{ "id": 4284186, "name": "ANTHONY T. GAY, Inmate No. B62251, Plaintiff-Appellant, v. R. SHELTON FREY et al., Defendants-Appellees", "name_abbreviation": "Gay v. Frey", "decision_date": "2009-03-13", "docket_number": "No. 5-07-0561", "first_page": "827", "last_page": "834", "citations": [ { "type": "official", "cite": "388 Ill. App. 3d 827" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 Ill. App. 3d 346", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349575 ], "year": 1999, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0346-01" ] }, { "cite": "38 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2861276 ], "year": 1967, "pin_cites": [ { "page": "224-25" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0223-01" ] }, { "cite": "37 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2715948 ], "year": 1975, "pin_cites": [ { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0599-01" ] }, { "cite": "246 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5389622 ], "year": 1993, "pin_cites": [ { "page": "841" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0835-01" ] }, { "cite": "283 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182675 ], "year": 1996, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0599-01" ] }, { "cite": "111 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166933 ], "year": 1986, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0304-01" ] }, { "cite": "371 Ill. App. 3d 890", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268872 ], "year": 2007, "pin_cites": [ { "page": "896" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/371/0890-01" ] }, { "cite": "145 Ill. 2d 311", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5595837 ], "year": 1991, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0311-01" ] }, { "cite": "358 Ill. App. 3d 794", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5730452 ], "weight": 7, "year": 2005, "pin_cites": [ { "page": "804" }, { "page": "799" }, { "page": "799" }, { "page": "800" }, { "page": "800" }, { "page": "800" }, { "page": "800" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/0794-01" ] }, { "cite": "333 Ill. App. 3d 927", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 485931 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "932" }, { "page": "932" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0927-01" ] }, { "cite": "182 Ill. 2d 6", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864524 ], "year": 1998, "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0006-01" ] } ], "analysis": { "cardinality": 693, "char_count": 16362, "ocr_confidence": 0.787, "pagerank": { "raw": 7.435493276954977e-08, "percentile": 0.44390039728184927 }, "sha256": "cf2cf19604510514699f31b2350a02094ba4fb44b475dd41175316ee0a255c1c", "simhash": "1:85ec33ef83762964", "word_count": 2804 }, "last_updated": "2023-07-14T22:04:57.079883+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ANTHONY T. GAY, Inmate No. B62251, Plaintiff-Appellant, v. R. SHELTON FREY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE SPOMER\ndelivered the opinion of the court:\nWhen basic, ministerial tasks are not competently performed, otherwise routine matters turn into problems. This case illustrates what happens when pleadings are not timely file-stamped and placed into the court file by the circuit clerk\u2019s office. The plaintiff, Anthony T. Gay, inmate No. B62251 in the Department of Corrections (Department), appeals from the September 24, 2007, order of the circuit court of Alexander County that denied his motion to vacate the circuit court\u2019s prior order dismissing his complaint for mandamus relief on the motions of the defendants, R. Shelton Frey, the warden of Tamms Correctional Center (Tamms), correctional officers Alan Reagan, John Branch, Homer Markel, and Charles Roper, clinical psychologist Kelly Rhodes, and Marvin Powers, M.D. The plaintiff seeks the reversal of the circuit court\u2019s order and the remand of the case to the circuit court for further proceedings.\nThe caption of the case has been amended by the court to include the plaintiffs middle initial and his inmate identification number as an aid in identification.\nFACTS\nThe plaintiff is an inmate at the supermax prison in Tamms. On April 18, 2006, the plaintiff filed a pro se complaint for mandamus relief pursuant to section 14 \u2014 101 et seq. of the Code of Civil Procedure (Code) (735 ILCS 5/14 \u2014 101 et seq. (West 2004)). He asserted that he was entitled to an order of mandamus directing the defendants to remove him from controlled-feeding status, ordering them to impose controlled-feeding status only for food-related transgressions, and ordering them to provide him with medical treatment by a nurse outside of his cell for self-inflicted cuts to his penis and inner thighs. He also sought monetary damages and orders from the court mandating either the discontinuation or the limitation by the Department of the controlled-feeding policy and the cessation of disciplinary restrictions on medical care in the prison.