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McCarthy v. Pointer

Court of Appeals of Illinois, First District, Sixth Division

December 20, 2013

GERALD McCARTHY, Plaintiff-Appellee,
DWIGHT POINTER, Defendant-Appellant.

Appeal from the Circuit Court of Cook County No. 03 M118637 Honorable Pamela E. Hill-Veal, Judge Presiding.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Reyes concurred in the judgment and opinion.



¶ 1 In 2012, plaintiff Gerald McCarthy moved the trial court to vacate as void a 2007 order, which had dismissed, with prejudice, defendant Dwight Pointer from the case after a trial. The trial court also had ruled in 2007 that the dismissal order, pursuant to Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006), was final and appealable, but plaintiff never appealed the dismissal order.

¶ 2 The trial court granted plaintiff's motion to vacate the 2007 dismissal order, and defendant Pointer appealed. Pointer argues that the 2007 dismissal order was not subject to vacatur because it was not void where the trial court had personal and subject-matter jurisdiction and the order was not procured by fraud. We agree, and accordingly vacate the trial court's 2012 order vacating the 2007 dismissal order.


¶ 4 In 2003, plaintiff McCarthy sued defendant Pointer, who was an officer of a fraternity, and two other individuals for defamation. After a trial on the merits, plaintiff obtained leave of court in October 2007 to amend his complaint to add the fraternity as a defendant. The trial court, however, dismissed defendant Pointer individually with prejudice. When plaintiff filed an amended complaint against the fraternity, a fraternity district, and Pointer as a fraternity representative, the trial court, in November 2007, directed plaintiff to remove Pointer from the caption and pleadings as a named defendant and gave plaintiff leave to file an amended complaint. The trial court also ruled on November 20, 2007, that, pursuant to Supreme Court Rule 304(a), there was no just cause to delay enforcement of or appeal from the October 2007 order dismissing defendant Pointer.

¶ 5 Thereafter, the fraternity and fraternity district filed an answer and affirmative defenses arguing, inter alia, that plaintiff's defamation suit was barred by the statute of limitations and the doctrine of res judicata. In 2009, the trial court entered judgment against the fraternity and its district for $5, 800 in actual damages and $148, 132.22 in punitive damages. The fraternity and its district appealed, and, in 2011, this court reversed the trial court's judgment, finding that the relation-back doctrine did not apply to plaintiff's amended complaints to overcome the defendants' statute of limitations defense. McCarthy v. Omega Psi Phi Fraternity, Inc., 2011 IL App (1st) 092950. The Illinois Supreme Court denied plaintiff's petition for leave to appeal.

¶ 6 In March 2012, plaintiff moved the trial court to vacate its October 2007 order that had dismissed defendant Pointer. Plaintiff argued that the October 2007 order was void and thus could be vacated at any time because the fraternity and Pointer engaged in conduct that was "tantamount to fraud, deception and collusion" when they "deceived the Trial Court and colluded with each other by failing" to move for dismissal of the amended complaint based on the statute of limitations. Plaintiff also argued that mistakes of law concerning the ability to add the fraternity as a defendant and mistakes of fact concerning Pointer's relationship with the fraternity led the trial court to dismiss Pointer. Further, plaintiff argued that equity demanded the vacatur of the October 2007 order because defendants concealed Pointer's relationship with the fraternity. Plaintiff did not label this motion as a petition brought pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2006)).

¶ 7 On June 8, 2012, the trial court granted plaintiff's motion to vacate the October 2007 dismissal of Pointer. The trial court stated that it "[had] expressed its concern over potential conflict issues"; "did not believe that it was error to join [the fraternity] as a defendant, and believed at the time that it was the correct decision to dismiss the count against [defendant] Pointer"; "was uniquely situated to judge the credibility of witnesses"; and "was convinced that harm had been caused to Plaintiff as a result of the acts of [Pointer and the fraternity]." The trial court never stated in its ruling that the 2007 dismissal order was void or that the trial court had lacked jurisdiction to enter that order.

¶ 8 On appeal, defendant Pointer contends, inter alia, that the October 2007 order was not void and that the trial court erred in granting plaintiff's motion to vacate that judgment.


¶ 10 Initially, we address the jurisdiction of this court to consider the merits of the appeal. Here, the dismissal order was issued in October 2007, and the trial court ruled that it was final and appealable under Rule 304(a) in November 2007. Therefore, plaintiff had 30 days in which to either file a motion to vacate that judgment under section 2-1301(e) of the Code (735 ILCS 5/2-1301 (West 2006)), or file a timely appeal from the dismissal order. Plaintiff did not file an appeal within 30 days and did not file a section 2-1301(e) motion to vacate.

ΒΆ 11 Nor did plaintiff file his motion to vacate as a formal section 2-1401 petition collaterally attacking the judgment or comply with the requirements for a section 2-1401 proceeding. 735 ILCS 5/2-1401 (West 2006). Section 2-1401 provides litigants a means of obtaining relief from judgments older than 30 days if the petition is filed not later than two years after the entry of the order or judgment at issue, notwithstanding tolling for time during which the petitioner was under legal disability or duress or the ground for relief was fraudulently concealed. 735 ILCS 5/2-1401(c) (West 2006). Furthermore, typical section 2-1401 petitions must allege a ...

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