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Pappas v. Waldron

July 06, 2001

PETER PAPPAS, PLAINTIFF-APPELLANT,
v.
DONALD WALDRON, INDIVIDUALLY AND D/B/A NORTHGATE AMUSEMENT COMPANY, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Sangamon County No. 99MR273 Honorable Thomas R. Appleton, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

UNPUBLISHED

Plaintiff, Peter Pappas, filed a declaratory judgment action against defendants, Don Waldron, individually and doing business as Northgate Amusement Company. Plaintiff alleged defendants triggered a 90-day option-to-buy period in a lease agreement plaintiff had executed with Joseph Vono, who is not a party to this lawsuit. Defendants claimed the 90-day option period was not triggered. Both parties filed motions for summary judgment and the trial court granted defendants' motion. Plaintiff did not receive a copy of the judge's ruling because the circuit clerk failed to mail copies of the docket entry to the parties, and, therefore, plaintiff failed to file a timely notice of appeal. Plaintiff appeals the trial court's ruling granting defendants' motion for summary judgment. We dismiss the appeal.

I. BACKGROUND

Plaintiff Peter Pappas entered into a lease agreement with Joseph Vono, whereby Vono agreed to lease Pappas' bar and restaurant. Originally, Vono was unable to acquire financing to purchase Pappas' property, so the parties agreed to a five-year lease with an option to purchase with written notice during the last 90 days of each one-year period.

During negotiations for the lease, Vono mentioned to plaintiff he might borrow money from defendant, Don Waldron, for a down payment to purchase plaintiff's property. Plaintiff did not desire to do any business with defendant Waldron and insisted if defendant Waldron became involved in the purchase of his property, he (defendant Waldron) would have to pay for the property in full. To evidence his intentions, plaintiff's attorney drafted a paragraph into the lease agreement giving defendant Waldron a 90-day option to buy plaintiff's property if certain conditions occurred, and if defendant Waldron did not exercise the option, he would lose any future rights to the property. Defendant Waldron was not a party to the lease agreement, but he did sign the lease as "approved."

After plaintiff Pappas and Vono entered into the lease, defendant Waldron loaned money to Vono and, sometime thereafter, Vono assigned the lease to defendants. Plaintiff Pappas believed this assignment triggered the 90-day option-to-buy period and filed an action seeking declaratory judgment, asking the court to find (1) defendants had a contractual right to exercise the option to purchase as outlined in paragraph six of the lease, for a 90-day period after defendants gained a lien or claim to the leased property; (2) defendants failed to timely exercise their rights in accordance with the terms of the lease; and (3) the option to purchase had expired.

Defendants filed a motion to dismiss, which the trial court granted because plaintiff failed to allege a condition precedent to the option. Plaintiff filed an amended complaint, and defendants again filed a motion to dismiss. The trial court denied defendants' second motion to dismiss, finding plaintiff alleged a circumstance triggering the option, and the existence of the circumstance was an issue of proof.

Defendants and plaintiff both filed motions for summary judgment. The trial court heard arguments on April 14, 2000. The court granted defendants' motion, finding no material question of fact on whether defendants had "not claimed a lien on any part of the business premises." Accordingly, the trial court denied plaintiff's motion and entered judgment in favor of defendants.

The record is unclear as to whether the trial court ruled on the motion in open court in the presence of the attorneys or took the matter under advisement and ruled later. Plaintiff asserts the judge took the matter under advisement and did not rule in open court. Defendants do not address this issue in their brief and we do not have a transcript of the proceedings to consult. The April 14 docket entry reads:

"This cause comes on for consideration on the [m]otion for [s]ummary [j]udgment filed by each party. Both parties are present by counsel. Arguments heard. Judgment is entered for defendant. There exists no material question of fact that [d]efendant has not claimed a lien on any part of the premises. The lack of a demand or claim of a lien precludes the commencement of the 90-day option period. THE CLERK IS DIRECTED TO SEND A COPY OF THIS DOCKET ENTRY TO MR. PAVLIK AND MR. YOUNG. CAUSE STRICKEN."

