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02/03/94 FRANK A. MITCHELL v. FIAT-ALLIS

February 3, 1994

FRANK A. MITCHELL, APPELLEE,
v.
FIAT-ALLIS, INC., APPELLANT.



McMORROW, Harrison

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

We are asked to determine whether the appellate court erred in taking jurisdiction over this worker's compensation appeal, where the claimant's attorney did not file a notice of appeal in conformance with Supreme Court Rule 303 but instead followed the circuit court's direction to file, in the circuit court, a motion to vacate the judgment order more than 30 days after the entry of that order. Because we are unable to conclude that appellate jurisdiction exists, we vacate the judgment of the appellate court and dismiss Mitchell's appeal.

Frank Mitchell, claimant and appellee, fell from a ladder and injured his right knee while he was working at the Fiat-Allis plant on March 2, 1985. He filed a petition with the Industrial Commission (Commission). After a hearing, the arbitrator entered a memorandum of decision in which she dismissed Mitchell's claim as not being proven. The Commission reversed this decision and awarded Mitchell compensation for his disability, medical expenses, and statutory penalties, interest, and attorney fees. Fiat-Allis filed a timely complaint for administrative review in the circuit court of Sangamon County.

The trial court heard argument on January 10, 1991, and took the matter under advisement. The parties were requested to submit post-hearing authority. On February 27, 1991, the court signed an order that set aside the decision of the Commission and reinstated the ruling of the arbitrator. This final order, which was file stamped March 1, 1991, included directions to the clerk of the circuit court to send a copy of the order to the attorneys of record. The words "M.T. sent" appear on this order.

An affidavit of Mitchell's attorney discloses the following. On April 25, 1991, Mitchell's attorney was in Springfield on a matter unrelated to the instant case. He telephoned opposing counsel and the trial Judge's court reporter, to inquire whether the Judge would like the attorneys to appear for further argument on the Mitchell case. Upon arriving at the office of the clerk of the court, Mitchell's attorney checked the court file. Although the court docket sheet contained an entry which indicated that the trial court entered its order on March 1, 1991, Mitchell's attorney did not find the order disposing of his client's worker's compensation claim. He also asked an employee of the clerk's office to search for any unfiled papers, but nothing was found. Mitchell's counsel then spoke to the Judge's court reporter, who said she believed that the Judge had entered an order in the case. The court reporter began to search her own file. At this point, the trial Judge appeared and, upon learning that Mitchell's counsel was unaware of her Disposition of the case, set up a telephone conference call with opposing counsel. While the call was in progress, the court reporter handed Mitchell's attorney a copy of an unstamped order bearing the handwritten date of February 27, 1991.

As a result of the conference with the Judge, Mitchell's attorney prepared and filed a section 2-1401 petition, seeking the court's withdrawal or vacation of the order of February 27, 1991. (Ill. Rev. Stat. 1991, ch. 110, par. 2-1401.) A notation on the docket sheet for April 25, 1991, states that counsel was "directed to file [a] motion to vacate" on that date. Fiat-Allis was directed to respond by April 29. Fiat-Allis' attorneys filed a special and limited appearance, which stated in part, "The fact that movant's counsel was not notified by the court nor by the clerk of the entry of the order does not excuse the failure to file a notice of appeal within the thirty days required by statute."

On April 29, 1991, the Judge granted the petition of Mitchell's counsel, withdrew the order of judgment dated February 27, and reentered the same order, effective April 29, 1991. Subsequently, Mitchell's counsel filed a timely notice of appeal from the April 29 order.

Mitchell's appeal challenged the circuit court's reversal of the Commission's award of compensation. Fiat-Allis cross-appealed, arguing that the appellate court lacked jurisdiction to decide the matter. Three members of the appellate court panel held in favor of upholding jurisdiction, and two members of the panel Dissented, on the basis that the court lacked jurisdiction. Reaching the merits, the appellate court held that the trial court erred in reversing the Commission. (232 Ill. App. 3d 943.) Thereafter, Fiat-Allis filed its petition for leave to appeal in this court, which we granted (134 Ill. 2d R. 315).

