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S.C. Vaughan Oil Co. v. Caldwell, Troutt, & Alexander , 285 Ill. App. 3d 77 ( 1996 )


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  •                               NO. 5-95-0336

      

                                     IN THE

      

                           APPELLATE COURT OF ILLINOIS

      

                                 FIFTH DISTRICT

    _________________________________________________________________

      

    S. C. VAUGHAN OIL COMPANY and        )  Appeal from the

    CHARLES A. VAUGHAN,                  )  Circuit Court of

                                        )  Marion County.  

        Plaintiffs-Appellees,           )

    v.                                   )  No. 86-L-96

                                        )

    CALDWELL, TROUTT, and ALEXANDER,     )  

                                        )

        Defendant-Appellant,            )

    and                                  )

                                        )

    PAUL CALDWELL,                       )  Honorable

                                        )  David L. Sauer,

        Defendant.                      )  Judge, presiding.  

    _________________________________________________________________

      

        JUSTICE MAAG delivered the opinion of the court:

      

        The plaintiffs, Vaughan Oil Company and Charles A. Vaughan,

    filed a complaint against the defendants, Paul Caldwell and the law

    firm of Caldwell, Troutt, and Alexander, on August 4, 1986,

    alleging legal malpractice and conflict of interest.  On August 6,

    1990, proof that Paul Caldwell had filed a petition for relief

    under Chapter 7 of the United States Bankruptcy Code in the United

    States Bankruptcy Court for the Middle District of Florida was

    filed with the circuit court of Marion County.  A review of the

    docket sheet maintained by the clerk of the circuit court of Marion

    County reveals no entries respecting this case from the date of the

    filing of the bankruptcy petition on August 6, 1990, until April

    22, 1991.  On April 22, 1991, the record reveals a docket entry

    stating "cause DWP-close file."  Both of the parties apparently

    agree that "DWP" means dismissed for want of prosecution.  On April

    12, 1993, plaintiffs filed a motion to reinstate their action for

    attorney malpractice.  The defendants entered a special and limited

    appearance and on May 7, 1993, filed a motion to strike plaintiffs'

    motion to reinstate.  The defendants argued that the trial court

    lost jurisdiction of the case 30 days after dismissal, and that the

    only way of obtaining reinstatement was through a petition under

    section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401

    (West 1992)), and that plaintiffs did not petition the court

    pursuant to section 2-1401.  The defendants argued that because the

    plaintiffs had not alleged the elements of a section 2-1401

    petition, the motion was inappropriate and did not invoke the

    circuit court's jurisdiction.  On September 3, 1993, the circuit

    court entered an order upholding the special and limited appearance

    as to Paul Caldwell but denied it as to Caldwell, Troutt, and

    Alexander.  

        On September 27, 1993, subsequent to the court's denial of

    their special and limited appearance, Caldwell, Troutt, and

    Alexander moved to dismiss the motion to reinstate, citing the lack

    of factual allegations of due diligence in filing the section 2-

    1401 petition and the existence of a meritorious claim.  On March

    30, 1994, the plaintiffs filed an amended motion to reinstate,

    specifically citing section 2-1401.  In their motion, the plain-

    tiffs stated the following three reasons as to 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) the decision in Collins v. Reynard, 154 Ill. 2d 48, 607

    N.E.2d 1185 (1992), was good law from March 28, 1990, through

    December of 1992, and plaintiffs believed they no longer had a

    viable attorney malpractice suit against the defendants because

    Collins barred the recovery of economic damages for attorney

    malpractice actions sounding in tort; and (3) there were ongoing

    settlement discussions between plaintiffs' counsel and representa-

    tives of defendants and their insurers.  

        On April 20, 1994, defendants again moved to dismiss the

    amended motion to reinstate.  The circuit court entered an order on

    December 30, 1994, allowing plaintiffs' petition to reinstate.

