Childers v. Kruse

No. 2--97--0710

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

GILES CHILDERS, d/b/a Childers ) Appeal from the Circuit Court
Construction Company, ) of Carroll County.
)
Plaintiff-Appellant, )
)
v. ) No. 92--LM--0042
)
BRIAN KRUSE and ELIZABETH )
KRUSE, ) Honorable
) Richard E. DeMoss,
Defendants-Appellees. ) Judge, Presiding.


JUSTICE HUTCHINSON delivered the opinion of the court:
Plaintiff, Giles Childers, d/b/a Childers Construction
Company, sued defendants, Brian and Elizabeth Kruse, for balance
due on a construction contract. Defendants filed a counterclaim,
alleging that plaintiff failed to perform the contract in a
workmanlike manner. The trial court ruled in defendants' favor,
awarding damages, attorney fees, and costs. After his posttrial
motion was denied, plaintiff filed a petition to vacate the entry
of the order denying that motion. The trial court denied the
petition, and plaintiff appealed.
On appeal, plaintiff argues that the trial court erred in (1)
denying his petition to vacate; (2) concluding that he failed to
comply substantially with the contract; (3) calculating the
defendants' damages; and (4) awarding attorney fees. In response,
defendants argue that this court lacks jurisdiction to hear
plaintiff's appeal. In the alternative, defendants argue that the
trial court's rulings were proper. We affirm in part and dismiss
in part.
I. JURISDICTION
A. Facts
We begin by addressing defendants' motion to dismiss, which we
ordered taken with the appeal. The pertinent facts are as follows.
On June 9, 1995, the trial court entered judgment in defendants'
favor. On July 10, 1995, plaintiff filed a posttrial motion to
vacate or reduce that judgment. On August 28, 1995, after hearing
oral arguments, the trial court took plaintiff's posttrial motion
under advisement. On February 21, 1997, the trial court signed and
filed a memorandum opinion containing an order denying plaintiff's
posttrial motion.
On July 3, 1997, pursuant to section 2--1401 of the Code of
Civil Procedure (735 ILCS 5/2--1401 (West 1996)), plaintiff filed
a petition to vacate the entry of the Memorandum Opinion filed
February 21, 1997. In that petition, plaintiff argued that the
trial court had failed to notify the parties of the February 21,
1997, memorandum opinion. As a result, plaintiff did not learn of
the trial court's ruling until June 7, 1997, when plaintiff's
counsel received a copy of the memorandum opinion from defendants'
counsel. Arguing that he was neither in default nor attempting to
delay the proceedings, plaintiff asked the trial court to vacate
the entry of the February 21, 1997, memorandum opinion. On July
15, 1997, the trial court denied plaintiff's petition. On July 18,
1997, plaintiff filed a notice of appeal stating that he was
appealing from the Judgment entered June 9, 1995, and the
Memorandum Opinion entered February 21, 1997, and the Memorandum
Opinion entered July 15, 1997.
Defendants argue that we do not have jurisdiction over this
appeal because plaintiff's July 18, 1997, notice of appeal was
filed more than 30 days after the February 21, 1997, order denying
plaintiff's posttrial motion. See 155 Ill. 2d R. 303(a).
Conceding that plaintiff did not receive actual notice of the
February 21, 1997, order until more than three months after it was
filed, defendants nevertheless insist that plaintiff had a duty to
monitor his case and determine whether the trial court had ruled.
In response, plaintiff argues that we should excuse his late notice
of appeal because he reasonably expected the trial court to rule by
mail and was under no obligation to monitor his case.
B. ANALYSIS

A timely notice of appeal is both jurisdictional and
mandatory. Waters v. Reingold, 278 Ill. App. 3d 647, 651 (1996).
Under Supreme Court Rule 303(a) (155 Ill. 2d R. 303(a)), a notice
of appeal must be filed within 30 days after the entry of the
order disposing of the last pending post-judgment motion.
However, [o]n motion supported by a showing of reasonable excuse
for failure to file a notice of appeal on time, the appellate
court may extend this period for an additional 30 days. 155 Ill.
2d R. 303(d). For Rule 303 purposes, the entry of an order occurs
when the trial court signs that order and files it with the court
clerk. Granite City Lodge No. 272, Loyal Order of the Moose v.
City of Granite City, 141 Ill. 2d 122, 126-27 (1990). This is true
even if the parties do not have actual notice of the order's
filing. Granite City, 141 Ill. 2d at 126-27; Mitchell v. Fiat-
Allis, Inc., 158 Ill. 2d 143, 148-49 (1994).
