Appeal from the Circuit Court of Cook County. No. 02 L 7503 Honorable Susan Zwick, Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Defendant, Robert Zimmerman, M.D., appeals from the order of the circuit court of Cook County granting the petition for relief from judgment filed by plaintiff, Eugene Beauchamp, pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2002)). Defendant contends that the circuit court abused its discretion in granting plaintiff=s petition because plaintiff failed to make the requisite showing to obtain relief under section 2-1401. We agree and reverse.
The following procedural history is relevant to our determination of this appeal. Sometime in July 1998, plaintiff commenced a medical malpractice action against defendant. In his complaint, plaintiff alleged that in July 1996, defendant negligently treated him for kidney stones, resulting in the loss of his right kidney. Plaintiff attached the affidavit of his attorney, Stanley J. Heller, to his complaint. Therein, Heller stated that due to the statute of limitations on plaintiff=s claim, he was unable to obtain a letter from a health care professional prior to the filing of the action. On August 7, 1998, through new counsel, James C. Harman, plaintiff filed an attorney=s affidavit and physician=s letter attesting that there was a reasonable and meritorious basis for the action. However, the physician=s letter was unsigned and did not include the name or address of the consulting physician. The next item contained in the record discloses that on July 14, 2001, the trial court granted a motion by plaintiff to voluntarily dismiss the action pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009 (West 2002)).
On June 13, 2002, plaintiff re-filed the same medical malpractice claim against defendant. Along with his complaint, plaintiff filed the AAffidavit Pursuant to Supreme Court Rule 222,* of his third attorney, Jeffrey M. Landry. Therein, Landry stated that Adue to the time constraints of re-filing this lawsuit, I have been unable to obtain a letter from a health care professional prior to the filing of this action.*
Defendant responded with a motion to dismiss plaintiff=s complaint pursuant to Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)), claiming that plaintiff failed to exercise diligence in serving him with process. Defendant alternatively contended that the complaint should be dismissed pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2002)) because plaintiff failed to attach a section 2-622 (735 ILCS 5/2-622 (West 2002)) certificate of merit to his complaint. The court denied defendant=s motion to dismiss based on Rule 103(b), but continued the motion to dismiss pursuant to section 2-619 to July 23, 2003, and gave plaintiff until June 30, 2003, to file his section 2-622 affidavit.
On July 1, 2003, Landry filed a motion to withdraw as counsel for plaintiff. The court granted the motion on July 23, and gave plaintiff leave to file the appearance of new counsel by September 15, 2003. The court also set the case for status on September 22, 2003.
On September 16, 2003, plaintiff filed a pro se appearance. The following week, at the September 22, 2003, status conference, the court dismissed the case for want of prosecution (DWP).
Plaintiff filed a pro se motion to vacate the court=s DWP order on November 13, claiming that he was unaware he had to appear at the September 22, status conference. The court did not consider plaintiff=s motion, but instead, ordered plaintiff to proceed by way of a section 2-1401 petition for relief from judgment.
On December 4, 2003, through yet another attorney, Sal Indomenico, plaintiff filed his 2-1401 petition. Therein, plaintiff alleged that after he filed his pro se appearance on September 16, he spoke with the circuit court judge=s clerk, who erroneously informed him that the next status date was October 16, 2003. As a result, plaintiff was not present for the September 22, status conference, and the court entered the DWP order. When plaintiff came to court on October 16, he learned that his case had been dismissed. Mistakenly believing that his case had been dismissed that day, plaintiff thought that he could file a motion to vacate the dismissal order on November 13. In response to plaintiff=s petition, defendant claimed, inter alia, that plaintiff was unable to show that his medical malpractice claim was a meritorious one because he had failed to comply with section 2-622.
Following argument, the court granted plaintiff=s petition and reinstated his claim. In its written order, the court found that insofar as the DWP order was entered before the section 2-619 motion to dismiss had been ruled upon, Athat factor [was] indeterminate of the viability of plaintiff=s claim.* The court further observed that A[t]he record, and specifically the affidavit from plaintiff=s counsel still indicates that the claim set forth has merit.*
Defendant now appeals, contending that the circuit court abused its discretion in granting plaintiff=s petition because plaintiff failed to make the requisite showing to obtain relief under section 2-1401. Plaintiff initially responds that this court lacks jurisdiction to entertain defendant=s appeal because a DWP order is not a final order from which relief under section 2-1401 is available.
Our jurisdiction of this case stems from Supreme Court Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3)), which provides that a party may appeal from "[a] judgment or order granting or denying any of the relief prayed in a petition under section 2-1401" without an express written finding to permit appeal under Rule 304(a). Further, our supreme court has observed that the question of the finality of the underlying DWP order is not determinative of jurisdiction to entertain an appeal from an order granting relief under section 2-1401. S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 497, 693 N.E.2d 338, 342 (1998). Therefore, we have jurisdiction to entertain defendant=s appeal.
However, the finality of the underlying DWP order is pivotal to the issue of whether the circuit court properly entertained plaintiff's motion to vacate the DWP order pursuant to section 2-1401. Caldwell, 181 Ill. 2d at 497, 693 N.E.2d at 342. Section 2-1401 provides a procedure by which final orders, judgments, and decrees may be vacated after 30 days from their entry. 735 ...