    Specifically, the court stated that the plaintiffs should have

    properly referred to the motion to reinstate as a section 2-1401

    petition, and that they should have also made factual allegations

    regarding the meritorious claim.  The court went on to note,

    however, that the motion was "squarely a section [2-]1401 motion"

    because the focus had been upon the diligence in presenting the

    claim and the motion.  The court also noted that it was "not

    inclined to further delay this proceeding with evidentiary hearings

    not anticipated by section [2-]1401."  On January 13, 1995, the

    defendant, Caldwell, Troutt, and Alexander, filed a motion to

    rehear and reconsider.  In its motion, the defendant claimed that

    the circuit court had not allowed the defendant, Caldwell, Troutt,

    and Alexander, an opportunity to present evidence either by way of

    affidavit or by live testimony to controvert the allegations of

    plaintiffs' section 2-1401 petition.  On March 2, 1995, the defen-

    dant, Caldwell, Troutt, and Alexander, filed the affidavits of M.

    Patrice Wilson, insurance adjuster for CNA Insurance Companies, and

    Thomas L. Browne, defendant's former attorney.  Both affidavits

    contradicted plaintiffs' attorney's affidavit with regard to the

    amount and significance of telephone contact between plaintiffs'

    attorney and defendant's representatives.  On that same date, the

    circuit court vacated the order granting the section 2-1401

    petition.  On April 19, 1995, the circuit court reconsidered the

    motion to reinstate and granted it for the reasons set forth in its

    December 30, 1994, docket entry.  The defendant, Caldwell, Troutt,

    and Alexander, filed its notice of appeal on May 11, 1995.

        The defendant, Caldwell, Troutt, and Alexander, claims 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.

        We will not address the defendant's contentions, however,

    because this court does not have jurisdiction of this case for the

    following reasons.   

        Pursuant to Supreme Court Rule 301, "[e]very final judgment of

    a circuit court in a civil case is appealable as of right."

    (Emphasis added.)  155 Ill. 2d R. 301.  A final judgment has

    traditionally 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."

    Towns v. Yellow Cab Co., 73 Ill. 2d 113, 119, 382 N.E.2d 1217, 1219

    (1978).  An order dismissing a cause for want of prosecution is not

    a final and appealable order under Supreme Court Rule 301.  Flores

    v. Dugan, 91 Ill. 2d 108, 112, 435 N.E.2d 480, 481 (1982).  This is

    so in the instant case because this case was dismissed for want of

    prosecution on April 22, 1991.  At that time, the plaintiff was

    entitled to an absolute right to refile the same action against the

    same parties and reallege the same causes of action within one year

    pursuant to section 13-217 of the Code of Civil Procedure (Ill.

    Rev. Stat. 1991, ch. 110, par. 13-217).  See Flores, 91 Ill. 2d at

    112, 435 N.E.2d at 482.  Although we recognize that section 13-217

    has been amended and now reads differently, the new version of the

    statute does not apply to this case.  See 735 ILCS 5/13-217 (West

    Supp. 1995).  It is well established that a petition for relief

    from judgment under section 2-1401 applies only to relief from

    final orders and judgments.  735 ILCS 5/2-1401(a) (West 1992).  For

    an order to be considered "final" so as to render section 2-1401

    applicable, the order must dispose of the merits of the cause in

    such a manner that no further proceedings can be had in the trial

    court.  See Prendergast v. Rush-Presbyterian-St. Luke's Medical

    Center, 78 Ill. App. 3d 538, 541, 397 N.E.2d 432, 435 (1979).  

        While we recognize that there are cases that have limited the

    Flores decision (Robinson v. Commonwealth Edison Co., 238 Ill. App.

    3d 436, 440-41, 606 N.E.2d 615, 618 (1st Dist. 1992); Howard Ecker

    & Co. v. Terracom Development Group, Inc., 116 Ill. App. 3d 918,

    919, 452 N.E.2d 781, 783 (1st Dist. 1983); Yorke v. Stineway Drug

    Co., 110 Ill. App. 3d 1009, 1013, 443 N.E.2d 644, 647 (1st Dist.

