A.S. Schulman Elec. Co. v. Village of Fox Lake

• Decision Date: 22 June 1983
• Docket Number: No. 82-646,82-646
• Citation: 450 N.E.2d 1356,115 Ill.App.3d 746,71 Ill.Dec. 477
• Court: United States Appellate Court of Illinois
• Parties: , 71 Ill.Dec. 477 A.S. SCHULMAN ELECTRIC COMPANY, Plaintiff-Appellant, v. VILLAGE OF FOX LAKE, Defendant-Appellee.

Page 1356

450 N.E.2d 1356

115 Ill.App.3d 746, 71 Ill.Dec. 477

A.S. SCHULMAN ELECTRIC COMPANY, Plaintiff-Appellant, v. VILLAGE OF FOX LAKE, Defendant-Appellee.

No. 82-646.

Appellate Court of Illinois Second District.

June 22, 1983.

Carey, Filter, White & Boland, Edmund P. Boland, Edward M. White, Chicago, for plaintiff-appellant.

Julius Abler, Libertyville, for defendant-appellee.

NASH, Justice:

Plaintiff, A.S. Schulman Electric Company (Schulman), appeals from a summary judgment entered by the circuit court of Lake County in favor of the defendant, Village of Fox Lake, and an order striking Schulman's post-trial motion.

The record reflects that Schulman filed a complaint in the circuit court seeking to recover sums alleged to be due and owing it by the Village under the terms of a contract entered into by the parties for the construction of street lighting improvements. The complaint alleged that the parties entered into the contract on April 17, 1978, and under its terms Schulman, in consideration of the sum of $149,295.40, agreed to install 49 lights, 2 controllers and related wiring and construction pursuant to plans and specifications prepared by the Village engineer. The specifications required that the conduit which carried the lighting cable would be pushed under certain streets and driveway crossings. During the course of construction, however, it became apparent that subsoil conditions along the construction route, which were unanticipated by the parties, would necessitate the utilization of more expensive construction methods in order to complete the project according to specifications. Pursuant to the terms of the contract, Schulman sought and received permission from the Village engineer to perform the additional work. An alleged three-month delay by the engineer in rendering his decision also added to the costs of the project since Schulman was forced to complete the construction during months of adverse weather conditions. Following completion of the work, Schulman submitted a bill for the increased costs in the amount of $29,710.32 which the Village has refused to pay.

The Village filed a motion to dismiss the complaint, which was denied by the trial court, then filed a motion for summary judgment supported by affidavit. It alleged that the contract was void under Ill.Rev.Stat.1977, ch. 24, par. 8-1-7, since the Village had not passed an ordinance appropriating monies for the contract. The motion was supported by the affidavit of Matthew Tierney, the Village clerk, who averred that "[a]t no time have any ordinances been passed by the Village creating any liability or appropriating any of its monies or the expenditure of any of its monies for the purposes alleged by the Plaintiff in its complaint".

Schulman's response to the motion included a copy of Village Ordinance No. 77-12, the appropriation ordinance for the fiscal year commencing May 1, 1977, and ending April 30, 1978. The ordinance appropriated $20,000 for street lighting and also referred to a revenue sharing appropriation for street lights and sidewalks in the amount of $132,000. Schulman's response also included a copy of the minutes of a Village board meeting held on March 20, 1978, wherein it approved the execution of the contract between Schulman and the Village. The Village's reply to Schulman's response added the affidavit of Stefanie T. Makas, the Village treasurer in which she averred that Schulman had been paid the sum of $154,436.08 in connection with the subject contract.

Following arguments of counsel, the trial court granted the Village's motion for summary judgment on April 19, 1982. On May 20, 1982 (31 days after entry of judgment), the clerk of the circuit court of Lake County received by mail and date-stamped, Schulman's post-trial motion. The Village moved to strike the motion as untimely since it had not been filed with the circuit clerk within 30 days of the judgment as required by section 68.3 of the Civil Practice Act (now codified as section 2-1203 of the Code of Civil Procedure) (Ill.Rev.Stat.1981, ch. 110, par. 2-1203). In response, Schulman presented the affidavit of its attorney which stated that the motion had, in fact, been placed in the U.S. Mail on May 18, 1982, only 29 days after the entry of summary judgment. The trial court struck Schulman's post-trial motion as untimely and it appeals.

Prior to oral argument in this court, the Village moved to dismiss the appeal as untimely on the grounds that Schulman's post-trial motion and notice of appeal were filed more than 30 days after the entry of summary judgment in violation of Supreme Court Rule 303(a) (87 Ill.2d R. 303(a)). This court denied the motion without comment and the Village has again raised the issue in its brief and oral argument. Because of the jurisdictional nature of the Village's contention, we will address the basis of our denial of the motion to dismiss this appeal.

The issue presented is whether the deposit in the mail of a post-trial motion, within 30 days of the entry of a judgment, may constitute a filing of the motion for purposes of the time restrictions imposed by section 2-1203 of the Code of Civil Procedure (formerly section 68.3 of the Civil Practice Act (Ill.Rev.Stat.1982 Supp., ch. 110, par. 2-1203)). A review of the reported cases reveals a split of authority in the Appellate Court as to whether the mailing of documents to the circuit court clerk may be deemed a filing. In Schneider v. Vine Street Clinic (1979), 77 Ill.App.3d 946, 33 Ill.Dec. 861, 397 N.E.2d 194, leave to appeal denied, the Fourth District, with a dissent, determined that a notice of appeal mailed on the 30th day, but not received and stamped until 2 days later, was insufficient to confer jurisdiction upon the appellate court. Similarly, in Fairfax Family Fund, Inc. v. Couch (1982), 103 Ill.App.3d 492, 59 Ill.Dec. 176, 431 N.E.2d 461, the Fifth District has held that a post-trial motion and a notice of appeal mailed on the 30th day, but not received and stamped until the next day, were also insufficient.

However, the Fifth District, in Department of Conservation v. Baltimore & Ohio R.R. Co. (1982), 103 Ill.App.3d 417, 59 Ill.Dec. 156, 431 N.E.2d 441, leave to appeal denied, also has held that an appeal to the circuit court from an order of the Commerce Commission was timely if the notice of appeal was mailed on the last day, even though not received until after the time had expired, and that the affidavit of counsel was sufficient proof of mailing. Further, in Holesinger v. Dubuque Feeder Pig Co., Inc. (1982), 104 Ill.App.3d 39, 59 Ill.Dec. 859, 432 N.E.2d 645, the Third District rejected the Schneider decision and held that a notice of appeal mailed on the 30th day, but not received until 7 days later, was sufficient to confer appellate jurisdiction. Our supreme court has not addressed the issue.

In each of the foregoing cases, the opinion offers a detailed analysis of the relevant provisions of the statutes and Supreme Court Rules together with applicable common law principles. It would be redundant for us to set forth a duplicative analysis here. Suffice it to say, we find the rationale and result reached in the Holesinger and Department of Conservation decisions to be most...