Both Granite City and Mitchell are highly instructive on this
issue. In Granite City, the trial court signed and filed an order
on June 26, 1989, denying the defendant's timely posttrial motion.
The trial court's docket sheet contained a June 26, 1989, entry
recording the order and a June 27, 1989, entry stating that the
clerk had mailed copies of the order to the parties. The
defendant, however, did not receive the June 26, 1989, order until
October 10, 1989, when it received a copy from the plaintiff. The
defendant immediately moved for leave to appeal under Rule 303(d).
The appellate court dismissed the motion for a lack of jurisdiction
because neither the motion nor the notice of appeal was filed
timely. Granite City, 141 Ill. 2d 124-25.
The question for the Illinois Supreme Court was 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. Answering this
question in the negative, the court held that actual notice is not
required, so long as the order appealed from is expressed publicly,
in words and at the situs of the proceeding. Granite City, 141 Ill. 2d at 123. The order denying the defendant's posttrial motion
was expressed publicly, in words and at the situs of the
proceeding, on June 26, 1989, when it was signed and filed with the
clerk. Granite City, 141 Ill. 2d at 127. The defendant therefore
had until July 26, 1989, to file its notice of appeal and until
August 25, 1989, to file its motion for leave to file a late notice
of appeal. Granite City, 141 Ill. 2d at 127. The defendant missed
both deadlines, and the appellate court properly dismissed the
defendant's appeal for a lack of jurisdiction. Granite City, 141 Ill. 2d at 127.
In Mitchell, the trial court filed its final order on March 1,
1991. Although the order stated that the clerk would mail a copy
of the order to the attorneys, neither of the attorneys received
the order. On April 25, 1991, after learning that the parties had
not received the order, the trial court instructed Mitchell's
attorney to prepare a section 2--1401 petition to vacate the entry
of the March 1, 1991, order. Mitchell's attorney complied, and,
after granting Mitchell's petition, the trial court reentered its
final order effective April 29, 1991. Mitchell appealed, and the
appellate court reversed the trial court's judgment. Mitchell, 158 Ill. 2d at 145-47.
The Illinois Supreme Court held that the appellate court did
not have jurisdiction over the appeal. Relying on Granite City,
the court explained that the order denying Mitchell's posttrial
motion was expressed publicly, in words and at the situs of the
proceeding, on March 1, 1991, when it was signed and filed with the
clerk. Mitchell, 158 Ill. 2d at 148-49. Mitchell therefore had
until April 1, 1991, to file his notice of appeal. Mitchell did
not file the notice of appeal, however, until sometime after April
29, 1991, well beyond the permitted 30 days. Consequently,
Mitchell's appeal was untimely, and the appellate court did not
have the jurisdiction to hear it. Mitchell, 158 Ill. 2d at 148-49.
Acknowledging that its decision might be harsh, the Mitchell court
nevertheless emphasized that, [counsel's failure to] receive
actual notice of the March 1 order, 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.
The present case is controlled by Granite City and Mitchell.
The order denying plaintiff's posttrial motion was expressed
publicly, in words and at the situs of the proceeding, on February
21, 1997, when it was signed and filed with the clerk. See
Mitchell, 158 Ill. 2d at 148-49; Granite City, 141 Ill. 2d at 126-
27. Plaintiff therefore had until March 24, 1997, to file his
notice of appeal from the June 9, 1995, and February 21, 1997,
orders. Plaintiff filed his notice of appeal on July 18, 1997,
almost four months beyond the deadline. The fact that plaintiff
did not receive actual notice of the February 21, 1997, ruling
until June 7, 1997, is of no consequence, as it was plaintiff's
counsel's duty to monitor his case closely enough to become aware
that the circuit court had ruled. Mitchell, 158 Ill. 2d at 151.
A timely notice of appeal being jurisdictional, we have no choice
but to dismiss plaintiff's appeal from the June 9, 1995, and
February 21, 1997, orders.
Plaintiff attempts to distinguish Mitchell in two ways, but we
find neither distinction compelling. First, plaintiff argues that,
in Mitchell, the parties were not expecting to receive a copy of
the order by mail and therefore should have been monitoring the
status of their case. Here, by contrast, plaintiff reasonably
expected to receive a ruling by mail. Plaintiff points to Rule
3.1(f) of the fifteenth judicial circuit, which reads:
On briefs only. At the discretion of the judge assigned
to the case, motions may be taken by the court by mail only
with each party submitting briefs and the court ruling by mail
with no oral argument or hearing unless ordered by the court.
