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Heins v. Bolton

December 04, 1998

MICHAEL HEINS, PLAINTIFF-APPELLEE,
v.
RICHARD BOLTON, JR., D/B/A BOLTON CHAMBANA HEATING & COOLING, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County No. 94L1512

The opinion of the court was delivered by: Green, Justice

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Honorable John G. Townsend, Judge Presiding.

This case arises from a fire on November 25, 1991, in a home owned by plaintiff Michael Heins. On October 31, 1994, plaintiff filed a complaint in the circuit court of Champaign County against Richard Bolton, Jr., d/b/a/ Bolton Chambana Heating and Cooling, contending defendant was negligent in making repairs to the furnace in that house and that negligence was a proximate cause of the fire. After a jury trial on October 23, 1996, the court entered judgment on a verdict in favor of plaintiff in the sum of $45,942.

Plaintiff filed a motion for a new trial as to damages or, in the alternative, to enter a judgment n.o.v. to raise the amount of the damages to $66,627.44. This motion was mailed to the circuit clerk on November 20, 1996, but was not placed on file until November 25, 1996. On December 2, 1996, the court entered such a judgment n.o.v. On Decem- ber 11, 1996, defendant filed a motion to vacate the judgment n.o.v. On December 31, 1996, defendant filed a posttrial motion seeking a new trial. The court heard and denied defendant's motions on January 8, 1997. Defendant has appealed. We affirm.

Defendant maintains the circuit court erred (1) in allowing a judgment n.o.v. for an amount greater than the jury awarded at a time when defense counsel was not present, and (2) in refusing to grant a new trial when the jury verdict was a compromise and when crucial parts of the furnace repaired by defendant were destroyed and unavailable for inspection by defendant's expert. We conclude defendant was not sufficiently injured by any error to require reversal.

The most serious question in this case arises from a motion by plaintiff to strike any request for relief by defendant in its posttrial motions. The motion to strike is based upon a theory, presented by plaintiff, that the circuit court had lost jurisdiction to entertain any request for relief by defendant which was filed more than 30 days after judgment was entered on the jury verdict on October 23, 1996. For reasons we explain, we find that motion without merit. However, that motion calls our attention to the fact that judgment was entered on the jury verdict on October 23, 1996, and plaintiff's successful motion for judgment n.o.v. was not filed in the circuit clerk's office until November 25, 1996, more than 30 days after judgment on the verdict.

We address sua sponte the problem of the timeliness of plaintiff's posttrial motion, because if it was untimely, the circuit court had no jurisdiction to hear the motion. We answer the question by invoking a theory that the Supreme Court of Illinois has expressly declined to pass upon, but which has been approved by the Second and Fifth Districts of the Appellate Court of this state. We hold that when, as here, a posttrial motion is placed in the United States mail and directed to the circuit clerk not more than 30 days after the judgment it attacks, the motion is timely even if actually filed by the clerk of the court at a date more than 30 days after the judgment attacked. Such a rule is known as a "mail-box" rule.

Before further Discussion of the "mail-box" rule, we explain why plaintiff's theory that defendant's posttrial motion was not timely is wrong if plaintiff's motion for judgment n.o.v. was timely. Plaintiff disregards section 2-1202(c) of the Code of Civil Procedure (Code), which provides that a party has 30 days after the entry of judgment to file a posttrial motion and "[a] party against whom [such a motion is granted] shall have like time after the entry of [that] judgment within which to file a post-trial motion." 735 ILCS 5/2-1202(c) (West 1996).

Judgment was entered against defendant on plaintiff's posttrial motion on December 24, 1996. Thus, defendant's posttrial motion of December 31, 1996, clearly met the deadline of section 2-1202(c). Plaintiff's motion to strike is denied.

Neither the Code nor supreme court rules give us a ready answer as to whether the "mail-box" rule applies to filing of posttrial motions. Supreme Court Rule 12(c) states "[s]ervice by mail is complete four days after mailing." 145 Ill. 2d R. 12(c). Rule 12(c) appears to be directed to the service of notice upon parties and not the filing dates for pleadings. See Bernier v. Schaefer, 11 Ill. 2d 525, 144 N.E.2d 577 (1957). Supreme Court Rule 373 states that, in the reviewing courts, papers filed after the due date will be deemed filed upon date of mailing. 155 Ill. 2d R. 373.

In Harrisburg-Raleigh Airport Authority v. Department of Revenue, 126 Ill. 2d 326, 533 N.E.2d 1072 (1989), the Supreme Court of Illinois held that a notice of appeal filed with the circuit court after the due date but mailed before the due date was timely. That court drew analogy to the pro-mailing rule of Supreme Court Rule 373, but that opinion expressed an unwillingness to give an opinion as to whether the rule should be applied to other documents such as posttrial motions.

The Harrisburg-Raleigh opinion explained:

"Since a notice of appeal is filed with the circuit court rather than the 'reviewing court,' Rule 373 is not directly applicable. But it evinces a general policy of equating mailing and filing dates, particularly with respect to appellate practice. The reason for this is that Rule 373 'was designed to make it unnecessary for counsel to make sure that briefs and other papers mailed before the filing date actually reach the reviewing court within the time limit.' (107 Ill. 2d R. 373, Committee Comments, at 476.) A notice of appeal, unlike many other papers filed in the circuit court, is closely related to the appellate process; when timely filed it divests the trial court of jurisdiction and confers jurisdiction upon the appellate court. (Lombard v. Elmore (1986), 112 Ill. 2d 467, 471-72[, 493 N.E.2d 1063, 1065].) It is therefore appropriate that the pro-mailing policy of Rule 373 should be applied to the filing of a notice of appeal under Rule 303(a). Moreover, a liberal pro-mailing policy is more equitable, since it places smaller firms which may lack telefax machines ...


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