R.M. LUCAS COMPANY and CHICAGO TITLE LAND TRUST No. 3000121848, Plaintiffs-Appellants, v. THE PEOPLES GAS LIGHT AND COKE COMPANY, Defendant-Appellee.
No. 1-10-2955
Appellate Court of Illinois, First District, Third Division
December 14, 2011
2011 IL App (1st) 102955
District & No. First District, Third Division Docket No. 1-10-2955
Filed December 14, 2011
Held (Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.) In a negligence action against a gas utility arising from a fire and explosion allegedly caused by the failure of the gas pipe serving plaintiffs’ building, the denial of plaintiffs’ petition under section 2-1401 of the Code of Civil Procedure to vacate the dismissal of their action with prejudice was affirmed where plaintiffs defied the trial court‘s discovery deadlines and ignored defendant‘s discovery requests.
Decision Under Review Appeal from the Circuit Court of Cook County, No. 08-L-2572; the Hon. Ronald S. Davis, Judge, presiding.
Judgment Affirmed.
Joann T. Angarola, David M. Macksey, and Garret L. Boehm, Jr., all of Johnson & Bell, Ltd., of Chicago, for appellee.
Panel JUSTICE MURPHY delivered the judgment of the court, with opinion. Presiding Justice Steele and Justice Salone concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiffs, R.M. Lucas Co. (Lucas) and Chicago Title Land Trust No. 3000121848 (Land Trust), appeal from an order of the circuit court of Cook County denying their petition to vacate the court‘s dismissal of their action with prejudice. On appeal, plaintiffs contend that the court erred by denying their petition to vacate where they set forth a meritorious claim of negligence and were diligent in presenting their claim and filing their petition to vacate. Plaintiffs further contend that dismissal of their action was an inappropriate sanction. For the reasons that follow, we affirm.
¶ 2 BACKGROUND
¶ 3 On March 6, 2008, plaintiffs filed a one-count complaint alleging negligence against defendant, The Peoples Gas Light and Coke Company, in connection with a fire/explosion in a building at 3211 South Wood Street in Chicago. Plaintiffs asserted that the incident occurred on March 10, 2006, and that the property constituted Lucas‘s principal place of business and was owned by the Land Trust. Plaintiffs further asserted that defendant owned the gas meter and gas main for that building and had a duty to ensure that its gas line, fittings, meter, and valves were properly installed and were maintained in a safe and reasonable manner. Plaintiffs alleged that defendant breached its duty in numerous ways and that they had suffered property damage and incurred expenses as a direct and proximate result of those breaches.
¶ 4 Defendant filed its appearance and answer, and on July 1, 2008, the circuit court entered a case management order in which it directed that discovery was to be completed by October 28, 2008, and scheduled a case management conference for January 6, 2009. On August 19, 2008, defendant served plaintiffs with interrogatories and a request for production of documents. On January 6, 2009, the court entered a second case management order in which it directed that discovery was to be completed by June 30, 2009.
¶ 5 On June 15, 2009, defendant filed a motion to compel plaintiffs to answer its outstanding interrogatories and request for production of documents. Defendant asserted that on October
¶ 6 On September 16, 2009, defendant filed a motion for sanctions against plaintiffs pursuant to
¶ 7 On June 4, 2010, plaintiffs filed a petition brought pursuant to
¶ 8 Plaintiffs maintained that they were entitled to relief from the dismissal of their action because they had set forth a meritorious negligence claim against defendant and were diligent in presenting their claim and in bringing their section 2-1401 petition. Plaintiffs also maintained that the equities warranted vacating the dismissal of their action where Beeler actively and knowingly concealed material information regarding the status of their case and dismissal with prejudice was the initial sanction imposed by the circuit court.
¶ 9 Plaintiffs also attached a signed affidavit from professional engineer Kim Mniszewski to their petition in which he related that he had investigated the explosion giving rise to
¶ 10 On August 12, 2010, defendant filed a response to plaintiffs’ section 2-1401 petition in which it asserted that plaintiffs’ failure to respond to its discovery requests and the court‘s orders was not excused by their counsel‘s negligence and that dismissal was an appropriate sanction. Defendant also asserted that plaintiffs had not acted with diligence in filing their petition to vacate where it was not filed until three months after Barry had allegedly learned of the dismissal of plaintiffs’ claim. Plaintiffs filed a reply, and on September 16, 2010, the circuit court heard oral arguments and entered an order denying plaintiffs’ petition to vacate.
¶ 11 ANALYSIS
¶ 12 Plaintiffs contend on appeal that the circuit court erred by denying their section 2-1401 petition to vacate. Where a circuit court‘s disposition of a section 2-1401 petition is functionally equivalent to a grant or denial of summary judgment, this court will review the circuit court‘s ruling under the same standard as we would a ruling on a motion for summary judgment. Mills v. McDuffa, 393 Ill. App. 3d 940, 948 (2009); see also People v. Vincent, 226 Ill. 2d 1, 16-17 (2007). In this case, plaintiffs have filed a section 2-1401 petition with supporting affidavits, defendant has submitted a response in opposition, the parties have engaged in oral argument, and the circuit court has not conducted an evidentiary hearing. As such, the circuit court‘s denial of plaintiffs’ section 2-1401 petition was the functional equivalent of a grant of summary judgment in favor of defendant, and we will therefore review the court‘s order under the same standard as we would a grant of summary judgment. Mills, 393 Ill. App. 3d at 948.
