2014 IL App (2d) 130652
Ill. App. Ct.2014Background
- Fannie Mae filed a residential mortgage foreclosure on Oct. 19, 2011; homeowner Myriam Tomei defaulted; case set for status on Nov. 9, 2012.
- Plaintiff failed to appear at the Nov. 9, 2012 status call; trial court entered dismissal for want of prosecution (DWP) the same day. Tomei filed Chapter 7 on Nov. 9, 2012, and received discharge Feb. 20, 2013.
- On Apr. 19, 2013, after the bankruptcy stay lifted, plaintiff filed a "Motion to Vacate Dismissal for Want of Prosecution," labeled as a section 2-1401 petition but lacking the affidavits and meritorious-defense allegations typically required by 2-1401.
- Defendant moved to dismiss under section 2-619, arguing the 2-1401 pleading was defective and that 2-1401 cannot relieve a party for its own negligence without meeting its requirements.
- The trial court granted vacatur on May 24, 2013, citing bankruptcy and other circumstances; plaintiff appealed under Supreme Court Rule 304(b)(3) seeking review of a 2-1401 ruling.
- The appellate court concluded the motion was effectively a 2-1301(e) motion (appropriate for interlocutory DWPs) and that the vacatur order was interlocutory and therefore not appealable under Rule 304(b)(3) or Rule 301; appeal was dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Characterization of the vacatur motion: 2-1401 petition vs. 2-1301(e) motion | Motion was filed under 2-1401 so appealable under Rule 304(b)(3) | Motion was defective for failing 2-1401 pleading/affidavit requirements and sought relief for plaintiff's docketing error | Motion in substance was 2-1301(e); court evaluated it under 2-1301(e) standards |
| Applicability of 2-1401 to an interlocutory DWP | 2-1401 relief sought to vacate DWP | DWP remained interlocutory while refiling period under section 13-217 ran | 2-1401 inapplicable because DWP was interlocutory; 2-1301(e) was proper route |
| Sufficiency of pleading for 2-1401 relief | Labeling motion 2-1401 suffices to invoke 2-1401 review | Motion lacked required allegations/affidavit and did not show meritorious defense or due diligence | Court treated pleading as not meeting 2-1401 standards and instead applied 2-1301(e) standards |
| Appealability of the vacatur order | Appealable under Rule 304(b)(3) as an order granting relief under 2-1401 | Order was interlocutory (grant of 2-1301(e)) and not final | Appeal dismissed for lack of jurisdiction under Rule 304(b)(3) and Rule 301 |
Key Cases Cited
- Flores v. Dugan, 91 Ill.2d 108 (addressing finality of DWP and refiling period)
- S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill.2d 489 (DWP nonfinal while refiling statutory period runs)
- Smith v. Airoom, Inc., 114 Ill.2d 209 (standards for 2-1401 relief)
- In re Haley D., 2011 IL 110886 (character of a filing determined by content, not label)
- Jackson v. Hooker, 397 Ill. App. 3d 614 (trial court may vacate interlocutory DWP under 2-1301(e) even when party labels filing 2-1401)
- Illinois Bone & Joint Institute v. Kime, 396 Ill. App. 3d 881 (appeal from grant of 2-1301(e) motion is interlocutory and must be dismissed)
- Widucus v. Southwestern Electric Cooperative, Inc., 26 Ill. App. 2d 102 (substantial justice standard for setting aside defaults)
- Best v. Taylor Machine Works, 179 Ill.2d 367 (constitutional ruling affecting refiling provision of section 13-217)