No. 1-16-2367

Opinion filed March 31, 2017

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

WAYDE TWYMAN, ) Appeal from the Circuit Court

) of Cook County.

Plaintiff-Appellant, )

)

v. ) No. 16 L 50380

)

THE DEPARTMENT OF )

EMPLOYMENT SECURITY, THE ) The Honorable

DIRECTOR OF EMPLOYMENT ) Kay Marie Hanlon and

SECURITY, THE BOARD OF ) James M. McGing,

REVIEW OF THE DEPARTMENT OF ) Judges, presiding.

EMPLOYMENT SECURITY, and )

CHICAGO TRANSIT AUTHORITY )

CTA MERCHANDISE MART )

PLAZA c/o MSN, )

)

Defendants )

) (The Department of Employment ) Security, the Director of Employment ) Security, and the Board of Review of the ) Department of Employment Security, ) Defendants-Appellees). )

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and opinion.

OPINION No. 1-16-2367

¶1 Plaintiff Wayde Twyman appeals the trial court's grant of defendant's

motion to dismiss for lack of subject matter jurisdiction. The trial court

dismissed plaintiff's complaint because plaintiff failed to file it within 35 days

after service of a decision by the Board of Review of the Department of

Employment Security (Board). In his complaint, plaintiff had sought review of

a final decision by the Board denying him unemployment benefits.

¶2 For the following reasons, we affirm the dismissal.

¶3 BACKGROUND

¶4 On June 9, 2016, plaintiff filed a pro se complaint in the trial court

seeking review of a decision issued by the Board on May 3, 2016. Plaintiff

filed this complaint pursuant to the Administrative Review Law (Law) (735

ILCS 5/3-101 et seq. (West 2014)). In the complaint, he alleged that he had

been employed with the Chicago Transit Authority (CTA), which had been a

party of record to the proceedings.

¶5 The Board's decision was attached as an exhibit to the complaint, and it

stated that it had been mailed to plaintiff on May 3, 2016. The decision stated

in relevant part:

"This is an appeal by the claimant from a Referee's decision dated

02/23/2016, which affirmed the claims adjudicator's determination and

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held that pursuant to 820 ILCS 405/602A, the claimant is not eligible for

benefits from 12/06/2015. ***

We have reviewed the record of the evidence in this matter, including

the transcript of the testimony submitted at the hearing conducted by

telephone on 02/22/2016, at which the claimant and employer appeared

and testified. ***

The record discloses that the claimant was employed by the employer

as a bus operator until December 10, 2015, when the claimant was

discharged by the employer due to the claimant's excessive absenteeism.

The claimant was last warned by the employer due to the claimant's

excessive absenteeism on November 26, 2015.

The claimant was scheduled to work on November 26, 2015.[1} The

claimant was a no call/no show on November 26, 2015 *** due to the

claimant assuming the claimant was not scheduled to work that day."

¶6 The Board found that plaintiff was afforded a full and fair hearing by the

referee and was discharged for misconduct connected with work. As a result,

the Board concluded that plaintiff was not eligible for unemployment benefits

and it affirmed the decision of the referee.

¶7 The Board's decision advised plaintiff of his appeal rights, stating:

1 Thursday, November 26, 2015, was Thanksgiving. 3

No. 1-16-2367

"Notice of rights for further review by the courts:

If you are aggrieved by this decision and want to appeal, you must file

a complaint for administrative review and have summons issue in [the]

circuit court within 35 days from the mailing date, 5/03/2016."

Thus, the Board's decision advised plaintiff that, in order to appeal, he "must"

both (1) "file a complaint for administrative review" and (2) "have summons

issue in [the] circuit court." The decision also told him that he "must" take these

actions "within 35 days from the mailing date, 5/03/16." There is no dispute on

this appeal that 35 days from May 3, 2016, was Tuesday, June 7, 2016.

¶8 However, plaintiff filed his pro se complaint on Thursday, June 9, 2016,

in the trial court. On June 22, 2016, defendant CTA filed an appearance with

the trial court; and on July 6, 2016, defendants Illinois Department of

Employment Security, Director of Illinois Department of Employment Security,

and the Board (collectively referred to as the state defendants) also filed an

appearance.

