McCarthy v. Pointer
3 N.E.3d 852
Ill. App. Ct.2014Background
- McCarthy sued Pointer (a fraternity officer) and others for defamation in 2003. After trial, McCarthy sought to add the fraternity as a defendant; in October 2007 the trial court dismissed Pointer individually with prejudice.
- In November 2007 the trial court ordered Pointer removed from the caption and ruled under Illinois Supreme Court Rule 304(a) that the October 2007 dismissal was final and appealable; McCarthy did not appeal.
- McCarthy later amended to name the fraternity; the trial court entered judgment against the fraternity and its district in 2009, which this court reversed on statute-of-limitations grounds in 2011.
- In March 2012 McCarthy moved to vacate the October 2007 dismissal as void, alleging fraud/collusion and concealment by Pointer and the fraternity regarding Pointer’s relationship and the statute of limitations. He did not style the motion under section 2-1401.
- The trial court granted vacatur in June 2012. Pointer appealed, arguing the 2007 dismissal was not void because the court had subject-matter and personal jurisdiction and the alleged fraud was not supported by facts. The appellate court reviewed voidness de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Oct. 2007 dismissal was void and thus subject to attack at any time | McCarthy: dismissal is void due to fraud/collusion and concealment, so it can be vacated anytime | Pointer: court had subject-matter and personal jurisdiction; dismissal was not void and thus not subject to untimely vacatur | The dismissal was not void; trial court lacked jurisdiction to vacate it, so vacatur order reversed |
| Whether alleged "fraud on the court" rendered the judgment void | McCarthy: defendants’ concealment and deception deprived the court of opportunity to correct errors, amounting to fraud on the court | Pointer: allegations are conclusory, unsupported, and do not show jurisdiction-affecting fraud | Plaintiff’s conclusory fraud allegations failed to plead facts; fraud did not render judgment void |
| Proper procedural avenue/timeliness to attack the 2007 order | McCarthy sought relief as void (not via 2-1301 or 2-1401) to avoid time limits | Pointer: plaintiff had 30 days to appeal or file 2-1301; 2-1401 has its own rules but void judgments can be attacked anytime | Court limited review to whether order was void; because it was not, plaintiff’s untimely attack failed |
| Alleged concealment of statute of limitations and relationship with fraternity | McCarthy: defendants concealed Pointer’s relationship and limitations defense, misleading the court | Pointer: accrual date and limitations defense were pled and argued; law is known to all and mistake of law is not fraud | Record showed notice of accrual and explicit statute-of-limitations arguments; concealment claim failed |
Key Cases Cited
- Ford Motor Credit Co. v. Sperry, 214 Ill. 2d 371 (void judgment is one entered without jurisdiction; standard for voidness)
- Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95 (void-judgment attacks are not subject to 2‑year 2‑1401 limit; voidness substitutes for meritorious-defense/due-diligence requirements)
- Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (definition/scope of subject-matter jurisdiction)
- In re M.W., 232 Ill. 2d 408 (personal jurisdiction may be acquired by appearance or effective service)
- Cwik v. Giannoulias, 237 Ill. 2d 409 (mistake of law is not fraud; citizens are charged with knowledge of law)