, it is nevertheless an affidavit.”

See also Figge v. Rowlen, 185 Ill. 234, 238 (1900) (citing Harris definition with approval); People ex rel. McCline v. Meyering, 356 Ill. 210, 214 (1934) (defining affidavit as a declaration on oath, in

writing, sworn to by a party before some person who has authority,

under the law, to administer oaths). More recently, our appellate

court has noted that “ ‘[a]n affidavit is simply a declaration, on

oath, in writing sworn to before some person who has authority

under the law to administer oaths. A writing which does not appear

to have been sworn to before any officer does not constitute an

affidavit.’ ” People v. Smith, 22 Ill. App. 3d 377, 380 (1974), quoting 2 Ill. L. & Prac. Affidavits §2, at 648 (1953). Thus, an affidavit must be sworn to, and statements in a writing not sworn

to before an authorized person cannot be considered affidavits. See

Kehoe v. Rounds, 69 Ill. 351 (1873); Kohls v. Maryland Casualty Co., 144 Ill. App. 3d 642 (1986); 1 Ill. L. & Prac. Affidavits §3, at 436 (1988). In light of this precedent, we agree with plaintiff that

defendant did not file an “affidavit” in this case because the

document filed with the appellate court does not consist of a

statement sworn to before a person who has authority under the

law to administer oaths. Rather, the document takes the form of a

simple pleading.

	Notwithstanding the above, defendant argues that the

signature of its attorney on its filing substantially complies with the

requirements of Rule 315(b) because the purpose of the affidavit

is merely to give “notice” of the party’s intention to seek leave to

appeal. Defendant notes that an attorney is ethically bound to sign

legal papers that are truthful. In essence, defendant asks this court

to relax the affidavit requirement contained in Rule 315(b) in this

case and allow for a general notice of intent to suffice. However,

“[t]he rules of court we have promulgated are not aspirational.

They are not suggestions. They have the force of law, and the

presumption must be that they will be obeyed and enforced as

written.” Bright v. Dicke, 166 Ill. 2d 204, 210 (1995). To hold as defendant suggests would require that we ignore completely the

affidavit requirement contained in Rule 315(b). We deem such a

course of action imprudent for several reasons. As an initial matter,

were we to so hold, we would provide litigants with little incentive

to follow our rules. More importantly, our rules would have little

force if the legal community perceived that we, as a court, do not

enforce the rules or tailor them to fit the exigencies of the moment.

Accordingly, we must emphasize that the supreme court rules are

rules of procedure and that it is incumbent upon litigants to follow

them. Furthermore and contrary to defendant’s argument, the

affidavit of intent does not serve only to give notice to the

opposing party of the intention to seek leave to appeal. The

affidavit of intent also serves to stay, automatically, the mandate of

the appellate court. See 155 Ill. 2d R. 368. Thus, the filing of the

sworn document prevents the prevailing party from proceeding on

the appellate court’s judgment. Given this dual purpose, we cannot

agree with defendant’s suggestion that the affidavit-of-intent

requirement is nothing more than a notice provision to the

opposing party.

	We note that our recent opinion in Robidoux v. Oliphant, No.201 Ill. 2d 324 91072 (2002), in which we addressed what is required for

compliance with the affidavit requirements of Supreme Court Rule

191(a), provides little assistance to us in the context of addressing

the affidavit of intent required under Rule 315.   In Robidoux, we held that an affidavit need not be notarized in order to comply with

the requirements of Supreme Court Rule 191(a).   In so holding, we

looked at the specific requirements for affidavits as set forth in

Rule 191 and noted that, in contrast to traditional rule that

notarization accompany an affidavit, Rule191 contained   no express

requirement that the affidavit be notarized.   What was required

under Rule 191, we held, was that the affidavit must be signed by

the affiant or that his or her name must appear as the person having

taken an oath. Our analysis in Robidoux necessarily applies only to affidavits filed pursuant to Rule 191(a), which itself applies only to

specified proceedings under the Code of Civil Procedure, such as

motions for summary judgment, involuntary dismissal, and to

special appearances to contest personal jurisdiction.   In this case,

we are dealing with an affidavit required under Rule 315, which is not a rule used to implement practice under the Code of Civil

Procedure.   Even if it were, Rule 191(a) is markedly different from

Rule 315.   Rule 191 expressly provides what is required of the

affidavit, stating that affidavits:

			“shall be made on the personal knowledge of the affiants;

shall set forth with particularity the facts upon which the

claim, counterclaim, or defense is based; shall have

attached thereto sworn or certified copies of all papers

upon which the affiant relies; shall not consist of

conclusions but of facts admissible in evidence; and shall

affirmatively show that the affiant, if sworn as a witness,

can testify competently thereto.”   145 Ill. 2d R. 191(a).

In contrast, Rule 315, as we have noted previously, sets forth no

specific affidavit requirements, stating only that “an affidavit” of

intent is required if a petition is not filed in the Supreme Court

within 21 days after entry of the judgment of the appellate court. 

15577 Ill. 2d R. 315(b). Because Rule 191(a) sets out specific

requirements for an affidavit, but omits reference to notarization,

it was reasonable for this court to conclude in Robidoux that notarization is not required.   In this case, we cannot ignore excuse the

non-compliance with the traditional requirements of an affidvdavit

iareach a similar conclusion with respect to Rule 315(b) because Rule 315(b), unlike Rule 191(a) , that rule gives absolutely no

guidance as to what is required of the party filing the affidavit.   For

that reason, its requirements must be gleaned from our case law,

i.e., how this court has traditionally viewed the requirements of an affidavit. Robidoux, therefore, is inapplicable our discussion here.

