Pappas v. Waldron

751 N.E.2d 1276, 323 Ill. App. 3d 330, 256 Ill. Dec. 439, 2001 Ill. App. LEXIS 552
Appellate Court of Illinois·Decided July 6, 2001·No. 4-00-0848·Published·Cited by 16 cases

Opinions

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 North-. gate 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. Plaintiff 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 plaintiffs 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, plaintiffs attorney drafted a paragraph into the lease agreement giving defendant Waldron a 90-day option to buy plaintiffs 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 agreement, 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 question of fact on whether defendants had “not claimed a lien on any part of the business premises.” Accordingly, the trial court denied plaintiffs 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 attorneys 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 [mjotion for [s]ummary judgment filed by each party. Both parties are present 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. Plaintiffs 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]curt. 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]curt finds that the facts here are not so squarely on point with Graves v. Pontiac Firefighters[’] Pension [Board, 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]curt believes it is bound by Mitchell. The motion is denied. THE CLERK IS DIRECTED TO MAIL THIS ORDER TO COUNSEL OF RECORD.” (Emphasis in original.)

This appeal followed.

II. ANALYSIS

Plaintiff appeals, arguing (1) this court has jurisdiction 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 plaintiffs 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.

•1 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.”

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Pappas v. Waldron, 751 N.E.2d 1276, 323 Ill. App. 3d 330, 256 Ill. Dec. 439, 2001 Ill. App. LEXIS 552 (Ill. Ct. App. 2001).

751 N.E.2d 1276 (Pappas v. Waldron) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Pappas v. Waldron
751 N.E.2d 1276 (Appellate Court of Illinois, 2001)