July 6, 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 |
JUSTICE KNECHT delivered the opinion of the court:
Plaintiff, Peter Pappas, filed a declaratory judgmentaction against defendants, Don Waldron, individually and doingbusiness as Northgate Amusement Company. Plaintiff allegeddefendants triggered a 90-day option-to-buy period in a leaseagreement plaintiff had executed with Joseph Vono, who is not aparty to this lawsuit. Defendants claimed the 90-day optionperiod was not triggered. Both parties filed motions for summaryjudgment and the trial court granted defendants' motion. Plaintiff did not receive a copy of the judge's ruling because thecircuit clerk failed to mail copies of the docket entry to theparties, and, therefore, plaintiff failed to file a timely noticeof appeal. Plaintiff appeals the trial court's ruling grantingdefendants' motion for summary judgment. We dismiss the appeal.
I. BACKGROUND
Plaintiff Peter Pappas entered into a lease agreementwith Joseph Vono, whereby Vono agreed to lease Pappas' bar andrestaurant. Originally, Vono was unable to acquire financing topurchase Pappas' property, so the parties agreed to a five-yearlease with an option to purchase with written notice during thelast 90 days of each one-year period.
During negotiations for the lease, Vono mentioned toplaintiff he might borrow money from defendant, Don Waldron, fora down payment to purchase plaintiff's property. Plaintiff didnot desire to do any business with defendant Waldron and insistedif defendant Waldron became involved in the purchase of hisproperty, he (defendant Waldron) would have to pay for theproperty in full. To evidence his intentions, plaintiff'sattorney drafted a paragraph into the lease agreement givingdefendant Waldron a 90-day option to buy plaintiff's property ifcertain conditions occurred, and if defendant Waldron did notexercise the option, he would lose any future rights to theproperty. 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 believedthis assignment triggered the 90-day option-to-buy period andfiled an action seeking declaratory judgment, asking the court tofind (1) defendants had a contractual right to exercise theoption to purchase as outlined in paragraph six of the lease, fora 90-day period after defendants gained a lien or claim to theleased property; (2) defendants failed to timely exercise theirrights in accordance with the terms of the lease; and (3) theoption to purchase had expired.
Defendants filed a motion to dismiss, which the trialcourt granted because plaintiff failed to allege a conditionprecedent to the option. Plaintiff filed an amended complaint,and defendants again filed a motion to dismiss. The trial courtdenied defendants' second motion to dismiss, finding plaintiffalleged a circumstance triggering the option, and the existenceof the circumstance was an issue of proof.
Defendants and plaintiff both filed motions for summaryjudgment. 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 anypart of the business premises." Accordingly, the trial courtdenied plaintiff's motion and entered judgment in favor ofdefendants.
The record is unclear as to whether the trial courtruled 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 anddid not rule in open court. Defendants do not address this issuein their brief and we do not have a transcript of the proceedingsto consult. The April 14 docket entry reads:
"This cause comes on for considerationon the [m]otion for [s]ummary [j]udgmentfiled by each party. Both parties are present by counsel. Arguments heard. Judgmentis entered for defendant. There exists nomaterial question of fact that [d]efendanthas not claimed a lien on any part of thepremises. The lack of a demand or claim of alien precludes the commencement of the 90-dayoption period. THE CLERK IS DIRECTED TO SENDA COPY OF THIS DOCKET ENTRY TO MR. PAVLIK ANDMR. YOUNG. CAUSE STRICKEN."
The clerk did not send copies of the docket entry toeither party. Plaintiff's attorney did not follow up on the caseuntil more than 30 days after entry of the final judgment. Thistime lapse arguably precludes a timely filing of a notice ofappeal as required by Supreme Court Rule 303(a)(1) (155 Ill. 2dR. 303(a)(1)). On July 25, 2000, plaintiff filed a motion toexpand the docket entry and for other relief regarding the entryof a final judgment. Plaintiff sought to expand the docket entryto reflect the April 14, 2000, matter was taken under advisementand was not ruled upon in open court. Plaintiff also requestedthe April 14, 2000, docket entry be reentered because "dueprocess of law requires notice and the opportunity to exerciserights attendant to the entry of a final judgment."