	Having decided that the document filed by defendant in this

matter was not an affidavit, we must next determine what effect, if

any, the improper filing had on this case. Defendant asserts that the

issue is moot because this court has already granted leave to

appeal. Just recently, however, this court, in a unanimous opinion,

reaffirmed that “[o]ur rules demand strict compliance in the timely

filing of appeals or affidavits of intent as a matter of jurisdiction.”

A.J. Maggio Co. v. Willis, 197 Ill. 2d 397, 403 (2001). In that case, although we granted the petition for leave to appeal, we

subsequently declined to exercise jurisdiction and dismissed the

appeal because of the untimeliness of the petition for leave to

appeal. Therefore, we will not consider the issue to be moot.

	An affidavit that is not sworn is a nullity. Hough v. Weber, 202 Ill. App. 3d 674, 692 (1990). The fact that defendant’s affidavit

was a nullity calls into question the timeliness of the filing of the

petition for leave to appeal in this case. Under Rule 315(b), to

bring a further appeal to this court, defendant was required to do

one of two things within 21 days of the filing of the appellate court

opinion: either file a petition for leave to appeal in the supreme

court or file, in the appellate court, an affidavit of intent. A proper

affidavit of intent would allow a litigant an additional 14 days in

which to file a petition for leave in this court. We have already

determined that the “affidavit of intent” filed in this case was not

proper. Because an improper affidavit has no legal effect, the

document filed in the appellate court was insufficient to extend the

time for filing the petition for leave to appeal. For this reason,

defendant’s petition for leave to appeal was untimely and should

not have been considered. We, therefore, conclude that leave to

appeal in this matter was improvidently granted and dismiss the

cause.

CONCLUSION

	Leave to appeal in this matter was improvidently granted. The

appeal is dismissed.

Appeal dismissed.

	JUSTICE RARICK took no part in the consideration or

decision of this case.

[DISSENTpSEPARATE OPINION RPRIOR TO REVISION]

Docket No. 92338—Agenda 16—March 2002.

BRENDA ROTH, Ind. Adm’r of the Estate of Angela Roth,

Deceased, Appellee, v. ILLINOIS FARMERS INSURANCE

COMPANY, Appellant.

	JUSTICE KILBRIDE specially , concurring in part and dissenting in

part:

	I write separately to note my limited concurrence with the

majority's application of Supreme Court Rule 315(b), and to voice

my dissent concerning the majority’s interpretation of the Rule

315(b) “affidavit” requirement.   The majority concludes that since

the document filed by defendant was not, strictly speaking, an “affidavit,” it was a nullity and insufficient to extend the time for

filing the petition for leave to appeal.  (Slip op. at 3).

	I agree that the document filed by defendant is not an affidavit

within the meaning of Rule 315(b) because it contains no recital

that it was made under oath.   I note, Tthis court, however, that this court recently

approved as minimally sufficient under Rule 191(a) an affidavit

containing no notary attestation or other independent evidence that

an oath was administered to the person who signed it, even though

Rule 191(b) provides specific requirements for an affidavit.   Robidoux v. Oliphant, 201 Ill. 2d 324, 340 (2002).   Accordingly, today’s decision appears to be in conflicts with this court’s holding in Robidoux.   The majority provides no sufficient rationale for its willingness to relax the formal requirements of an affidavit in Robidoux and not in this case.   The majority attempts to distinguish Robidoux,   reasoning that Rule 191(a) sets out specific requirements for the form of an

affidavit, unlike Rule 315(b).   That distinction does not, however,

resolve the conflict.   The requirements of Rule 191(a) relate solely

to the factual assertions in support of, or in opposition to, a

summary judgment motion and not to oath, signature, or

attestation requirements.   Neither Rule 191(a) nor Rule 315(b)

refers directly to notarization or oaths of averment or any other

attestation requirement necessary to render the subject document

an “affidavit.”   Nonetheless, the majority chooses to strictly enforce

these non-specified attestation requirements with respect to Rule

315(b) when we did not in Robidoux.Specifically, the majority strictly enforces an affidavit requirement

when Rule 315(b) sets forth no specific requirements, nor does

Rule 315(b) require that the affidavit be in any particular form.

	The document in this case was not notarized or sworn to

before a qualified person.   Under Robidoux, the affidavit would be sufficient if it contained an oath averment.

	The majority concludes that because the document was

insufficient, we lack jurisdiction to hear the appeal.   (Slip op. at 65). 

Despite a defective affidavit, under Rule 315(b) this court has

exercised its discretion to extend the time for petitioning for leave

to appeal under “extreme and compelling” circumstances.   See

Telegraph Savings & Loan Ass’n of Chicago v. Schilling, 105 Ill. 2d 166 (1984).

	The majority reasons that we have merely declined to exercise

jurisdiction under the facts in this case.   (Slip op. at 6).   I reluctantly

concur with that portion of the decision because Rule 315(b), in its

present form, requires a minimally sufficient affidavit and the

defendant did not seek an extension of time for petitioning for

leave to appeal.   Nonetheless, the majority applies Rule 315(b) as

a strict jurisdictional rule while acknowledging that this court possesses the power to decline or accept jurisdiction under the

same rule.   I find it difficult to reconcile the treatment of Rule

315(b) as jurisdictional when Rule 315(b) is frequently not applied

on a strict jurisdictional basis.