{ "id": 4135311, "name": "ERIC B. BERG, Plaintiff-Appellant, v. JESSE WHITE, Secretary of State of Illinois, Defendant-Appellee", "name_abbreviation": "Berg v. White", "decision_date": "2005-05-12", "docket_number": "No. 4-04-0269", "first_page": "496", "last_page": "503", "citations": [ { "type": "official", "cite": "357 Ill. App. 3d 496" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "356 Ill. App. 3d 1102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3749435 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "1108" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/1102-01" ] }, { "cite": "606 N.E.2d 566", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "571", "parenthetical": "\"a trial court's misapprehension of the law [will not] allow an appellant to file his notice of appeal more than 30 days after the trial court issues what actually constitutes a final order\"" } ], "opinion_index": 0 }, { "cite": "238 Ill. App. 3d 721", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5153934 ], "year": 1992, "pin_cites": [ { "page": "728", "parenthetical": "\"a trial court's misapprehension of the law [will not] allow an appellant to file his notice of appeal more than 30 days after the trial court issues what actually constitutes a final order\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0721-01" ] }, { "cite": "736 N.E.2d 179", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "185" } ], "opinion_index": 0 }, { "cite": "316 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096648 ], "year": 2000, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0443-01" ] }, { "cite": "399 N.E.2d 701", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "702" }, { "page": "702" } ], "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3235404 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "382" }, { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0380-01" ] }, { "cite": "565 N.E.2d 929", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "929" }, { "page": "931" }, { "page": "931" } ], "opinion_index": 0 }, { "cite": "141 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238428 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "123" }, { "page": "127" }, { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0122-01" ] }, { "cite": "632 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 12, "year": 1994, "pin_cites": [ { "page": "1011-12" }, { "page": "1010" }, { "page": "1010-11" }, { "page": "1011" }, { "page": "1012" }, { "page": "1012" }, { "page": "1013" }, { "page": "1012" }, { "page": "1012" }, { "page": "1013" }, { "page": "1012" }, { "page": "1013" } ], "opinion_index": 0 }, { "cite": "158 Ill. 2d 143", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780268 ], "weight": 12, "year": 1994, "pin_cites": [ { "page": "148" }, { "page": "146" }, { "page": "146-47" }, { "page": "147" }, { "page": "148" }, { "page": "148" }, { "page": "150" }, { "page": "149" }, { "page": "150" }, { "page": "151" }, { "page": "150" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0143-01" ] }, { "cite": "682 N.E.2d 444", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 430", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351046 ], "year": 1997, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0430-01" ] }, { "cite": "667 N.E.2d 136", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "141" }, { "page": "141" }, { "page": "141" } ], "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 508", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150226 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "516" }, { "page": "516" }, { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0508-01" ] }, { "cite": "751 N.E.2d 1276", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "1281" } ], "opinion_index": 1 }, { "cite": "323 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171765 ], "year": 2001, "pin_cites": [ { "page": "337" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/323/0330-01" ] } ], "analysis": { "cardinality": 682, "char_count": 16079, "ocr_confidence": 0.759, "pagerank": { "raw": 7.026703581835192e-08, "percentile": 0.423982247613664 }, "sha256": "3c97c911c1203b6dfbbd6eb9447c40d8cd8c3a8201937b2b16bfca1586a252a2", "simhash": "1:b3385991551599e5", "word_count": 2756 }, "last_updated": "2023-07-14T22:31:24.775353+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ERIC B. BERG, Plaintiff-Appellant, v. JESSE WHITE, Secretary of State of Illinois, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn May 2002, plaintiff, Eric B. Berg, petitioned defendant, Jesse White, the Secretary of State of Illinois, for rescission of an order revoking Berg\u2019s Illinois driver\u2019s license. In July 2002, White entered a final administrative decision denying Berg\u2019s petition.\nIn August 2002, Berg filed a complaint in the circuit court, seeking judicial review of White\u2019s decision. Following a June 2003 hearing, the court affirmed White\u2019s decision in a July 23, 2003, docket-entry order. A copy of the docket-entry order was mailed to White\u2019s counsel; however, a copy was not mailed to Berg\u2019s counsel.