¶9 On July 6, 2016, the state defendants filed a motion to dismiss pursuant

to section 2-619(a)(5) of the Code of Civil Procedure claiming a lack of subject

matter jurisdiction. 735 ILCS 5/2-619(a)(5) (West 2014) (providing for

dismissal when "the action was not commenced within the time limited by

law"). The state defendants moved to dismiss on the ground that "[t]he last day

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on which plaintiff might have filed a complaint for administrative review of

said decision was Tuesday, June 7, 2016," and plaintiff did not file until

"Thursday, June 9, 2016," which was "2 days after the statutory period within

which to file the complaint expired." See 735 ILCS 5/3-102 (West 2014)

("Unless review is sought of an administrative decision within the time and in

the manner herein provided, the parties to the proceeding before the

administrative agency shall be barred from obtaining judicial review."); 735

ILCS 5/3-103 (West 2014) ("Every action to review a final administrative

decision shall be commenced by the filing of a complaint and the issuance of

summons within 35 days from the date that a copy of the decision sought to be

reviewed was served upon the party ***.").

¶ 10 On July 20, 2016, the trial court issued an order, which is the subject of

this appeal, so we repeat it here in full:

"This matter comes before This Court for a hearing on the state

defendants' motion to dismiss for lack of subject matter jurisdiction,

plaintiff appearing pro se. The state defendants and employer defendant

appearing through respective counsel. The Court being fully advised in

the premises,

IT IS HEREBY ORDERED:

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No. 1-16-2367

1) The state defendants' motion to dismiss for lack of subject matter

jurisdiction is granted.

2) Plaintiff's complaint is hereby dismissed with prejudice."

¶ 11 On July 20, 2016, plaintiff moved to vacate the trial court's order; and the

trial court set plaintiff's motion for a hearing on August 24, 2016. On August

24, the trial court issued an order which states in its entirety: "Plaintiff's motion

to vacate is denied."

¶ 12 On August 24, 2016, plaintiff filed a notice of appeal, which stated:

"I want [to] make a new law. The 35 days should be stayed. I have

proof that I did respond to denial in phone hearing as I did in prior phone

hearings and the Instructions should be Bold."

¶ 13 In his appellate brief, plaintiff states the grounds for his appeal in one

short page, which we provide here in full:

"This is a respectful request to have a day in court to present evidence

of an unjustified vacate order of [plaintiff's] job at the [CTA].

After receiving a denial via phone on January 8, 2016, [plaintiff]

appealed it and was issued another on February 22, 2016. Upon receiving

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No. 1-16-2367

a second denial via phone at the second hearing on 2/22/2016, [plaintiff]

(immediately) appealed the vacate order.[2]

A determination letter was received on May 3, 2016, yet [plaintiff]

was unaware of the 35 day requirement to request a court appearance,

after sending a request to appeal the decision on May 4, 2016 via a

handwritten letter (Exhibit A), [and] a typed letter (Exhibit B) with proof

via a fax confirmation (Exhibit C).

[Plaintiff] requests a day in court to present the facts of these unjust

actions at the CTA in their failed attempt to execute an unjustifiable

vacate order of his job, after over 15 years of faithful service with the

City of Chicago."

Plaintiff included in his appellate brief copies of the documents which he

described above. However, these documents are not a part of the appellate

record.

¶ 14 ANALYSIS

¶ 15 As noted, plaintiff appeals the trial court's dismissal of his complaint for

lack of subject matter jurisdiction, when his complaint was not filed within a

statutorily required 35-day time period.

2 In this quote, the bracketed information has been added. However, the parentheses are in the original. 7

No. 1-16-2367

¶ 16 On this appeal, plaintiff does not dispute that he received a determination

letter which stated the 35-day filing requirement. In his brief, plaintiff stated:

"A determination letter was received on May 3, 2016, yet [plaintiff] was

unaware of the 35 day requirement to request a court appearance[.]"

¶ 17 Plaintiff sets forth two grounds on this appeal: (1) that he was "unaware

of the 35 day requirement" although he received the letter; and (2) that he sent

"a request to appeal the decision on May 4, 2016 via a handwritten letter

(Exhibit A), [and] a typed letter (Exhibit B) with proof via a fax confirmation

(Exhibit C)."

