NO. 4-00-0848

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

PETER PAPPAS,						)	Appeal from

	Plaintiff-Appellant,		)	Circuit Court of

	v.			     		)	Sangamon County

DONALD WALDRON, Individually and d/b/a	)	No. 99MR273

NORTHGATE AMUSEMENT COMPANY,			)	

	Defendants-Appellees.  		)	Honorable

							)	Thomas R. Appleton,

							)	Judge Presiding.

_______________________________________________________________

	JUSTICE KNECHT delivered the opinion of the court:

	Plaintiff, Peter Pappas, filed a declaratory judgment action against defendants, Don Waldron, individually and doing

business as Northgate Amusement Company.  Plaintiff alleged

defendants triggered a 90-day option-to-buy period in a lease

agreement plaintiff had executed with Joseph Vono, who is not a

party to this lawsuit.  Defendants claimed the 90-day option

period was not triggered.  Both parties filed motions for summary

judgment and the trial court granted defendants' motion.  Plain

tiff did not receive a copy of the judge's ruling because the

circuit clerk failed to mail copies of the docket entry to the

parties, and, therefore, plaintiff failed to file a timely notice

of appeal.  Plaintiff appeals the trial court's ruling granting

defendants' motion for summary judgment. We dismiss the appeal.

I. BACKGROUND

	Plaintiff Peter Pappas entered into a lease agreement

with Joseph Vono, whereby Vono agreed to lease Pappas' bar and

restaurant.  Originally, Vono was unable to acquire financing to purchase Pappas' property, so the parties agreed to a five-year

lease with an option to purchase with written notice during the

last 90 days of each one-year period.   

	During negotiations for the lease, Vono mentioned to

plaintiff he might borrow money from defendant, Don Waldron, for

a down payment to purchase plaintiff's property.  Plaintiff did

not desire to do any business with defendant Waldron and insisted

if defendant Waldron became involved in the purchase of his

property, he (defendant Waldron) would have to pay for the

property in full.  To evidence his intentions, plaintiff's

attorney drafted a paragraph into the lease agreement giving

defendant Waldron a 90-day option to buy plaintiff's property if

certain conditions occurred, and if defendant Waldron did not

exercise the option, he would lose any future rights to the

property.  Defendant Waldron was not a party to the lease agree

ment, 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 believed

this assignment triggered the 90-day option-to-buy period and

filed an action seeking declaratory judgment, asking the court to

find (1) defendants had a contractual right to exercise the

option to purchase as outlined in paragraph six of the lease, for

a 90-day period after defendants gained a lien or claim to the

leased property; (2) defendants failed to timely exercise their

rights in accordance with the terms of the lease; and (3) the

option to purchase had expired.  

	Defendants filed a motion to dismiss, which the trial court granted because plaintiff failed to allege a condition

precedent to the option.  Plaintiff filed an amended complaint,

and defendants again filed a motion to dismiss.  The trial court

denied defendants' second motion to dismiss, finding plaintiff

alleged a circumstance triggering the option, and the existence

of the circumstance was an issue of proof.  

	Defendants and plaintiff both filed motions for summary

judgment.  The trial court heard arguments on April 14, 2000. 

The court granted defendants' motion, finding no material ques

tion of fact on whether defendants had "not claimed a lien on any

part of the business premises."  Accordingly, the trial court

denied plaintiff's motion and entered judgment in favor of

defendants.   

	The record is unclear as to whether the trial court

ruled on the motion in open court in the presence of the attor

neys or took the matter under advisement and ruled later. 

Plaintiff asserts the judge took the matter under advisement and

did not rule in open court.  Defendants do not address this issue

in their brief and we do not have a transcript of the proceedings

to consult.  The April 14 docket entry reads: 

		"This cause comes on for consideration

on the [m]otion for [s]ummary [j]udgment

filed by each party.  Both parties are pres

ent by counsel.  Arguments heard.  Judgment

is entered for defendant.  There exists no

material question of fact that [d]efendant

has not claimed a lien on any part of the

premises.  The lack of a demand or claim of a lien precludes the commencement of the 90-day

option period.  THE CLERK IS DIRECTED TO SEND

A COPY OF THIS DOCKET ENTRY TO MR. PAVLIK AND

MR. YOUNG.  CAUSE STRICKEN." 

