No. 2--06--0514 Filed: 5-4-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ REIN HARD R. GELL

ERT ) Appeal from the Circuit Court ) of Mc He nr y Co un ty. Plaintiff -Appella nt, )

) v. ) No. 05--AR--738 ) JILL A. JACKSON, ) Honorab le ) Michael

T. Caldwe ll, Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BYRNE de livered

the opinion of the c ourt: Plaintiff, Reinhard

R. Geller t, appea ls 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 judgmen t. The cour

t entere d judgme

nt on the a rbitrati on decisi on beca

use it found

that plaintiff filed his rejection of it too late. Plaintiff contends that his rejecti on of the a

rbitrati on decisi on was time ly because the office of the circuit court clerk wa s closed at 4:40 p.m

. on March 13, 2006, when he tried to file the rejection, even though a local ru le required the office to be open until 5 p.m. We agre e 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 r

ejection at 4:40 p.m . that day

would be a

basis on w

hich the t rial cou rt 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

-2-

Plaintiff sued defendant, Jill A. Jackson, for malicious prosecution and intentional infliction of emotional distress. He a sked fo r damages of $16,000. Therefor e, under Supreme Court Rules 86(b) and (c) (155 Ill. 2d Rs. 86(b), (c )) and 19th Judicia

l Circuit Co

urt Rule 17 .01(c) ( 19th

Judicial Cir. Ct. R. 17.01(c) (eff. March 1, 2002)), this was a mandatory a rbitration case. On February 10, 2006, the arbitrators found for defendant. On Tuesday, Ma rch 14, 2006, plaintiff filed a notice of rejection. Supreme Court Rule 93 (166 Ill. 2d R. 93) gives a party 30 days to rejec

t a decision; the thirtieth day here fell on Sunday, Marc

h 12. Therefore, plaintiff filed his rejection a day late. On March 15, 2006, the court held a hearing to consider e ntry of judgment on the arbitration decision. At the hearing, plaintiff explained that he was running c lose to the deadline be cause he had been trying to fa x a co py o f the rejection to defendant's lawy er. His representations sugge st that he belie ved th at he n eeded p roof o f defen dant's receipt of the rejection notice before he could file the notice wi th the clerk. The court entered judgment on the ar bitration decision; it ruled that the

re je ct io n w as un ti me ly. Plaintiff filed a timely motion

to vacate the judgment. In it, he asserte d that he had arrived at the entrance to the McHenry county courthouse a

t 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 tha t he was there to file thr

ee "mot ions," one of whic

h was the rejecti on. Fina

ll y, plaint iff noted

that Rule 1.11(c)of the 19t

h Circuit sta

tes: "The Office of Clerk of theCircuit Court will be open for business from 8:30 A.M. until 5:00 P .M., ex cept Saturday, Sunday and holidays as pre scribed annually by Administrative Order. Upon request of the Clerk of the Cir cuit Court, and upon approval byNo. 2--06--0514

-3-

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 a t the court at 4:40 p.m. to file "three motions" and that the clerk's of fice was closed. Defendant

responded, asserting tha t plaintiff had failed to allege that he tried to file the rejection on the 13th; however, a careful rea ding of the motion

rebuts that asser

tion. Def endant a lso asserted that the government center is closed eve ry business day at 4:30 p.m. by order of the sheriff and the c ourt. She d

id not expla

in what the se orders were or how the y su perced ed the ru les. The court heard argument from the pa rties on the motion. Its questions to plaintiff focused

onwhy he wa s trying to file a t the last minute. It denied the motion, making no fi ndin gs of fact concerning

the truth of the motion's allegations. On appeal, plaintiff asser ts that, because the rules obligated the clerk to have the office open when plaintiff tried to f ile his re jection, the cour

t should have deemed the rejection timely and vacat ed t he judgment in favor of defendant. De fendant has notfiled 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 f

or an abu se of disc

retion a court' s decision on a motion to vaca te a judg ment. Mannv. Upjohn Co. , 324 Ill. App. 3d 367, 377 (2001). Here, if one ac cepts as tr

ue that plaintiff tried to filethe rejection at 4:40 p.m. on March 13, 2006, the judgment was a dire ct consequence of the clerk's office being closed when Rule

1.11(c)require d it to be op en. As we explain, that would be a basis on which the trial court should have vacated the judg ment. It shou ld h ave denied plaintiff 's motion only if it reje cted his f

actual a llegat ions.No. 2--06--0514

-4-

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 af ter the f iling de adline is past. Ianotti v. Chicago Park District , 2 50 Il l. App. 3d 628, 631 (1993). Thus, we see no insurmoun

tablebarrier, such

as a lack of jurisd

iction, to a

court' s allowing

a case to proce ed despit

e a technically

untimely rejection of a

n arbitration decision. We find in the case law no precise parallel to the cir cumstances 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 I ll. App. 3d 298 (1987), and Westinghouse Airbrake Co. v. Industria l 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 s

ummons shou

ld be dee med timely

when the clerk iss ued the su

mmons late because the plaintiffs relied on incorrect information from a clerk' s employee re garding procedure s for issuance. Azim , 164 Ill. App. 3d at 301. The clerk's employ ee had mistakenly told the plaintiffs that the clerk would issue the summons eventhough the plaintiffs had failed to send a required f ee. Azim , 164 Ill. App. 3d at 301. I n Westingho use Ai rbrake , the Industrial Commission Division, following Azim , held that an administrative review

plaintiff's request for summons was timely , even thou ghthe 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, butthe clerk had not properly stamped it. Westinghouse Airbrake Co. , 30 6 Ill . Ap p. 3 d at 860 . In each case, the clerk's office

was the cause of a party 's untimely action, and i n eachcase, the

re vi ew in g c ou rt he ld th at th e a ct io n i n q ue st io n s ho ul d b e d ee me d t im el y.No. 2--06--0514

1 Under the rule, only holiday

s, not hours, can be set

by a dministra tive orde r. Under the last antecede nt doc trine, qualifying words or phrases in a statute or similar provision modify only the immediate ly

preced in g 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 doctr ine for statutes). -5- The closure of the clerk's office earlier than

Rule 1.1 1(c) permitted would make the untimeline ss here attributable to the clerk. Rule 1.11(c) states that the "Offic e of Cler k of the Cir

cuit Courtwill be open for business from 8:30 A.M. until 5:00 P.M., except Saturday, Sunday and ho li da ys as prescri b ed annually by Administrative Order." 1 19th Judicial Cir. Ct. R. 11.1(c) (eff. January 2, 1997). Thus, whe

n a party arrive s with a fi ling on a

businessday befor

e 5 p.m., the clerk's office ought to b e open to a ccept hi s or her f

il in g. That

the ear ly c losing ma

y ha ve been widely knownin the community, and indeed, may have b een kn own to plain tiff, does n ot cha nge the resu lt. We can see no possible justice in penali zing a pa rty when it is t

he court that has f ailed to f ollow its own rule. If the trial court accepts the allegations in plaintiff' s motion to vacat e, it must grant the motion. We therefore vacate the denial of the motion to vacate, and we remand the matter for fur ther procee dings on the motion. I n those pr oceedin gs, the c ourt shoul d limit itsel f to decidi ng the tr uth of plaintiff's assertions in the motion. I f 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. Vacate d and remanded wi th directions. McLAREN and GI

LLERAN JOHNSON, JJ., concur.