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FIRST DIVISION
November 24, 2003

Modified Upon Denial of Rehearing

PRESIDING JUSTICE O'MALLEY delivered the opinion of thecourt:

Plaintiff, the Law Offices of Jeffery M. Leving, Ltd. (thefirm), filed suit in the circuit court of Cook County allegingthat defendant, Steven R. Cotting, failed to pay $2,805.98 infees for legal services on his behalf. Cotting filed pro semotions challenging jurisdiction and venue and requesting thatthe trial court dismiss the firm's action. The trial courtdenied Cotting's motions finding, inter alia, that the circuitcourt of Cook County had jurisdiction and that venue was proper. Cotting filed a pro se petition for leave to appeal the order ofcircuit court of Cook County denying his motion to transfer venuebased on forum non conveniens pursuant to Supreme Court Rule 306(166 Ill. 2d R. 306(a)(4)).

We deny Cotting's petition for want of jurisdiction.

BACKGROUND

Plaintiff, the Law Offices of Jeffery M. Leving, Ltd., filedsuit in the circuit court of Cook County seeking $2,805.98 infees allegedly incurred by Steven Cotting. The firm and Cottinghad entered into a contractual agreement whereby the firm agreedto provide legal services to Cotting relating to a judgment inGeorgia granting certain custodial rights of Cotting's daughterto his former spouse. The agreement stated that the firm would"represent client in pending petitions in case No. 01-A-3232-6(Georgia) and prepare and prosecute petition for modification ofcustody and such other work as law office deems necessary."

Cotting claims that he contacted the firm on October 8,2001, after reading an advertisement on the Internet sponsored byJeffery M. Leving, Ltd., claiming a specialty in "fathers'rights." The Internet ad also indicated that the firm representsfathers across the country and internationally. Cotting spoke toan attorney from the firm who was going to represent him in theGeorgia case. Cotting claims that the attorney told him that thetrial court judge was biased and that he should retain the firmto represent him in petitioning the Georgia court for a newtrial. The attorney allegedly represented to Cotting that he wasnot intimidated by judges and, further, local counsel would notbe suitable for this type of petition because they would beconcerned about their future practice before the judges inGeorgia.

Cotting also maintains that the attorney told him that a$35,000 retainer was required and that as soon as he could raisethe money the firm could begin on the case. According toCotting, the attorney called regularly between October 9 andOctober 28 to see if Cotting had raised the money and on oneoccasion allegedly told Cotting to "raise the money quickly orrisk losing his daughter forever." Cotting raised the money andsent the retainer to the firm. After receiving the money, theattorney did not respond to Cotting for weeks. Cotting claims tohave repeatedly called the attorney for updates on the case andgeneral progress, but rarely received answers. Cotting testifiedat a hearing in the circuit court that he had phone recordsshowing that he placed over 100 calls to the attorney and thefirm and received no response.

Cotting claims that when the attorney finally came toGeorgia and communicated with him, he ignored all of theinformation he had given the attorney for filing his motion formodification. Cotting alleges that the attorney refiled a copyof a previously submitted motion in the original Georgiaproceeding and changed the title. The trial court in Georgia,according to Cotting, recognized the pleading as identical to apleading filed in the prior proceeding and fined Cotting $14,000for "abusive litigation." Cotting further alleges that atranscript of the above proceeding shows that the attorney wasunprepared, could not answer simple questions asked by the judgeconcerning basic statutory matters and was unable to respond toissues put to him by opposing counsel. The trial court furtherordered Cotting to pay opposing counsel's fees resulting from thepetition for modification of the custody arrangement.

Cotting also argues that, in addition to being unfamiliarwith the facts, issues and law related to his case, the firmoverbilled him, created false invoices, doctored the terms of theengagement contract and continued to bill Cotting for serviceseven after he discharged the attorney in writing. Cottingcompares the services rendered by the firm to those rendered bylocal counsel. The firm, which allegedly performed very littlework, billed over $37,000 whereas local counsel who wasresponsible for the majority of the pleadings in the petition forrehearing billed a total of $2,000.

On April 29, 2002, Cotting faxed a complaint to JefferyLeving (the individual), indicating his belief that the attorneyfrom the Leving firm engaged in fraud. Cotting requested thatthe firm return his entire retainer plus $25,000 in damages, awritten apology and assurances that internal procedures would beinstituted to guarantee that this would not happen to others. After the faxed letter, the firm's managing partner contactedCotting on May 2, 2002, to investigate the matter. Severalcommunications by fax and telephone followed. Cotting gave themanaging partner examples of the attorney's misconduct and poorperformance. The managing partner requested more information andtold Cotting that he would investigate the matter further.

