Opinion
No. 1-20-0428
05-25-2021
CARLSON BROTHERS, INC., Petitioner-Appellant, v. GTH EXCAVATING CORPORATION, Respondent-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 19 CH 5107 Honorable Neil H. Cohen Judge, presiding. JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶ 1 Held: Appeal dismissed for lack of jurisdiction where petitioner failed to file, within 30 days of final judgment, a timely notice of appeal pursuant to Illinois Supreme Court Rule 303(a)(1) (eff. July 1, 2017). ¶ 2 Petitioner-Appellant, Carlson Brothers, Inc. (Carlson), filed a petition to vacate an arbitration award in favor of respondent-appellant, GTH Excavating Corporation (GTH), alleging that the award contained gross errors of fact and law on its face. The circuit court denied the petition to vacate and confirmed the arbitration award, finding that there were no errors apparent on the face of the award. On appeal, Carlson argues that the judgment of the circuit court should be reversed or, alternatively, the cause remanded for an arbitration hearing because the arbitrator exceeded its authority by ignoring the plain language of a subcontract which identifies GTH as the party responsible in removing excess fill from a construction site. For the reasons that follow, we dismiss the appeal for lack of appellate jurisdiction.
¶ 3 I. BACKGROUND
¶ 4 In 2017, GTH filed a complaint against petitioner in the District Court of Douglas County, Colorado (Colorado Action). The complaint alleged that in 2016, GTH entered a subcontract with Carlson to perform excavation and earthwork for a construction project in Colorado. Carlson was the general contractor and GTH served as the subcontractor. GTH alleged that Carlson breached the subcontract by failing to pay GTH for the work it performed. ¶ 5 GTH then filed a demand for arbitration in Chicago, Illinois pursuant to the subcontract, which states that "[a]ny controversy between [the] General Contractor and Subcontractor *** shall be decided by arbitration" in Chicago. On January 31, 2018, the Colorado action was stayed pending arbitration. The arbitration hearing was held on January 8, 2019 and January 9, 2019. On February 25, 2019, an award of $182,853.40 was entered in favor of GTH, which included the cost to remove the excess fill as well as arbitration fees. ¶ 6 Carlson moved to modify the award, arguing that the arbitrator exceeded its authority by including costs and expenses where the subcontract did "not contain any provision *** to [recover] arbitration or litigation costs or expenses." Further, Carlson asserted that the award should be modified where there was a "computational error in the award of arbitration costs." On March 29, 2019, the arbitrator denied Carlson's request for modification. ¶ 7 On April 22, 2019, Carlson filed a petition to vacate the arbitration award in the circuit court of Cook County, alleging both gross errors of fact and law. GTH moved to confirm the award. On January 31, 2020, the court denied Carlson's petition, finding that the arbitrator did not exceed its authority and did not commit a gross error of fact or law. On March 3, 2020, Carlson filed a notice of appeal.
On March 3, 2020, Carlson also filed a "Motion to Extend Time for Filing Motion for Stay of Enforcement of Judgment Pending Appeal."
¶ 8 II. JURISDICTION
¶ 9 Regardless of whether the parties raise the issue, this court has an independent duty to evaluate its own jurisdiction (A.M. Realty Western LLC v. MSMC Realty LLC, 2016 IL App (1st) 151087, ¶ 67), and to dismiss an appeal if jurisdiction is lacking (Department of Health Care and Family Services v. Cortez, 2012 IL App (2d) 120502, ¶ 7). The filing of a notice of appeal is the jurisdictional step that initiates appellate review. Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6, 7 (1998). " 'Unless there is a properly filed notice of appeal, a reviewing court has no jurisdiction over the appeal and is obliged to dismiss it.' " XL Specialty Insurance Company v. Performance Aircraft Leasing, Inc., 2019 IL App (1st) 181031, ¶ 57 (quoting People v. Smith, 228 Ill. 2d 95, 104 (2008)). ¶ 10 Illinois Supreme Court Rule 303(a)(1) (eff. July 1, 2017) governs when a notice of appeal must be filed in a civil case. Under Rule 303(a)(1), a notice of appeal from a final judgment must be filed with the clerk of the circuit court within 30 days after the entry of the judgment or, if a timely motion directed against the judgment is filed, within 30 days after the entry of the order disposing of the last pending motion directed against the judgment. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). That time may be extended "[o]n motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, accompanied by the proposed notice of appeal and the filing fee, filed in the reviewing court within 30 days after expiration of the time for filing a notice of appeal." See Ill. S. Ct. R. 303(d) (eff. July 1, 2017) ¶ 11 Here, the final judgment from which Carlson appealed was entered on January 31, 2020. For the notice of appeal to be timely, Carlson was required to file it within 30 days after the final judgment was entered. The thirtieth day following January 31, 2020 was March, 1, 2020, a Sunday. Thus, Carlson had until Monday, March 2, 2020 to file its notice of appeal. The notice of appeal was not filed until March 3, 2020, more than 30 days after final judgment was entered. Therefore, the notice of appeal is untimely unless there was a timely postjudgment motion that extended the time in which to appeal. No postjudgment motion was filed in the instant case. Additionally, no motion for leave to file a late notice of appeal was filed, which could have extended the date for filing the notice of appeal. ¶ 12 Although Carlson filed his notice of appeal just one day after the filing deadline, our supreme court has emphasized that "the appellate court does not have the authority to excuse the filing requirements of the supreme court rules governing appeals." Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 217-18 (2009). As such, defendant's appeal must be dismissed. See In re C.J., 325 Ill. App. 3d 502, 506 (2001) (dismissing the respondent's appeal where the notice of appeal was filed 31 days after the final order was entered). Because Carlson did not file a timely notice of appeal, we lack jurisdiction and must dismiss his appeal.
When the last day of a period of time within which an act is to be done falls on a Sunday, Saturday, or a holiday, that day is excluded from the computation. See 5 ILCS 70/1.11 (West 2016); 34 Ill. L. & Prac. § 12 (2021); see also Providence In. Co. v. LaSalle Nat. Bank, 118 Ill. App. 3d 720, 724 (1983).
On March 24, 2020, "in light of the ongoing public health concerns relating to COVID-19," our supreme court issued an order temporarily extending the deadlines to file documents concerning appeals before the Appellate Court. See Ill. S. Ct. Order M.R. 30370. The order extends the deadline for filing a notice of appeal from 30 days to 60 days, but only for notices of appeal "due on or after [March 24, 2020]." Id. This extension does not apply to the present case. --------
¶ 13 III. CONCLUSION
¶ 14 For the reasons set forth above, we dismiss petitioner's appeal for lack of jurisdiction. ¶ 15 Appeal dismissed.