THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID VARI, Defendant-Appellant.
No. 3-14-0278
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
January 26, 2016
2016 IL App (3d) 140278
Honorable Daniel J. Rozak, Judge, Presiding.
A.D., 2016; Circuit No. 04-CF-1587
Justices Lytton and Carter concurred in the judgment and opinion.
OPINION
¶ 1 Defendant, David Vari, appeals from the trial court‘s dismissal of his section 2-1401 petition (
FACTS
¶ 2 ¶ 3 In 2005, defendant pled guilty to one count of predatory criminal sexual assault of a child (
¶ 4 On January 21, 2014, defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (
¶ 5 On March 13, 2014, the trial court granted the State‘s motion to dismiss on jurisdictional grounds. The trial court‘s written order read in full: “Case comes on defendant‘s 2-1401 petition [dated January 15, 2014]. State moves to dismiss based on lack of jurisdiction because the defendant failed to properly serve the State under Supreme Court Rules 105 & 106. Case dismissed for lack of jurisdiction.” The circuit clerk‘s office subsequently sent defendant a letter informing him of the court‘s order dismissing his pro se petition. The letter read in full: “Attached is a docket entry made by the Honorable
ANALYSIS
¶ 6 ¶ 7 Before embarking on a substantive analysis of the issues on appeal, we must first consider our own jurisdiction. Though defendant addresses this issue only briefly, and the State does not address it at all, a reviewing court has an independent duty to sua sponte consider questions of jurisdiction. People v. Smith, 228 Ill. 2d 95, 104 (2008).
¶ 8 Of particular concern in the present case is whether the trial court‘s order dismissing defendant‘s petition for a lack of jurisdiction constitutes a final, appealable order. It is a well-settled axiom that an appellate court‘s jurisdiction is limited to appeals from final judgments. E.g., EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 9. This limit on the appellate court‘s jurisdiction is established by the Illinois Constitution.
¶ 9 Our supreme court has defined a final judgment as “a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” Flores v. Dugan, 91 Ill. 2d 108, 112 (1982). The court has also stated on many occasions that a judgment is final, and thus, appealable, when it “dispose[s] of all issues between the parties and *** terminate[s] the litigation.” Kemp, 2012 IL 113419, ¶ 11. A final judgment has also been defined as a judgment that “determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment.” People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 171 (1981); see also Flores, 91 Ill. 2d at 112-13 (recognizing—and accepting—each of these commonly recited definitions of a final judgment).
¶ 10 It is a general rule that the dismissal of a complaint without prejudice is not final and appealable. E.g., People v. Mattis, 367 Ill. App. 3d 432, 435 (2006); Paul H. Schwendener, Inc. v. Jupiter Electric Co., Inc., 358 Ill. App. 3d 65, 73 (2005) (dismissing appeal on grounds court had no jurisdiction following a dismissal without prejudice). In Flores, our supreme court considered whether a dismissal without prejudice for want of prosecution stood as a final appealable order. Flores, 91 Ill. 2d at 112-13. In that case, the parties and court agreed that the plaintiffs, following the dismissal, maintained an “absolute right to refile this cause under section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a).” Id. at 112. It was this right to refile, the court held, that dictated that the dismissal was not final and appealable, noting that plaintiffs could “refile the action against the same
¶ 11 The Flores court also emphasized the practical considerations underlying its position. Id. at 115. Notably, the court pointed out that plaintiff‘s remedy of refiling their action “is in fact a more expeditious and less expensive remedy than an appeal.” Id. Moreover, the court pointed out:
“Following the dismissal, plaintiffs could have refiled immediately, and a disposition on the merits could have been made much sooner than if the trial judge‘s ruling had been appealed to the appellate court, reversed and remanded, and then set for trial on the merits. Also, the costs involved in refiling would have been substantially less than those involved in the appellate process.” Id.
¶ 12 In distinguishing Flores in later cases, the court has reiterated that the holding in Flores turned on the question of prejudice. Kahle v. John Deere Co., 104 Ill. 2d 302, 305 (1984). Specifically, the court stated: “The rationale of the Flores opinion was that even if the trial judge abused his discretion in dismissing the case, the plaintiff, if he refiled, ultimately was not prejudiced.” Id.; see also S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 501-02 (1998) (finding order final where plaintiff was prejudiced by inability to refile).
¶ 13 Those cases in which the supreme court has distinguished Flores have also further clarified when a dismissal is final and appealable. In S.C. Vaughan, the court held that an order dismissing a complaint for want of prosecution was a final and appealable order where that order resulted in the plaintiffs no longer having an absolute right to refile. S.C. Vaughan Oil Co., 181 Ill. 2d at 502. The expiration of the filing period, the court explained, would effectively terminate the litigation between the parties. Id. In essence, though the complaint had been dismissed “without prejudice,” the expiration of the filing period rendered the dismissal actually prejudicial to the plaintiffs. See id. at 499, 501-02.
