No. 2--04--0066

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

PRESIDING JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff, Erma Rodriguez, appeals from an order of the circuit court of Kane Countydismissing her complaint for administrative review of a decision of the Sheriff's Merit Commissionof Kane County (Commission) terminating her employment as a Kane County corrections officer. We reverse and remand.

On June 30, 2003, plaintiff filed her complaint, naming the Commission, Kane County SheriffKenneth Ramsey (Sheriff), and Commission members James R. Klinkhamer, Elmer J. Weber, andStephen W. Wennmacher, as defendants. (In the interests of brevity, references to the Commissionshall include its members.) Plaintiff also named as defendants the various witnesses who testifiedbefore the Commission. Plaintiff alleged that they were necessary parties, but the trial court enteredan agreed order dismissing the complaint as to those defendants, and they are not parties to thisappeal. In her complaint, plaintiff acknowledged that she was responsible for the cost of thepreparation and certification of the record of the proceedings before the Commission. She alsorequested that the Commission advise her of the cost of the record and either bill her or have thestenography service that recorded the proceedings send her its bill.

On July 28, 2003, the Commission filed a motion to dismiss the complaint pursuant to section2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 2002)). The Commissioncontended that the trial court lacked jurisdiction because plaintiff's complaint was not filed within 35days of service of the Commission's decision upon plaintiff, as required by section 3--103 of the Code(735 ILCS 5/3--103 (West 2002)). The motion was supported by the affidavit of Mary Gray, whowas responsible for the Commission's secretarial work. She averred that she mailed the decision toplaintiff on May 23, 2003. The Commission argued that the last day of the 35-day period for seekingadministrative review was Friday, June 27, 2003, and that plaintiff's complaint, filed on the followingMonday, was untimely. Plaintiff filed a counteraffidavit stating, in pertinent part, that "[plaintiff]denies that the defendant Sheriff's Merit Commission mailed the notice of it's [sic] decision on thedate and time alleged in the affidavit attached to their [sic] motion to dismissed [sic], (May 23, 2003),and believes that said notice was hand delivered to plaintiff's residence on May 24, 2003." Plaintifffurther averred that she "never received notice from defendant Merit Commission by general deliverymail, at any time, before or after May 24, 2003." Citing Nudell v. Forest Preserve, 333 Ill. App. 3d518 (2002), aff'd, 207 Ill. 2d 409 (2003), plaintiff also contended that under Supreme Court Rule 11(145 Ill. 2d R. 11), the decision should have been served on her attorney, and service on plaintiffpersonally was ineffective.

On October 29, 2003, while the Commission's section 2--619 motion was still pending, theSheriff filed a motion to dismiss pursuant to section 3--109 of the Code (735 ILCS 5/3--109 (West2002)) on the basis that plaintiff had not paid the Commission the cost of preparing and certifying therecord of the administrative proceedings. On November 3, 2003, the trial court denied theCommission's section 2--619 motion. On November 10, 2003, plaintiff filed a response to theSheriff's section 3--109 motion. Plaintiff related that the Commission had not advised her of the costof the record until November 3, 2003. She further pointed out that prior to that time, the pendencyof the Commission's motion to dismiss relieved the Commission of the obligation to file the record. The response also stated that "on this date [plaintiff] will extend to Defendant Merit Commission acertified check in the amount of $1,986.93 *** in exchange for a certified copy of [the] record." OnNovember 13, 2003, the Commission filed the administrative record in the trial court. On November17, 2003, the Commission moved for reconsideration of the denial of its motion to dismiss, but themotion was rendered moot when, on that same date, the trial court granted the Sheriff's motion todismiss. Plaintiff unsuccessfully moved for reconsideration, and then filed a timely notice of appeal.

Plaintiff subsequently presented a bystander's report for approval by the trial court. TheCommission moved to strike the bystander's report, arguing, inter alia, that "[t]he issues in this caseare entirely legal, and as such, no transcripts or Bystander's Reports are necessary." The trial courtrefused to certify the bystander's report, explaining that "the instant matter produced no evidentiaryhearing *** [and] therefore there is no necessity for a bystander's report ***, and therefore nonecessity to certify same."