However, on May 11 and 16, 2002, Cotting faxed letters tothe managing partner with no response. On May 17, 2002, Cottingattempted to call the managing partner and the latter refused hiscall. Later that day, Cotting claims that he received a callfrom the firm's malpractice carrier inquiring about hiscomplaint. The representative supposedly stated that she woldattempt to have the firm settle the case with Cotting and respondto him. Instead, on June 24, 2002, Cotting was served with acomplaint filed in the circuit court of Cook County alleging thatCotting owed $2,805.98 to the firm for unpaid legal fees.

Cotting claims that the billing statement for the additionalfees was never sent to him prior to filing the complaint. Hefurther alleged that the work billed in that invoice was, inpart, performed after Cotting requested that no more work be donewithout authorization on March 25, 2002, and after he formallydischarged the attorney on April 29, 2002. Moreover, the billingstatement was dated May 7, 2002, as was the sworn affidavit ofthe managing partner, only five days after Cotting complained tohim and threatened to sue the firm in Georgia.

An ex parte default judgment was entered in favor of thefirm on August 7, 2002. On August 20, 2002, Cotting,representing himself, filed motions to vacate the defaultjudgment, transfer jurisdiction and venue and dismiss the actionpending in the circuit court. Cotting claims that he traveledfrom Georgia to Chicago to appear in circuit court on fouroccasions to deal with this litigation. On February 10, 2003,Cotting's motion to transfer jurisdiction and venue and todismiss were denied by the trial court. The court found thatboth jurisdiction and venue were proper and that no affirmativematters defeated the firm's properly pleaded cause of action. OnMarch 13, 2003, Cotting filed an answer and counterclaim againstthe firm. On April 18, 2003, Cotting filed a motion toreconsider the order denying the motion to transfer jurisdictionand venue. On May 12, 2003, the trial court denied Cotting'smotion for reconsideration finding that it was untimely filed andthat filing a written answer to the original complaint,counterclaim and jury demand waived all objections tojurisdiction in the circuit court of Cook County.

On June 10, 2003, Cotting filed a "petition forinterlocutory appeal," requesting that this court grant him leaveto appeal the trial court's denial of his forum non convenienschallenge. For the reasons that follow, we deny defendant'spetition.

ANALYSIS

The firm claims that Cotting filed his petition for leave toappeal beyond the 30-day period prescribed in Supreme Court Rule306. 166 Ill. 2d R. 306(b). The firm argues that February 10,2003, the date the trial court denied the original motion totransfer jurisdiction and venue, is the point from which the 30-day period begins. Cotting argues that the original motion totransfer jurisdiction and venue was based on the "General VenueStatute" (735 ILCS 5/2-104 (West 2002)) and not on a theory offorum non conveniens. The motion to reconsider, on the otherhand, was based on forum non conveniens in addition to section 2-104 of the Code of Civil Procedure (Code) (735 ILCS 5/2-104 (West2002)), making the motion to reconsider the first time Cottingraised the issue of forum non conveniens. Therefore, the 30-dayperiod should begin from the date when the trial court denied hismotion for reconsideration, which was May 12, 2003.

Supreme Court Rule 306 allows for permissive appeals from, inter alia, orders granting or denying motions to transfer venuebased on forum non conveniens. 166 Ill. 2d R. 306(a)(4). Therule requires, as a prerequisite to invoking appellatejurisdiction, the filing of a petition "'in the Appellate Courtin accordance with the requirements for briefs within 30 daysafter the entry of the order.'" National Seal Co. v. Greenblatt,321 Ill. App. 3d 306, 308, 748 N.E.2d 333 (2001), quoting 166Ill. 2d R. 306(b). The 30-day time limit under Rule 306 isjurisdictional. Kemner v. Monsanto Co., 112 Ill. 2d 223, 236,N.E.2d 1327 (1986). Moreover, a motion to reconsider filed inthe trial court does not postpone the time in which to appeal. Odom v. Bowman, 159 Ill. App. 3d 568, 571, 511 N.E.2d 1265(1987); Buckland v. Lazar, 145 Ill. App. 3d 436, 438, 495 N.E.2d1254 (1986).

However, here, Cotting claims that the original motion wasnot a based on forum non conveniens but, rather, the motion wasbased on the general venue statute (735 ILCS 5/2-104 (West2002)). Cotting cites to Kemner, 112 Ill. 2d at 231 and Barnesv. Southern Ry Co., 116 Ill. 2d 236, 507 N.E.2d 494 (1987)(overruled on other issues), as authority departing from a strictconstruction of the 30-day time period for vesting jurisdictionin this court.

