Civil Law & Practice

MCLE Meeting

Attorney Resource Center

April 4, 2018

11:45 AM – Noon Welcome/Announcements

Brian LaFratta, Civil Law and Practice Section Chair

Noon – 1:30 PM Program

It Ain’t Over ‘til It’s Over: Under Illinois Law Finality is

Not so Final

Matthew Tibble and Scott Howie, Pretzel & Stouffer, Chartered

Scott Howie is a partner at Pretzel & Stouffer who focuses on post-trial

and appellate practice in civil cases, chiefly involving claims of

professional liability. He graduated from Chicago-Kent College of Law in

1994.

Matthew Tibble is a partner at Pretzel & Stouffer who focuses on

professional liability defense work, including legal malpractice. He

graduated from DePaul University College of Law in 2004.

The interplay between 735 ILCS 5/2-1301 and 735 5/2-1401 can

become tricky when dealing with dismissal with and without

prejudice as well as when dealing with dismissal of certain claims

or certain parties. This program will provide attendees with a brief

summary of the interplay between those provisions and explain

recent case law addressing when a motion to vacate should cite

particular statues and facts.

Next Meeting: May 2, 2018 – Mediation Judges’ Panel

DCBA Events: 4/6/18 – Lawyer to Lawyer Mentoring Program Orientation

4/19/18 – Happy Hour at Rock Bottom Brewery in Warrenville

4/26/18 – Lawyers Lending a Hand 4th Annual Blood Drive

4/28/18 – DBF Human Race 2018

5/3/18 – 2018 Law Day Luncheon

View & Print All CLE Certificates through the DCBA Website:

Manage Profile -> Professional Development (under content & features) and choose the icon to

the left of each meeting to print your certificate directly or choose to have them emailed to you

to save to your computer (you MUST be logged in to view this feature)

DCBA OnDemand CLE is Now Powered by IICLE The Illinois Institute for Continuing Legal

Education (IICLE®) and the DuPage County Bar Association (DCBA) are excited to offer a

new IICLE®Share collaboration to provide DCBA members a high quality and reliable online

learning experience. Members can find the link to The Illinois Institute for Continuing Legal

Education (IICL) on the DCBA website under “Legal Community”OnDemand CLEOnline

CLE Catalog.

Scott Howie has focused his practice on post-trial and appellate law for more than 20 years

with Pretzel & Stouffer Chartered. He has written more than 500 appellate briefs and

delivered more than 100 oral arguments in hundreds of civil appeals, including several in the

Illinois Supreme Court. A skilled legal writer, with a distinctive and readable style that makes

complicated arguments easy to understand, Mr. Howie is well-versed in the rules that govern

the appellate process, as well as the unwritten requirements of various reviewing courts. His

extensive experience at the appellate level makes him uniquely qualified not only to handle

appeals, but to consult on any matter that might eventually be appealed.

Mr. Howie received his undergraduate degree from Northwestern University in 1989 and his

law degree from Chicago-Kent College of Law in 1994. He is a member and past director of

the Illinois Appellate Lawyers Association, where he co-chairs the Moot Court Committee.

Since 2013 he has authored a regular column on appellate practice for the IDC Quarterly, the

scholarly publication of the Illinois Association of Defense Trial Counsel.

At Pretzel & Stouffer, Chartered, Matthew Tibble has developed a successful practice in

defending professionals in malpractice claims and has achieved an excellent reputation for his

skill, ingenuity and integrity. Mr. Tibble represents a variety of professionals in complex legal

malpractice claims, ranging from allegations of attorney negligence in estate planning to

negligence complex civil litigation.

Since finishing law school at DePaul University in 2004, Matthew Tibble has been an active

litigator whose practice has included defending attorneys in Illinois, Indiana and Federal

courts as well as before various regulatory and administrative agencies, including the Illinois

Department of Professional Regulation and the Illinois Attorney Registration & Disciplinary

Commission.

Beyond his experience in defending professional malpractice claims, Mr. Tibble has also had

extensive experience in prosecuting and defending commercial claims relating to professional

services. These cases have provided him with first-hand knowledge of the services rendered

by attorneys as well as an understanding of the market in which they operate.

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IT AIN’T OVER ’TIL IT’S OVER: UNDER ILLINOIS LAW FINALITY IS NOT SO FINALBY: SCOTT HOWIE AND MATT TIBBLE

PRETZEL & STOUFFER, CHARTERED

TODAY’S OBJECTIVES

• Understanding when 735 ILCS 5/2-1301 (“Section 1301”) can be used to vacate

judgments and what factors need to be established when using Section 1301.

• Understanding when 735 ILCS 5/2-1401 (“Section 1401”) can be used to vacate

judgments and what factors need to be established when using Section 1401.