Plaintiff argues on appeal that the trial court erred in dismissing her complaint due to hernonpayment of the cost of preparing and certifying the record. She maintains that payment of the costof the record is not jurisdictional. She points out that her complaint acknowledged her responsibilityfor the cost of the record, and she further asserts that she "tendered" payment to the Commissionprior to the entry of the dismissal order. According to plaintiff, failure to pay the cost of the recordmay justify dismissal, but mere delay in payment does not. Plaintiff relies on Ayala v. Goad, 176 Ill.App. 3d 1091 (1988), in which this court observed that when a trial court becomes aware that thefiling fee in a civil case has not been paid, "it may properly order the fee paid before proceeding withthe matter, but the harsh remedy of dismissal with prejudice should be considered only upon plaintiff'snoncompliance with an order for payment." Ayala, 176 Ill. App. 3d at 1095.

The Commission and the Sheriff argue that the complaint was properly dismissed due toplaintiff's failure to pay the cost of preparing and certifying the record and that the complaint was nottimely filed. With respect to the former point, they emphatically claim that plaintiff has misstated thefacts of the case by asserting that she "tendered" payment of the cost of the administrative record. The Commission and the Sheriff contend that the record on appeal merely shows that, in responseto the Sheriff's motion to dismiss, plaintiff indicated that she would make the payment but she neveractually followed through. They point to plaintiff's proposed bystander's report which indicates thaton November 17, 2003, plaintiff's attorney advised the trial court that payment had not yet beenmade. According to the proposed bystander's report, plaintiff's attorney stated, "My intent was topay it on November 10, 2003, however [the Commission] in the interim filed its motion to reconsiderthis courts [sic] denial of its 2--619 motion to dismiss, and I thought it best to hold it until now."

Before considering the merits of the parties' arguments, we must address several motions thatwe have ordered taken with the case. First, plaintiff has moved to strike the Commission's brief. Plaintiff argues that because the Commission did not file a cross-appeal, we lack jurisdiction toconsider the issues framed in the Commission's brief "insofar as [the brief] seeks a resolution of thedenial of the *** Commission's [section] 2--619 motion to dismiss." We disagree. "Findings of thetrial court adverse to the appellee do not require the appellee's cross-appeal if the judgment of the trialcourt was not at least in part against the appellee." Material Service Corp. v. Department ofRevenue, 98 Ill. 2d 382, 387 (1983); see also Jakstas v. Koske, 352 Ill. App. 3d 861, 864 (2004);Solimini v. Thomas, 293 Ill. App. 3d 430, 434 (1997).

Here the decision below was entirely favorable to the Commission, so no cross-appeal isnecessary or even permissible. "A party cannot complain of error that does not prejudicially affectit, and one who has obtained by judgment all that has been asked for in the trial court cannot appealfrom the judgment." Solimini, 293 Ill. App. 3d at 434. The Commission sought dismissal of theaction and that is what it obtained. The Commission could not appeal merely because the dismissalwas for reasons other than those it had urged in the trial court. However, the Commission may urgethose alternative reasons as a basis for affirming the dismissal. This is so because "[t]he reviewingcourt is not bound to accept the reasons given by the trial court for its judgment [citation], and thejudgment may be sustained upon any ground warranted, regardless of whether it was relied on by thetrial court and regardless of whether the reason given by the trial court was correct." MaterialService Corp., 98 Ill. 2d at 387.

Plaintiff also points out that the Commission's brief includes copies of, and makes referenceto, materials outside the record on appeal. Specifically, the Commission's brief includes a copy of aletter from plaintiff's attorney to the Commission's attorney. We grant plaintiff's motion to strike theletter and will disregard all references to it in the Commission's brief. See Stokes v. Colonial PennInsurance Co., 313 Ill. App. 3d 202, 204 (2000).

The Commission, in turn, has moved to strike plaintiff's brief. The Commission argues thatplaintiff has misrepresented the relevant facts by stating that she paid the Commission the cost of theadministrative record. The Commission points to plaintiff's proposed bystander's report as evidencethat payment was never made. We note that although the trial court declined to certify thebystander's report, it still arguably might be considered a judicial admission, which is defined as "aparty's deliberate, clear, unequivocal statement about a concrete fact within the party's peculiarknowledge." Dean Management, Inc. v. TBS Construction, Inc., 339 Ill. App. 3d 263, 272 (2003). On the other hand, it is also somewhat disingenuous for the Commission to rely on the bystander'sreport, given that the Commission successfully opposed its certification by arguing, in essence, thatthe bystander's report was not germane to this appeal.

