What can you count on these days?
Does a statutory limitations period stated in calendar years end on the anniversary date or the day before the anniversary date? Two recent cases, one withdrawn and one with an Illinois Supreme Court Justice's pointed dissent, indicate that the answer you have been counting on may be subject to challenge.
By Joseph R. Marconi[1], for ISBA Mutual
Lawyers understand that every right, no matter how important, can be summarily extinguished if papers are not timely filed. The statutory timeliness of many key filings (such as a complaint) is set forth in terms of calendar years- i.e., the filing must occur "within one/two/three/ten years" of a "triggering event" (such as an injury or a contract breach). One important statutory deadline is the time within which to file a petition to vacate a judgment. The applicable deadline is found at 735 ILCS 5/2-1401(c) ("Section 1401(c)"), "the petition must be filed not later than two (2) years after the entry of the order or judgment."
Section 1401(c) identifies a clear triggering event-"entry of the order or judgment"-which is easily and unmistakably determinable. It also provides a clear time period within which to file-two years- a factor which is also easily and unmistakably determinable. The only possible variable is when to start counting down the two years-either on the day of the triggering event, or the day after the triggering event. If one starts counting on the day of the triggering event, then filing on the (second) anniversary date is one day too late, and thus, untimely. However, if one starts counting on the day after the triggering event, then filing on the second anniversary date is timely.
So, the question is, "Do you count the day of the triggering event or not?" Many attorneys act with the understanding that the counting begins on the day after the triggering event per the eponymously titled, "Statute on Statutes", 5 ILCS 70/1.11:
The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded...
The answer appears straightforward. Recently, the First and Fifth Districts of the Illinois Appellate Court examined cases with the same timing facts and came to the same conclusion. Yet, an original but withdrawn opinion by the First District and the dissent of an Illinois Supreme Court justice indicate that the answer is not necessarily as straightforward as it might first appear.
In Parker v. Murdock, No. 101645, 2011 Ill. App. Lexis 1101 (1st Dist. 10/18/11), the First District Appellate Court addressed whether a petition to vacate a judgment was filed outside the two-year time frame allowed in section 2-1401(c). On October 13, 2004, plaintiff tenants obtained an ex parte default judgment against defendant landlord Murdock. On October 13, 2006, the two year anniversary of the judgment, Murdock filed a section 2-1401 petition to vacate the default judgment. The circuit court granted Murdock's petition and vacated the judgment. Parker, 2011 Ill. App. Lexis 1101 at *3-4. Years later, plaintiffs filed a section 2-1401(f) motion[2] alleging that the vacating order was void because Murdock failed to file his petition within two years of the default judgment. Id., at *5. The circuit court denied plaintiffs' section 2-1401(f) petition and plaintiffs appealed.
Initially, the First District, in a withdrawn decision, reversed. See Parker v. Murdock, 2011 Ill. App. Lexis 993 (1st Dist. 9/13/11). In that withdrawn decision, the appellate court did not mention the computation method stated in 5 ILCS 70/1.11. It instead relied on a vintage 1918 appellate court decision holding that the counting begins on the day of the triggering event. Id., at *11, citing Irving v. Irving, 209 Ill. App. 318, 320 (1st Dist. 1918):
This court has held that 'in computing time by the calendar year, days are not counted, but the calendar is examined and the day numerically corresponding to that day in the following year is ascertained, and the calendar year expires on that day, less one.'
2011 Ill. App. Lexis 993 at *11 (emphasis added).
On October 18, 2011, the First District replaced the withdrawn decision, rejecting the rationale of the 1918 decision and adopting the computation method set forth in section 70/1.11. Thus, filing the petition on the two year anniversary date was timely. Parker, 2011 Ill. App. Lexis 1101 at *11-12.
Coincidentally, the Fifth District Appellate Court also confronted the issue of the timeliness of a section 2-1401. Price v. Philip Morris, Inc., No. 0089, 2011 Ill. App. Unpub. Lexis 186 (5th Dist. 2/24/11).[3] In Price, one affirmative defense was based on federal preemption, which the trial court rejected. Defendant filed a direct appeal to the Illinois Supreme Court. On December 15, 2005, the Illinois Supreme Court reversed and remanded with directions to dismiss the case based on the preemption defense. A little over a year later, on December 18, 2006, the trial court dismissed plaintiffs' case.[4]
On December 15, 2008, the U.S. Supreme Court, in an unrelated case, issued an opinion that rejected essentially the same preemption defense that caused Price to be dismissed. On December 18, 2008, plaintiffs filed a section 2-1401 petition to vacate the trial court's December 18, 2006 judgment. Defendant Philip Morris opposed the petition as untimely. However, Philip Morris' argument did not rest on the rationale in Irving; rather, both Philip Morris and the Fifth District focused on identifying the appropriate "triggering event." Philip Morris argued that it was the Illinois Supreme Court's December 15, 2005 reversal and remand order, which was issued three years and three days before the filing of plaintiffs' petition.
