S.C. VAUGHAN OIL COMPANY et al., Appellees, v. CALDWELL, TROUTT & ALEXANDER et al. (Caldwell, Troutt & Alexander, Appellant)
No. 82600
Supreme Court of Illinois
Opinion filed March 19, 1998
181 Ill. 2d 489
***
For the reasons stated, the judgment of the appellate court is affirmed in part and reversed in part and the cause is remanded to the circuit court of Cook County for further proceedings not inconsistent with this opinion.
Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment affirmed in part
and reversed in part;
cause remanded.
JUSTICES BILANDIC and HEIPLE took no part in the consideration or decision of this case.
Hinshaw & Culbertson, of Chicago (Bruce L. Carmen and Michael A. Lawder, of counsel), for appellant.
Robert I. Auler, of Urbana, for appellees.
JUSTICE McMORROW delivered the opinion of the court:
At issue in this appeal is whether a trial court‘s or
BACKGROUND
On August 4, 1986, plaintiffs, S.C. Vaughan Oil Company and Charles A. Vaughan, filed a complaint in the circuit court of Marion County naming Paul Caldwell and the law firm of Caldwell, Troutt & Alexander as defendants in an action seeking damages for legal malpractice and conflict of interest. On August 6, 1990, proof that Paul Caldwell had filed a petition for relief under the United States Bankruptcy Code was filed with the circuit court. Pursuant to this bankruptcy petition, an automatic stay of the continuation of the state proceedings as to defendant Paul Caldwell was imposed pursuant to
No entries regarding this matter were made on the docket sheet maintained by the clerk of the circuit court of Marion County from the date of the filing of Paul Caldwell‘s bankruptcy petition on August 6, 1990, until April 22, 1991. After this 8 1/2-month period of inactivity, the record reveals an April 22, 1991, docket entry stating “cause DWP—close file.” Both parties agree that the circuit court, on its own motion, entered an order dismissing plaintiffs’ cause of action for want of prosecution (DWP).
On April 12, 1993, nearly two years after the entry of the DWP, plaintiffs filed a “motion to reinstate” their case. The motion was supported by an affidavit from one of plaintiffs’ attorneys, who averred that notice of the
After entering a special and limited appearance, the defendants on May 7, 1993, filed a motion to strike plaintiffs’ motion to reinstate, arguing that the trial court lost jurisdiction of the matter 30 days after the DWP order was entered. Accordingly, defendants maintained that plaintiffs’ sole avenue to obtain reinstatement was through the filing of a petition to vacate the DWP pursuant to section 2-1401 of the Code of Civil Procedure (
Subsequent to the trial court‘s denial of the law firm‘s special and limited appearance, the defendant law firm moved to dismiss plaintiffs’ motion to reinstate, citing plaintiffs’ failure to plead factual allegations of due diligence in filing the petition and the existence of a meritorious claim. On March 30, 1994, plaintiffs filed an amended motion to reinstate, specifically citing section 2-1401, and stating three reasons why they had not pursued the case from April 1991 through March 1993: (1) the claim against Paul Caldwell could not be pursued due to the bankruptcy stay; (2) uncertainty as to the types of damages recoverable in legal malpractice actions, which plaintiffs allege occurred as a result of the appellate court‘s decision in Collins v. Reynard, 195 Ill. App. 3d 1067 (1990), rev‘d, 154 Ill. 2d 48 (1992); and (3) the existence of ongoing settlement discussions between plaintiffs’ counsel and representatives of defendants and their insurers. Plaintiffs additionally reiterated their claim that they were provided no notice of the entry of the DWP by the circuit court, in violation of local court rules.
On April 20, 1994, defendant moved to dismiss the plaintiffs’ amended motion to reinstate. The circuit court, on December 30, 1994, entered an order allowing plaintiffs’ motion to reinstate, treating it as a petition to vacate the DWP order pursuant to section 2-1401 of the Code of Civil Procedure (
On January 13, 1995, defendant Caldwell, Troutt, and Alexander filed a motion to rehear and reconsider
Defendant appealed pursuant to Supreme Court Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3)), which allows appeal to the appellate court from a judgment on a petition brought under section 2-1401. Defendant asserted that the trial court abused its discretion in refusing to resolve factual disputes arising from the section 2-1401 petition filed by the plaintiffs and that the plaintiffs failed to establish due diligence as a matter of law.