\nOn June 5, 2006, defendants Frey, Reagan, Branch, Markel, Roper, and Rhodes moved pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 2006)) to dismiss the complaint for the failure to state a cause of action for mandamus relief. Defendant Powers moved separately pursuant to section 2 \u2014 615 of the Code to dismiss the complaint for a failure to state a cause of action. The Honorable Mark H. Clarke, apparently unaware of a motion to substitute him from the case, dismissed the complaint in a written order. The circuit court\u2019s order was file-stamped by the circuit clerk\u2019s office on June 27, 2006. However, the plaintiffs motion for a substitution of judge as of right pursuant to section 2 \u2014 1001(a)(2) of the Code (735 ILCS 5/2\u2014 1001(a)(2) (West 2006)) was also file-stamped by the circuit clerk\u2019s office on June 27, 2006; yet it was not presented to Judge Clarke.\nOrdinarily, there would be no way to ascertain when the motion for a substitution of judge was actually received by the circuit clerk\u2019s office, because the file mark does not reflect the time of the filing, but only the date of the filing. However, it is clear from a review of the docket sheet that the circuit clerk\u2019s office originally made an entry recording the plaintiffs filing of a motion for a substitution of judge prior to making an entry for the order of dismissal. Although the motion for a substitution of judge is clearly file-stamped June 27, 2006, it is worth noting that, somehow, the date for the docket entry was originally June 26, 2006. The number seven was then written over the number six to change the date to June 27, 2006. It is also clear from the docket sheet that the circuit clerk\u2019s office attempted to use correetion fluid to change the entry for the motion for a substitution of judge to an entry for the order of dismissal. The entry for the motion for a substitution of judge was then placed on the docket sheet below the order of dismissal.\nAnother troubling aspect of this case is the fact that the parties did not receive notice of the order of dismissal for several months following the entry of the order. In fact, defendant Powers filed responses to the plaintiffs pleadings in both July and August, well after the case had been dismissed. In addition, although the case had been dismissed, the court granted the plaintiffs motion for a substitution of judge on August 3, 2006. The case was assigned to the Honorable William J. Thurston.\nOn November 9, 2006, the circuit clerk\u2019s office received, inter alia, a motion to vacate the dismissal of the plaintiffs complaint. This is borne out by a file-stamped pleading of that date. However, a review of the record indicates that the plaintiff\u2019s motion to vacate was not docketed or placed in the court file. In December 2006, Judge Thur-ston received an ex parte communication from the plaintiff in which he sought a hearing on his mandamus complaint. Judge Thurston made a docket sheet entry that reflected the immediate history of the case, and he found that there were no pending matters before the court. The clerk sent a copy of the docket sheet to the parties. In February 2007, the plaintiff asked the court to review motions that he believed were still pending. On March 28, 2007, Judge Thurston denied the plaintiffs March 2, 2007, petition for habeas corpus ad testifican-dum in a docket sheet entry that again noted that nothing was pending before the court.\nOn September 24, 2007, Judge Thurston reviewed the court file in response to various communications from the plaintiff about motions that he believed had not been properly handled by the circuit clerk or addressed by the court. The November 9, 2006, motions were finally brought to the attention of the judge. The motion to vacate stated that it was being brought pursuant to section 2 \u2014 1203 of the Code (735 ILCS 5/2 \u2014 1203 (West 2006)), but it also stated that at the time the case was dismissed, the plaintiff had on file a motion for a substitution of judge as of right. The judge incorporated the plaintiffs November 9, 2006, motions into the record as of the date of their filing and denied each motion. His extensive docket sheet entry accepted the plaintiffs claim that he had not received Judge Clarke\u2019s June 27, 2006, order until October 27, 2006. Judge Thurston ruled that even if the plaintiffs allegation was true, he was not entitled under section 2 \u2014 1203 of the Code to have the judgment vacated. In response to the plaintiffs contention in the motion to vacate that his motion for a substitution of judge had not been ruled upon prior to the order of dismissal, Judge Thurston ruled as follows:\n\u201c[T]he record sheet and file indicate that Judge Clarke\u2019s 6-27-06 order was filed prior to the 6-27-06 motion to substitute judge and the 8-3-06 order granting said motion. Because the 6-27-06 order was executed and filed prior to receipt of the motion to substitute judge, [plaintiff] Gay is not entitled to [section] 2 \u2014 1203 relief on that ground.