The trial court agreed with Philip Morris that the December 15, 2005 remand was the triggering event, not the trial court's December 18, 2006 entry of judgment. Plaintiffs appealed. The Fifth District Appellate Court, also focusing on the triggering event rather than the manner of computing time, reversed, and held that the section 2-1401 petition was triggered by the trial court's entry of judgment on remand and was therefore timely filed. Price, 2011 Ill. App. Unpub. Lexis 186 at *18. Because the petition was filed on the two-year anniversary of the trial court's entry of judgment on remand, the ruling necessarily, though not explicitly, found that the counting of the two years begins on the day after the triggering event, as set forth in section 70/1.11.
With a $10.1 billion Sword of Damocles dangling above its head, Philip Morris sought leave to appeal to the Illinois Supreme Court. On September 30, 2011, over the dissent of Justice Garman, the Illinois Supreme Court denied defendant's petition for leave to appeal. Thus, the appellate court's conclusion that plaintiffs' section 2-1401 petition filed on the anniversary date was timely stands by default. Price v. Philip Morris Inc., No. 112067, 2011 Ill. Lexis 1410 (9/28/11).
Without reference to section 70/1.11, Justice Garman noted in her dissent that section 70/1.10 (Statute on Statutes) defines the word "year" as a "calendar year unless otherwise expressed." 5 ILCS 70/1.10. 2011 Ill. Lexis 1821 at *5. Justice Garman also noted that old case law, though not directly on point, also interpreted a "year" as expiring the day before the anniversary of the triggering event - contrary to section 70/1.11. 2011 Ill. Lexis 1821 at *5-6. Thus, Justice Garman would have accepted Philip Morris' appeal to answer the question whether the count of the two years starts on the day of the triggering event or the day after. 2011 Ill. Lexis 1821 at *4-5.
However, the inconsistency between the Irving line of cases (and section 70/1.10) and the result reached in Parker and Price may be rationalized upon a close reading of the earlier case law. Those cases cited by Justice Garman present factual distinctions between limitation periods that are prohibitory and those that are not. In other words, a prohibitory time limit in which proscribed acts are precluded (i.e., a non-compete contract clause limited for a period of calendar years; or, the term of an office holder who cannot be replaced until the completion of his term) will count the day of the triggering event. Thus the prohibition (or the term of office) ends on the day before the anniversary date. Conversely, a time limit which requires that an act be done within the time frame (i.e., section 2-1401(c) or the filing of a complaint) will not count the day of the triggering event, and thus the time for performing the act extends to and including the anniversary date. See Seaman v. Poorman, 272 Ill. App. 264 (3rd Dist. 1933). Whether this distinction will stand upon further review remains to be seen.
By itself, section 2-1401(c) does not identify which day is Day 1 for counting-that of the triggering event or the day after. As it stands now, the First District expressly applies section 1.11 to compute the time for filing a section 2-1401 petition, so that counting begins on the day after the triggering event and expires on the anniversary date. The Fifth District implicitly agrees with the First District. The Illinois Supreme Court also implicitly agrees with the First and Fifth Districts. At least one Illinois Supreme Court Justice is concerned enough with the issue that further review is likely.
The wise practitioner does not take any chances waiting until the anniversary date to file within a statutory deadline- despite section 1.11. The best practice is to file no later than the day before the anniversary date. That is one practice tip you can count on.
[1] Joe Marconi is a shareholder of Johnson & Bell, Ltd., the chair of the Business Litigation/Transactions group and co-chair of the Employment group. He gratefully acknowledges the assistance of David Macksey, chair of Johnson & Bell, Ltd.'s Appellate Practice group, in drafting this article.
[2] To be clear, the order granting defendant's section 2-1401(c) motion to vacate the judgment was in turn challenged by plaintiff's section 2-1401(f) motion (contending the trial court's order was void). Section 2-1401(f) motions are not subject to a two-year limitation.
[3] Price involved a class action suit against the tobacco companies for health related damages from their products. A bench trial resulted in a $10.1 billion judgment against the tobacco defendants, subject to a ruling on several affirmative defenses.
[4] There was a delay of slightly over a year as the plaintiffs unsuccessfully sought