	The clerk did not send copies of the docket entry to

either party.  Plaintiff's attorney did not follow up on the case

until more than 30 days after entry of the final judgment.  This

time lapse arguably precludes a timely filing of a notice of

appeal as required by Supreme Court Rule 303(a)(1) (155 Ill. 2d

R. 303(a)(1)).  On July 25, 2000, plaintiff filed a motion to

expand the docket entry and for other relief regarding the entry

of a final judgment.  Plaintiff sought to expand the docket entry

to reflect the April 14, 2000, matter was taken under advisement

and was not ruled upon in open court.  Plaintiff also requested

the April 14, 2000, docket entry be reentered because "due

process of law requires notice and the opportunity to exercise

rights attendant to the entry of a final judgment."  

	On September 14, 2000, the trial judge heard arguments

and on September 19, 2000, denied plaintiff's motion.  The

September 19, 2000, docket entry reads as follows:

		"Cause comes on for consideration on

[p]laintiff's [m]otion for [r]elief.  Both

parties are present by counsel.  While the

court did not announce at the conclusion of

the hearing that it would mail an order to

the parties, that was and is certainly the

usual practice of the [c]ourt.  The record

further shows that the court ordered the [c]lerk to mail the [o]rder to the parties

and that the [c]lerk failed to do so.  The

[c]ourt finds that the facts here are not so

squarely on point with Graves v. Pontiac Firefighters['] Pension [BOADoard.[, 281 Ill. App. 3d 508, 667 N.E.2d 136 (1996)] to distinguish

this 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 bound

by Mitchell.  The motion is denied.  THE CLERK IS DIRECTED TO MAIL THIS ORDER TO COUN

SEL OF RECORD."  (Emphasis in original.)

This appeal followed.

II. ANALYSIS

	Plaintiff appeals, arguing (1) this court has jurisdic

tion to hear this appeal; and (2) the trial court erred when it

granted defendants' motion for summary judgment.  We find the

clerk's failure to mail a copy of the docket entry does not

excuse plaintiff's late filing of his notice of appeal, and the

appeal should be dismissed. 

A. Jurisdiction

	Defendants contend we do not have jurisdiction to hear

this appeal because plaintiff failed to comply with Supreme Court

Rule 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 days

after the entry of the final judgment appealed from." 

	Plaintiff contends because the circuit clerk failed to

mail copies of the docket entry, the late filing of his notice of

appeal should be excused.  The Illinois Supreme Court is clear on

this issue:  the fact an attorney does not receive actual notice

of a trial court's order or ruling, "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, 632 N.E.2d at 1013. 

	In Mitchell, the trial court held a hearing on a complaint for administrative review of an Industrial Commission

decision and took the matter under advisement on January 10,

1991.  On February 7, 1991, the court signed an order setting

aside the Industrial Commission's decision.  This order also

directed the circuit clerk to send notice of the judgment to all

parties, but the clerk failed to mail the notice.  

	On April 25, 1991, plaintiff's attorney learned of the

trial court's decision.  The trial judge suggested plaintiff's

counsel should file a motion to vacate, which the trial court

ultimately granted, and then reentered the same order.  This

allowed plaintiff to timely file a notice of appeal.  Defendant

argued the appellate court lacked jurisdiction because more than

30 days had elapsed since the circuit court entered its final

order.  The appellate court ruled jurisdiction would be upheld on

grounds of equity, because plaintiff's counsel relied on the

circuit court's incorrect directive to file a motion to vacate to

correct the circuit clerk's error of not mailing notice of the trial court's ruling.  

	The supreme court understood the concern the appellate

court expressed but nevertheless stated "neither the trial court

nor the appellate court has the 'authority to excuse compliance

with the filing requirements of the supreme court rules governing

appeals.'"  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 of

Rule 303 requires attorneys to monitor their cases to insure that

appeals are timely filed."  Mitchell, 158 Ill. 2d at 150, 632 N.E.2d at 1013.  

	In Mitchell, the supreme court discussed its holding in a similar case, where one party did not receive notice of the

trial court's order through the mail and, as a result, failed to

file a timely notice of appeal:  "'actual notice is not required,

so long as the order appealed from was expressed publicly, in

words 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 at

the courthouse where the proceeding occurred.

	Plaintiff, however, contends the present case is

controlled by Graves, 281 Ill. App. 3d 508, 667 N.E.2d 136.  In Graves, we excused a late filing of a notice of appeal where the parties did not receive notice of the trial court's order. 