The appellate court, Fifth District, did not address the merits of defendant‘s appeal. Instead, the court dismissed the appeal for want of jurisdiction. 285 Ill. App. 3d 77. The appellate court determined, based upon this court‘s decision in Flores v. Dugan, 91 Ill. 2d 108 (1982), that the DWP order entered April 22, 1991, was not a final judgment and, accordingly, was not subject to attack pursuant to a section 2-1401 petition. Therefore, the appellate court found that the trial court had committed error by treating the plaintiffs’ motion to rein
We granted leave to appeal. 166 Ill. 2d R. 315. Before this court, defendant raises three issues for consideration: (1) whether the appellate court had jurisdiction to hear defendant‘s appeal from the order reinstating the case; (2) if so, whether plaintiffs exercised due diligence as a matter of law; and (3) whether the trial court abused its discretion by concluding that an evidentiary hearing was not appropriate for the section 2-1401 petition. Because our resolution of the first issue is dispositive, and because the appellate court should resolve the second and third issues raised by the defendant, we do not consider them herein.
ANALYSIS
The threshold question to be resolved in this matter is whether the appellate court erred in dismissing this appeal for lack of jurisdiction. The appellate court determined that “because dismissal for want of prosecution was not a final and appealable order, plaintiff‘s motion to reinstate can only be treated as a motion attacking an interlocutory order.” 285 Ill. App. 3d at 81. The appellate court concluded that “this appeal is dismissed for lack of jurisdiction for want of a final order under Supreme Court Rule 301 (155 Ill. 2d R. 301).” 285 Ill. App. 3d at 81-82. Plaintiffs, relying upon the reasoning given by the appellate court, urge affirmance of that court‘s dismissal order on the basis that both the DWP
For purposes of jurisdiction, the focus in this matter upon the character of the DWP order is misplaced. Defendant‘s appeal in the instant case is not based upon the trial court‘s entry of the DWP order. Instead, this appeal arises from the trial court‘s subsequent order vacating the DWP and reinstating plaintiffs’ cause of action pursuant to section 2-1401 of the Code of Civil Procedure.
Section 2-1401 of the Code of Civil Procedure outlines a procedure by which final orders and judgments may be vacated by the trial court more than 30 days following their entry, if the petition to vacate is not filed later than two years after entry of the judgment.
Therefore, when a circuit court grants relief on a section 2-1401 petition, as the trial court did here, the appellate court has jurisdiction to review that decision
Although the question of the finality of the underlying DWP order is not determinative of jurisdiction, it is pivotal to the issue of whether the trial court properly entertained plaintiffs’ motion to vacate the DWP order pursuant to section 2-1401, because relief under section 2-1401 is available only from final orders and judgments. If an order is not final, section 2-1401 is inapplicable and cannot be the basis for vacating that order. Accordingly, the question of whether an order dismissing plaintiffs’ case for want of prosecution constitutes a final order within the meaning of section 2-1401 is a key consideration in determining whether the trial court acted properly in granting relief under that statute.
If a plaintiff‘s action is dismissed for want of prosecution, that plaintiff has the option, pursuant to section 13-217 of the Code of Civil Procedure, to refile the action within one year of the entry of the DWP order or within the remaining period of limitations, whichever is greater.
The appellate court in its ruling, and the parties in their briefs, have focused their argument upon the question of the proper interpretation of this court‘s decision
The plaintiffs in Flores filed a personal injury action. After a jury trial, a verdict was returned for the plaintiffs. The trial judge, however, granted the defendants’ motion for a new trial, and the appellate court denied the plaintiffs’ petition for leave to appeal from that order. The cause was remanded to the trial court, and a new trial date was set. Because the trial judge was unable to hear the case on the initial date, it was reset for August 27, 1979, to accommodate the plaintiffs.
