Appeal from the Circuit Court of Cook County; the Hon. Myron
T. Gomberg, Judge, presiding.
PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:
The plaintiff, Lucia Gayton, filed a negligence action in the circuit court of Cook County on July 13, 1982, against a number of defendants including Thomas Stilp, M.D., and Wilbur F. Britt, M.D. The plaintiff also named five additional doctors and two hospital corporations as defendants, but they are not involved in this appeal. The complaint sought to recover damages for personal injuries allegedly caused by the defendants' malpractice which arose out of two back operations the plaintiff underwent in June and July of 1981. Pursuant to a motion for sanctions filed by defendants, Britt and Stilp, the trial court dismissed the claims against them on September 26, 1983. The plaintiff filed a petition pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401) on November 22, 1983, which sought reinstatement of her claims against Britt and Stilp. The court denied the relief prayed for in the petition on March 20, 1985. The plaintiff has now appealed contending that the trial court abused its discretion when it denied the plaintiff's section 2-1401 petition.
Shortly after plaintiff's suit was filed, the defendants served her with six sets of interrogatories and three requests to produce between August and December 1982. The plaintiff failed to answer the interrogatories or comply with the production requests of the defendants. Thereafter, the case was automatically scheduled for a hearing on the circuit court progress call to be heard on January 13, 1983. On the day of the hearing, the attorneys met in the hallway prior to the hearing, discussed plaintiff's noncompliance with discovery, and agreed upon a discovery schedule. The progress-call judge incorporated the agreed schedule into his order, which required the plaintiff to comply with all written discovery by March 1, 1983. The plaintiff failed to comply with the court order.
Subsequently, one of the defendants, Roberto Levi, M.D., filed a motion to dismiss plaintiff's suit for her wilful failure to comply with both the January 13 court order and defendant's previous requests for discovery. Levi's motion indicated that pursuant to Rule 201(k) (87 Ill.2d R. 201(k)) he had made a reasonable attempt to reach an accord and was unsuccessful. Britt and Stilp also filed a motion for sanctions because of plaintiff's noncompliance with the discovery, but, unlike Levi's motion, Britt and Stilp's motion failed to indicate any attempt to resolve the matter pursuant to Supreme Court Rule 201(k) (87 Ill.2d R. 201(k)). Both motions were scheduled for hearing on May 6, 1983. On April 30, 1983, it appears that the plaintiff mailed unsigned copies of four sets of interrogatories to all the defendants. On May 6, 1983, the court again ordered the plaintiff to file her answers to the outstanding interrogatories and provided that the answers were to be filed on or before June 3, 1983.
On May 9, 1983, the plaintiff sent signature pages for the interrogatories previously mailed on April 30, 1983, to all the defendants. However, these mailings did not include answers to Levi's or Britt's and Stilp's sets of interrogatories. Also, the plaintiff failed to comply with the court order and did not file any answers to the interrogatories by June 3, 1983.
Thereafter, Britt and Stilp served notice on the plaintiff that they would appear in court on September 26, 1983, and present another motion for sanctions. The defendants' motion set forth that two previous court orders directing discovery had been entered, the court order of January 13 and the court order of May 6, and that the plaintiff had not complied. This motion did not indicate that the requirements of Rule 201(k) had been met prior to filing the motion. The plaintiff failed to appear in court on the date of the hearing, and the trial judge, after a hearing, found the plaintiff's noncompliance with discovery to be deliberate, and dismissed the cause of action with prejudice against Britt and Stilp. The dismissal order contained conditions for reinstatement, i.e., that the plaintiff tender the absent discovery or provide a reasonable excuse for having failed to do so. The defendants assert that they sent a copy of this dismissal order to the plaintiff.
On November 22, 1983, almost 60 days after the dismissal order was entered, the plaintiff filed her section 2-1401 petition for relief from the dismissal order. The grounds for her petition were that she never received notice of the September 26 hearing regarding defendants' second sanctions motion; she never received a copy of the dismissal order; and that any noncompliance was inadvertent in that she thought all defendants' interrogatories had been answered. On the same day, November 22, 1983, the plaintiff filed with the court what purported to be answers to all six sets of interrogatories. However, it appears that only four sets of interrogatories were actually signed by the plaintiff. The signatures on the set of interrogatories sent to the defendant Levi and defendants Britt and Stilp were not actually signed by the plaintiff, but, rather appear to be photostatic copies of the plaintiff's signature as it appears on another set of interrogatories.
