Progressive Universal Insurance v. Hallman

PRESIDING JUSTICE HUTCHINSON delivered the opinion of the court: The trial court awarded plaintiff, Progressive Universal Insurance Company, a default judgment against defendant, Jacqueline R. Hall-man, and denied defendant’s motion to strike the judgment. On appeal, defendant argues that the trial court lacked jurisdiction to enter the judgment because it was entered after the court dismissed the cause for want of prosecution and plaintiff did not move to vacate the dismissal until more than 30 days after the dismissal was entered. We affirm. Plaintiff filed its complaint on May 18, 1999. Plaintiff sought to recover sums it paid to its insured, Corey Anderson, as a result of a February 4, 1998, collision between vehicles driven by Anderson and defendant. The loss involved both personal injury and property damage. Plaintiff attempted to serve defendant on two occasions but was unable to do so because defendant was not found at the addresses listed for her. The docket entry for August 24, 1999, states, “[Plaintiff] fails to appear. [Attorney] Kline[,] J[.] [appears] in [court] for [defendant]. Cause is dismissed for want of prosecution.” On January 20, 2000, plaintiff moved to vacate the dismissal for want of prosecution (DWP). In the motion, plaintiff stated that it believed that it had located defendant and requested leave to issue an alias summons. On February 17, 2000, the trial court granted the motion, and on March 6, 2000, plaintiff served defendant. On the return date, April 4, 2000, defendant failed to appear, and the trial court thereafter entered a default. Defendant did not appear at the May 11, 2000, proveup hearing, and the trial court entered a $14,259.20 judgment against defendant. On December 27, 2000, defendant moved the trial court to strike the judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2 — 1401 (West 2000)). Defendant argued that, because plaintiffs January 20, 2000, motion to vacate the DWP was filed more than 30 days after the trial court’s dismissal, it was, in effect, a postjudgment motion under section 2 — 1401 of the Code. According to defendant, because plaintiffs motion did not allege any grounds for vacating a final judgment pursuant to section 2 — 1401, the trial court lacked subject matter jurisdiction to reinstate the cause. The trial court denied defendant’s motion on February 16, 2001, and defendant timely appeals. On appeal, defendant renews her contention that the trial court abused its discretion when it denied her motion because it lacked jurisdiction to vacate plaintiffs DWP Section 2 — 1401 of the Code outlines a procedure by which a trial court may vacate final orders and judgments more than 30 days after their entry. 735 ILCS 5/2— 1401 (West 2000); Blutcher v. EHS Trinity Hospital, 321 Ill. App. 3d 131, 135 (2001). In the present case, because defendant’s motion to strike the default judgment was filed more than 30 days after the judgment, her motion was in effect a section 2 — 1401 petition. See Northern Illinois Gas Co. v. Midwest Mole, Inc., 199 Ill. App. 3d 109, 115 (1990). To be entitled to relief under section 2 — 1401, a petitioner must set forth allegations supporting (1) the existence of a meritorious claim or defense, (2) due diligence in presenting the claim or defense to the trial court in the original action, and (3) due diligence in fifing the section 2 — 1401 petition. In re Marriage of McGlothlin, 312 Ill. App. 3d 1145, 1147 (2000). We will reverse a ruling on a section 2—1401 petition only if the trial court abused its discretion. McGlothlin, 312 Ill. App. 3d at 1147. The basis for defendant’s petition was that the trial court lacked jurisdiction to reinstate plaintiffs claim and, therefore, lacked jurisdiction to enter a default judgment. Defendant’s jurisdictional challenge lacks merit. Generally, a trial court retains jurisdiction over a cause of action until all issues of fact and law have been finally determined and a final judgment has been entered. Gentile v. Hansen, 131 Ill. App. 3d 250, 254 (1984). Our supreme court has held that a DWP is not a final and appealable order. Flores v. Dugan, 91 Ill. 2d 108, 111-12 (1982). Moreover, section 2 — 1301(e) of the Code provides that “[t]he court may in its discretion, before final order or judgment, set aside any default.” 735 ILCS 5/2 — 1301(e) (West 2000). Finally, section 13 — 217 of the Code provides that, when an action is dismissed for want of prosecution, the plaintiff “may commence a new action within one year or within the remaining period of limitation, whichever is greater.” 735 ILCS 5/13 — 217 (West 2000). A DWP becomes final only when the section 13 — 217 period for refiling expires. S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 502 (1998). Therefore, a DWP is interlocutory as long as the option to refile is still available to the plaintiff. Sunderland v. Portes, 324 Ill. App. 3d 105, 113 (2001). Defendant claims that the only way plaintiff could have sought to vacate the DWP after September 23,1999, was to file a section 2 — 1401 petition. The S.C. Vaughan Oil Co. court stated, however, that a section 2 — 1401 petition to vacate a DWP theoretically would be inconsistent with the notion that a DWP remains interlocutory during the available period for refiling under section 13 — 217. S.C. Vaughan Oil Co., 181 Ill. 2d at 508. Therefore, the trial could not have treated plaintiffs motion to vacate the DWP as a section 2 — 1401 petition. Defendant relies on Athletic Ass’n of the University of Illinois v. Crawford, 43 Ill. App. 2d 52, 55 (1963), which held that a trial court loses jurisdiction to vacate a DWP after 30 days. See also Kollath v. Chicago Title & Trust Co., 62 Ill. 2d 8, 10-11 (1975). Kollath and Crawford were decided before Flores and relied on the premise that a DWP is a final order. Kollath, 62 Ill. 2d at 10; Crawford, 43 Ill. App. 2d at 55. Such a premise is clearly inconsistent with the Flores and S.C. Vaughan Oil Co. cases. Although plaintiff simply could have refiled its complaint, moving to vacate the DWP was a viable option. Here, plaintiff timely filed a complaint against defendant on May 18, 1999. The trial court dismissed plaintiffs complaint for want of prosecution on August 24, 1999. On January 20, 2000, plaintiff moved the trial court to vacate the DWR well within the one-year period for refiling. Therefore, the DWP was an interlocutory order, not yet final and appealable. The trial court retained jurisdiction over plaintiffs cause of action (Gentile, 131 Ill. App. 3d at 254) and possessed the authority to rule on plaintiffs motion to vacate the DWP (735 ILCS 5/2 — 1301(e) (West 2000)). We find that the trial court properly treated plaintiffs January 20, 2000, motion as a prejudgment motion to set aside a default. We note that this type of proceeding is not a unique occurrence. When a cause of action has been dismissed for want of prosecution and more than 30 days have passed since the order was entered, a plaintiff is not precluded from moving the trial court to vacate the DWR despite the party’s decision not to refile, if the cause of action remains viable within the statutory time period for refiling. See, e.g., A.A. Store Fixtures Co. v. Shopiro, 272 Ill. App. 3d 959 (1995); Gentile, 131 Ill. App. 3d 250; Knightsbridge Realty Partners, Ltd.-75 v. Rudolph, 106 Ill. App. 3d 354 (1982). In the present case, because the time for refiling under section 13 — 217 had not expired, the trial court retained jurisdiction to vacate the DWP and to enter the default judgment. Accordingly, the decision to grant plaintiffs motion rested within the trial court’s discretion. See 735 ILCS 5/2 — 1301(e) (West 2000). We find that defendant’s section 2 — 1401 petition failed to set forth any valid basis for granting relief from the default judgment. Therefore, we hold that the trial court did not abuse its discretion when it denied the petition. The judgment of the circuit court of Winnebago County is affirmed. Affirmed. GEOMETER, J., concurs.