One week prior to the trial date, the plaintiffs’ counsel was told by a clerk that the case would not be heard on the scheduled date because the week of August 27 was customarily reserved for nonjury matters. However, the trial judge subsequently informed the plaintiffs’ counsel that the case would indeed be heard on the scheduled date, and that a clerk in the administrator‘s office had no authority to tell an attorney that a particular case would not be heard. The plaintiffs’ attorney told the judge that the plaintiffs’ physician would not be available to testify on the August 27 trial date. However, because the physician had not been subpoenaed as required under local rule, the trial judge informed the plaintiffs’ counsel that the fact that the doctor was unavailable to testify was not a ground for resetting the trial.
Notes
The appellate court dismissed the plaintiffs’ appeal of the trial court‘s denial of their petition to vacate the DWP order on the basis that a DWP is not a final and appealable order. In affirming the judgment of the appellate court, this court held that “in light of a plaintiff‘s absolute right to refile this cause under section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), an order dismissing a cause for want of prosecution is not a final and appealable order under Supreme Court Rule 301.” Flores, 91 Ill. 2d at 111-12.
The Flores court explained that “[a] final judgment has been defined 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, 91 Ill. 2d at 112, citing Towns v. Yellow Cab Co., 73 Ill. 2d 113, 119 (1978). The plaintiffs’ “absolute right to refile the action against the same party or parties and to reallege the same causes of action” (Flores, 91 Ill. 2d at 112) was pivotal to this court‘s holding, because under such circumstances, “the order of dismissal could not terminate the litigation.” Flores, 91 Ill. 2d at 114. Thus, in Flores, at the time the
In addition, the trial court‘s DWP order in Flores specifically stated that the dismissal was entered “without prejudice to refile the suit within the time permitted by statute.” Although such language may not have been required in light of the nonfinal character of the DWP order, this court noted that the language “clearly manifests the intent of the court that the order not be considered final and appealable.” Flores, 91 Ill. 2d at 114.
The Flores court also noted in passing that “[t]he result we reach may seem to be harsh” in light of the fact that the plaintiffs had ultimately not exercised their option to refile their suit, and a lack of an avenue of appeal would prevent a determination of whether the trial judge abused his discretion in entering the DWP order. This court, however, observed that “[t]he remedy of refiling created by section 24 of the Limitations Act is in fact a more expeditious and less expensive remedy than an appeal. 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.” Flores, 91 Ill. 2d at 115.
The Flores holding was reaffirmed one year later in Wold v. Bull Valley Management Co., 96 Ill. 2d 110 (1983), where this court again addressed the issue of whether a DWP is a final and appealable order if the plaintiff‘s right to refile the matter had not expired. There, the plaintiff filed a complaint for damages result
In affirming the appellate court‘s ruling that it lacked jurisdiction, this court determined that Flores was dispositive, stating: “[I]t is clear that the order of dismissal for want of prosecution in the instant case is not a final and appealable order [because] [p]ursuant to section 24 of the Limitations Act, counsel could have refiled the action within the one year after the dismissal ***.” Wold, 96 Ill. 2d at 112. As in Flores, this court observed in Wold that the “plaintiff failed to pursue the proper remedy.” Wold, 96 Ill. 2d at 112.
In the instant case, relying upon this court‘s holding in Flores, the appellate court determined that because the DWP entered by the trial court on April 22, 1991, was not a final and appealable order, the trial court had committed error by treating plaintiffs’ motion to reinstate as a petition to vacate the DWP under section 2-1401. 285 Ill. App. 3d at 80.
We believe that the appellate court read this court‘s decision in Flores too broadly. Flores stands for the proposition that because the entry of a DWP order does not prejudice a plaintiff‘s case nor bar a subsequent suit on the same issues as long as the section 13-217 period for refiling exists, a DWP order cannot be considered
The unique circumstances in the instant matter present an issue of first impression not squarely faced by this court in Flores: whether the expiration of the period for refiling under section 13-217 renders an order dismissing a case for want of prosecution a final order. In contrast to the procedural posture of the parties in Flores, in the case at bar, plaintiffs filed a motion to reinstate their cause of action after the section 13-217 refiling period had expired, causing defendants to argue that the expiration of the refiling period rendered the DWP final, and, therefore, plaintiffs’ only recourse was to file a motion to vacate the DWP pursuant to section 2-1401. The circumstances in the instant matter are beyond those presented in Flores, because here the plaintiffs no longer had an absolute right to refile their action pursuant to section 13-217.
