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Lofendo v. Ozog

OPINION FILED SEPTEMBER 26, 1983.

VIOLANDA LOFENDO, PLAINTIFF AND PETITIONER-APPELLEE,

v.

PETEROZOG, DEFENDANT AND RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Edward Fiala, Judge, presiding.

PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

Defendant Peter Ozog appeals an order of the circuit court of Cook County granting plaintiff Violanda Lofendo relief pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72). The order vacated a judgment dismissing with prejudice plaintiff's complaint for personal injuries. The issue to be decided on review is whether the trial court erred in granting plaintiff relief under section 2-1401.

The record reflects as follows. On December 10, 1981, plaintiff filed a lawsuit against defendant seeking damages for personal injuries sustained in an automobile accident. After various pleadings were filed and certain discovery conducted, the parties agreed to compromise and settle plaintiff's claim for $10,000. Pursuant to this agreement, plaintiff's attorney drafted an order of dismissal, with prejudice, which was entered at a pretrial conference on August 11, 1982. A notation appears on the bottom of this dismissal order indicating that the sum of $10,000 was agreed upon by the parties.

The record discloses that plaintiff filed a motion to "Reinstate Cause" with the clerk of the circuit court on September 7, 1982. Simultaneously she filed a copy of a notice of motion directed to counsel for defendant, noticing them that the motion would be heard on September 8, 1982. Grounds for the relief sought were that plaintiff had determined the agreed upon amount of $10,000 was unacceptable and that she suffered from residual pain. Plaintiff apparently abandoned this motion since there is no record of court action upon the motion and an identical motion and notice were filed on September 21, 1982, at which time the trial judge entered a draft order entering the motion and continuing it to October 6, 1982.

On October 6, 1982, a different trial judge denied the motion. Following the denial of the motion, plaintiff made an oral motion to present the motion to reinstate as a petition for relief from final judgment pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401). Defendant's attorney, who was present at the hearing only in response to plaintiff's motion to reinstate, objected to the form and sufficiency of plaintiff's section 2-1401 petition. Over this objection, the trial court granted plaintiff the relief she sought and the dismissal order of August 11, 1982, was vacated.

• 1 On appeal, defendant argues that the trial court erred in granting relief under section 2-1401 as a result of numerous procedural and substantive deficiencies in plaintiff's petition for relief. We agree.

Section 2-1401 of the Code of Civil Procedure provides a statutory mechanism by which final orders or judgments may be vacated more than 30 days after their entry; that is, following the time when such order or judgment may no longer be reviewed or changed by the trial court. (Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App.3d 753, 357 N.E.2d 187; Ill. Rev. Stat. 1981, ch. 110, par. 2-1401(a).) A petition under this section is not a continuation of the original proceeding but a commencement of a new cause of action. (Campbell v. Kaczmarek (1976), 39 Ill. App.3d 465, 468, 350 N.E.2d 97.) As such, a section 2-1401 petition constitutes the moving party's pleading and, with other pleadings, it must be in writing, filed with the clerk of the court and made a part of the court record. Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App.3d 753, 755.

Section 2-1401(b) sets forth the following requirements for the petition:

"(b) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule." Ill. Rev. Stat. 1981, ch. 110, par. 2-1401(b).

The rule referred to in the above section is Supreme Court Rule 106 (87 Ill.2d R. 106), which provides:

"Notice of the filing of a petition under section 2-1401 of the Code of Civil Procedure for relief from a final judgment after 30 days from the entry thereof shall be given by the same methods provided in Rule 105 for the giving of notice of additional relief to parties in default."

Supreme Court Rule 105, in turn, provides that the notice shall be directed to the party, and must be served either by summons, by prepaid certified or registered mail, or by publication. 87 Ill.2d R. 105.

In the present case, plaintiff, in petitioning for section 2-1401 relief, failed to meet any of the above requirements. A petition seeking relief under this section was not filed with the clerk of the court and therefore was not part of the court record at the time such relief was granted. Plaintiff presented no "affidavit or other appropriate showing as to matters not of record." Finally, there was no compliance with the notice requirements of Supreme Court Rules 105 and 106, and defendant therefore had no opportunity to prepare any legal or factual reply to plaintiff's request for section 2-1401 relief.

In view of the foregoing deficiencies, the trial court failed to have before it a proper pleading upon which to ...


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