ANALYSIS

Fiat-Allis urges this court to reverse the appellate court's ruling on the issue of jurisdiction, arguing that the court's opinion flouts the supreme court rules governing appellate jurisdiction. Supreme Court Rule 303(a)(1) provides that the notice of appeal from final judgments in civil cases "must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from." (134 Ill. 2d R. 303(a)(1).) Subsection (e) provides for an extension of this time period for an additional 30 days, "on motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time." (134 Ill. 2d R. 303(e).) Mitchell did not comply with either subsection of Rule 303 in the instant case; therefore, Fiat-Allis requests this court to hold that Mitchell's notice of appeal from the trial court's order was not timely filed.

Fiat-Allis primarily relies on this court's opinion in Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City (1990), 141 Ill. 2d 122, 565 N.E.2d 929. In Granite City, the defendant city attempted to file a notice of appeal approximately four months after the trial court had disposed of the city's post-trial motion. The city argued that it had not received actual notice of the court's Disposition of the post-trial motion. The issue was framed as follows: "whether the time for filing a notice of appeal is tolled until the parties receive actual notice of an order disposing of a post-trial motion. " ( Granite City, 141 Ill. 2d at 123.) This court held that "actual notice is not required, so long as the order appealed from was expressed publicly, in words and at the situs of the proceeding." ( Granite City, 141 Ill. 2d at 123.) Accordingly, the court in Granite City affirmed the appellate court's rejection of the city's attempted appeal, holding that the city failed to come within the provisions of either Supreme Court Rule 303(a) or 303(e).

We find Granite City applicable to the instant cause and hold that the appellate court improvidently took jurisdiction over Mitchell's appeal from the circuit court's setting aside of the Industrial Commission's award. When Mitchell's counsel learned of the entry of the circuit court's final order disposing of the case, the initial 30-day period of Rule 303(a) had elapsed. That he lacked actual notice of the entry of the order is not material under the Granite City analysis. Moreover, at the time he learned of the existence of the March 1 order, Mitchell's counsel still had approximately six days in which to move, in the appellate court, for leave to file a late notice of appeal under Rule 303(e). Had he filed such a motion, the appellate court properly could have exercised its discretion in deciding whether to grant leave to file the late notice. However, the appellate court in the instant case lacked the discretion that Rule 303(e) confers because of Mitchell's failure to comply with either Rule 303(a) or Rule 303(e).

The issue of jurisdiction that Fiat-Allis presented to the appellate court questioned the authority of the trial court to grant Mitchell's section 2-1401 petition to extend the time for filing an appeal beyond the 30-day period conferred by Rule 303(a). This court has previously held that a trial court lacks authority to extend the time for filing a notice of appeal. ( Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610.) The appellate court in the instant case agreed that a section 2-1401 petition is not a proper vehicle for allowing "claimant a new 30-day clock to file a notice of appeal." (232 Ill. App. 3d at 949. See Ruttenberg v. Red Plastic Co. (1979), 68 Ill. App. 3d 728, 732, 386 N.E.2d 616 (petition seeking vacation of judgment after 30 days of its entry "cannot be used as a substitute for the party's right to appeal"); Town of Normal v. Board of Regents, Regency Universities (1982), 107 Ill. App. 3d 120, 122, 437 N.E.2d 406 (relief under section 2-1401 is inappropriate "where reentry of the same judgment is requested").) The filing of a section 2-1401 petition is considered a new proceeding, not a continuation of the old one. (E.g., Village of Island Lake v. Parkway Bank & Trust Co. (1991), 212 Ill. App. 3d 115, 120, 569 N.E.2d 1362.) Therefore, after 30 days had elapsed from the time ...


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