\u201d\nJudge Thurston did not consider the merits of the defendants\u2019 motion to dismiss when he ruled on the motion to vacate. On October 10, 2007, the plaintiff filed a notice of appeal in which he indicated that he was appealing from the court\u2019s September 24, 2007, order.\nANALYSIS\nThe defendants first argue that we must dismiss the plaintiffs appeal for a lack of jurisdiction. Specifically, they assert that the plaintiffs appeal was untimely filed because the court entered its final order on June 27, 2006, and the plaintiff did not file his notice of appeal until October 10, 2007, more than 15 months after the circuit court had entered a final judgment. Accordingly, we must first address this threshold issue.\nThe appellate court has jurisdiction over an appeal only where it has been timely filed. Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6, 7 (1998). Supreme Court Rule 303(a)(1) (Ill. S. Ct. R. 303(a)(1) (eff. May 1, 2007)) provides:\n\u201cThe 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 posttrial 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 postjudgment motion ***.\u201d (Emphasis added.)\nHere, the plaintiffs October 10, 2007, notice of appeal specifies that he is appealing from the September 24, 2007, order denying his motion to vacate. Because the plaintiff\u2019s notice of appeal was filed within 30 days after the entry of the order disposing of his motion to vacate, the issue is whether the plaintiffs motion to vacate was timely filed. Although the plaintiff characterizes his motion to vacate as being brought pursuant to section 2 \u2014 1203 of the Code (735 ILCS 5/2\u2014 1203 (West 2006)), which requires that the motion be brought within 30 days of the judgment, in his motion to vacate, the plaintiff pointed out that his motion for a substitution of judge as of right had not been ruled upon.\n\u201cCivil litigants in Illinois are entitled to one substitution of judge without cause as a matter of right.\u201d Illinois Licensed Beverage Ass\u2019n v. Advanta Leasing Services, 333 Ill. App. 3d 927, 932 (2002), citing 735 ILCS 5/2 \u2014 1001(a)(2)(i) (West 2000). \u201cOrders entered after a motion for substitution of judge has been improperly denied are void.\u201d Illinois Licensed Beverage Ass\u2019n, 333 Ill. App. 3d at 932; see also In re Austin D., 358 Ill. App. 3d 794, 804 (2005), citing In re Dominique F., 145 Ill. 2d 311, 324 (1991); In re Marriage of Paclik, 371 Ill. App. 3d 890, 896 (2007). The Illinois Supreme Court has held that void orders may be attacked at any time or in any court, either directly or collaterally. R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309 (1986). \u201cMoreover, \u2018if the movant mislabels his motion attacking the judgment ***, the courts should be liberal in recognizing the motion as a collateral attack upon a void judgment.\u2019 \u201d Bank of Matteson v. Brown, 283 Ill. App. 3d 599, 606 (1996), quoting People v. Reymar Clinic Pharmacy, Inc., 246 Ill. App. 3d 835, 841 (1993). Based on these principles, we find that the plaintiffs motion to vacate was timely because, although mislabeled, it was a mislabeled motion to collaterally attack a void judgment. Thus, the plaintiffs motion to vacate was a timely motion directed toward that judgment. Because the plaintiff filed a notice of appeal within 30 days after the entry of the order denying his motion to vacate, we have jurisdiction to consider whether the dismissal order was void.\nBefore turning to the merits of the issue of whether the order of dismissal is void due to the filing of the motion for a substitution of judge, we recognize that the plaintiffs brief on appeal does not address this issue but, rather, argues the merits of the order of dismissal. Thus, it can be said that the plaintiff has forfeited the issue on appeal due to his failure to comply with Illinois Supreme Court Rule 341(h)(7), which provides, \u201cPoints not argued [in the appellant\u2019s brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.\u201d 210 Ill. 2d R. 341(h)(7). \u201cHowever, it is established that Rule 341 states an admonition to the parties and not a limitation upon the jurisdiction of a reviewing court, and under Rule 366 [citation] a reviewing court may, in the exercise of its responsibility for a just result, ignore consideration of waiver and decide a case on grounds not properly raised or not raised at all by the parties.\u201d Occidental Chemical Co. v. Agri Profit Systems, Inc., 37 Ill. App. 3d 599, 603 (1975), citing Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967). In accordance with this principle, we choose to address the issue of the validity of the order of dismissal.