¶ 18 I. Section 2-619 Dismissal

¶ 19 The trial court dismissed the complaint pursuant to section 2-619(a)(5) of

the Code of Civil Procedure (Code) which provides for dismissal because "the

action was not commenced within the time limited by law." 735 ILCS 5/2­

619(a)(5) (West 2014).

¶ 20 "A motion to dismiss pursuant to section 2-619 of the Code admits the

legal sufficiency of the plaintiff's complaint, but asserts an affirmative defense

or other matter that avoids or defeats the plaintiff's claim." (Internal quotation

marks omitted.) Trzop v. Hudson,

. "For a

section 2-619 dismissal, our standard of review is de novo." Trzop,

. "De novo review means that we will perform the same

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No. 1-16-2367

analysis a trial court would perform." Trzop,

.

"Under the de novo standard of review, this court owes no deference to the trial

court." (Internal quotation marks omitted.) Trzop,

. "In ruling on a section 2-619 motion to dismiss, the court must interpret

the pleadings and supporting materials in the light most favorable to the

nonmoving party." Trzop,

.

¶ 21 For a motion to be properly brought under section 2-619, the motion (1)

must concern one of nine listed grounds; and (2) must be filed within the time

for pleading. Wilson v. Molda,

(2009); River Plaza

Homeowner's Ass'n v. Healey,

(2009).

¶ 22 The Code provides that a section 2-619 may be brought on one of only

nine listed grounds. 735 ILCS 5/2-619(a)(5) (West 2014). One of these

grounds is that "the action was not commenced within the time limited by law."

735 ILCS 5/2-619(a)(5) (West 2014). Thus, the state defendants have satisfied

the first requirement for a section 2-619 motion.

¶ 23 However, for a section 2-619 motion to be properly brought, it must not

only concern a listed ground, but it must also be filed "within the time for

pleading." 735 ILCS 5/2-619(a) (West 2014); Trzop,

. The purpose of a section 2-619 motion is to dispose of issues of

law and easily proved issues of fact at the onset of the litigation. Trzop, 2015

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No. 1-16-2367

IL App (1st) 150419, ¶ 67. Generally, defendants are required to file an answer

or otherwise appear within 30 days after service. Ill. S. Ct. R. 101(d) (eff. Jan.

1, 2016). In the case at bar, the state defendants filed their motion to dismiss on

July 6, 2016, which was less than 30 days after plaintiff filed his complaint.

¶ 24 In addition, since the record does not disclose that plaintiff claimed either

at the trial level or on this appeal that the state defendants failed to file their

section 2-619 motion within the time for pleading, any issue regarding the

timeliness of the state defendants' filing has been waived for our consideration.

Wilson,

(where plaintiff fails to raise any timeliness issue

with respect to a section 2-619 motion, that issue is waived for consideration on

appeal).

¶ 25 Thus, the state defendants have satisfied the two requirements for filing a

section 2-619 motion.

¶ 26 II. Plaintiff's Complaint

¶ 27 Plaintiff asks this court to reverse the trial court, first, because he was

unaware of the 35-day filing requirement and, second, because he satisfied it by

allegedly faxing a letter to the Board.

¶ 28 Our supreme court "has held that administrative review actions, whether

taken to the circuit court or directly to the appellate court, involve the exercise

of 'special statutory jurisdiction.' " ESG Watts, Inc. v. Pollution Control Board,

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No. 1-16-2367

(2000) (quoting McGaughy v. Illinois Human Rights Comm'n,

(1995) (appellate court); Fredman Brothers Furniture Co. v.

Department of Revenue,

(1985) (circuit court)). "When

a court is exercising special statutory jurisdiction, the language of the act

conferring jurisdiction delimits the court's power to hear the case." ESG Watts,

. "A party seeking to invoke special statutory jurisdiction,"

such as plaintiff in the case at bar, " 'must strictly adhere to the proscribed

procedures' in the statute." ESG Watts,

(quoting McGaughy,

).