In Kemner, the defendant filed three separate motions todismiss on forum non conveniens grounds. The court denied thefirst motion on May 29, 1981. With no mechanism for a directappeal of such an order then existing, the defendant filed apetition for a writ of mandamus, which was denied. Kemner, 112Ill. 2d at 229. The circuit court denied the defendant's secondmotion on April 29, 1983, and the reviewing courts denied thedefendant's petitions for leave to appeal. Kemner, 112 Ill. 2dat 230-31. The defendant filed a third motion, entitled a"motion to reconsider," on September 28, 1984, alleging factsthat had come to light during discovery to bolster its contentionthat the chosen forum was not convenient. The trial court deniedthe motion on December 13, 1984. Kemner, 112 Ill. 2d at 231. The appellate court denied a petition for leave to appeal, butthe supreme court granted it and reversed the trial court'sorder.

The supreme court held that it had jurisdiction despite the30-day time limit in Rule 306 because the "motion to reconsider"was in reality a new original motion to dismiss. Kemner, 112Ill. 2d at 238. It held that the September 28, 1984, motion wasnot an attempt to extend the time to appeal the denial of the1983 motion because the defendant had already pursued an appealfrom the earlier order. Kemner, 112 Ill.2d at 239. The courtstated, "The fact that a circuit court ruling was obtained and atimely appeal sought as to each motion leads us to conclude thateach motion was in substance a new original motion seekingdismissal on the basis of forum non conveniens." Kemner, 112Ill. 2d at 239.

In Barnes, the trial court held that a motion labeled as"motion for reconsideration" was not controlling as to thesubstance of the motion when in fact it presented new factualinformation. Barnes 116 Ill. 2d at 244-46. The court in Barnesso concluded even though an appeal from the first motion todecline jurisdiction based on forum non conveniens was not takenby the defendant in that case. Barnes, 116 Ill. 2d at 245. However, the court in Barnes also noted that the reason thedefendant's second motion was, in essence, a new motion was thatthe plaintiff in that case delayed substantially in complyingwith discovery orders, and the defendant was able to verify andbring the motion only after the plaintiff's compliance. Barnes,116 Ill. 2d at 245.

In our view, Cotting's situation is distinguishable from theauthority upon which he relies. First, although Cotting'soriginal motion to transfer jurisdiction and venue seems toallege only issues related to section 2-104 of the Code (735 ILCS5/2-104 (West 2002)), the reply to the firm's response to denythe motion to transfer jurisdiction and venue alleges factsconsidered in a forum non conveniens argument. The openingparagraph of Cotting's reply to the firm's response to his motionto transfer jurisdiction and venue is as follows:

"NOW COMES Steven R. Cotting, the Defendant named herein,*** and shows the court the Plaintiff has called thedefendant to a place unusual, uncomfortable and distant fromthe records and witnesses and distant from the place wherethe case is most closely associated for the sole purpose offatiguing the Defendant into relinquishing his rights."

Also, paragraph 2 of Cotting's argument section in his motion forreconsideration begins with the following: "the court deniedSteven's Motion to Transfer Jurisdiction and Venue based on thecommon law doctrine of forum non conveniens even though thebalance of factors strongly favored transfer." The facts in themotion to reconsider were more detailed, but not necessarily newfacts that came to light between motions, as far as the recordreflects.

Second, there was no initial appeal from the original motionto transfer jurisdiction and venue. This distinguishes the casebefore the court from Kemner because, there, the court emphasizedthe fact that the defendant faithfully pursued a remedy by makingsome type of timely appeal after each motion was denied. Thatelement is missing here because no action, other than the motionto reconsider that was filed on April 18, 2003, was pursued afterthe trial court's denial of Cotting's motion on February 10,2003.

In Barnes, the circumstances that allowed the defendantthere to raise a new motion subsequent to the original was theplaintiff's delay in complying with discovery orders and newinformation apparently obtained after compliance. Additionally,the court in Barnes made a special note that the defendant'ssubsequent motion was filed for the purpose of supplying anadequate record on review. Here, there are no allegations thatthe firm was responsible for Cotting's delay in filing a petitionfor leave to appeal or that Cotting was preserving newinformation in the record for review. We, therefore, concludethat Cotting's petition for leave to appeal must be denied asuntimely and dismissed for want of jurisdiction. National SealCo., 321 Ill. App. 3d at 308.

While the allegations of attorney misconduct against the LawOffices of Jeffery M. Leving, Ltd., are deeply disturbing, theymust be addressed in the substantive determination of the trialcourt, and if substantiated, would warrant disciplinary action bythe appropriate regulatory entity as well. Such practices arewholly unworthy of attorneys and would only serve to deepen thealready profound well of cynicism with which the public views thelegal profession. However, such conduct, no matter howegregious, would not suffice to vest this court with subjectmatter jurisdiction over this procedurally based appeal at thistime.

Accordingly, for the foregoing reasons, defendant's petitionfor leave to appeal is denied.

Denied.

GORDON and McNULTY, JJ., concur.