\nIn order to determine whether the circuit court\u2019s order dismissing the plaintiff\u2019s mandamus complaint is valid, we must determine whether the plaintiffs motion for a substitution of judge should have been granted prior to Judge Clarke\u2019s dismissal order. \u201c[W]e review a ruling on a motion to substitute de novo, and such review \u2018should lean toward favoring rather than defeating a substitution of judge.\u2019 \u201d In re Austin D., 358 Ill. App. 3d at 799, quoting Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 350 (1999). Section 2 \u2014 1001(a)(2) of the Code provides, in relevant part:\n\u201c(a) A substitution of judge in any civil action may be had in the following situations:\n(2) Substitution as of right. When a party timely exercises his or her right to a substitution without cause as provided in this paragraph (2).\n(i) Each party shall be entitled to one substitution of judge without cause as a matter of right.\n(ii) An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case ***.\u201d 735 ILCS 5/2 \u2014 1001 (a)(2)(i), (a)(2)(ii) (West 2002).\n\u201cThe trial court has no discretion to deny a proper motion for substitution of judge.\u201d In re Austin D., 358 Ill. App. 3d at 799. A motion for substitution of judge is timely if filed before the judge has ruled on a substantive issue in the case. In re Austin D., 358 Ill. App. 3d at 800. \u201cThe reason for this rule is that it prevents a litigant from \u2018judge shopping\u2019 after forming an opinion that the judge may be unfavorably disposed toward his cause.\u201d In re Austin D., 358 Ill. App. 3d at 800. \u201cA ruling on a substantive issue is one that directly relates to the merits of the case.\u201d In re Austin D., 358 Ill. App. 3d at 800. \u201cA motion for substitution may also be denied absent a substantive ruling, if the movant had the opportunity to form an opinion as to the judge\u2019s reaction to his claims.\u201d In re Austin D., 358 Ill. App. 3d at 800.\nHere, the plaintiffs motion for a substitution of judge was file-stamped on the same date as Judge Clarke\u2019s order of dismissal. According to Judge Thurston\u2019s ruling on the plaintiffs motion to vacate, the record and file demonstrate that the order of dismissal was entered before the motion for a substitution of judge was filed. However, as stated above, our review of the docket entry sheet shows that the circuit clerk\u2019s office had entered the motion for a substitution of judge but then used correction fluid over that entry, placed an entry for the order of dismissal over the entry for the filing of the motion for a substitution of judge, and then placed the entry for the filing of the motion for a substitution of judge below the entry for the order of dismissal. Under these circumstances, and in accordance with the above-stated principle that our review should lean toward favoring rather than defeating a motion for a substitution of judge as of right, we must find that at the time the plaintiffs motion for a substitution of judge was filed, there had been no ruling on a substantial issue. Accordingly, we find that Judge Clarke\u2019s order of dismissal is void and must be vacated. Because the substituted judge, Judge Thurston, did not rule on the merits of the defendants\u2019 motion to dismiss when he reviewed the plaintiffs motion to vacate, we remand this cause so that he may so rule.\nCONCLUSION\nFor the foregoing reasons, the circuit court\u2019s September 24, 2007, order denying the plaintiffs motion to vacate is reversed, its June 27, 2006, order dismissing the plaintiff\u2019s complaint for mandamus is vacated, and this cause is remanded to the circuit court for the substituted judge, Judge Thurston, to consider the merits of the defendants\u2019 motion to dismiss.\nOrder of September 24, 2007, reversed; order of June 27, 2006, vacated; cause remanded with directions.\nWEXSTTEN, P.J., and CHAPMAN, J., concur.", "type": "majority", "author": "JUSTICE SPOMER" } ], "attorneys": [ "Anthony T. Gay, of Tamms, appellant pro se.", "Craig L. Unrath and Karen L. Kendall, both of Heyl, Royster, Voelker & Allen, of Peoria, and Theresa M. Powell, of Springfield, for appellee Marvin Powers.", "Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Elaine Wyder-Harshman, Assistant Attorney General, of counsel), for other appellees." ], "corrections": "", "head_matter": "ANTHONY T. GAY, Inmate No. B62251, Plaintiff-Appellant, v. R. SHELTON FREY et al., Defendants-Appellees.\nFifth District\nNo. 5 \u2014 07\u20140561\nOpinion filed March 13, 2009.\nAnthony T. Gay, of Tamms, appellant pro se.\nCraig L. Unrath and Karen L. Kendall, both of Heyl, Royster, Voelker & Allen, of Peoria, and Theresa M. Powell, of Springfield, for appellee Marvin Powers.\nLisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Elaine Wyder-Harshman, Assistant Attorney General, of counsel), for other appellees." }, "file_name": "0827-01", "first_page_order": 843, "last_page_order": 850 }