On September 14, 2000, the trial judge heard argumentsand on September 19, 2000, denied plaintiff's motion. TheSeptember 19, 2000, docket entry reads as follows:
"Cause comes on for consideration on[p]laintiff's [m]otion for [r]elief. Bothparties are present by counsel. While thecourt did not announce at the conclusion ofthe hearing that it would mail an order tothe parties, that was and is certainly theusual practice of the [c]ourt. The recordfurther shows that the court ordered the[c]lerk to mail the [o]rder to the partiesand that the [c]lerk failed to do so. The[c]ourt finds that the facts here are not sosquarely on point with Graves v. PontiacFirefighters['] Pension [Board, 281 Ill. App.3d 508, 667 N.E.2d 136 (1996)] to distinguishthis 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]ourt believes it is boundby Mitchell. The motion is denied. THECLERK 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 itgranted defendants' motion for summary judgment. We find theclerk's failure to mail a copy of the docket entry does notexcuse plaintiff's late filing of his notice of appeal, and theappeal should be dismissed.
A. Jurisdiction
Defendants contend we do not have jurisdiction to hearthis appeal because plaintiff failed to comply with Supreme CourtRule 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 daysafter the entry of the final judgment appealed from."
Plaintiff contends because the circuit clerk failed tomail copies of the docket entry, the late filing of his notice ofappeal should be excused. The Illinois Supreme Court is clear onthis issue: the fact an attorney does not receive actual noticeof a trial court's order or ruling, "even if caused by clericaloversight, does not excuse counsel's failure to monitor his caseclosely 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 acomplaint for administrative review of an Industrial Commissiondecision and took the matter under advisement on January 10,1991. On February 7, 1991, the court signed an order settingaside the Industrial Commission's decision. This order alsodirected the circuit clerk to send notice of the judgment to allparties, but the clerk failed to mail the notice.
On April 25, 1991, plaintiff's attorney learned of thetrial court's decision. The trial judge suggested plaintiff'scounsel should file a motion to vacate, which the trial courtultimately granted, and then reentered the same order. Thisallowed plaintiff to timely file a notice of appeal. Defendantargued the appellate court lacked jurisdiction because more than30 days had elapsed since the circuit court entered its finalorder. The appellate court ruled jurisdiction would be upheld ongrounds of equity, because plaintiff's counsel relied on thecircuit court's incorrect directive to file a motion to vacate tocorrect the circuit clerk's error of not mailing notice of thetrial court's ruling.
The supreme court understood the concern the appellatecourt expressed but nevertheless stated "neither the trial courtnor the appellate court has the 'authority to excuse compliancewith the filing requirements of the supreme court rules governingappeals.'" 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 ofRule 303 requires attorneys to monitor their cases to insure thatappeals are timely filed." Mitchell, 158 Ill. 2d at 150, 632N.E.2d at 1013.
In Mitchell, the supreme court discussed its holding ina similar case, where one party did not receive notice of thetrial court's order through the mail and, as a result, failed tofile a timely notice of appeal: "'actual notice is not required,so long as the order appealed from was expressed publicly, inwords 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 atthe courthouse where the proceeding occurred.
Plaintiff, however, contends the present case iscontrolled by Graves, 281 Ill. App. 3d 508, 667 N.E.2d 136. InGraves, we excused a late filing of a notice of appeal where theparties did not receive notice of the trial court's order. However, in Graves, the trial court expressly entered an orderstating the case was taken under advisement and the court wouldrule by mail. Graves, 281 Ill. App. 3d at 516, 667 N.E.2d at141. In the present case, the trial court never entered such anorder or told the parties it would rule by mail, nor does therecord show the trial court took the matter under advisement. Infact, the trial court denied plaintiff's motion to expand theApril 14, 2000, docket entry to include plaintiff's assertion thetrial judge took the matter under advisement. The trial courtmerely stated, after the fact, it was the usual practice of thecourt to send copies of the docket entry to the parties.
Plaintiff next urges us to find his reliance on thecourt's "standard operating procedures" to mail notice wassufficient, under principles of equity, to excuse the late filingof 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'sfailure to follow its standard operating procedure in mailing itsfinal judgment to the parties warranted an equitable tolling ofthe time for filing an appeal.