¶ 13 Summary judgment is proper where the pleadings, depositions, admissions, affidavits, and exhibits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291 (2000). A triable issue of fact exists where there is a dispute as to a material fact or where reasonable minds might differ in drawing inferences from facts which are not in dispute. Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999). We review the grant of a motion for summary judgment de novo. General Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284 (2002).
¶ 14 To obtain relief from a previous judgment or order under section 2-1401, a party must establish by a preponderance of the evidence a defense or claim that would have precluded entry of the judgment in the original action and its diligence in both discovering the defense or claim and presenting the petition. Vincent, 226 Ill. 2d at 7-8. Plaintiffs assert that they are entitled to relief from the dismissal of their action because they have set forth a meritorious
¶ 15 To establish the existence of a meritorious claim for purposes of obtaining relief from a previous judgment or order pursuant to section 2-1401, the petitioner must plead sufficient facts to support the allegations in its complaint. Coleman v. Caliendo, 361 Ill. App. 3d 850, 854-55 (2005). Plaintiffs maintain, and defendant does not dispute, that they have pleaded sufficient facts to establish a meritorious claim of negligence against defendant.
¶ 16 To state a legally sufficient claim of negligence, plaintiffs must allege facts establishing that defendant owed them a duty of care, that defendant breached that duty, and that the breach was the proximate cause of their injuries. Thompson v. Gordon, 241 Ill. 2d 428, 438 (2011). Gas is a dangerous commodity, and defendant therefore owed plaintiffs a duty to inspect and maintain its lines so that it could safely provide them with natural gas. Metz v. Central Illinois Electric & Gas Co., 32 Ill. 2d 446, 450 (1965); Cosgrove v. Commonwealth Edison Co., 315 Ill. App. 3d 651, 654-55 (2000). When viewed in the light most favorable to plaintiffs, their complaint and the signed affidavits and ICC report attached to their section 2-1401 petition raise material questions of fact as to whether defendant breached its duty to properly inspect and maintain its gas lines (Cosgrove, 315 Ill. App. 3d at 655) and whether that breach was the proximate cause of their injuries. We therefore determine that plaintiffs have pleaded sufficient facts to establish a meritorious claim of negligence against defendant.
¶ 17 Plaintiffs next maintain that they have demonstrated that they were diligent in presenting their negligence claim to the circuit court where Barry remained in regular contact with Beeler until he cut off contact in mid-October 2009 and their failure to respond to defendant‘s discovery requests was due to Beeler‘s active concealment of the developments in the case. Defendant responds that plaintiffs are bound by Beeler‘s actions and that section 2-1401 does not relieve a party of the consequences of its counsel‘s negligence.
¶ 18 A litigant is generally bound by the mistakes or negligence of its counsel. Ameritech Publishing of Illinois, Inc. v. Hadyeh, 362 Ill. App. 3d 56, 60 (2005). A party must follow the progress of its case, and a section 2-1401 petition will not relieve a party of the consequences of its attorney‘s neglect of a matter. Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 105 (2006). Thus, plaintiffs are bound by Beeler‘s actions, and section 2-1401 does not provide them with relief from the consequences of their failure to respond to defendant‘s discovery requests or comply with the circuit court‘s orders.
¶ 19 Plaintiffs assert that they should be relieved from the consequences of Beeler‘s conduct because this case presents an extraordinary situation that warrants such relief. In support, plaintiffs first cite to Cohen v. Wood Brothers Steel Stamping Co., 227 Ill. App. 3d 354, 360 (1992), in which this court reversed the denial of the plaintiff‘s section 2-1401 petition where the plaintiff‘s counsel “abruptly and unexplicably [sic] abandoned both his client and his law firm without attending court and without adequately documenting the files for which he retained responsibility.” In doing so, the court held that the interests of justice and fairness compelled the exercise of its equitable powers and required the application of a relaxed due diligence standard. Id. Plaintiffs also cite to Coleman v. Caliendo, 361 Ill. App. 3d at 855-56, in which this court relied on Cohen in affirming the grant of the plaintiff‘s section 2-1401
¶ 20 Just as in Cohen and Caliendo, in this case plaintiffs’ failure to diligently present their negligence claim to the circuit court was caused by the unanticipated and inexplicable conduct of Beeler where he failed to comply with defendant‘s discovery requests or the court‘s orders or inform Barry of such requests and orders. Thus, plaintiffs would seem to be entitled to relief pursuant to this court‘s holdings in Cohen and Coleman.