• Understanding when certain types of judgments become final and appealable,

which means they cannot be vacated.

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WHAT PROMPTED THE TOPIC FOR THIS PRESENTATION?

• The Supreme Court’s decision in Warren County Soil and Water Conservation District v.

Walter, 2015 IL 117783.

• In that decision, the Supreme Court discussed and clarified when Section 1401

applies.

• Confusion by several courts and lawyers when addressing motions to vacate judgments

and the proper standards that apply.

• Handling some legal malpractice claims relating to dismissals for want of prosecution

wherein the incorrect standard for vacatur resulted in an attorney malpractice claim.

735 ILCS 5/2-1301 AND 735 ILCS 5/2-1401

• Providing plaintiffs and defendants with a mechanism to vacate both final

and non-final orders and judgment.

• Plaintiffs typically use to vacate orders dismissing claims for want of prosecution.

• Defendants typically use to vacate default orders.

• These order can also be used to vacate dismissal orders as well as order granting

motions to voluntarily dismiss pursuant to 735 ILCS 5/2-1009.

• In some cases, 735 ILCS 5/2-1301 and 735 ILCS 5/2-1401 can be used to

extend deadlines.

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START WITH THE PLAIN LANGUAGEOF SECTION 1301

Sec. 2-1301. Judgments - Default - Confession. (a) The court shall determinethe rights of the parties and grant to any party any affirmative relief towhich the party may be entitled on the pleadings and proofs. Judgments shall bein the form required by the nature of the case and by the recovery or reliefawarded. More than one judgment may be rendered in the same cause. If relief isgranted against a party who upon satisfying the same in whole or in part willbe entitled by operation of law to be reimbursed by another party to the action,the court may determine the rights of the parties as between themselves, andmay thereafter upon motion and notice in the cause, and upon a showing thatsatisfaction has been made, render a final judgment against the other partyaccordingly.

START WITH THE PLAIN LANGUAGEOF SECTION 1301

(d) Judgment by default may be entered for want of an appearance, or forfailure to plead, but the court may in either case, require proof of theallegations of the pleadings upon which relief is sought.

(e) The court may in its discretion, before final order or judgment, setaside any default, and may on motion filed within 30 days after entry thereofset aside any final order or judgment upon any terms and conditions that shallbe reasonable.

(f) The fact that any order or judgment is joint does not deprive the courtof power to set it aside as to fewer than all the parties, and if so set asideit remains in full force and effect as to the other parties.

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735 ILCS 5/2-1301

• Gives a circuit court authority to enter a judgment. 735 ILCS 5/2-1301(a).

• Judgment can include dismissal for want of prosecution (“DWP”) or

default of failure to plead. 735 ILCS 5/2-1301(d).

• Gives a circuit court authority to vacate a judgment. 735 ILCS 5/2-

1301(e).

• Gives a circuit court authority to vacate only a part of a judgment. 735

ILCS 5/2-1301(f).

735 ILCS 5/2-1301

• 735 ILCS 5/2-1301(e) provides litigants with the procedural mechanism to bring a motion

to vacate a non-final or final order during the course of the litigation.

• 735 ILCS 5/2-1301(e) can be used to vacate a non-final order or judgment before that

order or judgment becomes final.

• 735 ILCS 5/2-1301(e) can be used to vacate a final order or judgment, but the litigant

must bring its motion within 30 days of the entry of that order or judgment.

• In event litigant fails to bring that motion within 30 days, then only option is a petition

brought pursuant to 735 ILCS 5/2-1401.

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735 ILCS 5/2-1301

• Party moving to vacate pursuant to 735 ILCS 5/2-1301 bears the burden of

demonstrating why vacatur is proper. Larson v. Pedersen, 349 Ill. App.3d 203, 207 (2d Dist.

2004).

• Generally, a circuit court should vacate an order or judgment pursuant to 735 ILCS 5/2-

1301 with 30 days “upon any terms and conditions that shall be reasonable.” Larson v.

Pedersen, 349 Ill. App.3d 203, 207 (2d Dist. 2004).

• The primary consideration is “whether substantial justice is being done between the

parties and whether it is reasonable under the circumstance to proceed to trial on the

merits.” Larson v. Pedersen, 349 Ill.App.3d 203, 207-08 (2d Dist. 2004), citing Mann v.

Upjohn Co., 324 Ill. App. 3d 367, 377 (1st Dist. 2001).

735 ILCS 5/2-1301

• A circuit court may also consider:

• Whether a meritorious defense exists;

• Whether due diligence was used by the party requesting vacatur;

• The severity of the penalty as a result of the judgment; and

• The hardship to the nonmovant if required to proceed to trial.