In any event, contrary to the Commission's argument, plaintiff does not claim that she actuallypaid the cost of the record; she merely claims that she tendered payment. Even taking the uncertifiedbystander's report into account, the record shows that plaintiff stood willing and able to pay the costof the record on November 10, 2003, but failed to do so because of intervening circumstances. If nota model of perfect candor, plaintiff's assertion that she "tendered" payment is also not an altogetherunreasonable characterization of the facts. Consequently, we deny the Commission's motion to strike.

Finally, the Commission has moved (1) to strike plaintiff's reply brief and (2) for sanctionsunder Supreme Court Rule 375(b) (155 Ill. 2d R. 375(b)). In her reply brief, plaintiff argues that shewas not required to pay the cost of the administrative record until the trial court ruled on theCommission's motion to dismiss. Plaintiff did not raise this point in her initial appellate brief. TheCommission contends that the argument therefore violates Supreme Court Rule 341(e)(7) (OfficialReports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001), whichprovides that "[p]oints not argued are waived and shall not be raised in the reply brief." While thisis true, "the responsibility of a reviewing court for a just result and for the maintenance of a soundand uniform body of precedent may sometimes override the considerations of waiver that stem fromthe adversary character of our system." Hux v. Raben, 38 Ill. 2d 223, 225 (1967). In our view, theinterests of justice and reasoned decision making favor consideration of the new argument. Accordingly, we deny the motion to strike plaintiff's reply brief. The Commission's request forsanctions under Rule 375(b) is predicated on the claimed defects in plaintiff's briefs. Given ourdisposition of the Commission's motions to strike those briefs, we see no reason to impose sanctions.

Turning to the merits, we first consider whether plaintiff's complaint was untimely, therebydepriving the trial court of subject matter jurisdiction. The issue was raised in a motion to dismissunder section 2--619 of the Code, and our review is de novo. Brennan v. Kadner, 351 Ill. App. 3d963, 967 (2004). Section 3--103 of the Code provides, in pertinent part:

"Every action to review a final administrative decision shall be commenced by thefiling of a complaint and the issuance of summons within 35 days from the date that a copyof the decision sought to be reviewed was served upon the party affected by the decision***[.]

* * *

The method of service of the decision shall be as provided in the Act governing theprocedure before the administrative agency, but if no method is provided, a decision shall bedeemed to have been served either when a copy of the decision is personally delivered orwhen a copy of the decision is deposited in the United States mail, in a sealed envelope orpackage, with postage prepaid, addressed to the party affected by the decision at his or herlast known residence or place of business." 735 ILCS 5/3--103 (West 2002).

Because the Sheriff's Merit System Law (55 ILCS 5/3--8002 et seq. (West 2002)) does not providea method for service of the Commission's decision, the methods specified in section 3--103 of theCode apply. The Commission relies on our supreme court's decision in Nudell v. Forest PreserveDistrict, 207 Ill. 2d 409 (2003), which held that service by mail under section 3--103 is effective onthe date the final decision is mailed rather than the date it is received and that the 35-day time periodfor filing a complaint for administrative review is jurisdictional. The Commission points out that itsdecision was placed in the mail on May 23, 2003, and that June 27, 2003, was the last day for filinga complaint for administrative review. Plaintiff filed her complaint on June 30, 2003.

While the Commission focuses on when the decision was mailed, it ignores another importantconsideration: to whom it was mailed. The Commission mailed the decision to plaintiff personally,not to the attorney who represented her before the Commission. Conversely, in Nudell, the decisionwas mailed to the plaintiff's attorney, but was not mailed to the plaintiff. In Nudell, the plaintiffargued in the appellate court that service was ineffective because the decision had not been mailedto him personally. The appellate court disagreed:

"Supreme Court Rule 11(a) (145 Ill. 2d R. 11(a)) provides that '[i]f a party is represented byan attorney of record, service shall be made upon the attorney.' Therefore, service of thedecision on [the plaintiff's] attorney, rather than [the plaintiff], was sufficient." Nudell, 333Ill. App. 3d at 522.