However, in Graves, the trial court expressly entered an order stating the case was taken under advisement and the court would rule by mail.  Graves, 281 Ill. App. 3d at 516, 667 N.E.2d at 141.  In the present case, the trial court never entered such an

order or told the parties it would rule by mail, nor does the

record show the trial court took the matter under advisement.  In

fact, the trial court denied plaintiff's motion to expand the

April 14, 2000, docket entry to include plaintiff's assertion the

trial judge took the matter under advisement.  The trial court

merely stated, after the fact, it was the usual practice of the

court to send copies of the docket entry to the parties.  

	Plaintiff next urges us to find his reliance on the

court's "standard operating procedures" to mail notice was

sufficient, under principles of equity, to excuse the late filing

of 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's

failure to follow its standard operating procedure in mailing its

final judgment to the parties warranted an equitable tolling of

the time for filing an appeal.  

	We decline to extend Comdisco to the present case.  The trial judge in Comdisco expressly found defendantplaintiff relied on the court's standard operating procedure.  Comdisco, 306 Ill. App. 3d at 202, 713 N.E.2d at 700.  The record before us fails to show

plaintiff's failure to timely file his notice of appeal was due

to his reliance on the court's standard operating procedure as

opposed to his failure to monitor his case.  The trial judge

indicated it was his usual practice to mail notice to the par

ties, but he did not indicate plaintiff's failure to timely file

his notice of appeal was the direct result of the court not following its usual practice.  Also, plaintiff never indicated he

called the courthouse, checked the docket entry, or followed up

on his case in any other way, in the more than three months that

elapsed between the April 14, 2000, docket entry and his July 25,

2000, motion to expand docket entry.  The docket entry was

recorded publicly, in words, at the courthouse on the same day

the proceeding was held.  Had plaintiff properly monitored his

case, we would not be addressing this issue today. 

	Further, we find Comdisco erodes the supreme court's holding in Mitchell, which was based on the premise an attorney has a professional responsibility to monitor his or her cases and

failure to do so could lead to harsh results.  Graves carves an exception for parties who specifically rely on a trial judge's

order he or she will rule by mail.  Comdisco widens this excep tion to the point where Mitchell is rendered virtually meaning less.  Comdisco essentially means if notice is usually sent through the mail, parties are excused from monitoring their cases

and the 30-day rule will be extended if notice is allegedly not

mailed.  This not only contradicts Mitchell, but it opens the door for a myriad of other excuses to be carved out of the

"standard operating procedure" exception.  Even though results

under Mitchell may be harsh, it provides a bright-line rule to encourage attorneys to monitor their cases and guards against

abuse.

	We find Mitchell controls the present case, and the circuit clerk's failure to mail copies of the April 14, 2000,

docket entry to the plaintiff does not excuse his untimely filing

of a notice of appeal.  

B. Motion for Summary Judgment

	Plaintiff contends the trial court improperly granted

defendants' motion for summary judgment because there is a

genuine issue of material fact as to whether the option period as

described in paragraph six of the lease was triggered when Vono

assigned the lease to defendants.  We disagree.

	The standard of review in cases involving summary

judgment is de novo.  Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349, 701 N.E.2d 493, 496 (1998).  Summary judgment

should be granted only when "the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the 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 to

them does not trigger the 90-day option period because they did

not "demand or claim a lien," as required by the contract lan

guage.  Plaintiff contends defendants acquired "some sort of an

interest" 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 question

of fact that [defendants have] not claimed a lien on any part of

the premises.  The lack of a demand or claim of a lien precludes

the commencement of the 90-day option period."  Plaintiff con

tends the trial court erred because "it is very clear that the

paragraph reads more generously in terms of the [defendants]

obtaining some sort of an interest in the [p]laintiff's property

entitling [them] to some sort of rights."  Plaintiff contends the use of certain language in the second sentence of paragraph six

renders the paragraph ambiguous and urges us to consider extrin

sic evidence to determine his intent in including the financing

option in the lease. 

	The basic rule of contract interpretation, commonly

known as the "four -corners rule," requires the following:  "'[a]n

agreement, when reduced to writing, must be presumed to speak the

intention of the parties who signed it.  It speaks for itself,

and the intention with which it was executed must be determined

from the language used.  It is not to be changed by extrinsic

evidence.'"  Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462, 706 N.E.2d 882, 884 (1999), quoting Western Illinois Oil Co. v. Thompson, 26 Ill. 2d 287, 291, 186 N.E.2d 285, 287 (1962).  

	Courts use several guidelines to apply the four-corners

rule.  First, they look to the language of the contract alone. 