\nIn March 2004, soon after learning of the circuit court\u2019s July 23, 2003, order, Berg filed a motion for entry of a final order. Following a March 19, 2004, hearing on Berg\u2019s motion, the court entered a written order stating that the findings of fact and conclusions of law set forth in its July 23, 2003, docket-entry order were to be considered final for purposes of appeal as of March 5, 2004.\nOn March 24, 2004, Berg filed his notice of appeal. We dismiss this appeal for lack of jurisdiction.\nI. BACKGROUND\nBerg\u2019s petition to rescind the revocation of his driving privileges was denied following a May 2002 hearing before a Secretary of State hearing officer. In July 2002, White issued a final administrative decision (1) adopting the hearing officer\u2019s findings of fact, conclusions of law, and recommendations and (2) denying Berg\u2019s petition for rescission of the order revoking his driving privileges.\nIn August 2002, Berg filed his complaint for administrative review in the circuit court. Following a June 2003 hearing on Berg\u2019s complaint, the court took the matter under advisement. A transcript of the June 2003 hearing is not included in the record.\nOn July 23, 2003, the circuit court entered a docket order affirming White\u2019s decision. That docket-entry order states as follows:\n\u201cThe [c]ourt having previously taken this matter under advisement finds that the exclusionary rule does not apply to an administrative hearing. The decision of the administrative law judge was not against the manifest weight of the evidence. The decision of the Secretary of State is affirmed. CAUSE STRICKEN. CLERK DIRECTED TO SEND COPY OF THIS DOCKET ENTRY TO ATTORNEYS OF RECORD.\u201d\nOn March 10, 2004, Berg\u2019s attorney filed a motion to enter a final order, in which he alleged the following: (1) a copy of the circuit court\u2019s July 23, 2003, docket order was neither mailed to nor received by him; (2) he was not aware that the court had entered an order on July 23, 2003, until February 19, 2004; and (3) the circuit clerk\u2019s failure to comply with the court\u2019s directive to mail its order to the attorneys of record prevented Berg from timely filing his notice of appeal. Berg requested that the court enter a new order providing that the July 23, 2003, order was final for purposes of appeal as of March 5, 2004 (the date Berg received a copy of the July 23, 2003, docket-entry order).\nFollowing a March 19, 2004, hearing, the circuit court entered a written order, in which it made the following findings: (1) at the June 27, 2003, hearing, the court informed the parties that it was taking the matter under advisement and would have copies of its final decision mailed to counsel and (2) a copy of the court\u2019s July 23, 2003, order was mailed to White\u2019s attorney but a copy was not mailed to Berg\u2019s attorney. The court\u2019s order further stated that the findings of fact and conclusions of law set forth in its July 23, 2003, docket order were to be considered final for purposes of appeal as of March 5, 2004.\nOn March 24, 2004, Berg filed his notice of appeal from the circuit court\u2019s July 23, 2003, order.\nII. JURISDICTION\nWhite argues that we must dismiss Berg\u2019s appeal for lack of jurisdiction. Specifically, he contends that Berg\u2019s March 24, 2004, notice of appeal was not timely filed because the circuit court entered its final order on July 23, 2003. Berg asserts that we have jurisdiction under Graves v. Pontiac Firefighters\u2019 Pension Board, 281 Ill. App. 3d 508, 667 N.E.2d 136 (1996), because (1) at the June 2003 hearing, the court told the parties that it would notify counsel of its ruling by mail and (2) he did not receive a copy of the order until March 5, 2004. We agree with White.\nSupreme Court Rule 303(a)(1) provides as follows:\n\u201cExcept as provided in paragraph (b) below, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post[ ]trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post[ judgment motion.\u201d 155 Ill. 2d R. 303(a)(1).\nCompliance with the deadlines for appeals set forth in Supreme Court Rule 303 is mandatory and jurisdictional. In re S.J., 289 Ill. App. 3d 430, 431, 682 N.E.2d 444, 445 (1997). In Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 148, 632 N.E.2d 1010, 1011-12 (1994), our supreme court considered and rejected the argument that Rule 303(a)\u2019s 30-day period in which to appeal is tolled until the parties have actual notice of the trial court\u2019s final order. This case falls squarely under Mitchell.