Appeal from the Circuit Court of Cook County. No. 97 L 8256 Honorable Deborah M. Dooling, Judge Presiding.
The opinion of the court was delivered by: Justice Hall
The defendant, Diane Huntley, as special administrator (the Administrator) of the estate of Annie Collins, deceased (Mrs. Collins), filed an amended petition pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2000)) seeking to vacate a judgment entered in favor of the plaintiff, Jahnene Clay, and against Mrs. Collins's estate. The circuit court denied the amended petition. The Administrator appeals.
The sole issue on appeal is whether the circuit court abused its discretion when it denied the Administrator's amended section 2-1401 petition.
On July 11, 1997, the plaintiff filed a suit for damages against Mrs. Collins alleging that Mrs. Collins assaulted her by willfully spilling a container of caustic liquid chemicals on the plaintiff. Mrs. Collins was served with summons and filed an appearance through her attorney, Lawrence Andolino of the law firm of Edward R. Vrdolyak (Vrdolyak law firm).
On July 21, 1999, the circuit court entered a case management order setting the case for jury trial on May 10, 2000.
On August 27, 1999, Mr. Andolino filed a motion to spread of record Mrs. Collins's death on June 8, 1999. On September 7, 1999, the circuit court granted the motion. The circuit court also granted the plaintiff's oral motion to file an amended complaint substituting Willie Collins (Mr. Collins), Mrs. Collins's husband, as special administrator of her estate, as defendant and to add a negligence count to the complaint. On September 15, 1999, the plaintiff filed an amended two-count complaint naming Willie Collins, as special administrator of Mrs. Collins's estate, as defendant.
On May 4, 2000, Mr. Andolino filed a motion to withdraw as attorney for Mrs. Collins, citing her death and her family's lack of cooperation. The accompanying notice of motion stated that he would present the motion on May 17, 2000. The notice and motion were addressed to the "Family of Annie Collins, 2140 Washburne Avenue, Chicago, Il. 60608" and indicated that the notice and motion were sent certified mail, return receipt requested.
On May 10, 2000, the scheduled jury trial date, the circuit court entered an order which provided that the "Defendant" was waiving "its" jury demand and the plaintiff was nonsuiting the intentional tort count of the complaint. The order further provided that "the Defendant" was defaulted as to the negligence count for failure to answer or otherwise plead to the negligence count. The case was set for prove-up on May 11, 2000.
On May 11, 2000, Mr. Andolino filed another notice of motion stating that he would present his motion to withdraw as attorney for Mrs. Collins on that date. According to his affidavit in the record, on May 10, 2000, Orlando DeLeon delivered the May 11, 2000, notice of motion and motion to withdraw to 6824 South Campbell Street, Chicago, where it was accepted by Karion Collins.
On May 11, 2000, the circuit court entered judgment in favor of the plaintiff in the amount of $400,000 plus costs against Mr. Collins, as special administrator of Mrs. Collins's estate. The circuit court also allowed the Vrdolyak law firm to withdraw as attorney for "Ann Collins."
On November 13, 2000, Mr. Collins, through new counsel, filed a section 2-1401 petition to vacate the May 11, 2000, judgment. The petition alleged, inter alia, that Mr. Collins had a meritorious defense to the negligence action under the Dead- Man's Act (735 ILCS 5/8-201 (West 1996)). The petition further alleged that Mr. Collins had been diligent with respect to the underlying law suit, and upon learning of the entry of the judgment, he took steps to vacate the judgment. According to his supporting affidavit, Mr. Collins averred that he never received notice that he was named as the special administrator of Mrs. Collins's estate, that he never received a copy of the plaintiff's amended complaint and that he never received notice of the default order entered in this case. Mr. Collins further averred that he did not receive notice of the entry of the May 11, 2000, judgment or the withdrawal of the Vrdolyak law firm.
On February 23, 2001, attorneys for Mr. Collins filed a motion requesting that Diane Huntley be substituted for Mr. Collins as special administrator for Mrs. Collins's estate based upon Mr. Collins's diminished capacity, both mentally and physically. The attorneys also sought the withdrawal of Mr. Collins's affidavit and leave to file an amended petition. On March 6, 2001, the circuit court entered an order allowing the withdrawal of Mr. Collins's affidavit, substituting Diane Huntley as the special administrator and granting leave to file an amended section 2-1401 petition.
On May 15, 2001, the Administrator filed an amended section 2-1401 petition. The petition alleged, inter alia, that Mr. Collins should not be held accountable for any delay or negligence in seeking to vacate the May 10 and May 11, 2000, orders due to his mental incompetence.
The Administrator filed a memorandum of law in support of the petition. The exhibits to the memorandum included the affidavit of Dr. Rodolfo Pamintuan in which the doctor averred that he had been treating Mr. Collins for chronic congestive heart failure, chronic atrial fibrillation and senile dementia, which rendered him incompetent to participate in or follow the progress of any legal matters since April 1999. *fn1 Also included as an exhibit was the affidavit of Mr. Andolino in which he averred that the Vrdolyak law firm received the amended complaint and sent a copy of it to Mrs. Collins's family at 2140 Washburne Avenue, that the Vrdolyak law firm had never received a change of address from the family and that a copy of the order ...