We decline to extend Comdisco to the present case. Thetrial judge in Comdisco expressly found plaintiff relied on thecourt's standard operating procedure. Comdisco, 306 Ill. App. 3dat 202, 713 N.E.2d at 700. The record before us fails to showplaintiff's failure to timely file his notice of appeal was dueto his reliance on the court's standard operating procedure asopposed to his failure to monitor his case. The trial judgeindicated it was his usual practice to mail notice to the parties, but he did not indicate plaintiff's failure to timely filehis notice of appeal was the direct result of the court notfollowing its usual practice. Also, plaintiff never indicated hecalled the courthouse, checked the docket entry, or followed upon his case in any other way, in the more than three months thatelapsed between the April 14, 2000, docket entry and his July 25,2000, motion to expand docket entry. The docket entry wasrecorded publicly, in words, at the courthouse on the same daythe proceeding was held. Had plaintiff properly monitored hiscase, we would not be addressing this issue today.
Further, we find Comdisco erodes the supreme court'sholding in Mitchell, which was based on the premise an attorneyhas a professional responsibility to monitor his or her cases andfailure to do so could lead to harsh results. Graves carves anexception for parties who specifically rely on a trial judge'sorder 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 sentthrough the mail, parties are excused from monitoring their casesand the 30-day rule will be extended if notice is allegedly notmailed. This not only contradicts Mitchell, but it opens thedoor for a myriad of other excuses to be carved out of the"standard operating procedure" exception. Even though resultsunder Mitchell may be harsh, it provides a bright-line rule toencourage attorneys to monitor their cases and guards againstabuse.
We find Mitchell controls the present case, and thecircuit clerk's failure to mail copies of the April 14, 2000,docket entry to the plaintiff does not excuse his untimely filingof a notice of appeal. B. Motion for Summary Judgment
Plaintiff contends the trial court improperly granteddefendants' motion for summary judgment because there is agenuine issue of material fact as to whether the option period asdescribed in paragraph six of the lease was triggered when Vonoassigned the lease to defendants. We disagree.
The standard of review in cases involving summaryjudgment is de novo. Ragan v. Columbia Mutual Insurance Co., 183Ill. 2d 342, 349, 701 N.E.2d 493, 496 (1998). Summary judgmentshould be granted only when "the pleadings, depositions, andadmissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1998).
Defendants contend Vono's assignment of the lease tothem does not trigger the 90-day option period because they didnot "demand or claim a lien," as required by the contract language. Plaintiff contends defendants acquired "some sort of aninterest" in the property when the lease was assigned to Waldron,thereby triggering the 90-day option period.
The trial court found there was "no material questionof fact that [defendants have] not claimed a lien on any part ofthe premises. The lack of a demand or claim of a lien precludesthe commencement of the 90-day option period." Plaintiff contends the trial court erred because "it is very clear that theparagraph reads more generously in terms of the [defendants]obtaining some sort of an interest in the [p]laintiff's propertyentitling [them] to some sort of rights." Plaintiff contends theuse of certain language in the second sentence of paragraph sixrenders the paragraph ambiguous and urges us to consider extrinsic evidence to determine his intent in including the financingoption in the lease.
The basic rule of contract interpretation, commonlyknown as the "four-corners rule," requires the following: "'[a]nagreement, when reduced to writing, must be presumed to speak theintention of the parties who signed it. It speaks for itself,and the intention with which it was executed must be determinedfrom the language used. It is not to be changed by extrinsicevidence.'" Air Safety, Inc. v. Teachers Realty Corp., 185 Ill.2d 457, 462, 706 N.E.2d 882, 884 (1999), quoting Western IllinoisOil Co. v. Thompson, 26 Ill. 2d 287, 291, 186 N.E.2d 285, 287(1962).
Courts use several guidelines to apply the four-cornersrule. First, they look to the language of the contract alone. If the language of the contract is unambiguous, the contract isinterpreted as a matter of law without the aid of parol evidence. If, however, the language of the contract is open to more thanone meaning, an ambiguity is present and only then may parolevidence be used to help resolve the ambiguity. Air Safety, 185Ill. 2d at 462-63, 706 N.E.2d at 884.
The contract language in question is found in paragraphsix, which is entitled "Financing Option of Lessee":
"The [l]essee may seek financing helpfrom Don Waldron, doing business as NorthgateAmusement Co., or with a corporation or business in which Don Waldron has an interest. In the event that the [l]essee becomes indebted to said Don Waldron or any such corporation or business, and Don Waldron or anysuch business demands or claims a lien on anyof the premises or equipment herein, DonWaldron or any such business will have theoption to purchase the premises and propertyherein for the total balance due on this[l]ease and [o]ption to [p]urchase, on ninety(90) days written notice to [l]essor afterasserting said lien or claim. Failure of DonWaldron or any such business to exercise saidoption shall terminate any rights or claimsof Don Waldron or any corporation or businessin which he has an interest. Endorsement ofthis [l]ease by Don Waldron will be an acceptance of the terms herein." (Emphasisadded.)