The clerk did not send copies of the docket entry to either party. Plaintiff's attorney did not follow up on the case until more than 30 days after entry of the final judgment. This time lapse arguably precludes a timely filing of a notice of appeal as required by Supreme Court Rule 303(a)(1) (155 Ill. 2d R. 303(a)(1)). On July 25, 2000, plaintiff filed a motion to expand the docket entry and for other relief regarding the entry of a final judgment. Plaintiff sought to expand the docket entry to reflect the April 14, 2000, matter was taken under advisement and was not ruled upon in open court. Plaintiff also requested the April 14, 2000, docket entry be reentered because "due process of law requires notice and the opportunity to exercise rights attendant to the entry of a final judgment."

On September 14, 2000, the trial judge heard arguments and on September 19, 2000, denied plaintiff's motion. The September 19, 2000, docket entry reads as follows:

"Cause comes on for consideration on [p]laintiff's [m]otion for [r]elief. Both parties are present by counsel. While the court did not announce at the conclusion of the hearing that it would mail an order to the parties, that was and is certainly the usual practice of the [c]court. The record further shows that the court ordered the [c]lerk to mail the [o]rder to the parties and that the [c]lerk failed to do so. The [c]court finds that the facts here are not so squarely on point with Graves v. Pontiac Firefighters['] Pension [Board, 281 Ill. App. 3d 508, 667 N.E.2d 136 (1996)] to distinguish this action from Mitchell v. Fiat-Allis, Inc.[, 158 Ill. 2d 143, 632 N.E.2d 1010 (1994)]. While justice, equity, fairness, and the preservation of due process favor the [p]laintiff, the [c]court believes it is bound by Mitchell. The motion is denied. THE CLERK IS DIRECTED TO MAIL THIS ORDER TO COUNSEL OF RECORD." (Emphasis in original.)

This appeal followed.

II. ANALYSIS

Plaintiff appeals, arguing (1) this court has jurisdiction to hear this appeal; and (2) the trial court erred when it granted defendants' motion for summary judgment. We find the clerk's failure to mail a copy of the docket entry does not excuse plaintiff's late filing of his notice of appeal, and the appeal should be dismissed.

A. Jurisdiction

Defendants contend we do not have jurisdiction to hear this appeal because plaintiff failed to comply with Supreme Court Rule 303. We agree.

Supreme Court Rule 303(a)(1) (155 Ill. 2d R. 303(a)(1)) provides 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."

Plaintiff contends because the circuit clerk failed to mail copies of the docket entry, the late filing of his notice of appeal should be excused. The Illinois Supreme Court is clear on this issue: the fact an attorney does not receive actual notice of a trial court's order or ruling, "even if caused by clerical oversight, does not excuse counsel's failure to monitor his case closely enough to become aware that the circuit court had ruled." Mitchell, 158 Ill. 2d at 151, 632 N.E.2d at 1013.

In Mitchell, the trial court held a hearing on a complaint for administrative review of an Industrial Commission decision and took the matter under advisement on January 10, 1991. On February 7, 1991, the court signed an order setting aside the Industrial Commission's decision. This order also directed the circuit clerk to send notice of the judgment to all parties, but the clerk failed to mail the notice.

On April 25, 1991, plaintiff's attorney learned of the trial court's decision. The trial judge suggested plaintiff's counsel should file a motion to vacate, which the trial court ultimately granted, and then reentered the same order. This allowed plaintiff to timely file a notice of appeal. Defendant argued the appellate court lacked jurisdiction because more than 30 days had elapsed since the circuit court entered its final order. The appellate court ruled jurisdiction would be upheld on grounds of equity, because plaintiff's counsel relied on the circuit court's incorrect directive to file a motion to vacate to correct the circuit clerk's error of not mailing notice of the trial court's ruling.