15th Judicial Cir. Ct. R. 3.1(f) (eff. July 1, 1985).
Conceding that the record provides no indication as to whether the
trial court expressly stated that it would rule by mail, plaintiff
nevertheless argues that the trial court was obligated to rule by
mail under Rule 3.1(f). Because the trial court failed to mail its
ruling as required, that ruling did not become final until the
parties received actual notice of it.
In support of his position, plaintiff cites Graves v. Pontiac
Firefighters Pension Board, 281 Ill. App. 3d 508 (1996). In
Graves, the trial court entered a written order on April 8, 1995,
stating that it would take the evidence under advisement and mail
its final order to the parties. On June 20, 1995, the trial court
filed its final order but did not mail it to the parties. After
realizing its mistake, the trial court entered a new order stating
that the June 20, 1995, order would be final for appeal purposes as
of August 21, 1995, the date the new order was mailed to the
parties. On September 5, 1995, the Board filed its notice of
appeal. Graves, 281 Ill. App. 3d at 515-16.
In concluding that it possessed jurisdiction over the Board's
appeal, the appellate court expressly distinguished Mitchell. In
Mitchell, it pointed out, the trial court had never stated that it
would rule by mail, and therefore the parties had no reason to
expect a ruling by mail. In Graves, by contrast, the trial court
entered an order expressly providing that it would rule by mail.
Until the trial court complied with that order by mailing its
ruling to the parties, the ruling was not final. Thus, the
appellate court concluded, the ruling became final not on June 20,
1995, the day it was filed, but on August 21, 1995, the day it was
mailed. The Board's September 5, 1995, notice of appeal therefore
was timely. Graves, 281 Ill. App. 3d at 516.
Plaintiff's reliance on Graves is misplaced. In Graves, the
record contained an order expressly stating that the trial court
would rule by mail. Here, there is absolutely nothing in the
record to suggest that the trial court intended to rule by mail.
Nor can such an intent be inferred from Rule 3.1(f). Titled On
briefs only, Rule 3.1(f) addresses situations in which the parties
submit their briefs by mail and the trial court rules by mail.
Plaintiff does not suggest, and nothing in the record indicates,
that any of the proceedings surrounding plaintiff's posttrial
motion were conducted by mail. In fact, plaintiff's notice of
motion stated that plaintiff would appear before the trial court on
August 28, 1995, to request a hearing on his posttrial motion, and
the trial court's docketing statement confirms both that the
parties appeared on that date and that a hearing was held in open
court. Thus, Rule 3.1(f) is wholly inapplicable.
Plaintiff also argues that Mitchell is distinguishable
because, in that case, the clerk made a docket entry showing that
the trial court's judgment order had been signed and filed. In the
present case, by contrast, no docket entry exists for the trial
court's February 21, 1997, order. Although we acknowledge this
factual distinction, we fail to understand its relevance to the
present case. Plaintiff does not argue that the absence of a
docket entry renders the February 21, 1997, order invalid. Such an
argument would be baseless, as it is well established that a
written judgment order becomes final when it is signed and filed
with the clerk of the court, not upon entry in the docket. See
Granite City, 141 Ill. 2d at 126. Nor does plaintiff attribute his
late notice of appeal to the absence of a docket entry for the
February 21, 1997, order. In fact, in an affidavit describing how
he first learned of the February 21, 1997, order, plaintiff's
counsel makes no mention of even once having checked either the
docketing sheet or the court file during the 18 months that
plaintiff's motion was pending. Having made no inquiry into the
status of his motion, plaintiff may not now argue that such an
inquiry might not have been productive. See Granite City, 141 Ill. 2d at 127.
Accordingly, we conclude that plaintiff failed to file a
timely notice of appeal from the trial court's June 9, 1995, and
February 21, 1997, orders. We therefore grant defendants' motion
to dismiss this appeal as it relates to those orders.
Turning now to the July 15, 1997, order denying plaintiff's
section 2--1401 petition, we must apply a slightly different
analysis. This is because a section 2--1401 petition, although
filed in the same proceeding, is the commencement of a new cause of
action and is not a continuation of the proceeding in which the
prior judgment was entered. La Rabida Children's Hospital &
Research Center v. Harrison, 263 Ill. App. 3d 790, 796 (1994).