According to the contract, two conditions must occurbefore defendants trigger the 90-day option period: (1) Vonomust be indebted to defendants, and (2) defendants must demand orclaim a lien on the property or equipment subject to the lease. Without question, Vono became indebted to defendants and defendants did not demand or claim a lien against the premises orproperty. Defendants, therefore, argue they have not triggeredthe 90-day option period. Plaintiff, however, contends thephrase "demands or claims a lien" is inconsistent with the words"said lien or claim," which occur later in the same sentence.
Plaintiff submitted two affidavits along with hisbrief, one from himself and the other from the attorney whoprepared the lease contract for him. These affidavits stateplaintiff's intent was never to do business with defendantWaldron, and paragraph six was included in the lease to insure ifdefendant Waldron ever acquired any interest in the property,defendant Waldron would have to pay for the property in full orlose any future interest to the property. According to plaintiff, when Vono assigned the lease, defendant Waldron acquired"some sort of interest" in the property, which, under paragraphsix of the lease, triggered the 90-day option period.
We find the contract language is clear and unambiguous. The "said lien or claim" language simply refers to the "demandsor claims a lien" language occurring earlier in the sentence. Two definitions of "lien" in Black's Law Dictionary refer to a"lien" as a "claim": "[a] claim, encumbrance, or charge onproperty for payment of some debt, obligation or duty"; and"[r]ight or claim against some interest in property created bylaw as an incident of contract." Black's Law Dictionary 922 (6thed. 1990). Therefore, if one "claims a lien" on property, itwould be proper to refer to the lien as either a "claim" or a"lien," and this explains the use of "said claim or lien" nearthe end of the second sentence of paragraph six. The language ofparagraph six is clear and unambiguous, and, accordingly, we willinterpret the paragraph without reference to extrinsic evidence.
Further, we will not consider extrinsic evidencebecause the contract contains an integration clause: "This[a]greement constitutes the entire agreement between the partiesrelating to the subject matter hereof, superseding all prioragreements, and may be modified only by a written instrumentexecuted by all parties." The supreme court has stated, "whereparties formally include an integration clause in their contract,they are explicitly manifesting their intention to protectthemselves against misinterpretations which might arise fromextrinsic evidence." Air Safety, 185 Ill. 2d at 464, 706 N.E.2dat 885.
Plaintiff goes to great lengths to persuade us paragraph six reads very generously, and the language "said lien orclaim" means a "claim," in addition to a "lien," could triggerthe 90-day option. Plaintiff further asserts the assignment ofthe lease resulted in defendant Waldron acquiring a "claim" tothe property. However, plaintiff provides no authority supporting the proposition an assignment of a lease may be considered a"claim" against property, and our research rendered no suchauthority.
Even if we were to construe paragraph six to meandefendants' demand of a lien or claim would trigger the 90-dayoption period, the assignment of a lease cannot be considered aclaim against property. A "claim" is generally defined as "[a]cause of action," a "[d]emand for money or property as of right,"or a "[r]ight to payment." Black's Law Dictionary 247 (6th ed.1990). When Vono assigned the lease, defendant Waldron becamelessee and actually acquired a contractual duty to pay plaintiffrent. Even in the broadest sense of the word, defendants neveracquired a "claim" against plaintiff's property when Vono assigned the lease to them.
Paragraph six is clear and unambiguous and its meaningcan be gleaned from the language of the contract alone. Even ifthe contract is interpreted broadly to include plaintiff'sproposition a "claim" could trigger the 90-day option period,defendants never acquired a "claim" against plaintiff's property. We also note plaintiff's attorney drafted the contract, and assuch, it should be interpreted against him. Symanski v. FirstNational Bank, 242 Ill. App. 3d 391, 396, 609 N.E.2d 989, 992(1993). Plaintiff could easily have written paragraph six of thelease to include an assignment of the lease as a trigger to the90-day option period if such was his intent. He did not. Accordingly, the trial court properly granted defendants' motionfor summary judgment.
III. CONCLUSION
Plaintiff failed to timely file a notice of appealwithin 30 days after entry of final judgment, and, therefore, wedismiss the appeal.
