No. 2--07--0318 Filed: 7-23-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ CE DESIGN, L TD., and FLEXICORPS, INC., ) Appeal from the Circuit Court Individually

and as the Representatives For a ) of Du Pa ge Co un ty. Class of Sim

ilarly Situated Pe

rsons, )

) Plaintiff s-Appell ants, ) ) v. ) No. 03--CH--1565 ) THE MORTGAGE EXCHANGE, I NC., ) Honorab le

) Edward R. Duncan, Jr., Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE ZENOF F delive

red the o pinion of t

he court : OnMarch 26, 2007, plaintiffs, CE Design, Ltd., and Fle xicorps, Inc., filed a

Supreme Court Rule 306(a)(8) (210 I ll. 2d R. 306(a)(8)) petition for leave to appeal from an or der of the circuit court of Du Pa ge Co un ty. On April 17, 2007, def endant, T he Mortg age Exchange , Inc ., filed a motion to dismiss plaintiff

s' petition, for lack of jurisdiction. For the following reason s, we gr ant de fendan t's motion to dis miss. I. BACKGROUND OnDecember 1, 2004, plaintiffs filed their first amended class action complaint alleging that
on or about August 2003 defendant transmitted unsolicited advertisem ents to facsimile machines owned by plaintiffs, in violation of I llinois and federal statutory la w. Specifically, plaintiffs a lleged that defendant violated both the federal Telephone Consumer Protection Act of 1991 (TCPA) (47No. 2--07--0318

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U.S.C. §227 (b)(1)(C) (2000)) and the Illinois Consumer Fraud and De ceptive Business Practices Ac t (815 IL CS 505/2 (West 2002)). The TCPA makes unlawful the use of a telepho ne facs imil e machine, computer or other device to send an unsolicited adver tisement t o a telephone fac simile machine
. 47 U.S.C. §227 (b)(1 )(C) (2 000). The TCPA a lso provid

es that wh en this pr

ovision is violated, a person may , if otherwise permitted by a state' s laws or rules of court , bring a n action i n
anappropriate court of

that state to recover for actual monetary loss from the violation, or to receive $500 in damages for each such violation, whiche ver is greater. 47 U.S.C. §227 (b)(3)(B) (2000)
. Th e Illinois Consume

r Fraud and Dec eptive B usiness Pr actice s Act prohibits "unfair or deceptive acts or prac tices" in the conduct of any trade or commerce. 815 IL CS 505/2 (West 2002). Plaintiffs alleged that defendant's unsolicited facsimile practice was unfair, because plaintiffs incurre d expenses without an

y c onsidera

tion. Plain

tiffs als o alleg ed, in

a separa te count, that defendant committed

c onversion in that it permanently misappropr iated plaintiffs' facsimile machines' toner and paper t o defen dant's own use. Plaintiffs sought an award of statutory damages for

each violation, as well a s punitive

damage s and atto rney

fees. Intheir complaint, p laintiffs also alleged that a class action was prope r because the clas s consisted of thousands of persons in Illinois and throughout the United States, such that joinder of all members was impracticable. Plaintiffs further alleg ed that there werequestions of fact common to the class, which predominated over questions affecting only individual class members, and that
a class action was both fair and appropriate. Plaintiffs filed a motion for

class ce rtifica tion with th eir original complaint on October 29, 2003. OnOctober 13, 2006, the trial court denied plaintiffs' motion for class certifica tion. The trial court held first that issues such as the specific receipt of and c onsent to receive a facsimil eNo. 2--07--0318

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transmission by eac

h class member

were no t common iss

ues. The trial cou rt also held that

a class actionwas not an appropriate method for the fair and e fficient adjudication of the contro versy , because when Congress enacted the TCPA, it envisioned individual, small clai ms liti gation, not private class actions with

potential recoveries in the millions of dollars. The trialcourt, therefore, concluded

that it wou

ld be unfa ir to certify the c lass given the harm Congress was try ing to re dress in the TCPA. OnNovember 13, 2006, pla in tiffs file d a motion f or reconsidera