¶ 29 Section 3-102 of the Law makes the same point: "Unless review is

sought of an administrative decision within the time and in the manner herein

provided, the parties to the proceeding before the administrative agency shall be

barred from obtaining judicial review." (Emphases added.) 735 ILCS 5/3-102

(West 2014).

¶ 30 Section 3-103 of the Law specifies the time and manner of review, as

follows: "Every action to review a final administrative decision shall be

commenced by the filing of a complaint and the issuance of summons within 35

days from the date that a copy of the decision sought to be reviewed was served

upon the party ***." 735 ILCS 5/3-103 (West 2014).

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No. 1-16-2367

¶ 31 The decision mailed to plaintiff recited the same manner and timing that

is specified in section 3-103. As noted above, the Board's decision advised

plaintiff that, in order to appeal he "must" both (1) "file a complaint for

administrative review" and (2) "have summons issue in [the] circuit court." The

decision also told him that he "must" take these actions "within 35 days from

the mailing date, 5/03/16," which was Tuesday, June 7, 2016.

¶ 32 Section 3-102 provides for a limited exception: "If under the terms of the

Act governing the procedure before an administrative agency an administrative

decision has become final because of the failure to file any *** application for

administrative review within the time allowed by such Act, such decision shall

not be subject to judicial review hereunder excepting only for the purpose of

questioning the jurisdiction of the administrative agency over the person or the

subject matter." (Emphasis added.) 735 ILCS 5/3-102 (West 2014). In this

appeal, plaintiff does not question "the jurisdiction of the administrative agency

over the person or the subject matter." 735 ILCS 5/3-102 (West 2014). Thus,

this exception does not aid plaintiff.

¶ 33 Plaintiff does not provide any case law to support his argument that we

may excuse his untimely filing due to his alleged ignorance of the 35-day

requirement or his alleged faxing of a letter to the board within 35 days. As the

state defendants observe, this court has repeatedly held that a plaintiff waives a

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point by failing to offer either supporting legal authority or reasoned argument

for an extension or modification of existing authority. E.g., Lozman v. Putnam,

(2008) (citing numerous cases in support).

¶ 34 As the state defendants also observe, despite the mandatory nature of the

Law, appellate courts have sometimes applied a good-faith exception. For

example, in Beggs v. Board of Education of Murphysboro Community Unit

School District No. 186,

, a plaintiff filed a

complaint for administrative review but she used a former address of the Board

rather than its current address and she failed to correctly name the Board's

president. Nonetheless, the summons with the complaint was ultimately routed

to and signed as received by a Board employee within the prescribed time

period. Beggs,

("the trial court found that

the Board's receipt of the original summons was within the requisite time period

prescribed by the Act"). Despite proof of actual receipt within the prescribed

time period, the Board moved to dismiss on the ground that the plaintiff's

failure to serve the Board at its proper address and upon the designated

president within the proscribed period did not strictly comply with the Law's

procedural requirements and thus required dismissal. Beggs,

.

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¶ 35 The appellate court rejected the Board's argument, stating that, "because

the 35-day period for issuance of summons is mandatory, not jurisdictional,

failure to comply with the provision does not automatically deprive the court of

jurisdiction in the instant case." Beggs,

; Burns

v. Department of Employment Security,

(2003)

("Unlike some other requirements under the [Administrative Review] Law, the

35-day period for issuance of summons is mandatory, not jurisdictional. Thus,

failure to comply with the provision does not automatically deprive the court of

jurisdiction."). The Beggs court then found that plaintiff had made a good-faith

effort to comply, stating: "our courts have recognized a narrow exception to

dismissal in cases where the plaintiff has made a good-faith effort to comply."

Beggs,

(citing Burns,

);

see also Burns,

(reversing dismissal of plaintiff's

complaint where plaintiff had made a good-faith effort).

¶ 36 Unlike Beggs, the appellate record in the case at bar contains no evidence

of an attempt by plaintiff to serve the Board in any fashion within the 35-day

time period. Even if we were to accept his assertion in his appellate brief that

he faxed a letter to the Board, we could not find that a faxed letter represents a

good-faith attempt to serve a summons and complaint. A letter is not a

complaint and summons. Ill. S. Ct. R. 101 (eff. Jan. 1, 2016), R. 102 (rules

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No. 1-16-2367

governing the form and service of a summons and complaint). 3 This is

particularly true when the appellate record contains no acknowledgement of

actual receipt during the 35-day period, as was the case in Beggs. The

advantage of following the rules is that then we, the courts, have proof of

service within the proscribed time period. Ill. S. Ct. R. 102(d). Here, we have

none.

