Appeal from the Circuit Court of Marion County. No. 86-L-96 Honorable David L. Sauer, Judge, presiding.
Justices: Honorable Charles W. Chapman, P.J.
Honorable Richard P. Goldenhersh, J.,
Honorable Thomas M. Welch, J.,
The opinion of the court was delivered by: Presiding Justice Chapman
S.C. Vaughan Oil Company (plaintiff) appeals from the trial court's order denying its petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)) to vacate the judgment. We affirm.
The procedural history of this case is lengthy. It was satisfactorily outlined in the previous supreme court decision of S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 693 N.E.2d 338 (1998). That decision remanded the case to the fifth district. We concluded in S.C. Vaughan Oil Co. v. Caldwell, Troutt, & Alexander, 299 Ill. App. 3d 892, 702 N.E.2d 602 (1998), that an evidentiary hearing was required on the section 2-1401 petition, and we remanded the case to the trial court. The trial court then conducted the evidentiary hearing and denied the motion to reinstate because it found that plaintiffs failed to establish due diligence both in presenting the underlying claim to the court and in filing the section 2-1401 petition. It is from that ruling that plaintiff now appeals.
Section 2-1401 provides a statutory procedure for vacating a final judgment after 30 days from its entry. 735 ILCS 5/2-1401 (West 1998). The purpose of a section 2-1401 petition is to bring before the court facts which were not known at the time of the judgment and which, if known, would have prevented the judgment. See Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 457, 736 N.E.2d 179, 190 (2000). To be entitled to relief, the petitioner must show by a preponderance of the evidence (1) the existence of a meritorious defense or claim, (2) due diligence in the original action, and (3) due diligence in filing the section 2-1401 petition. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386 (1986).
Whether the petition should be granted is within the sound discretion of the trial court. Smith, 114 Ill. 2d at 221, 499 N.E.2d at 1386. A reviewing court will not disturb the lower court's decision regarding the petition absent an abuse of discretion. Smith, 114 Ill. 2d at 221, 499 N.E.2d at 1386.
Plaintiffs argued that the mistake made by the clerk of the circuit court, the confusion surrounding the stay resulting from the bankruptcy filed by Paul Caldwell, and the uncertainty regarding damages because of the decision of Collins v. Reynard, 195 Ill. App. 3d 1067, 553 N.E.2d 69 (1990), rev'd, 154 Ill. 2d 48, 607 N.E.2d 1185 (1992), were enough to require the court to relax the due diligence requirements.
Although it is true that some decisions have relaxed or even excused the due diligence requirements (Manny Cab Co. v. McNeil Teaming Co., 28 Ill. App. 3d 1014, 329 N.E.2d 376 (1975); George F. Mueller & Sons, Inc. v. Ostrowski, 19 Ill. App. 3d 973, 313 N.E.2d 684 (1974)), nothing in the record indicates that this is a case where there is any unconscionable conduct by the opposing party which would require that the due diligence requirement be relaxed.
A review of the chronological development of this case supports the trial court's conclusion that plaintiffs failed to use diligence both in presenting their case to the trial court in the original action and in filing their section 2-1401 petition. With regard to the original action, the record clearly establishes that plaintiffs failed to follow the progress of the case, as required by Ezcuck v. Chicago Transit Authority, 39 Ill. 2d 464, 236 N.E.2d 719 (1968), by failing to inquire about its status for a period of 32 months. In addition, action was only taken at that time because an associate at their firm found that the case had been dismissed almost two years earlier.
In addition, plaintiffs failed to use due diligence in filing their section 2-1401 petition. Due diligence in filing the petition requires the petitioner to have a "reasonable excuse" for failing to act within the appropriate time. Smith, 114 Ill. 2d at 222, 499 N.E.2d at 1386. To determine the reasonableness of the excuse, a court must consider all the circumstances. Smith, 114 Ill. 2d at 222, 499 N.E.2d at 1387. Additionally, such a petition cannot be used to relieve a party or counsel of the consequences of his or her own negligence. Physicians Insurance Exchange, 316 Ill. App. 3d at 457, 736 N.E.2d at 190. The amount of time elapsed between the dismissal and the next action taken by plaintiffs was nearly two years. The three "excuses" presented by plaintiffs are not reasonable under the circumstances of this case.
It is also important to note that plaintiffs had constructive notice of the dismissal for want of prosecution. According to Fourth Judicial Circuit Court Rule of Practice 7-3, after one year of inactivity the court may dismiss the cause of action for want of prosecution, and the clerk of the circuit court must give notice to the attorneys of record of the entry of such an order. 4th Judicial Cir. Ct. R. 7-3 (eff. November 16, 1984).
It is undisputed that the dismissal for want of prosecution was entered after only 8½ months of inactivity and that none of the parties were provided notice of the entry. Those errors might have impacted our application of the due diligence standard if on or before the time when there was one year of inactivity, plaintiffs had inquired about the status of the case and found that it had been dismissed. However, plaintiffs failed to inquire about the case for nearly two years after the entry, and it had been 32 months since their last activity with the case.
The last docket entry, noting the filing of Paul Caldwell's bankruptcy petition, was August 6, 1990. The dismissal for want of prosecution was entered on April 22, 1991. Some 23½ months later, on April 12, 1993, plaintiffs filed a motion to reinstate their case after they had learned of the dismissal. Plaintiffs had constructive notice because of the local rule, which should have prompted them to inquire about the case on or before August 6, 1991, one year from the last activity on the case. Thus, this is not ...