Childers v. Kruse

• Decision Date: 22 June 1998
• Docket Number: No. 2-97-0710,2-97-0710
• Citation: 696 N.E.2d 1253,297 Ill.App.3d 70,231 Ill.Dec. 682
• Parties: , 231 Ill.Dec. 682 Giles CHILDERS, d/b/a Childers Construction Company, Plaintiff-Appellant, v. Brian KRUSE et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1253

696 N.E.2d 1253

297 Ill.App.3d 70, 231 Ill.Dec. 682

Giles CHILDERS, d/b/a Childers Construction Company Plaintiff-Appellant, v. Brian KRUSE et al., Defendants-Appellees.

No. 2-97-0710.

Appellate Court of Illinois Second District.

June 22, 1998.

Rehearing Denied July 24, 1998.

John R. LeComte, Savanna, for Giles Childers.

John A. Leemon, J. Jerry Kane, Leemon & Kane, Mt. Carroll, for Elizabeth Kruse.

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, 215 Ill.Dec. 376, 663 N.E.2d 126 (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 v. City of Granite City, 141 Ill.2d 122, 126-27, 152 Ill.Dec. 247, 565 N.E.2d 929 (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, 152 Ill.Dec. 247, 565 N.E.2d 929; Mitchell v. Fiat-Allis, Inc., 158 Ill.2d 143, 148-49, 198 Ill.Dec. 399, 632 N.E.2d 1010 (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 at 124-25, 152 Ill.Dec. 247, 565 N.E.2d 929.

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, 152 Ill.Dec. 247, 565 N.E.2d 929. 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, 152 Ill.Dec. 247, 565 N.E.2d 929. 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, 152 Ill.Dec. 247, 565 N.E.2d 929. 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, 152 Ill.Dec. 247, 565 N.E.2d 929. 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, 152 Ill.Dec. 247, 565 N.E.2d 929.

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, 198 Ill.Dec. 399, 632 N.E.2d 1010.

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, 198 Ill.Dec. 399, 632 N.E.2d 1010. 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, 198 Ill.Dec. 399, 632 N.E.2d 1010. 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, 198 Ill.Dec. 399, 632 N.E.2d 1010.

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, 198 Ill.Dec. 399, 632 N.E.2d 1010; Granite City, 141 Ill.2d at 126-27, 152 Ill.Dec. 247, 565 N.E.2d 929. 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, 198 Ill.Dec. 399, 632 N.E.2d 1010. 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...