                                   2014 IL App (3d) 130731

                               Opinion filed November 25, 2014

                                            IN THE

                              APPELLATE COURT OF ILLINOIS

                                      THRID DISTRICT

                                           A.D., 2014

RONNIE CARROLL,                                 )   Appeal from the Circuit Court
                                                )   of the 9th Judicial Circuit,
       Plaintiff-Appellant,                     )   Knox County, Illinois.
                                                )
                                                )   Appeal No. 3-13-0731
                                                )   Circuit No. 13-MR-97
       v.                                       )
                                                )
                                                )
KEVWE AKPORE and SALVADOR                       )
GODINEZ,                                        )   Honorable
                                                )   Paul L. Mangieri,
       Defendants-Appellees.                    )   Judge, presiding.



       JUSTICE HOLDRIDGE delivered the judgment of the court with opinion.
       Justices Schmidt and O'Brien concurred in the judgment and opinion.


                                            OPINION

¶1     The plaintiff, Ronnie Carroll, an inmate at the Hill Correctional Center (HCC), filed a pro

se mandamus petition against Kevwe Akpore, HCC warden, and Salvador Godinez, Director,

Department of Corrections (DOC). The petition alleged that DOC and HCC were not in

compliance with certain statutory requirements regarding sanitary food preparation at HCC. 410

ILCS 650/10 (West 2010). Plaintiff asked the trial court to issue an order of mandamus

requiring the defendants to comply with those statutory food preparation requirements. Within
days of the plaintiff's filing of this petition with the circuit clerk, the trial court reviewed the

petition and sua sponte entered an order dismissing the petition. The court took this action

before the named defendants or anyone else connected with the DOC was served. Accordingly,

no attorney ever appeared on behalf of the named defendants or the DOC. The plaintiff filed a

motion to vacate the order of dismissal, which was promptly denied by the trial court. The

plaintiff then filed a timely notice of appeal. It appears from the record that the defendants,

having never been served with summons, were not notified of the notice of appeal.

¶2        This appeal is unusual because the appellant appears pro se and no one appears on

behalf of the appellees. However, because the issue is one that can easily be decided without the

aid of an appellee's brief, we can address the matter. Mason v. Snyder, 332 Ill. App. 3d 834

(2002). We further note that the failure to serve a copy of a notice of appeal upon an opposing

party does not deprive the appellate court of jurisdiction since the only jurisdictional step in

appealing a final judgment is the filing of a notice of appeal. Leneehan v. Township Officers

Electoral Board of Schaumburg Township, 2013 IL App (1st) 130619 ¶ 27 (citing Simmons v.

Chicago Housing Authority, 267 Ill. App. 3d 545, 551 (1994)). The record herein established

that the trial court issued a final and appealable order and that the plaintiff filed a timely notice of

appeal. We therefore have jurisdiction to address the plaintiff's appeal.

¶3      The issue on appeal is a simple one: can the trial court dismiss sua sponte a petition

seeking mandamus relief. The court in Mason held that a trial court has an inherent authority to

dismiss any civil complaint sua sponte. Mason, 332 Ill. App. 3d at 840. However, more recent

decisions have called this holding into question. In People v. Shellstrom, 345 Ill. App. 3d 175

(2003), the appellate court rejected the inherent authority analysis and held that the mandamus

statute, which is contained in the Code of Civil Procedure (735 ILCS 5/14-103 (West 2010)) (the



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Code)) does not authorize the trial court to summarily dismiss a complaint for mandamus.

Shellstrom, 345 Ill. App. 3d at 177. Instead, the Code provides a clear procedural framework for

a trial court to follow when a mandamus petition is filed. The statutory framework includes

issuance of summons by the circuit clerk and does not provide for summary dismissal prior to

issuance of a summons. Id. On review, however, our supreme court in Shellstrom held that a

petition labeled as a mandamus petition could be summarily dismissed if the relief sought was

cognizable in a postconviction petition, even if the petitioner did not proceed under the Post-

Conviction Hearing Act (725 ILCS 5/122-1 et seq.(West 2002)). People v. Shellstrom, 216 Ill.

2d 45, 50 (2005). Our supreme court held that, since the relief sought in the mandamus petition

was relief that could have been sought in a postconviction petition it was proper for the trial

court to consider the petition under the postconviction framework and dismiss the petition as

being frivolous and patently without merit. Id.

¶4     In the instant matter, the relief sought by in the mandamus petition was to require the

defendants to comply with certain statutory requirements regarding food preparation in the

prison cafeteria. The relief sought by the petitioner was, clearly, not an issue that could be

addressed in a postconviction petition. The trial court, therefore, erred in dismissing the

mandamus petition without allowing the petition to be served upon the defendants, and the cause

must be remanded to the circuit court to allow the matter to proceed. In remanding the matter,

we note that we have not addressed the merits of the petition. The fact that the petition may have

no merit does not allow the trial court to disregard the procedural framework provided in the

Code and the mandamus statute. Shellstrom, 345 Ill. App. 3d at 179.

¶5     For the foregoing reasons, the judgment of the circuit court of Knox County is reversed,

and the cause is remanded for service of the petition upon the defendants.



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¶6   Reversed and remanded.




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