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08/21/87 Ronald L. Chovan, v. Floor Covering Associates

August 21, 1987

RONALD L. CHOVAN, PLAINTIFF-APPELLANT

v.

FLOOR COVERING ASSOCIATES, INC., ET AL., DEFENDANTS-APPELLEES

ON OCTOBER 29, 1986, THE PLAINTIFF FILED A MOTION UNDER SECTION 2-1401 OF THE ILLINOIS CODE OF CIVIL PROCEDURE (ILL. RE

v.

STAT. 1985, CH. 110, PAR. 2-1401) TO VACATE THE DISMISSAL ORDER. AT A HEARING HELD ON NOVEMBER 5, 1986, THE TRIAL COURT DENIED THE MOTION TO VACATE.



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

512 N.E.2d 801, 159 Ill. App. 3d 447, 111 Ill. Dec. 412 1987.IL.1215

Appeal from the Circuit Court of Will County; the Hon. Thomas M. Ewert, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. STOUDER and HEIPLE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

On February 4, 1985, plaintiff Ronald Chovan filed a complaint against defendant Floor Covering Associates, Inc., for permanent injuries he allegedly suffered due to the negligence of the defendant.

On April 17, 1985, the defendant filed interrogatories and a notice to produce documents. After noncompliance with the discovery requests, the defendants filed a motion to dismiss on July 29, 1985. At a hearing at which the plaintiff was not present, on August 1, 1985, the trial court dismissed the complaint for lack of compliance with the discovery requests. The record reflects the fact that defense counsel sent a letter to the plaintiff's counsel on August 3, 1985, enclosing a copy of the August 1 dismissal order.

Subsequent to the dismissal, on September 18, 1985, the plaintiff complied with the defendant's request to produce. On May 7, 1986, the plaintiff answered the defendant's interrogatories.

Plaintiff submits that during a September 4, 1986, phone call to defense counsel, the purpose of which was to set up a deposition schedule, he first learned of the prior dismissal. He denies that he received the letter of August 3, 1985.

The plaintiff appeals the trial court's denial of the motion to vacate. He also appeals the trial court's decision to dismiss his complaint for failure to comply with discovery.

The propriety of the dismissal order, which was not timely appealed, is technically not before the court. (Brandon v. DeBusk (1980), 85 Ill. App. 3d 645, 407 N.E.2d 193; Bailey v. Twin City Barge & Towing Co. (1979), 70 Ill. App. 3d 763, 388 N.E.2d 789.) Section 2 -- 1401 is not intended to provide a review of an order from which a party could have appealed within the time fixed by rule, and cannot be invoked as a substitute for a party's right to appeal. Lofendo v. Ozog (1983), 118 Ill. App. 3d 237, 454 N.E.2d 806; Lilly v. County of Cook (1978), 60 Ill. App. 3d 573, 377 N.E.2d 136.

The issue for resolution focuses on the propriety of the lower court's denial of the plaintiff's petition for relief under section 2 -- 1401 of the Illinois Code of Civil Procedure.

Section 2 -- 1401 provides a comprehensive statutory procedure for obtaining relief from final orders, judgments and decrees after the expiration of 30 days from the entry thereof.

To warrant relief pursuant to this section, petitioner must demonstrate (1) a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the trial court in the original action; (3) that through no fault or negligence of his own an error of fact or a valid defense/claim was not raised to the trial court at the time the judgment was entered; and (4) due diligence in filing the petition for relief. Falcon Manufacturing Co. v. Nationwide Brokers, Inc. (1984), 123 Ill. App. 3d 496, 462 N.E.2d 562; Cooper v. ...


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