We hold that where, as in the instant matter, the period for refiling granted a plaintiff pursuant to section 13-217 has expired, the litigation is effectively terminated. Therefore, at the time the refiling period expires, the DWP constitutes a final judgment because, at this juncture, the order effectively “ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” Flores, 91 Ill. 2d at 112, citing Towns v. Yellow Cab Co., 73 Ill. 2d 113, 119 (1978). Indeed, we have recently reaffirmed the importance of the finality of judgments in Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496 (1997), where we rejected the argument that final orders were transformed into nonfinal orders by virtue of plaintiffs’ refiling their action in the circuit court while an appeal was pending.
In concluding that it lacked jurisdiction in this matter because the DWP order constituted an interlocutory,
In Robinson, the trial court dismissed specific counts of the plaintiff‘s complaint with prejudice, but allowed plaintiff to file an amended complaint. Subsequently, the trial court dismissed the cause for want of prosecution, and, similar to the case at bar, the plaintiff waited almost two years to file a petition to vacate the DWP order. However, unlike plaintiff in the instant matter, the Robinson plaintiff‘s petition to vacate the DWP expressly relied upon section 2-1401. The trial court thereafter denied the plaintiff‘s section 2-1401 petition on the basis the petition failed to specify that the plaintiff had a meritorious cause of action. The plaintiff then filed a motion to reconsider the petition‘s denial and for leave to file an amended complaint as an amendment to the petition. The trial court held a hearing on the motion to reconsider, allowed the plaintiff to supplement that motion, and subsequently granted the plaintiff‘s section 2-1401 petition to vacate the DWP.
On appeal, the Robinson defendant asserted that the plaintiff was barred from seeking relief under section 2-1401 because pursuant to Flores a DWP is not a final and appealable order. In rejecting this argument, Robinson explained that, in Flores, this court “held that a DWP was not final and appealable because the plaintiff had an absolute right to refile the complaint within the statutory limit now set forth in section 13-217 of the Code of Civil Procedure; thus the DWP order did not terminate the litigation within the statutory limit.” Robinson, 238 Ill. App. 3d at 441. The Robinson court then reasoned that “[c]onversely, it follows that
In disagreeing with the analysis in Robinson, the appellate court in the case at bar held that “the substance and nature of an order are determined at the time it is entered. Its nature does not change with the passage of time as *** [Robinson] suggest[s].” 285 Ill. App. 3d at 81. The appellate court then determined that the character and nature of the trial court‘s ruling at the time of entry was not altered by the fact that the statutory one-year refiling period pursuant to section 13-217 had expired. Consequently, the appellate court concluded that “the plaintiffs’ failure to satisfy a condition subsequent, namely, the filing of a pleading within the parameters of section 13-217 and Flores did not alter the character and nature of the underlying order.” 285 Ill. App. 3d at 81. Plaintiffs in the case at bar similarly contend that the character of the trial court‘s order is determined upon its entry and is not subject to change based upon either the passage of time or the occurrence of subsequent events. In support of this argument, plaintiffs rely upon Martin v. Marks, 80 Ill. App. 3d 915 (1980).