If the language of the contract is unambiguous, the contract is

interpreted as a matter of law without the aid of parol evidence. 

If, however, the language of the contract is open to more than

one meaning, an ambiguity is present and only then may parol

evidence be used to help resolve the ambiguity.  Air Safety, 185 Ill. 2d at 462-63, 706 N.E.2d at 884. 

	The contract language in question is found in paragraph

six, which is entitled "Financing Option of Lessee":

		"The [l]essee may seek financing help

from Don Waldron, doing business as Northgate

Amusement Co., or with a corporation or busi

ness in which Don Waldron has an interest.  In the event that the [l]essee becomes in

debted to said Don Waldron or any such corpo

ration or business, and Don Waldron or any

such business demands or claims a lien on any of the premises or equipment herein, Don

Waldron or any such business will have the

option to purchase the premises and property

herein for the total balance due on this

[l]ease and [o]ption to [p]urchase, on ninety

(90) days written notice to [l]essor after

asserting said lien or claim.  Failure of Don Waldron or any such business to exercise said

option shall terminate any rights or claims

of Don Waldron or any corporation or business

in which he has an interest.  Endorsement of

this [l]ease by Don Waldron will be an accep

tance of the terms herein."  (Emphasis

added.)

	According to the contract, two conditions must occur

before defendants trigger the 90-day option period:  (1) Vono

must be indebted to defendants, and (2) defendants must demand or

claim a lien on the property or equipment subject to the lease. 

Without question, Vono became indebted to defendants and defen

dants did not demand or claim a lien against the premises or

property.  Defendants, therefore, argue they have not triggered

the 90-day option period.  Plaintiff, however, contends the

phrase "demands or claims a lien" is inconsistent with the words

"said lien or claim," which occurs later in the same sentence. 

	Plaintiff submitted two affidavits along with his

brief, one from himself and the other from the attorney who

prepared the lease contract for him.  These affidavits state

plaintiff's intent was never to do business with defendant

Waldron, and paragraph six was included in the lease to insure if

defendant Waldron ever acquired any interest in the property, defendant Waldron would have to pay for the property in full or

lose any future interest to the property.  According to plain

tiff, when Vono assigned the lease, defendant Waldron acquired

"some sort of interest" in the property, which, under paragraph

six 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 "demands

or 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 on

property for payment of some debt, obligation or duty"; and

"[r]ight or claim against some interest in property created by

law as an incident of contract."  Black's Law Dictionary 922 (6th

ed. 1990).  Therefore, if one "claims a lien" on property, it

would be proper to refer to the lien as either a "claim" or a "lien," and this explains the use of "said claim or lien" near

the end of the second sentence of paragraph six.  The language of

paragraph six is clear and unambiguous, and, accordingly, we will

interpret the paragraph without reference to extrinsic evidence.  

	Further, we will not consider extrinsic evidence

because the contract contains an integration clause:  "This

[a]greement constitutes the entire agreement between the parties relating to the subject matter hereof, superseding all prior

agreements, and may be modified only by a written instrument

executed by all parties."  The supreme court has stated, "where

parties formally include an integration clause in their contract,

they are explicitly manifesting their intention to protect

themselves against misinterpretations which might arise from

extrinsic evidence."  Air Safety, 185 Ill. 2d at 464, 706 N.E.2d at 885.  

	Plaintiff goes to great lengths to persuade us para

graph six reads very generously, and the language "said lien or

claim" means a "claim," in addition to a "lien," could trigger

the 90-day option.  Plaintiff further asserts the assignment of

the lease resulted in defendant Waldron acquiring a "claim" to

the property.  However, plaintiff provides no authority support

ing the proposition an assignment of a lease may be considered a

"claim" against property, and our research rendered no such

authority.    

	Even if we were to construe paragraph six to mean defendants' demand of a lien or claim would trigger the 90-day option period, the assignment of a lease cannot be considered a

claim 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 became

lessee and actually acquired a contractual duty to pay plaintiff rent.  Even in the broadest sense of the word, defendants never

acquired a "claim" against plaintiff's property when Vono as

signed the lease to them.  

	Paragraph six is clear and unambiguous and its meaning

can be gleaned from the language of the contract alone.  Even if

the contract is interpreted broadly to include plaintiff's

proposition 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 as

such, it should be interpreted against him.  Symanski v. First National Bank, 242 Ill. App. 3d 391, 396, 609 N.E.2d 989, 992 (1993).  Plaintiff could easily have written paragraph six of the

lease to include an assignment of the lease as a trigger to the

90-day option period if such was his intent.  He did not. 