• Mann v. Upjohn Co., 324 Ill. App. 3d 367, 377 (1st Dist. 2001).

• A circuit court should also consider “all events leading up to the judgment.” Mann v. Upjohn

Co., 324 Ill. App. 3d 367, 377 (1st Dist. 2001).

• “What is just and proper must be determined by the facts of each case, not a hard and fast

rule applicable to all situations regardless of the outcome. The guiding principle is to prevent

dismissal when it would be unfair, unjust, and inequitable.” Id.

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START WITH THE PLAIN LANGUAGEOF SECTION 2-1401

• (a) Relief from final orders and judgments, after 30 days from the entry thereof, may be

had upon petition as provided in this Section. …

• (c) [With certain exceptions], the petition must be filed not later than 2 years after the

entry of the order or judgment. Time during which the person seeking relief is under

legal disability or duress or the ground for relief is fraudulently concealed shall be

excluded in computing the period of 2 years.

• (f) Nothing contained in this Section affects any existing right to relief from a void order

or judgment, or to employ any existing method to procure that relief.

735 ILCS 5/2-1401

• Enables court to vacate final judgment after 30 days, on petition filed within 2 years

• Replaces writs and other devices formerly used for this purpose, codifying the

procedures by statute but preserving essential equitable nature

• Does not affect property sales to nonparties made after judgment but before petition

filed, unless court’s prior jurisdiction was defective

• Does not limit relief available for orders challenged as void

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735 ILCS 5/2-1401

Procedural Requirements

• Must be filed within two years of the final judgment being challenged.

• Except when judgment is challenged as void

• Time spent under legal disability or duress doesn’t count against the two years

• Must comply with the same procedural requirements as a complaint, including service of

process.

• Because the circuit court loses jurisdiction over the matter 30 days after the final judgment,

service must be proper for the court to reacquire jurisdiction.

• A respondent who challenges defective service must do so before appearing generally.

735 ILCS 5/2-1401

Traditional Substantive Requirements

• Meritorious claim or defense

• Something the petitioner would have raised in the original action had it been known

• Diligence in raising it in original proceedings

• More accurately, excusable failure to raise the claim or defense in the original action

Diligence in filing petition

• Diligence in filing petition

• Within two years per statute, but the sooner the better—so as soon as possible

after petitioner discovers the claim or defense

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735 ILCS 5/2-1401

BUT:

• Supreme Court has treated Section 2-1401 petitions differently depending on whether

they raise issues that are fact-based or legal in nature

• Traditionally such petitions have been addressed to the court’s equitable powers and

judged according to three elements of Smith v. Airoom, Inc., 114 Ill. 2d 209 (1986).

• In recent years, petitions raising legal challenges to final judgments need not satisfy the

equitable requirements of meritorious claim or defense or due diligence. Sarkissian v.

Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).

WARREN CNTY. SOIL & WATER CON. DIST. V. WALTERS, 2015 IL 117783

• Supreme Court reviewing the denial of a Section 2-1401 petition filed by Defendants

• Issue decided : Whether a circuit court had the authority to relax the due diligence

standards for a Section 2-1401 petition after the Supreme Court’s decision in People v.

Vincent, 226 Ill. 2d 1 (2007)?

• In People v. Vincent, the circuit court sua sponte denied a criminal defendant’s 1401 petition

seeking to vacate his extended term sentence (5 consecutive twenty year terms) as void

• In affirming the circuit court’s decision in People v. Vincent, the Supreme Court stated that a

Section 2-1401 proceeding should no longer be “strictly equitable” or “purely discretionary.”

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WARREN CNTY. SOIL & WATER CON. DIST. V. WALTERS, 2015 IL 117783

• Supreme Court distinguished between two types of 1401 petitions:

• Fact challenge to a judgment - see Smith v. Airoom, Inc., 114 Ill.2d 209 (1986)

• Legal challenge to a judgment - see People v. Vincent, 226 Ill. 2d 1 (2007))

• Factual challenge examines whether there were factual matters that, if known to the

court before the entry of judgment, would have precluded the entry of that judgment

• Legal challenge examines whether the judgment entered had a proper legal basis

• Examples of legal challenges include the effectiveness of counsel, proper service and other

statutory or jurisdictional arguments, especially those bearing on whether judgment is void

WARREN CNTY. SOIL & WATER CON. DIST. V. WALTERS, 2015 IL 117783

• With a factual challenge brought pursuant to Section 2-1401, the court looks at the factors

articulated in Smith v. Airoom, Inc., 114 Ill. 2d 209 (1986).