On February 16, 1984, the trial court entered an order establishing a discovery schedule respecting the section 2-1401 motion proceeding. This order required discovery concerning the 2-1401 petition to be completed by April 2, 1984. On February 17, 1984, the defendants served the plaintiff with three special interrogatories accompanied by a letter requesting an expeditious response due to the 46-day discovery schedule. The plaintiff mailed her answers to the special interrogatories on April 10, 1984, and Britt and Stilp filed another motion for sanctions for plaintiff's failure to satisfactorily comply with discovery. This time the motion for sanctions included an assertion of compliance with Supreme Court Rule 201(k). On April 24, 1984, the court conducted a hearing on the motion, and, afterwards ordered an extension of the discovery schedule for the section 2-1401 proceeding, and transferred the motion to reinstate to another judge for any subsequent hearings. On July 6, 1984, the plaintiff filed an amended section 2-1401 petition, with leave of court, substantially asserting the same grounds as previously set forth but elaborated on the factual basis claimed to warrant relief. She also for the first time objected to the absence of any allegation of a Rule 201(k) conference in relation to the failure to comply with the court orders of January 13 and May 6. The defendants filed a motion to dismiss this amended petition pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619) asserting that section 2-1401 did not apply to the situation here created by the petitioning party.
The court, thereafter, conducted a hearing on the amended petition on March 20, 1985, and at the conclusion of the hearing, the court found there had been a continuous disregard by plaintiff of the necessity of prosecuting a civil case. The court further found that all of the delays in the discovery process were caused, as it is stated by the actions on behalf of the plaintiff. Finally, the trial judge stated that, even assuming that there was a failure to comply with the specific requirements of Rule 201(k) when the defendants had moved for the dismissal here, the court could not conclude, under the circumstances, that the prior judge's dismissal order was improper. The trial court ruled that since the claims were dismissed for violation of two previous court orders, and not merely for noncompliance with discovery, the mere failure to hold a Rule 201(k) conference did not warrant a vacation of the dismissal.
The plaintiff appeals from the court's denial of her 2-1401 petition contending that compliance with Supreme Court Rule 201(k) is a precondition for a motion for sanctions including motions to enforce previous court orders compelling discovery, and thus, in the circumstances of this case, the motion judge abused his discretion in dismissing the complaint against the instant defendants. We disagree, and for the reasons below, we affirm the ruling of the trial court.
• 1, 2 The purpose of section 2-1401 is to enable a party to bring facts to the trial court's attention which, if known by the court at the time it entered the final order or judgment, would have prevented the entry of that judgment or order. (Esczuk v. Chicago Transit Authority (1968), 39 Ill.2d 464, 236 N.E.2d 719; Fabian v. Norman (1985), 138 Ill. App.3d 507, 486 N.E.2d 335.) The petitioner must demonstrate four elements under section 2-1401 to be entitled to relief: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; (3) due diligence in presenting the section 2-1401 petition; and (4) the trial court's misapprehension of the facts, the valid defense, or claim, through no fault or negligence of the petitioner, at the time the challenged judgment or order was entered. (Fabian v. Norman (1985), 138 Ill. App.3d 507, 510, 486 N.E.2d 335; Brewer v. Moore (1984), 121 Ill. App.3d 423, 427, 459 N.E.2d 1153.) This court has stated that a petition seeking to reinstate a claim dismissed for failure to comply with discovery "must set forth due diligence, both prior to the dismissal and in the subsequent pursuit of the section [2-1401] remedy." Lohja v. Checker Taxi Co. (1980), 92 Ill. App.3d 491, 493, 416 N.E.2d 32.
• 3 Furthermore, section 2-1401 is not to be utilized in order to protect a litigant from the consequences of his own mistakes or his counsel's negligence. (Esczuk v. Chicago Transit Authority (1968), 39 Ill.2d 464, 236 N.E.2d 719; Fabian v. Norman (1985), 138 Ill. App.3d 507, 486 N.E.2d 335.) Nor is relief to be granted "in the face of inexcusable neglect in complying with rules and orders of court designed to ameliorate this burgeoning problem [of backlogged calendars]." Lohja v. Checker Taxi Co. (1980), 92 Ill. App.3d 491, 495, 416 N.E.2d 32.
• 4 The decision to vacate a final order or judgment is a matter within the discretion of the court. (Lohja v. Checker Taxi Co. (1980), 92 Ill. App.3d 491, 416 N.E.2d 32.) As such, this court will not disturb that decision absent an abuse of discretion. Fabian v. Norman (1985), 138 Ill. App.3d 507, 486 N.E.2d 335.
The plaintiff argues that a party is required to comply with Rule 201(k) not only when moving to compel discovery but also when moving to seek compliance with court orders directing discovery. She asserts that defendants failed to comply with Rule 201(k) when they sought enforcement of the court orders and obtained a dismissal of her claim as a sanction for noncompliance. This, she contends, is contrary to the intent of Rule 201(k) which seeks to obtain compliance with discovery without the necessity of judicial intervention. Therefore, she concludes that the dismissal of her claims was improper, and this court should reverse the trial court's decision and reinstate her claims. The defendants argue, on the other hand, that any noncompliance with Rule 201(k) is immaterial ...