Appeal dismissed.
COOK, J., concurs.
MYERSCOUGH, J., dissents.
JUSTICE MYERSCOUGH, dissenting:
I respectfully dissent and request that the supremecourt revisit Mitchell, a case in which I was the trial courtjudge. In neither the case at bar nor Mitchell could the appellants have accurately monitored their cases given the multitudeof mistakes in the circuit clerk's office. Where these ministerial errors occur, trial courts should be able to correct thoseerrors.
The mistake here, as in Mitchell, was actually thefault of the circuit clerk. The only way counsel could haveaccurately monitored this case was to constantly, even daily,initiate ex parte communications with the judge or, perhaps, hisor her court reporter or secretary, if he is fortunate enough tohave one. Such communication is certainly undesirable. Attemptsto monitor the case through the circuit clerk's office, in theface of obvious malfeasance, would be futile, as well as nearlyphysically impossible, given the traffic in our overworked,understaffed, underpaid clerks' offices.
Moreover, in Mitchell, monitoring the case through theclerk's office would not have uncovered entry of the orderbecause it was not entered in the docket sheet or the file buthad been misplaced by the clerk. The clerk was, in fact, unablefor a period of time to find the order I requested. In responseto the Mitchell situation, the circuit clerk in Sangamon County established a system to ensure that docket entries and orderswere sent out as ordered. This system required the circuit clerkto file and certify a written proof of service each time that adocket entry or order is sent out by mail as the trial courtordered.
This was the practice followed in the case at bar on atleast three occasions, two prior to April 14, 2000, and onefollowing April 14, 2000, and was relied upon by the attorneys ofrecord:
"PETER PAPPAS
VS 99 MR 000273
DONALD WALDRON
The undersigned certifies that service of theforegoing, together with a copy of the 9-15-99 docket referred to herein, was made byenclosing a true copy thereof in an envelopeplainly addressed to:
Atty Duane Young
1330 S. 8th St.
Ste. 2
Spfld, Illinois
62703
and depositing the same in the U.S. Mailpostage pre-paid on the 16th day of Sept[.],1999.
Anthony P. Libri
Circuit Clerk
B
Deputy Clerk
([stamped] FILED Sep[t.] 16[,] 1999 CIV.-7Anthony P. Libri[,] Jr.[,] Clerk of the Circuit Court
[certified] SEAL [of the] 7th JUDICIAL CIRCUIT COURT * SANGAMON CO., ILL *)"
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"PETER PAPPAS
VS 99 MR 000273
DONALD WALDRON
The undersigned certifies that service of theforegoing, together with a copy of the docket10-26-99 referred to herein, was made byenclosing a true copy thereof in an envelopeplainly addressed to:
DUANE D[.] YOUNG
LABARRE, YOUNG & DIETRICH
1330 S. 8TH ST[.], SUITE 2
SPRINGFIELD[,] IL 62703
THOMAS C[.] PAVLIK
1 SE OLD STATE CAPITOL
SPRINGFIELD[,] IL 6270l
and depositing the same in the U.S. Mailpostage pre-paid on the 27th day of Oct[.]1999.
Anthony P[.] Libri
Circuit Clerk
B
Deputy Clerk
([stamped] FILED Oct[.] 27[,] 1999 CIV.-7Anthony P. Libri[,] Jr.[,] Clerk of the Circuit Court
[certified] SEAL [of the] 7th JUDICIAL CIRCUIT COURT * SANGAMON CO., ILL *)"
-------------------------------------------------------------------------------------------------------------------------------
"PETER PAPPAS
VS 99 MR 000273
DONALD WALDRON
The undersigned certifies that service of theforegoing, together with a copy of the docket9-19-00 referred to herein, was made by enclosing a true copy thereof in an envelopeplainly addressed to:
DUANE D[.] YOUNG
LABARRE, YOUNG & DIETRICH
1330 S. 8TH ST[.], SUITE 2
SPRINGFIELD[,] IL 62703
THOMAS C[.] PAVLIK
1 SE OLD STATE CAPITOL
SPRINGFIELD[,] IL 6270l
and depositing the same in the U.S. Mailpostage pre-paid on the 20 day of Sept[.],2000[.]