Likewise, an appeal from the denial of a section 2--1401 petition
is a proceeding wholly separate from an appeal from the original
judgment. Thus, plaintiff's right to appeal from the denial of his
section 2--1401 petition depends not upon a timely notice of appeal
from the original judgment but upon a timely notice of appeal from
the July 15, 1997, order.
The order denying plaintiff's section 2--1401 petition was
expressed publicly, in words and at the situs of the proceeding, on
July 15, 1997, when it was signed and filed with the clerk. See
Mitchell, 158 Ill. 2d at 148-49; Granite City, 141 Ill. 2d at 126-
27. Under Supreme Court Rule 303(a), plaintiff had until August
14, 1997, to file his notice of appeal from that order. Plaintiff
filed his notice on July 18, 1997, well before the deadline.
Therefore, we have the jurisdiction to review the trial court's
July 15, 1997, order, and defendants' motion to dismiss plaintiff's
appeal as it relates to that order is denied.
II. PLAINTIFF'S SECTION 2--1401 PETITION
We now turn to the trial court's denial of plaintiff's section
2--1401 petition. A section 2--1401 proceeding is a new action,
subject to the usual rules of civil practice. Klein v. La Salle
National Bank, 155 Ill. 2d 201, 204-05 (1993). Although a section
2--1401 petition arises out of the same proceeding in which the
order or judgment to which it is directed was entered, it is a
collateral attack on the judgment. Ptaszek v. Michalik, 238 Ill.
App. 3d 72, 76 (1992). The purpose of a section 2--1401 petition
is to bring before the court matters of fact not appearing in the
record, which if known to the court at the time the judgment was
entered, would have prevented the judgment's entry. Cartwright v.
Goodyear Tire & Rubber Co., 279 Ill. App. 3d 874, 882 (1996).
Section 2--1401 may not be used where the only relief sought is the
reentry of the court's judgment. Mitchell, 158 Ill. 2d at 149.
In a section 2--1401 proceeding, as in every civil case, the
right to relief must be adequately alleged and proved. Klein, 155 Ill. 2d at 205. The proceeding is instituted by the filing of a
petition supported by affidavit or other appropriate showing as to
matters not of record. 735 ILCS 5/2--1401(b) (West 1996). Like
a complaint, the petition must be legally sufficient in
affirmatively setting forth specific allegations supporting the
right to relief. Klein, 155 Ill. 2d at 205. The allegations must
set forth a meritorious defense to the original action and the
petitioner's due diligence in both presenting the defense and
filing the petition. Klein, 155 Ill. 2d at 205. Whether to grant
relief pursuant to section 2--1401 is for the trial court's
discretion, and we will not disturb the trial court's decision
absent an abuse of that discretion. Kaput v. Hoey, 124 Ill. 2d 370, 378 (1988).
After reviewing plaintiff's section 2--1401 petition, we hold
that the trial court did not abuse its discretion in refusing to
grant plaintiff his requested relief. Plaintiff's petition did not
even purport to identify facts which, if known at the time, might
have altered the trial court's substantive ruling on plaintiff's
posttrial motion. Nor did the petition allege either the existence
of a meritorious defense or the exercise of due diligence.
Instead, the petition alleged simply that plaintiff did not learn
of the February 21, 1997, order, until June 7, 1997. Second,
plaintiff sought to vacate not the February 21, 1997, judgment
itself, but only the entry of that judgment. As plaintiff's
counsel explained during the hearing on plaintiff's petition:
We are asking Your Honor to vacate the entry of the
Memorandum Opinion on February 21, 1997, and we would ask that
it be reentered immediately. (Emphasis added.)
Unfortunately, section 2--1401 cannot be used to obtain the reentry
of an existing order. See Mitchell, 158 Ill. 2d at 149. Thus,
plaintiff's section 2--1401 petition alleges no new facts, alleges
neither a meritorious defense nor the exercise of due diligence,
and requests relief expressly disallowed by the Illinois Supreme
Court. Under these circumstances, the trial court properly denied
plaintiff's petition.
C. CONCLUSION
For the foregoing reasons, plaintiff's appeal from the trial
court's June 9, 1995, and February 21, 1997, orders is dismissed
for a lack of jurisdiction, and the trial court's July 15, 1997,
order denying plaintiff's section 2--1401 petition is affirmed.
Affirmed in part and dismissed in part.
INGLIS and COLWELL, JJ., concur.