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McCarthy v. Pointer

Court of Appeals of Illinois, First District, Sixth Division

December 20, 2013

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

Held: [*]

In proceedings arising from plaintiff’s defamation action against a fraternity officer and others, the trial court lacked jurisdiction to vacate its order dismissing the fraternity officer with prejudice after plaintiff added the fraternity as a defendant; therefore, the trial court’s order vacating the dismissal order was vacated, since the order dismissing the fraternity officer was not void, the trial court had personal and subject-matter jurisdiction when that order was entered, and plaintiff’s conclusory allegations of fraud on defendant’s part failed to state any facts supporting those allegations.

Appeal from the Circuit Court of Cook County, No. 03-M1-18637; the Hon. Pamela E. Hill-Veal, Judge, presiding.

Hinshaw & Culbertson LLP, of Chicago (Marcos Reilly, of counsel), for appellant.

Law Office of James E. Taylor, P.C., of Chicago (James E. Taylor, of counsel), for appellee.

Presiding Justice Rochford and Justice Reyes concurred in the judgment and opinion.

OPINION

LAMPKIN, JUSTICE

¶ 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.

¶ 3 I. BACKGROUND

¶ 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. McCarthy v. Omega Psi Phi Fraternity, Inc., No. 112952 (Ill. Nov. 30, 2011).

¶ 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)).

ΒΆ 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]." ...


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