\nIn Mitchell, the trial court signed its order disposing of the case on February 27, 1991. The order was file stamped March 1, 1991, and included directions to the clerk of the circuit court to send a copy of the order to the attorneys of record. Mitchell, 158 Ill. 2d at 146, 632 N.E.2d at 1010. On April 25, 1991, Mitchell\u2019s counsel learned that the court had entered a ruling in the case. After conferring with opposing counsel and the court, Mitchell\u2019s counsel filed a petition under section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 1401) to withdraw or vacate the February 27, 1991, order. On April 29, 1991, the court granted Mitchell\u2019s petition, withdrew the judgment dated February 27, 1991, and reentered the same order, effective April 29, 1991. Mitchell, 158 Ill. 2d at 146-47, 632 N.E.2d at 1010-11. Mitchell filed a timely notice of appeal of that order, and the Industrial Commission Division of the appellate court upheld jurisdiction and considered Mitchell\u2019s appeal on the merits. Mitchell, 158 Ill. 2d at 147, 632 N.E.2d at 1011.\nThe supreme court reversed, concluding that the appellate court \u201cimprovidently took jurisdiction over Mitchell\u2019s appeal.\u201d Mitchell, 158 Ill. 2d at 148, 632 N.E.2d at 1012. In so concluding, the court reiterated its holding in 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), that \u201c \u2018actual notice [of the trial court\u2019s judgment] is not required, so long as the order appealed from was expressed publicly, in words and at the situs of the proceeding.\u2019 \u201d Mitchell, 158 Ill. 2d at 148, 632 N.E.2d at 1012. An order is deemed to have become public when it is filed with the clerk of the court (Granite City, 141 Ill. 2d at 127, 565 N.E.2d at 931), and \u201cRule 303 requires attorneys to monitor their cases to insure that appeals are timely filed\u201d (Mitchell, 158 Ill. 2d at 150, 632 N.E.2d at 1013).\nThe Mitchell court also emphasized that trial courts lack the authority to extend the time for filing a notice of appeal. Mitchell, 158 Ill. 2d at 149, 632 N.E.2d at 1012. The court explained, in part, as follows:\n\u201cThe appellate court expressed concern over the unfairness of penalizing the litigant because his attorney relied on the circuit court\u2019s incorrect directive. We are not insensitive to the concern expressed by the appellate court in the instant case. However, this court has general supervisory authority to oversee the administration of its own rules in the statewide system of courts. The circuit court\u2019s attempt in the instant case to assist Mitchell\u2019s counsel is understandable and well-intentioned, but neither the trial court nor the appellate court has the \u2018authority to excuse compliance with the filing requirements of the supreme court rules governing appeals.\u2019 \u201d 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).\nDespite Mitchell\u2019s strong language, this court deviated from its holding in Graves. In that case, which involved a firefighter and a firefighters\u2019 pension hoard, the trial court entered an April 8, 1995, order stating that the court had taken the matter under advisement and would rule by mail. On June 20, 1995, the court entered its final order on the merits; however, due to an oversight, neither party received a copy of the court\u2019s judgment. When the court learned that its order had not been sent to counsel, it entered a new order acknowledging its oversight and providing that the June 20, 1995, order would be final for purposes of appeal as of August 21, 1995, the date that copies of the order were mailed to counsel. Graves, 281 Ill. App. 3d at 516, 667 N.E.2d at 141. The pension board\u2019s appeal followed.\nThis court concluded that we had jurisdiction over the pension board\u2019s appeal. In so doing, we distinguished the case from Mitchell on the basis that the trial court had entered an order \u201cexpressly providing that it would rule by mail.\u201d Graves, 281 Ill. App. 3d at 516, 667 N.E.2d at 141. We thus concluded that the trial court\u2019s order was not final for purposes of appeal until it was mailed on August 21, 1995. Graves, 281 Ill. App. 3d at 516, 667 N.E.2d at 141.\nWe are no longer convinced that Graves is consistent with supreme court rules and Mitchell. \u201cA final order or judgment is a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties to the litigation.\u201d Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 450, 736 N.E.2d 179, 185 (2000). As to when a judgment actually becomes final, we look to (1) the supreme court\u2019s holdings that orders are final when publicly expressed (see Granite City, 141 Ill. 2d at 127, 565 N.E.2d at 931) and (2) Supreme Court Rule 272 (137 Ill. 2d R. 272). Rule 272 provides precisely when a judgment becomes \u201cfinal\u201d as follows:\n\u201cIf at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by the judge or if a circuit court rule requires the prevailing party to submit a draft order, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.\u201d 137 Ill. 2d R. 272.\nWe are not aware of any provision within the supreme court rules allowing for a final order to be considered final for purposes of Supreme Court Rule 303 upon being mailed to the parties (or their counsel). Indeed, the Mitchell court categorically rejected that idea. Although Mitchell has been widely cited for its holding that an attorney is responsible for monitoring his cases, the basis for the court\u2019s reversal was the trial court\u2019s lack of jurisdiction to reenter its order upon counsel\u2019s motion filed more than 30 days after the court\u2019s final order. On that point, the Mitchell court wrote as follows:\n\u201cThe \u2018mistake\u2019 in the instant case was the belief of the circuit court and Mitchell\u2019s 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.