However, Martin does not support the proposition that the nature of an order is unaffected by the passage of time and the occurrence of ensuing events. To the
An undesirable result would occur if we were to accept the rationale, advocated by plaintiffs and relied upon by the appellate court in this matter, that the expiration of the section 13-217 refiling period does not affect the nature and character of the DWP order. As defendant observed in the case at bar, if a DWP order is never considered final, the case exists in a “procedural limbo” until plaintiff decides to file a motion to reinstate. The difficulties in such an approach are readily apparent by an examination of the facts in the instant matter. When this matter was dismissed for want of prosecution in 1991, the five-year statute of limitations for legal malpractice actions had run. Because the DWP went unnoticed by plaintiffs for nearly two years, their right to an automatic refiling of the action under section 13-217 was lost. Thus, plaintiffs resorted to a motion to reinstate the original action in the trial court. Under the analysis adopted by the appellate court and advocated by plaintiffs, the DWP order entered 23 months earlier remained interlocutory and, presumably, would continue to be interlocutory until plaintiffs decided to reinstate their case, even if plaintiffs remained idle for
In addition, the reasoning advanced by plaintiffs and adopted by the appellate court in the instant matter contradicts both the letter and the spirit of the pertinent statutory provisions, which require plaintiffs to pursue their cases within set time parameters. Section 13-217 allows plaintiffs a specified time period within which to refile their actions, and section 2-1401 allows plaintiffs a two-year period within which to revive previously terminated cases. Although plaintiffs argue that the approach we adopt here would cause confusion in determining the finality of orders because parties would have to “wait and see” if certain pleadings were filed before knowing whether a court‘s order was final, this argument misses the mark. Under our holding today, the date upon which an order for dismissal of prosecution becomes final is the date upon which plaintiffs’ right to refile the cause of action under section 13-217 expires. In turn, two years after that date, plaintiffs’ right to file a motion to vacate the DWP pursuant to section 2-1401 will expire. Rather than causing confusion, this scheme provides both plaintiffs and defendants with specific expiration dates.
In addition, plaintiffs ignore the fact that they are in control of their own litigation and are left with the choice as to whether and when to refile their case once they suffer a DWP. As this court has previously observed in both Flores and Wold, plaintiffs are statutorily afforded the option of refiling under section 13-217 and the choice of litigation tactics is left to plaintiffs. However, if plaintiffs err and fail to meet the statutorily prescribed time limitations, their dilemma is a result of their own doing. Once the DWP becomes final, in order to revest the trial court with jurisdiction the plaintiffs must meet
There must be certainty and finality in litigation; there must be a point in litigation at which the issues are decided and the determination is final. The parties involved must make their case in the appropriate time allowed under our statutory scheme.
The appellate court was therefore in error when it characterized the DWP order entered in this matter as a nonappealable interlocutory order. As discussed above, at the point in time that the section 13-217 period for refiling expires, the DWP becomes a final and appealable order. The only vehicle for reinstating the case before the original trial court upon that occurrence is the filing of a petition pursuant to section 2-1401. However, we emphasize that until the time of the expiration of the period for refiling, the DWP remains a nonappealable interlocutory order pursuant to the Flores rationale.
In two other opinions rendered by the First District of the appellate court, Howard Ecker & Co. v. Terracom Development Group, Inc., 116 Ill. App. 3d 918 (1983), and Yorke v. Stineway Drug Co., 110 Ill. App. 3d 1009 (1982), the appellate panels held that the Flores rationale did not apply to cases involving petitions to vacate final orders brought pursuant to section 72 of the Civil Practice Act (the predecessor of section 2-1401). In both Howard Ecker & Co. and Yorke, the trial courts granted petitions brought by the plaintiffs pursuant to section 72 to vacate previously entered DWP orders. In both instances, the plaintiffs filed their petitions shortly after the entry of the DWP orders, without exercising their refiling option. In affirming the judgment of the trial courts in granting the plaintiffs’ petitions, both appellate panels determined that Flores was limited to direct appeals of a DWP order and thus did not apply to cases involving section 72 petitions. Howard Ecker & Co., 116 Ill. App. 3d at 919; Yorke, 110 Ill. App. 3d at 1013.
We disagree with the reasoning in Howard Ecker & Co. and Yorke to the extent that the appellate panels held the Flores rationale inapplicable to cases involving petitions to vacate brought pursuant to section 2-1401 (formerly section 72) and allowed the filing of such petitions to vacate the DWP orders before expiration of the plaintiffs’ available refiling period. As our above discussion of the case law reveals, such an approach is theoretically inconsistent with Flores, which stands for the proposition that a DWP order remains interlocutory during the available period for refiling under section 13-217. Accordingly, we overrule those cases to the extent their analysis conflicts with our holding in the instant case.