¶ 14 In Kahle, the court determined that dismissals “without prejudice,” in certain circumstances, may be appealable for limited purposes. Kahle, 104 Ill. 2d at 307. In that case, the trial court dismissed plaintiff‘s case without prejudice pursuant to section 2-1009 of the Code (See
¶ 15 The foregoing principles have recently been applied in the context of a section 2-1401 petition in a pair of cases from the Second District Appellate Court. In People v. Walker, 395 Ill. App. 3d 860 (2009), the trial court dismissed the defendant‘s multiple section 2-1401 petitions on the ground that the court lacked jurisdiction, because a direct appeal of defendant‘s conviction remained pending. Id. at 862-63. On appeal, the appellate court considered whether those dismissals were final and appealable. Id. at 864. The court noted that the dismissal was not on the merits, and “was not precisely a dismissal with prejudice,” because the defendant would be free to refile as soon as his direct appeal was resolved. Id. Admitted the court: “Those factors hint at a lack of finality.” Id.
¶ 16 Citing Flores, the Walker court stated that “[a]n order that dismisses a complaint, but does not bar the plaintiff from filing a new action based on the same claim, is not final for the purposes of deciding whether the plaintiff may attack the dismissal.” Id. at 865. However, the court concluded that the dismissals were final and appealable, because defendant, despite his ability to eventually refile, was prejudiced. Id. at 864. Explained the court:
“[B]ecause a holding that requires indefinite postponement of a filing is likely to be prejudicial, the court‘s order was final and appealable. A full appeal may take several years. For a litigant with a time-sensitive claim, being told to wait several years to file the claim anew does not provide true recourse for that litigant. Further, a would-be litigant who must wait to refile might face statute-of-limitation problems, and the litigant cannot wait to see whether his or her new filing will be so affected. This type of dismissal has great potential for prejudice to the delayed litigant.” Id. at 866.
¶ 17 The facts in People v. Wallace, 405 Ill. App. 3d 984 (2010), served to further illustrate the Second District‘s concerns over the statute-of-limitations implications of such dismissals. In Wallace, the defendant‘s section 2-1401 petition was dismissed for a lack of personal jurisdiction just two days prior to the expiration of section 2-1401‘s two-year limitation period. Id. at 986. Finding that “[t]he prejudice here is clearer than in Walker,” the court held that the trial court‘s dismissal was final and appealable. Id.
¶ 18 In the case at hand, defendant was not prejudiced by the trial court‘s dismissal of his section 2-1401 petition. Unlike the defendants in Walker and Wallace, defendant here brought his initial petition already outside of the section 2-1401 two-year window. See
¶ 19 Defendant in the present case, having filed his section 2-1401 petition after the two-year limitations window had closed, faced the task of establishing disability, duress, or fraud in order to have his petition considered on the merits. See
¶ 20 We note that defendant does argue, albeit it briefly, that the trial court‘s dismissal of defendant‘s petition was with prejudice. Defendant first contends that because the trial court‘s order did not state explicitly that it was “without prejudice,” it therefore must have been with prejudice. Defendant has cited no authority for his implicit position that all dismissals are presumptively with prejudice, unless the trial court explicitly declares otherwise. Moreover, it is the actual ramifications of a trial court‘s order, rather than its language alone, that determines whether the order is appealable. See, e.g., Fligelman v. City of Chicago, 264 Ill. App. 3d 1035, 1038 (1994) (“To determine the finality of an order, the court must examine its substance as opposed to its form.“).
¶ 21 Defendant also emphasizes the fact that defendant was notified by the clerk of the entry of an order in his case. Defendant argues that this notification was the notice required by Illinois Supreme Court Rule 651(b) (eff. Feb. 6, 2013). That rule requires notice to be sent to a defendant from the circuit clerk “[u]pon the entry of a judgment adverse to a petitioner in a post-conviction proceeding.” Id. The rule also provides the exact language—a full paragraph—to be conveyed to the defendant. Consequently, defendant‘s argument here fails on multiple grounds. First, the rule provides that notice be given in the event of any adverse judgment; it is not limited to final judgments. Second, the letter sent by the circuit court did not include the prescribed language, nor did it otherwise inform defendant of his appeal rights. Simply put, the letter was not a Rule 651(b) notice.
¶ 22 In holding that the dismissal of defendant‘s section 2-1401 petition for lack of jurisdiction, filed outside of the two-year statutory filing period, is not a final and appealable order, we do not foreclose the possibility that such a dismissal may be appealable in limited circumstances. See Kahle, 104 Ill. 2d at 307. In particular, an appeal might be taken in order for a defendant to argue that service was proper, and thus dispute the trial court‘s lack of jurisdiction. As in Kahle, this would be an attack on the conditions precedent for the dismissal. Id. at 306. The defendant not having advanced such an argument, however, we need not presently decide that issue.
¶ 23 The argument put forth here by defendant—that the trial court should have quashed service rather than dismissed the petition outright—illustrates the lack of prejudice to defendant and the insignificance of this appeal. Whether we grant defendant the relief he seeks, or affirm, or dismiss the appeal, defendant‘s next step remains the same: mail his petition and service of process again. To paraphrase the Flores court, if defendant had refiled immediately (this time, with proper
CONCLUSION
¶ 24 ¶ 25 The appeal is dismissed for lack of jurisdiction.
¶ 26 Appeal dismissed.