tion of the

denial of their motion for cla ss certif

ication. On Febr

uary 22, 2007, t

he trial c ourt d enied plaint iffs' mo tion to reconsider. On March 26, 2007, plaintiffs filed a petition for leave to appea l the trial court's denial of their motion for class certification. On April 17, 200 7, defe ndant file d a motion to dismiss plaintiff s' petition for leave to appeal, for lack of jurisdiction. We now consider defendant's motion to dismiss. II . DISCUSSION In its motion to dismiss, defendant contends that this court lacks jurisdiction to conside r plaintiff s' petition for leave to appeal, because plaintiffs fa iled to file their petition within 30 da ys of the trial court's October 1 3, 2006, ord er denying class certification. Plaintiffs respond in two way s. First , plai ntiff

s cont end th at defe ndant 's motion to dis miss was not pr operly served a nd should be stricken for

failure to serve as required by law. Second, plaintiffs contend t hat they filed a ti mely petition f or leave to appea l. A. Service Supr eme Court Rule 11(b )(4) sta tes that pa

pers may be serve d "by

transmitti

ng them v

ia facsimile machine to the office of the attorney or party, who

has consented to receiving service byNo. 2--07--0318

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facsimil e transmiss ion." 145 Ill. 2 d R.11(b) (4). Purs uant to this

rule, defendant

served by f

acsimile its motion to dismiss plaintiffs' petition for leave to appeal. However, there is no indication in the record that plaintiffs ever

consente d to servi ce by facsi mile . Ther efore, plain tiffs argue, d efenda nt's motion to dismiss should be stricken. In In re M.G. , 301 Ill. App. 3d 401, 412-13 (1998), the Fi rst Di stri ct con sider ed the Stat e's violation of Rule 11(b)(4) in the trial court proceeding s. Inthat case, the respondent contended that the State failed to properl y no tify him of its in

tent to pro secute

him as a violent juvenile offender, inpart because the service occ urred by f

acsimile and his attorney never con sented to service by facsimile. M.G. , 301 Ill. App. 3d at 412. Although the M.G. court ac knowledg ed that the recor d did notindi cate t hat th e respo ndent 's attorney had c onsented to such service, it held that such a violation
was not reversible error where the r espondent's attorney

received actual notice and wher e the respondent

was permitted to object to the propriety of his prosecution as a

violent juvenile offender.

The appellate court also has applied a harmless error analysis in another context, which we find instructi ve. The F ourth

District similarly treated as ha rmless violations of

Supreme C ourt Rule 12(b) (145 Ill. 2d R. 12(b)). I n Curtis v. Pekin Insurance Co. , 105 Ill. App. 3d 561, 566-67 (1982), the Fourth District held that very slight defects in proof of serv ice that r esu lted in nonconform

ity with Sup reme Cour t Rule 12(b)'s requirements did not constitute reversible error
. The court reasoned that this is especially true w here the complaining party is in no way prejudice d or harmed by the other pa

rty 's fail ure to co mply

with the exact requirements of the rule. Curtis , 105 Ill. App. 3d at 566-67.No. 2--07--0318

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We recognize that, unlike M.G. and Curtis , the case at bar involves a violation of a supreme court rule in the appellate court and not a review

of such a violation in the trial court. However, a lack of strict compliance with pr

ocedura l supreme court ru les gove rning th e appell ate cour

t has also been condoned where alleged violations donot interfere with or preclude review. Inre Detention of Powell , 217 Ill. 2d 123, 132 (2 005). Plai ntiff s in t his ca se mak e no co ntent ion t hat de fendan t's violation of Rule 11(b) has prejudiced or harmed them. Plaintiffs do not dispute that they rece ived defend ant's motion to dismiss and have, in fact, filed a response to the motion. Thus, although we admonish defendant that

the supre me court ru

les are not mere ly a

dvisory, and we d

irect it to comply with Rule 11(b) in any future

service to plaintif

fs, defenda

nt's fa ilure to st rictly comply with Rule 11(b) does not me

rit the ha rsh sanc tion of str

iking its m

otion to dism

iss. Accordingly , we will now consider the merits of that motion. B. Motion to Dismiss Inits motion to

dismiss, de fendant contends that this court lacks jurisdiction to consider plaintiff s' appeal and, therefore, asks that we dismiss plaintiffs' petition for leave to app eal
. Defendant

argue s that, pursuant to Supreme Cour t Rule 306( c) (210 I

ll. 2d R. 306(c)), plaintiffs had only 30 days following

the trial court's October 13, 2006, denial of their motion for c lass certification to file a pe

tition for leave to appeal t he denia l. Because plaintiffs did not file their petition for leave to appeal that decision until March 26, 2007, long after the 30 days had expired, def endant contends that this court lacks jurisdiction to hear plaintiffs' appeal. Plaintiff s concede that they

did not file their petition f or leave to appea l within 30 d

ay s of the or

iginal o rder de

nyi ng their motion for

class certification; ho we ve r, pl ai nt if fs ar gu e t ha t t he ir pe ti ti on fo r l ea ve to ap pe al is ti me ly b ecause (1 )No. 2--07--0318