In sum, after the period for refiling provided by section 13-217 expires, a DWP order operates as a termination of the litigation between the parties, and constitutes a final and appealable order. In the instant
Because the appellate court‘s disposition of the appeal in the instant matter was incorrectly based on a lack of jurisdiction, the court did not reach the question of the propriety of the trial court‘s grant of the section 2-1401 motion. The appellate court declined to make a determination on the merits as it “would be premature in light of the fact that the circuit court retains jurisdiction in this case.” 285 Ill. App. 3d at 81. In view of our holding, the appellate court has jurisdiction in this matter. Accordingly, we reverse the judgment of the appellate court and remand the cause to that court for consideration of other issues pending.
Reversed and remanded.
JUSTICE HARRISON, concurring in part and dissenting in part:
I agree that the appellate court should not have dismissed this appeal for lack of jurisdiction. Contrary to the majority, however, I would not remand for further proceedings. The judgment of the circuit court granting plaintiffs’ petition to reinstate under section 2-1401 of the Code of Civil Procedure (
Relief is available under section 2-1401 only from final orders and judgments. If an order is not final, section 2-1401 is inapplicable and cannot be the basis for setting aside that order. The predicate for plaintiffs’ section 2-1401 petition in this case was an order dismissing their case for want of prosecution (the DWP order).
My colleagues try to escape the holding in Flores by construing that case to mean only that a DWP order is not final during the period for refiling provided by section 13-217 of the Code of Civil Procedure (
The problem with this analysis is that there is nothing in Flores to support it. The focus in Flores was the character of the DWP order at the time the order was entered. Subsequent events were irrelevant. Even though the plaintiffs in that case did not, in fact, refile within the period provided by the predecessor provision to section 13-217 (see Flores, 91 Ill. 2d at 115), that did not affect the court‘s conclusion. For the purposes of determining finality of the DWP order, the only thing that mattered was that plaintiffs could have refiled had they chosen to do so. Their subsequent failure to act did not transform the DWP order into a final order once the statutory refiling period had passed.
My colleagues claim that their approach will advance the interests of certainty and finality in litigation. I think the opposite is true. In ruling as they have, my colleagues have made the finality of an order a fluid and changeable property.
Our court recently rejected the notion that a final
The majority is right that its approach will not be prejudicial to plaintiffs. Under the majority‘s view, plaintiffs have full power to control the process. They can now either refile under section 13-217 or wait and initiate a petition under section 2-1401.
What the majority fails to appreciate is the effect its decision will have on defendants. If a DWP order remained nonfinal, as it should under Flores, defendants’ exposure to future litigation would be subject to a definite endpoint. Once section 13-217‘s refiling period had passed, the matter would be closed, and plaintiffs would have no further recourse. Under the majority‘s view, however, expiration of section 13-217‘s refiling period opens an entirely new window of opportunity for plaintiffs to pull defendants back in the litigation. As soon as the clock runs out under section 13-217, the majority allows it to restart under section 2-1401. All the while defendants are left to wait and wonder. Where is the certainty and finality in that?
Flores should be controlling here, and it is fatal to plaintiffs’ petition under section 2-1401. Because the DWP order was not final and did not become final, that order was not a proper subject for relief under section 2-1401. To the extent that Robinson v. Commonwealth Edison Co., 238 Ill. App. 3d 436 (1992), Howard Ecker & Co. v. Terracom Development Group, Inc., 116 Ill. App. 3d 918 (1983), and Yorke v. Stineway Drug Co., 110 Ill. App. 3d 1009 (1982), support a contrary conclusion, they should be overruled.
For the foregoing reasons, I would reverse the judgment of the appellate court dismissing the appeal for lack of jurisdiction and would reverse the judgment of the circuit court granting plaintiffs’ motion to reinstate.
JUSTICES HEIPLE and NICKELS join in this partial concurrence and partial dissent.