No. 2--06--0514 Filed: 5-4-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
REINHARD R. GELLERT ) Appeal from the Circuit Court
) of McHenry County.
Plaintiff-Appellant, )
)
v. ) No. 05--AR--738
)
JILL A. JACKSON, ) Honorable
) Michael T. Caldwell,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BYRNE delivered the opinion of the court:
Plaintiff, Reinhard R. Gellert, appeals from the entry of judgment on an arbitration decision
that rejected the claims in his suit and from the trial court's denial of his motion to vacate that
judgment. The court entered judgment on the arbitration decision because it found that plaintiff filed
his rejection of it too late. Plaintiff contends that his rejection of the arbitration decision was timely
because the office of the circuit court clerk was closed at 4:40 p.m. on March 13, 2006, when he tried
to file the rejection, even though a local rule required the office to be open until 5 p.m. We agree
that the local rule required the office to be open to 5 p.m. We further agree that plaintiff's being at
the office to file the rejection at 4:40 p.m. that day would be a basis on which the trial court should
vacate the judgment. We therefore vacate the trial court's denial of the motion to vacate, and we
remand the matter for the court to reconsider the motion.
No. 2--06--0514
Plaintiff sued defendant, Jill A. Jackson, for malicious prosecution and intentional infliction
of emotional distress. He asked for damages of $16,000. Therefore, under Supreme Court Rules
86(b) and (c) (155 Ill. 2d Rs. 86(b), (c)) and 19th Judicial Circuit Court Rule 17.01(c) (19th Judicial
Cir. Ct. R. 17.01(c) (eff. March 1, 2002)), this was a mandatory arbitration case. On February 10,
2006, the arbitrators found for defendant. On Tuesday, March 14, 2006, plaintiff filed a notice of
rejection. Supreme Court Rule 93 (166 Ill. 2d R. 93) gives a party 30 days to reject a decision; the
thirtieth day here fell on Sunday, March 12. Therefore, plaintiff filed his rejection a day late. On
March 15, 2006, the court held a hearing to consider entry of judgment on the arbitration decision.
At the hearing, plaintiff explained that he was running close to the deadline because he had been
trying to fax a copy of the rejection to defendant's lawyer. His representations suggest that he
believed that he needed proof of defendant's receipt of the rejection notice before he could file the
notice with the clerk. The court entered judgment on the arbitration decision; it ruled that the
rejection was untimely.
Plaintiff filed a timely motion to vacate the judgment. In it, he asserted that he had arrived
at the entrance to the McHenry county courthouse at exactly 4:40 p.m. on March 13, 2006, but that
security personnel told him that the courthouse closed at 4:30 p.m. He further asserted that he was
there to file three "motions," one of which was the rejection. Finally, plaintiff noted that Rule
1.11(c) of the 19th Circuit states:
"The Office of Clerk of the Circuit Court will be open for business from 8:30 A.M.
until 5:00 P.M., except Saturday, Sunday and holidays as prescribed annually by
Administrative Order. Upon request of the Clerk of the Circuit Court, and upon approval by
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No. 2--06--0514
the Chief Judge, hours may be expanded." 19th Judicial Cir. Ct. R. 1.11(c) (eff. January 2,
1997).
Attached to the motion was an affidavit in which plaintiff averred that he had arrived at the court at
4:40 p.m. to file "three motions" and that the clerk's office was closed.
Defendant responded, asserting that plaintiff had failed to allege that he tried to file the
rejection on the 13th; however, a careful reading of the motion rebuts that assertion. Defendant also
asserted that the government center is closed every business day at 4:30 p.m. by order of the sheriff
and the court. She did not explain what these orders were or how they superceded the rules.
The court heard argument from the parties on the motion. Its questions to plaintiff focused
on why he was trying to file at the last minute. It denied the motion, making no findings of fact
concerning the truth of the motion's allegations. On appeal, plaintiff asserts that, because the rules
obligated the clerk to have the office open when plaintiff tried to file his rejection, the court should
have deemed the rejection timely and vacated the judgment in favor of defendant. Defendant has
not filed an appellate brief, but this appeal is amenable to decision on the merits under the principles
of First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
We review for an abuse of discretion a court's decision on a motion to vacate a judgment.