Although the court did not rule that service on the plaintiff would have been insufficient, that is thelogical extension of the court's reasoning, inasmuch as Rule 11's requirement that service be madeupon the attorney is stated in mandatory terms. Moreover, in Nudell, the supreme court noted thatthe decision had been served on the plaintiff's attorney (Nudell, 207 Ill. 2d at 412), and although thatcourt did not specifically address the Rule 11 issue, the outcome of the appeal is consistent with theview that Rule 11 applies to service of the decision of an administrative agency. Accordingly, Nudellappears to be distinguishable because in that case the administrative decision was properly served inaccordance with Rule 11, whereas in this case the Commission did not comply with that rule. TheCommission has not addressed this facet of Nudell, even though the issue was raised below and thetrial court ruled in plaintiff's favor on the jurisdiction question. As such, the Commission has failedto show that the trial court erred in denying its motion to dismiss for lack of subject matterjurisdiction.

We next consider the actual basis for the dismissal--plaintiff's failure to pay the cost ofpreparing and certifying the record of proceedings before the Commission. When a complaint foradministrative review has been filed, section 3--108(b) of the Code (735 ILCS 5/3--108(b) (West2002)) provides that "the administrative agency shall file an answer which shall consist of the originalor a certified copy of the entire record of proceedings under review." Section 3--109 of the Code(735 ILCS 5/3--109 (West 2002)) provides, in turn, that "[i]f the statute under authority of which theadministrative decision was entered provides or requires that the plaintiff in the review proceedingshall pay to the agency the costs of preparing and certifying the record of proceedings before theagency, the failure to make that payment shall relieve the agency of the necessity of filing the answerrequired in Section 3--108 of this Act and shall be authority for the entry of an order by the court ***dismissing the complaint." The Sheriff's Merit System Law provides that the plaintiff seekingadministrative review "shall pay the reasonable cost of preparing and certifying the record for judicialreview." 55 ILCS 5/3--8014 (West 2002).

There is little reported case law interpreting section 3--109's dismissal provision. However,in Board of Education of Metropolis Community High School District v. County Board of SchoolTrustees, 34 Ill. App. 3d 901 (1976) (Metropolis), cited by plaintiff, the court held that the trial courtdid not err in denying a motion to dismiss under that provision where the plaintiff paid for thetranscript immediately after the hearing at which the trial court concluded that the plaintiff was liablefor the cost of the record. The court stated:

"Under the circumstances we find no merit in defendants' argument that the plaintiff wasflouting a statutory requirement and was guilty of dilatory tactics. The trial court did not errin denying the motion to dismiss." Metropolis, 34 Ill. App. 3d at 903.

Section 3--109 does not mandate dismissal for nonpayment; it merely states that failure to pay"shall be authority for the entry of an order *** dismissing the complaint." (Emphasis added.) 735ILCS 5/3--109 (West 2002). As such, the statute does not make payment for the record ajurisdictional requirement. Under Metropolis, whether the party seeking review is guilty of floutinga statutory requirement or of dilatory tactics is a primary consideration for the trial court in decidingwhether to dismiss a complaint for the plaintiff's failure to pay the cost of the record. The partiesagree, as do we, that the trial court's decision whether or not to dismiss a complaint on the groundsof nonpayment is subject to de novo review.

We conclude that dismissal of plaintiff's complaint was erroneous. Neither section 3--108of the Code nor the Sheriff's Merit System Law specifies when the cost of the administrativerecord must be paid. The effect of nonpayment is to relieve the administrative agency of the dutyto file the record. Here, however, the Commission appeared in this matter by filing a motion todismiss rather than its answer (i.e., the record). See 735 ILCS 5/3--106 (West 2002). As such,the Commission deferred its obligation to file the record until the disposition of its motion. Plaintiff took the position that she was not required to pay the cost of the record until theCommission was otherwise obligated to file the record. If the Commission prevailed on itsmotion to dismiss, it would have no need to prepare and certify the record, and, in turn, therewould be no reason to require plaintiff to pay for it. We agree and, in the words of Metropolis,we hold under these circumstances that plaintiff has neither "flout[ed] a statutory requirement"nor is she "guilty of dilatory tactics." Metropolis, 34 Ill. App. 3d at 903.

Indeed, plaintiff's conduct did not cause any delay. Even if plaintiff had paid the cost ofthe record when she filed her complaint, the matter could not have proceeded to review on themerits until disposition of both the Commission's motion to dismiss and its motion to reconsiderthe denial of that motion. Moreover, although plaintiff had always acknowledged herresponsibility for the cost of the record, there is no evidence that the Commission ever demandedpayment or that it even advised plaintiff of the cost of the record until about five months after shefiled her complaint.

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed andthe cause is remanded for further proceedings.

Reversed and remanded.

McLAREN and CALLUM, JJ., concur.