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Welfelt v. Schultz Transit Co.

OPINION FILED MAY 29, 1986.

LAWRENCE WELFELT, PLAINTIFF-APPELLEE,

v.

SCHULTZ TRANSIT COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Lawrence Welfelt, brought an action against defendant, the Schultz Transit Company, in the circuit court of Cook County. Plaintiff sought damages for injuries that he suffered due to defendant's alleged negligence in operating a motor vehicle. On April 22, 1982, the trial court dismissed the action pursuant to a settlement agreement. Defendant now appeals from the trial court's order granting plaintiff's petition to vacate the dismissal order pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401). Defendant contends that the trial court erred in denying its motion to quash the petition because plaintiff did not serve the petition on defendant but, rather, its attorney. Defendant also contends that the trial court improperly granted plaintiff's amended petition without giving defendant leave to answer. Defendant additionally contends that the trial court erred in granting the petition because (1) the settlement agreement that plaintiff's attorney entered into bound plaintiff, and (2) the petition to vacate the dismissal order did not allege sufficient facts to support relief under section 2-1401.

We reverse.

On April 22, 1982, the trial court entered an order stating that the parties had settled the case by mutual agreement and dismissed the action with prejudice, except that it would adjudicate, upon request, liens on the settlement. The report of proceedings before Judge L. Sheldon Brown on April 22, 1982, shows that the settlement amount was $24,000. The record further shows that plaintiff's attorney, Charles A. Boyle, stated that he understood the settlement to be final, irrespective of the court's final disposition of the liens. On May 13, 1982, the trial court entered an order adjudicating the liens, including one for attorney fees in the amount of $8,000 and another from the Department of Public Aid in the amount of $16,036.07.

On May 27, 1982, plaintiff filed a motion to vacate the dismissal order containing the settlement agreement. In the report of proceedings on that date, attorney Boyle told Judge Brown that plaintiff wished to settle after he conferred with plaintiff and a friend of plaintiff's the night before the settlement conference. Attorney Boyle also stated that plaintiff was present at part of the settlement conference and then accepted the $24,000 settlement before he left Judge Brown's chambers. Attorney Boyle then withdrew from the case. Receiving leave to address the court, plaintiff claimed that he did not know the settlement amount when he left the conference and that he immediately objected to the settlement upon learning its amount from attorney Boyle as they were leaving the courthouse.

The trial court denied plaintiff's motion to vacate the dismissal order. Noting that it entered the order on April 22 and that plaintiff filed his motion to vacate that order on May 27, the court found that more than 30 days had elapsed since its entry of the order. Thus, it lost jurisdiction to vacate its order (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203). Plaintiff then appealed, pro se, the April 22 order to this court. We dismissed the appeal for lack of jurisdiction, pursuant to Supreme Court Rule 303(a) (103 Ill.2d R. 303(a)).

On April 23, 1984, Marshall I. Teichner, plaintiff's attorney prior to Boyle, filed a petition under section 2-1401 of the Code of Civil Procedure seeking to vacate the April 22, 1982, dismissal order. On July 23, 1984, plaintiff, by attorney Teichner, filed an amended petition. Both of these petitions were supported by only the affidavit of Teichner stating that the allegations in the petition were true and correct. Defendant entered a special and limited appearance moving to quash the petition because plaintiff never served it on defendant but only on defendant's attorney.

Attorney Teichner sought and received leave of court to withdraw as plaintiff's attorney on August 16, 1984. On September 26, 1984, Judge Edwin M. Berman denied defendant's motion to quash the petition. Defendant then moved to dismiss the petition, which the trial court granted on November 5, 1984, but gave plaintiff leave to file a second amended petition.

Plaintiff, through his present attorney, filed a second amended petition pursuant to section 2-1401, supported by plaintiff's affidavit, captioned incorrectly as an "amended petition." Plaintiff alleged that Judge Brown entered the settlement order without his consent; that he immediately objected to the settlement and told his former attorney and Judge Brown that it was unacceptable; that he thereafter assumed his attorney would vacate the order and try the case; that he appeared on May 27, 1982, believing his case would be tried but, instead, his attorney filed a motion to vacate which the court denied because it was untimely filed; that he then filed an appeal which the appellate court denied; that he had shown diligence in pursuing the motion to vacate in that he filed his first section 2-1401 petition only after he lost his appeal and went to seek other counsel; that he had a meritorious cause of action; and that he filed the petition within two years of the date of the dismissal order.

Defendant moved to dismiss the second amended petition. Defendant first argued that the trial court should have quashed the petition because plaintiff did not serve the petition on it, but, rather, on its attorney. Defendant also alleged that (1) the court must dismiss the second amended petition because neither the Code of Civil Procedure nor the supreme court rules authorize a second post-judgment motion, (2) plaintiff failed to allege in the petition sufficient reasons to vacate the dismissal order, and (3) plaintiff failed to state facts in the petition sufficient to show due diligence. On February 7, 1984, Judge Berman granted the petition, vacated the April 22, 1982, dismissal order, and placed the cause on the trial call. It is from this order that defendant appeals.

• 1 Section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), provides a statutory mechanism by which a trial court may vacate a final order or judgment more than 30 days after its entry, i.e., following the time when it may no longer review or alter such an order or judgment. A petition under this section is not a continuation of the original proceeding but a commencement of a new cause of action. As such, a section 2-1401 petition constitutes the moving party's pleading. Lofendo v. Ozog (1983), 118 Ill. App.3d 237, 239, 454 N.E.2d 806, 809.

Defendant first contends that the trial court should have quashed the 2-1401 petition because plaintiff did not serve the petition on it, but, rather, on its attorney.

• 2 A party seeking relief under section 2-1401 must give notice to opposing parties according to supreme court rules. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401(b).) Supreme Court Rule 106 (103 Ill.2d R. 106) directs the moving party to provide notice via the methods set forth in Rule 105 (87 Ill.2d R. 105). Rule 105 provides that notice be directed to the party and must be served either by summons, prepaid registered mail, or by publication. (87 Ill.2d R. 105.) If the notice is invalid, the trial court lacks jurisdiction and its subsequent orders are likewise invalid. Silny v. Lorens (1979), 73 Ill. App.3d 638, 641, 392 N.E.2d 267, 269.

There are two exceptions to this rule. The facts in the instant case fall in neither. First, when an opposing party appears and argues the merits of a 2-1401 petition despite failure of receipt of proper notice, a court will deem him to have waived the jurisdictional defect and will treat his appearance as a general appearance as to the section ...


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