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th eir motion to re consider

tolled the

time for a

ppeal, or alterna tively , becau se (2) th eir

motion t o reconsider was actually

a new motion for class certification.

1. Tolling Time to Appeal According

to Rule 306 (c), " An orig inal and t hree co pies of th e petition

[for leav e to appe al]
*** shall be filed in the Appellate Court in accordance with the re quirements fo r brief s within 30 da ys after the entry

of the order ." (Emphasis added.) 210 I ll. 2d R. 306(c). The 30-day requirement is jurisdictional. Kemner v. Monsanto C o . , 112 Ill. 2d 223, 236 (1986). There is no provision in the rule that allows a motion to reconsider an interlocutory order to extend the time for filing the petition for leave to appeal. Leet v. L ouisville & Nashville R.R. Co. , 131 Ill. App. 3d 763, 764 (1985) . As
a result, I llinois cou

rts have consiste ntly held that

moti on s to reconsider that are directed at interlocutory

orders identified by

certain subsect ions of Rule 306(a) do not toll the running of the 30-day deadline to petition for leave to appeal those orders. In re Leonard R. , 351 Ill. App. 3d 172, 174 (2004) (considering subsection (a)(5)) ; Law Offices of Jeffery M. Leving, Ltd. v. Cotting , 345 Ill. App. 3d 495, 499 (2003) (considering subsection (a)( 4)) ; National

Seal Co. v. Greenb latt , 321 Ill. App. 3d 306, 308 (2001) (considering subsecti on (a)(

4)); Odom v. Bowman , 159 I ll. App. 3d 568, 570-71 (1987) (conside

ring pr evious Rule

306(a)( 1)(i) (1 07 Ill . 2d R. 306(a)(1)(i)), now subsection (a)(1))
. However, plaintiff s argue that no Illinois casehas considered specifically whether the denial of a motion for reconsideration of class certifica tion is appealable pursuant to Rule 306(a)(8)
. Plaintiffs assert that, unlike under the other subsections of Rule 306(a), a motio n to reconsider an order denying class certification tolls the time to petition for leave to appeal under Rule 306(a)(8)
. Plaintiffs point out th at Rule306(a)(8) is not worded the same way as subsections (2) and (4) in thatNo. 2--07--0318

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subsection(8) does

not defin e the app ealable order with refe

rence t o granting or deny

ing a motion. For example, Ru

le 306(a )(2) sta tes that a party may

petition for leave to appeal "from an order of the circuit court allowing or deny

ing a motion

to dismiss on the grounds of forum non conveniens ***." 210 Ill. 2d R. 306(a)(2). In contrast, Rule 306(a)(8) (210 Ill. 2d R. 306(a)(8)) states that the appeal is from "a

n order o f the cir

cuit cour t deny ing or g ranting certifi cation of

a class a ction." Thus, plaintiffs maintain, a circuit court's order deny ing reconsideration is a separate a nd new order deny ing cla ss certif

ication. We reject plaintif fs' ar guments . The timelines s r e quirement in subsection (c) of Rule 306 applies in the same way to all petitions filed pursuant

to all subsections of Rule 306(a) except subsection (a)(5), which is governed by subsecti on (b). 210 Ill. 2d R. 306(c); see also Leonard R. , 351 Ill. App. 3d at 174. Thus , following the logic of Leonard R. , if a motion to reconsider will not toll the running of the 30-day deadline for petitions filed pursuant to Rules 306(a)(2) and (a)(4), then a

motion to re consider

will nottoll the running of the deadline for a petition filed pursuant to Rule 306(a)(8). See Leonard R. , 351 Ill. App. 3d at 174. Although plaintiffs attempt to distinguish the language of subsections (2) and (4) from that of subsecti on (8), pl aintiffs fail to dis tinguish