¶ 37 Thus, whether the 35-day requirement is mandatory, or jurisdictional as

the state defendants argue, dismissal was warranted. 4

¶ 38 However, we are mindful, as we have stated in a prior unemployment

benefits case, that we " 'should not find hypertechnical excuses to avoid

3 For example, Illinois Supreme Court Rule 101(a) (eff. Jan. 1, 2016) provides: "The summons shall be issued under the seal of the court, tested in the name of the clerk, and signed with his name. It shall be dated on the date it is issued, shall be directed to each defendant, and shall bear the information required by Rule 131(d) for the plaintiff's attorney or the plaintiff if not represented by an attorney." 4 We do not need to decide whether the 35-day requirement is jurisdictional or mandatory in order to affirm the dismissal in this case, and thus we decline to address this issue. The state defendants cite Illinois Supreme Court cases stating that, if the statutorily prescribed procedures are not followed, no jurisdiction is conferred on the circuit court. E.g., Slepicka v. Illinois Department of Public Health,

(citing Fredman Brothers Furniture Co. v. Department of Revenue,

(1985)). However, there are also appellate court cases decided after these cases which state that the 35-day rule is mandatory not jurisdictional and which apply a good faith exception. Eg., Beggs,

; Burns,

. As previously stated, we do not need to resolve the issue of whether the 35-day requirement is jurisdictional or mandatory in order to affirm the dismissal here. 15 No. 1-16-2367

deciding the merits of disputes, when no delay or harm was caused by the

technical violation to any party.' " Burns,

(quoting

Worthen v. Village of Roxana,

(1993)). In the case at

bar, the state defendants suffered no harm from plaintiff's two-day delay in

filing.

¶ 39 Even if we were to consider the merits of plaintiff's underlying claims,

we would still be forced to find that dismissal was warranted. Reviewing courts

apply different standards of review to the Board's decision depending on

whether the question presented is one of fact or law. Pesoli v. Department of

Employment Security,

(citing City of Belvidere

v. Illinois State Labor Relations Board,

(1998)). When

reviewing the Board's findings of fact, we deem those findings prima facie

correct, and we will reverse only if they are against the manifest weight of the

evidence. Pesoli,

(citing Abbot Industries, Inc.

v. Department of Employment Security,

). By

contrast, when our review of the Board's decision to deny unemployment

insurance benefits involves a mixed question of law and fact, we employ a

clearly-erroneous standard, which is less deferential to the Board than the

manifest weight of the evidence standard. Petrovic v. Department of

Employment Security,

. A mixed question of law and fact

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No. 1-16-2367

requires a court to determine the legal effect of a given set of facts. Petrovic,

.

¶ 40 In the case at bar, plaintiff's underlying claim raises an issue of fact,

namely, one of credibility. He does not dispute that he was a no-show without a

call on Thanksgiving; rather, he claims that he was under the impression that he

was not scheduled to work on that day. Neither his employer nor the referee

accepted this statement. Upon appeal to the Board, the Board held a hearing, at

which it heard from both sides and it also was not persuaded by plaintiff's

testimony. Absent any evidence in the record to support plaintiff's claim except

for his own statement, we defer to the Board's credibility findings, since we

lack the ability, as it did, to hear from the witnesses first-hand. Pelosi v.

Department of Employment Security,

("It is the

Board's responsibility to weigh the evidence, evaluate the credibility of the

witnesses and resolve conflicts in testimony."). See also Hurst v. Department of

Employment Security,

(2009); Caterpillar, Inc. v.

Doherty,

(1998).

¶ 41 Having now considered every possible reason to rule in plaintiff's favor,

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we have no choice but to affirm the dismissal of his complaint.

¶ 42 CONCLUSION

¶ 43 For all of the foregoing reasons, we affirm the trial court's dismissal of

plaintiff's complaint.

¶ 44 Affirmed.

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