Mann v. Upjohn Co., 324 Ill. App. 3d 367, 377 (2001). Here, if one accepts as true that plaintiff
tried to file the rejection at 4:40 p.m. on March 13, 2006, the judgment was a direct consequence of
the clerk's office being closed when Rule 1.11(c) required it to be open. As we explain, that would
be a basis on which the trial court should have vacated the judgment. It should have denied
plaintiff's motion only if it rejected his factual allegations.
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No. 2--06--0514
A trial court has the power under Supreme Court Rule 183 (134 Ill. 2d R. 183) to extend the
time for filing a rejection of an arbitration decision for good cause, even after the filing deadline is
past. Ianotti v. Chicago Park District, 250 Ill. App. 3d 628, 631 (1993). Thus, we see no
insurmountable barrier, such as a lack of jurisdiction, to a court's allowing a case to proceed despite
a technically untimely rejection of an arbitration decision.
We find in the case law no precise parallel to the circumstances here. However, such
precedent as exists suggests that, where the untimeliness of a filing is attributable to the clerk, a court
should deem the filing timely. Azim v. Department of Central Management Services, 164 Ill. App.
3d 298 (1987), and Westinghouse Airbrake Co. v. Industrial Comm'n, 306 Ill. App. 3d 853, 860
(1999), are the cases most directly on point. In Azim, a Third District panel held that an
administrative review summons should be deemed timely when the clerk issued the summons late
because the plaintiffs relied on incorrect information from a clerk's employee regarding procedures
for issuance. Azim, 164 Ill. App. 3d at 301. The clerk's employee had mistakenly told the plaintiffs
that the clerk would issue the summons even though the plaintiffs had failed to send a required fee.
Azim, 164 Ill. App. 3d at 301. In Westinghouse Airbrake, the Industrial Commission Division,
following Azim, held that an administrative review plaintiff's request for summons was timely, even
though the clerk had given it a file stamp that showed it to be late. Westinghouse Airbrake Co., 306
Ill. App. 3d at 860. The plaintiff had given the request for summons to the clerk before the deadline,
but the clerk had not properly stamped it. Westinghouse Airbrake Co., 306 Ill. App. 3d at 860. In
each case, the clerk's office was the cause of a party's untimely action, and in each case, the
reviewing court held that the action in question should be deemed timely.
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No. 2--06--0514
The closure of the clerk's office earlier than Rule 1.11(c) permitted would make the
untimeliness here attributable to the clerk. Rule 1.11(c) states that the "Office of Clerk of the Circuit
Court will be open for business from 8:30 A.M. until 5:00 P.M., except Saturday, Sunday and
holidays as prescribed annually by Administrative Order."1 19th Judicial Cir. Ct. R. 11.1(c) (eff.
January 2, 1997). Thus, when a party arrives with a filing on a business day before 5 p.m., the clerk's
office ought to be open to accept his or her filing. That the early closing may have been widely
known in the community, and indeed, may have been known to plaintiff, does not change the result.
We can see no possible justice in penalizing a party when it is the court that has failed to follow its
own rule.
If the trial court accepts the allegations in plaintiff's motion to vacate, it must grant the
motion. We therefore vacate the denial of the motion to vacate, and we remand the matter for further
proceedings on the motion. In those proceedings, the court should limit itself to deciding the truth
of plaintiff's assertions in the motion. If it finds that, before 5 p.m. on the rejection's due date,
plaintiff was at the building containing the clerk's office, with the rejection fully ready for filing, but
the office was closed, it should grant plaintiff's motion to vacate.
Vacated and remanded with directions.
McLAREN and GILLERAN JOHNSON, JJ., concur.
1
Under the rule, only holidays, not hours, can be set by administrative order. Under the last
antecedent doctrine, qualifying words or phrases in a statute or similar provision modify only the
immediately preceding words or phrases, and not those that are more remote. See Bowman v.
American River Transportation Co., 217 Ill. 2d 75, 83 (2005) (stating the doctrine for statutes).
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