NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 190457-U
Order filed August 19, 2020 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
U.S. BANK NATIONAL ASSOCIATION, ) Appeal from the Circuit Court not in its individual capacity but solely ) of the Tenth Judicial Circuit, as trustee for the RMAC Trust, Series ) Marshall County, Illinois. 2016-CTT, ) ) Plaintiff-Appellant, ) Appeal No. 3-19-0457 ) Circuit No. 2014-CH-15 v. ) ) JOHN C. STACHEWICZ; ) NANCY STACHEWICZ, ) The Honorable ) James A. Mack, Defendants-Appellees. ) Judge, presiding. ) _____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court. Presiding Justice Lytton and Justice Schmidt concur in the judgment. _____________________________________________________________________________
ORDER
¶1 Held: Plaintiff’s appeal is dismissed for lack of jurisdiction ¶2 Following a status hearing in Marshall County, the circuit court dismissed plaintiff U.S.
Bank’s case without prejudice for want of prosecution. Plaintiff filed a motion for summary
judgment, which the court granted. The court then granted defendants John and Nancy
Stachewicz’s motion to vacate the summary judgment and denied plaintiff’s request to vacate the
dismissal for want of prosecution (DWP). Plaintiff appealed, arguing that the trial court abused
its discretion in dismissing its case for want of prosecution and in vacating the summary
judgment granted against defendants. Defendants contend that the DWP, which is the only
surviving order of the trial court, was a non-final interlocutory order, and thus, this Court is
without jurisdiction to address the merits of this appeal. We agree and dismiss this appeal for
lack of jurisdiction. ¶3 FACTS ¶4 On May 19, 2014, Wells Fargo Bank, N.A. filed a complaint for residential foreclosure
action against defendants. On January 23, 2019, after five years of pleadings and counterclaims
(none of which is at issue in this appeal), the circuit court entered an order setting the case for
status hearing on April 30, 2019. On April 26, in advance of the hearing, Wells Fargo filed a
motion for substitution of party plaintiff. As an exhibit to the motion for substitution, Wells
Fargo included an Assignment of Mortgage dated June 19, 2017, from Specialized Loan
Servicing, LLC to the current party plaintiff, U.S. Bank National Association, acting solely as
Trustee for RMAC trust, Series 2016-CTT. Also, on April 26, plaintiff U.S. Bank filed a motion
for summary judgment. ¶5 On April 30, plaintiff’s counsel attempted to appear at the scheduled status hearing using
a telephonic appearance service known as CourtCall. However, counsel was not connected with
the court and his appearance was not entered. The hearing proceeded without plaintiff’s
appearance, and the court entered the DWP at issue in this appeal. Plaintiff filed no motion to
reinstate the complaint and the court entered no such order. However, on May 15, the court
entered a series of orders dismissing other defendants, substituting the party plaintiffs, granting
summary judgment against defendants, and entering judgment for foreclosure against defendants. ¶6 On June 7, defendants filed a motion to vacate the orders entered on May 15, and on June
28, plaintiff filed a motion to vacate the DWP. On July 3, the court entered an order denying
plaintiff’s motion to vacate the DWP entered on April 30, and further holding that “[t]he orders
entered May 15, 2019, having been entered subsequent to Dismissal without Prejudice for Want
of Prosecution are vacated and held for naught.” Plaintiff filed a timely notice of appeal on July
29. ¶7 ANALYSIS
Plaintiff argues that the circuit court abused its discretion in (1) entering the DWP in the
original residential foreclosure action and (2) in vacating the order of summary judgment entered
against defendants. Defendants respond by challenging our jurisdiction to hear this appeal on its
merits. ¶8 A reviewing court has a duty to consider sua sponte whether it has jurisdiction and to
dismiss an appeal if it lacks jurisdiction. In re Marriage of Morgan, 2019 IL App (3d) 180560, ¶
9. “Our jurisdiction is limited to review of appeals from final judgments unless otherwise
permitted under Illinois Supreme Court rules or by statute.” Id. ¶9 A DWP is a type of involuntary dismissal that courts have always had the inherent power
under the common law to enter. In re Estate of Young, 2020 IL App (2d) 190392, ¶ 17. It allows
a trial court to “dismiss a civil action due to the plaintiff’s failure to prosecute with due diligence
in order to manage the court’s docket and avoid unnecessary burden on the court and opposing
parties.” Id. (quoting Kraus v. Metropolitan Two Illinois Center, 146 Ill. App. 3d 210, 212
(1986)). However, pursuant to Section 13-217 of the Code of Civil Procedure, “the plaintiff ***
may commence a new action within one year or within the remaining period of limitation,
whichever is greater, after *** the action is dismissed for want of prosecution.” 735 ILCS 5/13-
217 (2019) (emphasis added). Thus, “since [the plaintiff retains] an absolute right to refile the
action against the same party or parties and to reallege the same causes of action,” a DWP is not
a final order. Flores v. Dugan, 91 Ill. 2d 108, 112 (1982). ¶ 10 A DWP does not become final until, as set out in section 13-217, the expiration of one
year from its entry or until the statute of limitations for plaintiff’s cause of action expires.
Sunderland ex Rel. Poell v. Portes, 324 Ill. App. 3d 105, 113 (2001). Because the determinant is
the later of the options, if either is still viable, the order remains non-final and non-appealable.
Id. Here, the circuit court entered its order dismissing plaintiff’s complaint for want of
prosecution on April 30; the plaintiff filed its notice of appeal three months later on July 29.
Accordingly, the April 30 order dismissing the complaint for want of prosecution was a non-
appealable interlocutory order when plaintiff filed its notice of appeal on July 29. In re Estate of
Young, 2020 IL App (2d) 190392, ¶ 19 (citing S.C. Vaughan Oil Co. v. Caldwell, Trout &
Alexander, 181 Ill. 2d 489, 507 (1998)). ¶ 11 In fact, plaintiff does not dispute that the refiling period had not expired. Instead, plaintiff
contends that the order became final because, on July 3, the court vacated its previous order of
May 15 granting summary judgment against defendants and denied plaintiff’s motion to vacate
the DWP. Plaintiff argues that the decision to vacate the summary judgment is a final order that
makes the entire July 3 order final and appealable. We disagree. ¶ 12 A final order is one that terminates the litigation on the merits of the case and determines
the ultimate rights of the parties such that if the judgment is affirmed, the only remaining action
to take is to proceed to execution of the judgment. In re Marriage of Agustsson, 223 Ill. App. 3d
510, 514 (1992). “However, an order vacating a judgment is not final and consequently not
appealable because the merits of the case are still pending.” Id. Similarly, an order vacating a
summary judgment is interlocutory and neither final nor appealable. Thus, when the court
entered the July 3 order vacating the summary judgment it actually nullified any finality that had
occurred from the May 15 order. ¶ 13 CONCLUSION ¶ 14 Therefore, we dismiss plaintiff’s appeal for lack of jurisdiction because plaintiff did not
appeal a final order. ¶ 15 Appeal dismissed.