April 25, 2001

No. 2--00--0014

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GEIGER delivered the opinion of the court:

The defendant, Leon A. Greenblatt III, appeals from thecircuit court's order that denied his motion to transfer venue of this breach ofcontract action to Cook County. He contends that no legitimate basis exists forvenue in Kane County. Because we lack jurisdiction, we dismiss the appeal.

The plaintiff, National Seal Company, sued Greenblatt andResource Technology Corporation (RTC). The plaintiff alleged that RTC owed itmoney pursuant to various contracts. The plaintiff further alleged thatGreenblatt, an officer and director of RTC, had executed a promissory noteguaranteeing payment of those obligations but that $1,762,927.73 remained due.The note requires Greenblatt to pay the principal amount to the order ofNational Seal "at its principal office at 1245 Corporate Blvd., Suite 300,Aurora, Illinois."

RTC appeared and moved to transfer venue to Cook County. Thecourt denied the motion. Greenblatt appeared on August 16, 1999, and filed hisown motion to transfer venue to Cook County. The court denied this motion onOctober 14, 1999. On November 12, 1999, Greenblatt filed a motion to reconsider.The court denied the motion on December 8, 1999. On January 7, 2000, Greenblattfiled a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(4)(166 Ill. 2d R. 306(a)(4)). This court granted the petition.

Greenblatt argues that the trial court erred in denying hismotion to transfer venue because both he and RTC are residents of Cook Countyand none of the events surrounding the contracts occurred in Kane County. Theplaintiff initially responds that we lack jurisdiction to hear this appealbecause Greenblatt filed his petition for leave to appeal more than 30 daysafter the trial court denied his original motion to transfer venue and, underRule 306, the motion to reconsider did not toll the time to appeal. We agree.

Rule 306 allows for permissive appeals from, inter alia,orders granting or denying motions to transfer venue. 166 Ill. 2d R. 306(a)(4).The rule requires, as a prerequisite to invoking appellate jurisdiction, thefiling of a petition "in the Appellate Court in accordance with therequirements for briefs within 30 days after the entry of the order." 166Ill. 2d R. 306(b). The 30-day time limit under Rule 306 is jurisdictional. Kemnerv. Monsanto Corp., 112 Ill. 2d 223, 236 (1986). Moreover, a motion toreconsider filed in the trial court does not postpone the time in which toappeal. Odom v. Bowman, 159 Ill. App. 3d 568, 571 (1987); Buckland v.Lazar, 145 Ill. App. 3d 436, 438 (1986).

Greenblatt acknowledges this rule but, citing Kemner,argues that his motion to reconsider alleged "new facts" and shouldtherefore be considered a new motion to transfer venue that started a new 30-dayperiod in which to appeal. Kemner is distinguishable from this case,however.

In Kemner, the defendant filed three separate motionsto dismiss on forum non conveniens grounds. The court denied the firstmotion on May 29, 1981. With no mechanism for a direct appeal of such an orderthen existing, the defendant filed a petition for a writ of mandamus,which was denied. Kemner, 112 Ill. 2d at 229. The circuit court deniedthe defendant's second motion on April 29, 1983, and the reviewing courts deniedthe defendant's petitions for leave to appeal. Kemner, 112 Ill. 2d at230-31. The defendant filed a third motion, entitled a "motion toreconsider," on September 28, 1984, alleging facts that had come to lightduring discovery to bolster its contention that the chosen forum was notconvenient. The trial court denied the motion on December 13, 1984. Kemner,112 Ill. 2d at 231. The appellate court denied a petition for leave to appeal,but the supreme court granted it and reversed the trial court's order.

The supreme court held that it had jurisdiction despite the30-day time limit in Rule 306 because the "motion to reconsider" wasin reality a new original motion to dismiss. Kemner, 112 Ill. 2d at 238.It held that the September 28, 1984, motion was not an attempt to extend thetime to appeal the denial of the 1983 motion because the defendant had alreadypursued an appeal from the earlier order. Kemner, 112 Ill. 2d at 239. Thecourt stated, "The fact that a circuit court ruling was obtained and atimely appeal sought as to each motion leads us to conclude that each motion wasin substance a new original motion seeking dismissal on the basis of forumnon conveniens." Kemner, 112 Ill. 2d at 239.

Here, unlike in Kemner, Greenblatt did not seek toappeal the order denying his motion to transfer venue. Instead, within 30 daysof that order, he sought reconsideration. This motion did not extend the time toappeal. Contrary to Greenblatt's argument, the critical factor in Kemnerwas that the defendant pursued appeals of each of the three orders, not that thesuccessive motions alleged "new facts." Moreover, the motion toreconsider does not allege any new facts but merely includes more details insupport of the arguments raised in the original motion. In Bucklew v. G.D.Searle & Co., 138 Ill. 2d 282 (1990), which Greenblatt also cites, theissue of appellate jurisdiction was not considered.

We note that, had Greenblatt's motion to reconsider actuallybeen a new original motion, it would have been untimely. A motion based onimproper venue must be filed on or before the date by which the defendant isrequired to appear and answer. 735 ILCS 5/2--104(b) (West 1998). Greenblattfiled his original motion on the last day for him to appear. Therefore, asubsequent venue motion would have been untimely.

In its brief, the plaintiff requests sanctions pursuant toSupreme Court Rule 375 (155 Ill. 2d R. 375). We do not find that the appeal wasbrought in bad faith or for an improper purpose. Therefore, we deny theplaintiff's request.

The appeal is dismissed.

Appeal dismissed.

HUTCHINSON, P.J., and BYRNE, J., concur.