    1982)), we disagree with the reasoning in these cases.  These

    decisions limit Flores solely to a direct appeal from an order

    dismissing an action for want of prosecution.  Yorke and Ecker held

    that the Flores decision does not apply to section 2-1401 petitions

    and, therefore, an appeal from a section 2-1401 petition contesting

    a dismissal for want of prosecution is appealable.  Further, in

    Robinson, the court held that "once the statutory refiling period

    has run, the Flores rationale no longer applies and the litigation

    is terminated--i.e.[,] the DWP [dismissal for want of prosecution]

    order becomes final and appealable."  Robinson, 238 Ill. App. 3d at

    441, 606 N.E.2d at 618.  We disagree.   

        In this case, the circuit court dismissed the case for want of

    prosecution on April 22, 1991.  As we previously stated, this

    dismissal for want of prosecution was not a final and appealable

    order under Supreme Court Rule 301.  We believe that the substance

    and nature of an order is determined at the time it is entered.

    Its nature does not change with the passage of time as the

    aforementioned cases suggest.  The fact that the statutory one-year

    period for refiling has passed does not alter the character and

    nature of the trial court's ruling at the time that it was made.

    Hence, 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.  Cf. Martin v. Marks, 80 Ill. App. 3d 915, 918-

    19, 400 N.E.2d 711, 713-14 (1980) (court held that order of

    dismissal was not final and appealable even though plaintiff failed

    to amend within the 30-day time period).  Accord Doner v. Phoenix

    Joint Stock Land Bank, 381 Ill. 106, 108-09, 45 N.E.2d 20, 22

    (1942).  Accordingly, as the order of April 22, 1991, was not a

    final judgment, it was not subject to attack by way of a section 2-

    1401 petition.  Although the plaintiffs' original motion to

    reinstate was not captioned as a section 2-1401 petition, the trial

    court treated it as such, and this was error.  Because the

    dismissal for want of prosecution against Paul Caldwell and

    Caldwell, Troutt, and Alexander is not a final and appealable

    order, plaintiffs' motion to reinstate can only be treated as a

    motion attacking an interlocutory order.  Since the plaintiffs'

    motion to reinstate was granted on April 19, 1995, and is not a fi-

    nal, appealable order, this court does not have jurisdiction of

    this case.

        Furthermore, this court makes no findings with respect to the

    efficacy of the bankruptcy stay.  For this court to address these

    matters would be premature in light of the fact that the circuit

    court retains jurisdiction in this case.

        For the foregoing reasons, this appeal is dismissed for lack

    of jurisdiction for want of a final order under Supreme Court Rule

    301 (155 Ill. 2d R. 301).

      

        Appeal dismissed.  

      

        CHAPMAN and WELCH, JJ., concur.

                                         NO. 5-95-0336

                                        IN THE

                             APPELLATE COURT OF ILLINOIS

                                    FIFTH DISTRICT

    ___________________________________________________________________________

    S. C. VAUGHAN OIL COMPANY and        )  Appeal from the

    CHARLES A. VAUGHAN,                  )  Circuit Court of

                                        )  Marion County.  

        Plaintiffs-Appellees,           )

    v.                                   )  No. 86-L-96

                                        )

    CALDWELL, TROUTT, and ALEXANDER,     )  

                                        )

        Defendant-Appellant,            )

    and                                  )

                                        )

    PAUL CALDWELL,                       )  Honorable

                                        )  David L. Sauer,

        Defendant.                      )  Judge, presiding.  

    ___________________________________________________________________________

      

    Opinion Filed:                  December 4, 1996

    ___________________________________________________________________________

      

    Justices:      Honorable Gordon E. Maag, J.

                            

                  Honorable Charles W. Chapman, J., and

                  Honorable Thomas M. Welch, J.,

                  Concur

    ___________________________________________________________________________

                            

    Attorneys      Bruce L. Carmen, Michael A. Lawder, Hinshaw & Culbertson,

    for            222 North LaSalle Street, Suite 300, Chicago, IL 60601-1081

    Appellant      

    ___________________________________________________________________________

      

    Attorney       Robert I. Auler, Auler Law Offices, P.C., 202 W. Green

    for            Street, Urbana, IL 61801

    Appellee       

    ___________________________________________________________________________