                                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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