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07/02/87 Prairie Material Sales, v. White Diamond

July 2, 1987

PRAIRIE MATERIAL SALES, INC., PLAINTIFF-APPELLEE

v.

WHITE DIAMOND, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

510 N.E.2d 1236, 157 Ill. App. 3d 779, 110 Ill. Dec. 205 1987.IL.952

Appeal from the Circuit Court of Cook County; the Hon. John J. O'Toole, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Defendant, White Diamond, Inc., appeals from the trial court's modification of a consent judgment order nine months after entry of the agreed order. The following facts are relevant to this appeal.

Plaintiff, Prairie Material Sales, Inc., brought a breach of contract action against defendant to recover $13,510.63 allegedly owed by defendant on account of materials supplied by plaintiff to defendant pursuant to a subcontract defendant had with a general contractor, W.W.I. Corporation . W.W.I. was not a party to the cause of action. On September 11, 1985, the parties entered into an agreed order whereby judgment was entered in plaintiff's favor against defendant in the amount of $6,214.89. A provision of the order stayed enforcement of the judgment until defendant was paid by W.W.I. Corporation. On June 23, 1986, more than nine months after entry of the September 1985 judgment order, Prairie moved to amend the agreed order and requested the trial court to strike and delete that portion of the order that stayed enforcement of the judgment until White was paid by W.W.I. Corporation. Subsequent to entry of the agreed judgment order, both parties learned of the impending bankruptcy of W.W.I. Corporation. Plaintiff's motion was granted. Defendant appeals from the June 1986 order arguing that the trial court lacked jurisdiction to modify the September 1985 order after 30 days of its entry where no allegations of fraud, misrepresentation, incompetence, or gross disparity were alleged or presented.

We reverse the trial court's June 1986 order for the following reasons.

The disputed language of the September 1985 consent order deleted by the June 1986 order reads: "2. Enforcement of the judgment is stayed until such time as White Diamond, Inc. is paid money from W.W.I. Corporation, at which time White Diamond, Inc. is ordered to pay the first $6,214.89 of sums it receives from W.W.I to Prairie Material Sales, Inc. in satisfaction of the judgment."

The issues raised by this appeal are whether the agreed order with a stay of enforcement was a final order, and, if so, whether plaintiff's motion to strike and delete was substantively and procedurally sufficient to revest the trial court with jurisdiction to modify the order after expiration of 30 days, and whether it was an abuse of discretion to modify the order where no allegations of fraud, coercion, incompetence, or gross disparity in bargaining positions was shown. Defendant's arguments raise several issues on which prior court decisions do not clearly delineate definitive answers.

The first question that must be resolved is whether this court has jurisdiction to hear this appeal. Plaintiff argues that the trial court retained at least implied jurisdiction over the matter as a result of the stay of enforcement. For this court to have jurisdiction, the order of the trial court must be a final order. A final order is one which fixes, determines, and disposes of the parties' rights regarding the litigation so that the trial court need only proceed with executing judgment. (Pottorf v. Clark (1985), 134 Ill. App. 3d 349, 351, 480 N.E.2d 533.) An order which leaves the cause still pending and undecided is not a final order. (Oak Brook Bank v. Citation Cycle Co. (1977), 45 Ill. App. 3d 1053, 1057, 360 N.E.2d 458.) It appears that the 1985 agreed order meets these requirements. All matters were resolved between the parties by agreement, which agreement was approved by the court and judgment entered, and all that remained was enforcement of the order.

In furtherance of this argument for finality, the court in Garcia v. Lozada (1978), 58 Ill. App. 3d 875, 877, 374 N.E.2d 1078, held that a dismissal order entered pursuant to a settlement agreement is a final order and that a plaintiff's proper procedure to obtain relief from the order was a motion to vacate the judgment pursuant to section 72 (Ill. Rev. Stat. 1975, ch. 110, par. 72, now codified as Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). (Accord, Jackson v. Schencker & Schencker (1986), 145 Ill. App. 3d 232, 234, 494 N.E.2d 669.) Plaintiff's contention that the stay of execution vested the trial court with continuing jurisdiction beyond the 30-day limit is specious. By inverse analogy, a ruling by the court in Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911, regarding a similar situation is relevant. In Comet, the defendant claimed that the trial court retained no jurisdiction to enforce a consent order after 30 days of its entry because the order dismissed the underlying cause. The order also provided for certain acts of performance beyond the 30-day limit. The court held that the trial court retained jurisdiction to enforce the order beyond 30 days. In so doing, the Comet court noted that "the trial court's orders following entry of the consent decree did not constitute an improper alteration, modification or vacation of the decree; rather they related to its enforcement." (98 Ill. App. 3d 786, 791-92, 424 N.E.2d 911, 916.)

Although courts have appeared reluctant to definitively state whether a consent order is a final order, in many instances they have based their Conclusions on an inference of finality as to the merits but not as to enforcement powers. In Oak Park National Bank v. Dobson's, Inc. (1979), 72 Ill. App. 3d 905, 391 N.E.2d 173, the court reversed the vacatur of a consent order without ruling on whether the order was final. It was noted that the order could well be considered final because it terminated the litigation between the parties on the merits. The only argument the court could discern against finality was that there remained a purely ministerial act to be performed before execution, i.e., either dismissing the case or entering judgment pursuant to the order. (72 Ill. App. 3d 905, 907-909, 391 N.E.2d 173.) These ministerial acts were not necessary in the present case; judgment was entered but enforcement was stayed by agreement of the parties and approved by the court.

In Filosa v. Pecora (1974), 18 Ill. App. 3d 123, 309 N.E.2d 356, this court reviewed a vacatur of a consent decree pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72, now codified as Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). The Filosa court did not determine whether the consent decree was a final order, but the opinion presumed it to be final for purposes of applying section 72. In Bundy v. Church League of America (1984), 125 Ill. App. 3d 800, 466 N.E.2d 681, the court held that an agreed order containing a permanent injunction was final after 30 days and could only be vacated either pursuant to section 2-1401 (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401), or by a showing, among other things, that changed conditions necessitated a modification or dissolving of the injunction. (125 Ill. App. 3d 800, 805-807, 466 N.E.2d 681.) We therefore conclude that the agreed order ...


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