The supreme court understood the concern the appellate court expressed but nevertheless stated "neither the trial court nor the appellate court has the 'authority to excuse compliance with the filing requirements of the supreme court rules governing appeals.'" Mitchell, 158 Ill. 2d at 150, 632 N.E.2d at 1012, quoting In re Smith, 80 Ill. App. 3d 380, 382, 399 N.E.2d 701, 702 (1980). Furthermore, the court stated "[i]mplementation of Rule 303 requires attorneys to monitor their cases to insure that appeals are timely filed." Mitchell, 158 Ill. 2d at 150, 632 N.E.2d at 1013.

In Mitchell, the supreme court discussed its holding in a similar case, where one party did not receive notice of the trial court's order through the mail and, as a result, failed to file a timely notice of appeal: "'actual notice is not required, so long as the order appealed from was expressed publicly, in words and at the situs of the proceeding.'" Mitchell, 158 Ill. 2d at 148, 632 N.E.2d at 1012, quoting Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill. 2d 122, 123, 565 N.E.2d 929, 929 (1990). In the present case, the trial judge's ruling was expressed publicly, in words, and at the courthouse where the proceeding occurred.

Plaintiff, however, contends the present case is controlled by Graves, 281 Ill. App. 3d 508, 667 N.E.2d 136. In Graves, we excused a late filing of a notice of appeal where the parties did not receive notice of the trial court's order. However, in Graves, the trial court expressly entered an order stating the case was taken under advisement and the court would rule by mail. Graves, 281 Ill. App. 3d at 516, 667 N.E.2d at 141. In the present case, the trial court never entered such an order or told the parties it would rule by mail, nor does the record show the trial court took the matter under advisement. In fact, the trial court denied plaintiff's motion to expand the April 14, 2000, docket entry to include plaintiff's assertion the trial judge took the matter under advisement. The trial court merely stated, after the fact, it was the usual practice of the court to send copies of the docket entry to the parties.

Plaintiff next urges us to find his reliance on the court's "standard operating procedures" to mail notice was sufficient, under principles of equity, to excuse the late filing of his notice of appeal. Plaintiff cites Comdisco, Inc. v. Dun & Bradstreet Corp., 306 Ill. App. 3d 197, 202, 713 N.E.2d 698, 701 (1999), in which the First District held the trial court's failure to follow its standard operating procedure in mailing its final judgment to the parties warranted an equitable tolling of the time for filing an appeal.

We decline to extend Comdisco to the present case. The trial judge in Comdisco expressly found plaintiff relied on the court's standard operating procedure. Comdisco, 306 Ill. App. 3d at 202, 713 N.E.2d at 700. The record before us fails to show plaintiff's failure to timely file his notice of appeal was due to his reliance on the court's standard operating procedure as opposed to his failure to monitor his case. The trial judge indicated it was his usual practice to mail notice to the parties, but he did not indicate plaintiff's failure to timely file his notice of appeal was the direct result of the court not following its usual practice. Also, plaintiff never indicated he called the courthouse, checked the docket entry, or followed up on his case in any other way, in the more than three months that elapsed between the April 14, 2000, docket entry and his July 25, 2000, motion to expand docket entry. The docket entry was recorded publicly, in words, at the courthouse on the same day the proceeding was held. Had plaintiff properly monitored his case, we would not be addressing this issue today.

Further, we find Comdisco erodes the supreme court's holding in Mitchell, which was based on the premise an attorney has a professional responsibility to monitor his or her cases and failure to do so could lead to harsh results. Graves carves an exception for parties who specifically rely on a trial judge's order he or she will rule by mail. Comdisco widens this exception to the point where Mitchell is rendered virtually meaningless. Comdisco essentially means if notice is usually sent through the mail, parties are excused from monitoring their cases and the 30-day rule will be extended if notice is allegedly not mailed. This not only contradicts Mitchell, but it opens the door for a myriad of other excuses to be carved out of the "standard operating procedure" exception. Even though results under Mitchell may be harsh, it provides a bright-line rule to encourage attorneys to monitor their cases and guards against abuse.

We find Mitchell controls the present case, and the circuit clerk's failure to mail copies of the April 14, 2000, docket entry to the plaintiff does not excuse ...


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