Accordingly, the trial court properly granted defendants' motion

for summary judgment.

III. CONCLUSION

	Plaintiff failed to timely file a notice of appeal

within 30 days after entry of final judgment, and, therefore, we

dismiss the appeal. 

	Appeal dismissed.

	COOK, J., concurs.

	MYERSCOUGH, J., dissents.

	JUSTICE MYERSCOUGH, dissenting:

	I respectfully dissent and request that the supreme

court revisit Mitchell, a case in which I was the trial court judge.  In neither the case at bar, nor Mitchell, could the appel lants have accurately monitored their cases given the multitude

of mistakes in the circuit clerk's office.  Where these ministe

rial errors occur, trial courts should be able to correct those

errors.

	The mistake here, as in Mitchell, was actually the fault of the circuit clerk.  The only way counsel could have

accurately monitored this case was to constantly, even daily,

initiate ex parte communications with the judge or, perhaps, his or her court reporter or secretary, if he is fortunate enough to

have one.  Such communication is certainly undesirable.  Attempts

to monitor the case through the circuit clerk's office, in the

face of obvious malfeasance, would be futile, as well as nearly

physically impossible, given the traffic in our overworked,

understaffed, underpaid clerks' offices.

	Moreover, in Mitchell, monitoring the case through the clerk's office would not have uncovered entry of the order

because it was not entered in the docket sheet or the file but

had been misplaced by the clerk.  The clerk was, in fact, unable

for a period of time to find the order I requested.  In response to the Mitchell situation, the circuit clerk in Sangamon County  established a system to ensure that docket entries and orders

were sent out as ordered.  This system required the circuit clerk

to file and certify a written proof of service each time that a

docket entry or order is sent out by mail as the trial court ordered.  

	This was the practice followed in the case at bar on at

least three occasions, two prior to April 14, 2000, and one

following April 14, 2000, and was relied upon by the attorneys of

record:

 	"PETER PAPPAS

			VS				99 MR 000273

	DONALD WALDRON

	PROOF OF SERVICE

	The undersigned certifies that service of the

foregoing, together with a copy of the 9-15- 99 docket referred to herein, was made by enclosing a true copy thereof in an envelope

plainly addressed to:

		Atty Duane Young

		1330 S. 8th St.

		Ste. 2

		Spfld, Illinois

			   62703

	and depositing the same in the U.S. Mail

postage pre-paid on the 16th day of Sept[.], 1999.

					Anthony P. Libri

					Circuit Clerk

					 B               

					Deputy Clerk

	([stamped] FILED Sep[t.] 16[,] 1999 CIV.-7

Anthony P. Libri[,] Jr.[,] Clerk of the Cir

cuit Court  

	[certified] SEAL [of the] 7th JUDICIAL CIR

CUIT COURT * SANGAMON CO., ILL *)"  

-----------------------------------------------------------------

	"PETER PAPPAS

			VS				99 MR 000273

	DONALD WALDRON

	PROOF OF SERVICE

	The undersigned certifies that service of the

foregoing, together with a copy of the docket 10-26-99 referred to herein, was made by enclosing a true copy thereof in an envelope

plainly 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. Mail

postage pre-paid on the 27th day of Oct[.] 1999. 

					Anthony P[.] Libri

					Circuit Clerk

					 B               

					Deputy Clerk

	([stamped] FILED Oct[.] 27[,] 1999 CIV.-7

Anthony P. Libri[,] Jr.[,] Clerk of the Cir

cuit Court 

	[certified] SEAL [of the] 7th JUDICIAL CIR

CUIT COURT * SANGAMON CO., ILL *)"

-----------------------------------------------------------------

	"PETER PAPPAS

			VS				99 MR 000273

	DONALD WALDRON

	PROOF OF SERVICE

	The undersigned certifies that service of the

foregoing, together with a copy of the docket 9-19-00 referred to herein, was made by en closing a true copy thereof in an envelope

plainly 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. Mail

postage pre-paid on the 20 day of Sept[.], 2000[.]