\u201d Mitchell, 158 Ill. 2d at 151, 632 N.E.2d at 1013.\nThe same \u201cmistake\u201d occurred in this case. Although Berg\u2019s motion was entitled \u201cmotion for final order,\u201d its purpose was to obtain the same effect as Mitchell\u2019s motion to withdraw or vacate. Just as the trial court in Mitchell lacked authority to vacate and reenter its order more than 30 days after it had been entered, the circuit court here lacked authority to do so. As the supreme court wrote in Mitchell, 158 Ill. 2d at 150, 632 N.E.2d at 1012, \u201cneither the trial court nor the appellate court has the \u2018authority to excuse compliance with the filing requirements of the supreme court rules governing appeals.\u2019 [Smith, 80 Ill. App. 3d at 382, 399 N.E.2d at 702.]\u201d\nWe further note that attorneys are not excused from following the filing requirements of Rule 303 merely because a judge has recommended a procedural route \u2014 for example, that it will rule \u201cby mail\u201d\u2014 that lies beyond the judge\u2019s authority to follow. Mitchell, 158 Ill. 2d at 150, 632 N.E.2d at 1013; see also Martin v. Cajda, 238 Ill. App. 3d 721, 728, 606 N.E.2d 566, 571 (1992) (\u201ca trial court\u2019s misapprehension of the law [will not] allow an appellant to file his notice of appeal more than 30 days after the trial court issues what actually constitutes a final order\u201d).\nFinally, we find support for our holding that a trial court cannot later change the date of its final order in this court\u2019s recent decision in In re Application of the County Treasurer & ex officio County Collector, 356 Ill. App. 3d 1102 (2005). In that case, we held that (1) a trial court\u2019s order disposing of a case or posttrial motion is a final appeal-able order when it is entered of record unless the court indicates, at the time of rendering judgment, that a written order is required (or a circuit court rule requires a written draft order) and (2) absent any such indication, the court lacks the authority to deem a subsequent written order the final order for the purpose of calculating the time in which a notice of appeal may be filed under Supreme Court Rule 303. Application of the County Treasurer, 356 Ill. App. 3d at 1108.\nIII. CONCLUSION\nFor the reasons stated, we dismiss this appeal.\nAppeal dismissed.\nTURNER, J., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE APPLETON,\nspecially concurring:\nI write separately to state that while I agree this case is factually square with Mitchell and with other decisions of this court (see, e.g., Pappas v. Waldron, 323 Ill. App. 3d 330, 337, 751 N.E.2d 1276, 1281 (2001)), the analyses employed here and by the supreme court in Mitchell permit an injustice that should not be allowed to stand.\nIt is common, especially in cases such as this, where somewhat arcane points of law, i.e., the application of the exclusionary rule to administrative hearings, are at issue and require the circuit court to conduct research for itself. In such circumstances, it is impossible for the court to pronounce judgment while the parties and counsel are physically present. The responsibility for the justice and integrity of our system then must rest solely on a clerk\u2019s or secretary\u2019s ability to follow a directive. As a result, the preservation of a litigant\u2019s right to appeal depends on that clerk or secretary (most probably the least trained in the justice system) to ensure that a final order is communicated.\nWhen, as here, that responsibility is not met, an overwhelming unfairness occurs in the punishment. An innocent party is deprived of a substantial right by the dismissal of his appeal. Although reliance on the strict language of the supreme court rules is intended to promote justice, such reliance has the opposite effect here. To avoid a callow response to strict construction, the rules should be changed to require the mailing of final orders by certified mail with the determination of finality delayed until the party\u2019s receipt of the order.", "type": "concurrence", "author": "JUSTICE APPLETON," } ], "attorneys": [ "Alan W Cargerman, of Fearer, Nye, Ahlberg & Chadwick, of Oregon, for appellant.", "Lisa Madigan, Attorney General, of Chicago (Gary S. Feinerman, Solicitor General, and Janon E. Fabiano, Assistant Attorney General, of counsel), for appellee." ], "corrections": "", "head_matter": "ERIC B. BERG, Plaintiff-Appellant, v. JESSE WHITE, Secretary of State of Illinois, Defendant-Appellee.\nFourth District\nNo. 4-04-0269\nOpinion filed May 12, 2005.\nAPPLETON, J., specially concurring.\nAlan W Cargerman, of Fearer, Nye, Ahlberg & Chadwick, of Oregon, for appellant.\nLisa Madigan, Attorney General, of Chicago (Gary S. Feinerman, Solicitor General, and Janon E. Fabiano, Assistant Attorney General, of counsel), for appellee." }, "file_name": "0496-01", "first_page_order": 512, "last_page_order": 519 }