the lang uage o f subse ctions (1) and (5). Unlike subsections (2) and (4), subsections (1) and (5) do not conce rn the denial or grant of specific motions but, rather, like subsection (8), they stat e that a pe

tition for leave to appeal may

be filed from a particular order without regard to the gr ant or denial of a particular motion. 210 I ll. 2d Rs. 306(a)(1), (a)(5). We are not persuaded that plaintiffs' attempt to distinguish amotion to reconsider an order granting or denying class certification should cause us to differ with the conclusion of the Leonard R. and the Odom courts, that a motion to reconsider does not toll the time for filing the petition forNo. 2--07--0318

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leave to appeal. Therefore, pla intiffs' motion to reconsider the denial of class certification did not toll the t ime to petition for leave to appeal from the original orde r. Accordingly , we wi ll no w consider plaintiff s' alte rnative argume nt. 2. New Motion Plaintiffs next arg

ue that th ey

timely filed the ir petitio n for lea ve to appe al beca

use their November

13, 2006, motion to reconsider was in actual it y a new motion for c lass certification, which started a ne w 3 0- da y period in which to petition for leave to appeal. Plaintiffs cite Kemner to support their argument. In Kemner

, the defendant

filed thr ee sepa rate moti ons to dismis s on forum non conveniens ground s. The court

denied the first motion on May 29, 1981. Kemner , 112 Ill. 2d at 229
. With no mechani smthenexisting for a direct a ppeal of such an o rder, th e defen

dant file d a petition for a w rit of mandamus , which was denied. Kemner , 112 Ill. 2d at 229. T he tri al cou rt den ied th e defen dant's second motion on April 29, 1983, and the reviewing courts denied the defendant's petitions for leave to appeal. Kemner

, 112 Ill. 2d at 230-31 . The defenda nt filed a third motio n, entitle d a "motion to reconsider,"on

September 28, 1984, alle ging f acts tha t had come

to light d uring di scovery

to bolster its contention that the chosen forum was not convenient. Kemner , 112 I ll. 2d at 231. The trial court denied the motion on December 13, 1984. Kemner , 112 Ill. 2d at 231 . The app ellate court denied leave to appeal, but the supreme court granted it and reve rsed the trial court's order. Kemner , 112 Ill. 2d at 250. The supreme court held that it had jurisdiction despite the 30-day time limit in Rule 306, beca u se the "motion to reconsider" was in reality a new original motion to dismiss. Kemner , 112 Ill. 2d at 239 . It held that the Septembe r 28, 1984 , motion wa s not an at tempt to exte

nd the time

toNo. 2--07--0318

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appeal the denia

l of the 19 83 motion, b ecause the third motion alleged new information and cited
new authori ties dec id ed since the denial of the second motion. Kemner , 112 Ill. 2d at 239. In addition, the defendant had already pursued anappeal from the earlier order. Kemner , 112 Ill. 2d at 239 . The court stated, "The fact that a circu it court r uling wa s obtaine d and a tim ely appeal sought
as to each motion leads us to conclude that each motion was in substance a new origin al motion seeking dismissal on the basis of forum non conveniens ." Kemner , 112 Ill. 2d at 239
. Here, unlike in Kemner , plaintiffs did not seek to appeal the order deny ing their moti on to certify the class. Instead, within 30 days of that orde r, they sought reconsideration. Plaintiffs argue that the motion to reconsider concerned issues the parties had not pre viously addressed. Plaintiffs assert that their mo tion t o reconsider addressed the new leg al issues and authorities the trial court "u ne xp ec te dl y" raised at the initial hearing on class certifica tion. We disagree. Plaintiffs based the ir motion for rec onsidera

tion on "l egal e

rror." The motion

simply att em pted to point out to the trial court why it erre d in interpreting existing authorities. The motion did not introduce new factual matter or cite to a change in the law
. Consequently, the motion, in substance, was not a ne w and independent

motion for

class certification. Accordingly , the 30-day a

ppeal period

did not start anew. For the fore going

reasons , we allow

defenda nt's motion to dismi ss plain tiffs' petition for leave to appeal, for lack of appellate jurisdiction. Petition for leave to appeal dismissed. BYRNE and GIL

LERAN JOHNSON, JJ., concur.