• The existence of a meritorious defense

• Due diligence in the presenting of the meritorious defense

• Due diligence in the filing of the Section 1401 petition for relief

• Standard of proof for a Section 1401 petition is preponderance of the evidence

• Standard of review is abuse of discretion

• The circuit court can consider equitable considerations to relax the applicable due diligence

standards under the appropriate limited circumstances

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FIRST STEP IS TO DETERMINE WHETHER YOU ARE DEALING WITH A FINAL JUDGMENT

• What constitutes a final order depends on the nature of the order?

• What is a final order:

• Final order if it disposes of the entire law suit. Illinois Supreme Court Rule 301.

• Final order if it disposes of party or a claim in its entirety. Illinois Supreme Court Rule

304(a).

• Default order or default judgment?

• How much time has passed since entry of the order?

• 30 days?

SPECIAL CONSIDERATIONS

• DWP does not become a final order until the time for refiling under 735 ILCS 5/13-217 has expired. Jackson v. Hooker, 397 Ill. App. 3d 614, 618 (1st Dist. 2010).

• Likewise, a voluntary dismissal pursuant to 735 ILCS 5/2-1009 does not become a final order until the time for refiling under 735 ILCS 5/13-217 has expired. Jackson v. Hooker, 397 Ill. App. 3d 614, 618 (1st Dist. 2010).

• Once a year has passed for a DWP or case dismissed pursuant to 735 ILCS 5/2-1009, it becomes a final order.

• 735 ILCS 5/2-1301 then gives the litigant another 30 days to vacate the DWP or dismissal pursuant to 735 ILCS 5/2-1009.

• One year plus thirty days expires when time under 735 ILCS 5/13-217 and 735 ILCS 5/2-1301 runs.

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SPECIAL CONSIDERATIONS

Appeal

• Grant or denial of relief under Section 2-1401 is appealable order pursuant to Ill. S. Ct. R. 304(b)(3).

• Any of the procedural or substantive requirements may be challenged on appeal for reasons preserved in the trial court.

• The granting or denial of a section 2-1401 petition is generally reviewed for abuse of discretion, with great deference paid to the trial court’s decision.

• But note distinction between ruling on the pleadings and ruling after evidentiary hearing, which may affect the standard of review on appeal.

• Dismissal of petition on pleadings is reviewed de novo.

• Granting of relief after hearing depends on nature of challenge.

HYPOTHETICAL: JACKSON V. HOOKER,

397 ILL. APP. 3D 614 (1ST DIST. 2010).

• Plaintiff files suit January 11, 2007 for injuries sustained in auto accident.

• Defendant served on August 1, 2007.

• Plaintiff filed motion for default on September 26, 2007.

• Motion for default granted on October 5, 2007.

• Plaintiff fails to appear for prove up and DWP entered on November 9, 2007.

• On March 12, 2008, Plaintiff files motion to vacate DWP.

• Questions:

• Final order?

• Section 1301 or Section 1401?

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HYPOTHETICAL: JACKSON V. HOOKER,

397 ILL. APP. 3D 614 (1ST DIST. 2010).• Plaintiff files suit January 11, 2007 for injuries sustained in auto accident and Defendant

served on August 1, 2007.

• Plaintiff filed motion for default on September 26, 2007 and circuit court grants the motion for default on October 5, 2007. Thereafter, Plaintiff files a motion for prove up.

• On April 20, 2008, Defendant served with notice of prove up hearing.

• Default judgment in amount of $700,000 entered on June 9, 2008.

• On July 8, 2008, Defendant moves to vacate.

• Questions:• Final order?

• Section 1301 or Section 1401?

HYPOTHETICAL

• Plaintiff files suit January 11, 2007 for injuries sustained in auto accident and Defendant answers on August 1, 2007.

• Over Defendant’s objection, Plaintiff moves to voluntarily dismiss the case based on issues with her experts and the circuit grants that motion on April 20, 2009.

• On April 20, 2010, Plaintiff moves to vacate the order granting the voluntarily dismissal.

• Questions:• Is dismissal order a final order?

• Section 1301 or Section 1401?

• If Plaintiff moved to vacate on May 21, 2010, would there be a difference?

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PRACTICE POINTERS

• Vacate early and often

• Save the Date:

• Date of expiration of statute of limitations

• Date for the right to refile pursuant to 735 ILCS 5/2-217

• Date of the final judgment or order

• Date for expiration of the thirty days post-entry of final order

• 2 years for the date from the entry of the judgment

• Be diligent

• Challenge jurisdiction

QUESTIONS

• Scott L. Howie

• showie@pretzel-stouffer.com/312-578-7547

• Matthew F. Tibble

• mtibble@pretzle-stouffer.com/312-578-7445