Anthony P. LibriCircuit Clerk
il
Deputy Clerk
([stamped] FILED Sep[.] 20[,] 2000[,] CIV.-7Anthony P. Libri[,] Jr.[,] Clerk of the Circuit Court)"
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Unfortunately, on the critical occasion, April 14, 2000, theclerk failed to mail the trial court's docket entry awardingsummary judgment, although the clerk did enter a docket entry inthe court file at the judge's direction to strike the cause ofaction. The docket entry stated:
"4/14/2000 DOCKET D Judge: APPLETON,THOMAS R. Rep: FITZGERALD[,] MARY
This cause comes on for consideration onthe Motion for Summary Judgment filed by eachparty. Both parties are present by counsel. Arguments heard. Judgment is entered for[d]efendant. There exists no material question of fact that [d]efendant has not claimeda lien on any part of the business premises. The lack of a demand or claim of a lien precludes the commencement of the 90-day optionperiod. THE CLERK IS DIRECTED TO SEND A COPYOF THIS DOCKET ENTRY TO MR. PAVLIK AND MR.YOUNG. CAUSE STRICKEN."
The circuit clerk's entry stated:
"4/14/2000 Cause Stricken Signed JudgeAPPLETON THOMAS R. Status: Cause Stricken. Report: Terminated Apr[.] 14, 2000[.]"
(Although this entry refers to the judge's signature, the recordcontains no docket entry or document bearing the judge's signature.)
The record, unfortunately, does not reflect whether orwhen the April 14, 2000, judgment order docket entry of JudgeThomas Appleton was placed in the court file or input into theclerk's computer. Neither is the record clear when this information was available to counsel in the court file or the clerk'scomputer. In fact, the docket entry itself, though dated April14, 2000, does not indicate on what date and time the docketentry was actually placed in the computer or the court file. Thefact that a court reporter enters a docket entry in his computerdoes not indicate whether the clerk's office transferred thedocket entry to the case file or the clerk's computer contemporaneously or at a later date. Under such circumstances, where ajudge takes a matter under advisement with the understanding thathis or her ruling will be mailed to the parties at a later dateby the clerk, and the judge thereafter rules in his or herchambers and directs the clerk to mail the ruling to the parties,but the clerk fails to mail the ruling, the court has not expressed its order publicly, in words, at the situs of the proceeding as required. See Granite City, 141 Ill. 2d at 127, 565N.E.2d at 931. While this trial court did not expressly statethat it would rule by mail, the court practice was clearly torule by mail. Graves should, therefore, control here. That is,since the order was never mailed to the parties or their attorneys, the order did not become final for purposes of appeal.
Moreover, the supreme court in Mitchell additionallystated:
"The 'mistake' in the instant case was thebelief of the circuit court and Mitchell'scounsel that a motion to vacate the judgmentorder, more than 30 days after its entry, wasa valid means by which the circuit courtcould reenter the same order and therebystart a new 30-day period in which to filenotice of appeal." Mitchell, 158 Ill. 2d at151, 632 N.E.2d at 1013.
Here, the court and counsel made no such "mistake," and for thatreason, the court should be allowed to correct the clericalerror.
The supreme court should follow the law prior toMitchell that allowed courts to apply equitable principles tocorrect mistakes of ministerial officers (see Cesena v. Du PageCounty, 145 Ill. 2d 32, 38, 582 N.E.2d 177, 180 (1991)), and toexcuse a litigant's mistaken reliance on a judge's erroneousdirection (see Needham v. White Laboratories, Inc., 639 F.2d 394,398 (7th Cir. 1981). However, the supreme court distinguishedMitchell from these cases, stating:
"We do not believe, however, that the case atbar is analogous to the cases which employequitable principles to correct ministerialmistakes." Mitchell, 158 Ill. 2d at 151, 632N.E.2d at 1013.
Mitchell actually involved the very mistakes found in Cesena andNeedham: (1) the clerk's mistake in failing to file and forwardmy decision and (2) the court's erroneous direction to file amotion to vacate the judgment order on the grounds of the clerical error. Clearly, Mitchell involved both the error of theministerial officer, the clerk, and the judge's erroneous direction. The trial and appellate courts in Mitchell, therefore,should have been affirmed.
Alternatively, since the Mitchell court distinguishedits facts from Cesena and Needham, indicating a differencebetween the case at issue there from the cases that employequitable principles to correct ministerial mistakes, the courthere can clearly reverse to correct the clerk's ministerialerror, even relying on Mitchell.
For these reasons, I would reverse the trial court'sjudgment in this case.