¶ 21 Defendant maintains, however, that this court should not follow its prior holding in Cohen or Coleman because those decisions have little, if any, precedential value following our supreme court‘s subsequent decision in People v. Vincent, 226 Ill. 2d 1 (2007). In Vincent, 226 Ill. 2d at 5, the defendant‘s section 2-1401 petition challenging the validity of his sentences was denied by the trial court, and that denial was then affirmed by the appellate court. Id. The question raised before our supreme court was “whether a trial court may dispose of a properly served section 2-1401 petition without benefit of responsive pleadings and without giving the petitioner notice of the impending ruling and the opportunity to address the court prior to the ruling.” Id. The court answered that question in the affirmative (id. at 9, 12-14) and ultimately affirmed the trial court‘s dismissal of the defendant‘s section 2-1401 petition on the merits (id. at 18-19).
¶ 22 In doing so, the court examined its prior decisions regarding section 2-1401 petitions and determined there were five possible dispositions of such a petition: “the trial judge may dismiss the petition; the trial judge may grant or deny the petition on the pleadings alone (summary judgment); or the trial judge may grant or deny relief after holding a hearing at which factual disputes are resolved.” Id. at 9. The court emphasized that actions brought pursuant to section 2-1401 are civil proceedings and are to be litigated in accordance with the usual rules of civil procedure regardless of whether the petitioner is seeking relief from a civil or criminal judgment. Id. at 11. The court then addressed the standard of review that is to be applied to a trial court‘s ruling on a section 2-1401 petition and concluded that the standard of review will vary depending on the type of disposition ordered by the trial court. Id. at 17.
¶ 23 In reaching that conclusion, the court noted that it had previously held that a reviewing court was to review a trial court‘s ruling on a section 2-1401 petition under an abuse of discretion standard. Id. at 14. However, the court determined that the use of that standard was “the result of an erroneous belief that a section 2-1401 petition ‘invokes the equitable powers of the court, as justice and fairness require.‘” Id. at 15 (quoting Elfman v. Evanston Bus Co., 27 Ill. 2d 609, 613 (1963)). The court explained that section 2-1401 had equitable origins in the common law writs it replaced and that when the legislature abolished those common law writs in favor of a statutory remedy, “it became inaccurate to continue to view the relief in strictly equitable terms.” Id. at 15-16. The court further reasoned that the application of civil practice rules and precedent to section 2-1401 petitions “factored out any notions about a trial court‘s ‘discretion’ to do justice” and that it made little sense to apply an abuse of discretion standard when relief was no longer purely discretionary. Id. at 16.
¶ 24 In Cohen, 227 Ill. App. 3d at 360, this court explained that it was exercising its equitable powers in the interests of fairness and justice by reversing the denial of the plaintiff‘s section
¶ 25 Plaintiffs further contend that they are entitled to relief under section 2-1401 because the circuit court‘s dismissal of their action with prejudice was an inappropriate sanction. Initially, plaintiffs have not demonstrated that they were diligent in discovering their claim that the court entered an inappropriate sanction by a preponderance of the evidence where the court granted defendant‘s motion for sanctions on October 5, 2009, and they did not challenge that ruling until they filed their section 2-1401 petition on June 4, 2010. To the extent plaintiffs allege that the delay was attributable to the misconduct of Beeler, they are not relieved of the consequences of his actions for the reasons stated above.
¶ 26 Moreover, the sanction entered by the circuit court in this case was not inappropriate. The purpose of imposing sanctions is to coerce compliance with court rules and orders, and the decision to impose sanctions lies within the sound discretion of the circuit court and will not be disturbed on review absent an abuse of that discretion. Koppel v. Michael, 374 Ill. App. 3d 998, 1004 (2007). In determining whether a sanction was warranted, a reviewing court must consider the conduct that gave rise to the sanction order and the effect of that conduct on the parties. Hartnett v. Stack, 241 Ill. App. 3d 157, 173 (1993).
¶ 27 The record shows that defendant filed a motion requesting sanctions against plaintiffs pursuant to
¶ 28 In this case, defendant provided plaintiffs with its discovery requests on August 19, 2008, and the circuit court directed that discovery was to be completed by October 28, 2008. Despite defendant‘s numerous requests for responses to its discovery requests and the court‘s orders setting discovery deadlines and directing plaintiffs to respond to the discovery
¶ 29 We also note that while we are affirming the denial of plaintiffs’ section 2-1401 petition to vacate the circuit court‘s dismissal of their action against defendant with prejudice, they may be able to obtain some relief for their injuries from the explosion and fire giving rise to their negligence claim in a civil action. See Wolfe v. Wolf, 375 Ill. App. 3d 702, 709 (2007) (to establish a legal malpractice claim, a plaintiff must establish the existence of an attorney-client relationship establishing a duty on the part of the attorney, a breach of that duty by the attorney, the fact that it would have prevailed on the underlying action but for the attorney‘s negligence, and actual damages).
¶ 30 CONCLUSION
¶ 31 Accordingly, we affirm the judgment of the circuit court of Cook County.
¶ 32 Affirmed.