					Anthony P. Libri

					Circuit Clerk

					 il              

					Deputy Clerk

	([stamped] FILED Sep[.] 20[,] 2000[,] CIV.-7

Anthony P. Libri[,] Jr.[,] Clerk of the Cir

cuit Court)"

----------------------------------------------------------------- 

Unfortunately, on the critical occasion, April 14, 2000, the clerk failed to mail the trial court's docket entry awarding

summary judgment, although the clerk did enter a docket entry in

the court file at the judge's direction to strike the cause of

action.  The docket entry stated:

		"4/14/2000 DOCKET D Judge: APPLETON,

THOMAS R.  Rep: FITZGERALD[,] MARY

		This cause comes on for consideration on

the Motion for Summary Judgment filed by each

party.  Both parties are present by counsel. 

Arguments heard.  Judgment is entered for

[d]efendant.  There exists no material ques

tion of fact that [d]efendant has not claimed

a lien on any part of the business premises. 

The lack of a demand or claim of a lien pre

cludes the commencement of the 90-day option

period.  THE CLERK IS DIRECTED TO SEND A COPY

OF THIS DOCKET ENTRY TO MR. PAVLIK AND MR.

YOUNG.  CAUSE STRICKEN." 

The circuit clerk's entry stated:

		"4/14/2000 Cause Stricken Signed Judge

APPLETON THOMAS R.  Status: Cause Stricken. 

Report: Terminated  Apr[.] 14, 2000[.]"

(Although this entry refers to the judge's signature, the record

contains no docket entry or document bearing the judge's signa ture.)  

	The record, unfortunately, does not reflect whether or

when the April 14, 2000, judgment order docket entry of Judge Thomas Appleton was placed in the court file or input into the

clerk's computer.  Neither is the record clear when this informa tion was available to counsel in the court file or the clerk's

computer.  In fact, the docket entry itself, though dated April

14, 2000, does not indicate on what date and time the docket

entry was actually placed in the computer or the court file.  The

fact that a court reporter enters a docket entry in his computer

does not indicate whether the clerk's office transferred the

docket entry to the case file or the clerk's computer contempora

neously or at a later date.  Under such circumstances, where a

judge takes a matter under advisement with the understanding that

his or her ruling will be mailed to the parties at a later date

by the clerk, and the judge thereafter rules in his or her

chambers and directs the clerk to mail the ruling to the parties,

but the clerk fails to mail the ruling, the court has not ex

pressed its order publicly, in words, at the situs of the pro

ceeding as required.  See Granite City, 141 Ill. 2d at 127, 565 N.E.2d at 931 (1990).  While this trial court did not expressly state that it would rule by mail, the court practice was clearly to

rule by mail.  Graves should, therefore, control here.  That is, since the order was never mailed to the parties or their attor

neys, the order did not become final for purposes of appeal.

	Moreover, the supreme court in Mitchell additionally stated:

		"The 'mistake' in the instant case was the belief of the circuit court and Mitchell's

counsel that a motion to vacate the judgment

order, more than 30 days after its entry, was

a valid means by which the circuit court

could reenter the same order and thereby

start a new 30-day period in which to file

notice of appeal."  Mitchell, 158 Ill. 2d at 151, 632 N.E.2d at 1013.

Here, the court and counsel made no such "mistake," and for that

reason, the court should be allowed to correct the clerical

error.

	The supreme court should follow the law prior to

Mitchell that allowed courts to apply equitable principles to correct mistakes of ministerial officers (see Cesena v. Du Page County, 145 Ill. 2d 32, 38, 582 N.E.2d 177, 180 (1991)), and to excuse a litigant's mistaken reliance on a judge's erroneous

direction (see Needham v. White Laboratories, Inc., 639 F.2d 394, 398 (7th Cir. 1981).  However, the supreme court distinguished Mitchell from these cases, stating:

		"We do not believe, however, that the case at bar is analogous to the cases which employ

equitable principles to correct ministerial

mistakes."  Mitchell, 158 Ill. 2d at 151, 632 N.E.2d at 1013.

Mitchell actually involved the very mistakes found in Cesena and Needham:  (1) the clerk's mistake in failing to file and forward my decision and (2) the court's erroneous direction to file a

motion to vacate the judgment order on the grounds of the cleri cal error.  Clearly, Mitchell involved both the error of the ministerial officer, the clerk, and the judge's erroneous direc

tion.  The trial and appellate courts in Mitchell, therefore, should have been affirmed.

	Alternatively, since the Mitchell court distinguished its facts from Cesena and Needham, indicating a difference between the case at issue there from the cases that employ

equitable principles to correct ministerial mistakes, the court

here can clearly reverse to correct the clerk's ministerial

error, even relying on Mitchell.						

	For these reasons, I would reverse the trial court's

judgment in this case.