For the trial advocate, appellate jurisdiction is akin to strolling through a minefield. This appealarises out of a declaratory judgment action and counterclaim filed by Physicians Insurance Exchange(Physicians) and Continental Insurance Company (Continental), respectively, concerning coverage underprofessional liability policies issued to Dr. Douglas Jennings. The trial court ruled that (1) Dr. Jennings wascovered under Physicians' policy but not covered under Continental's policy; and (2) Continental was entitledto reimbursement for the cost of its discovery depositions. Physicians now appeals. The issues presentedare whether (1) this court has jurisdiction over the declaratory judgment order, which we find it does not;and (2) the trial court erred in awarding costs to Continental, which we find was error.

On October 16, 1991, Dr. Jennings was the attending anesthesiologist during the surgery of NormanHeistand. The surgery took place at Olympia Fields Osteopathic Hospital (Olympia), where Dr. Jenningswas on staff. During surgery, Heistand suffered at least two periods of significantly low blood pressure dueto blood loss. Heistand suffered a stroke either during or immediately after surgery which left him blind andmentally handicapped.

At the time, Dr. Jennings had a professional liability policy with Continental for the period of August5, 1991, to July 1, 1992. The policy provided Dr. Jennings with coverage and legal defense for any claimoccasioned by professional services performed or which should have been performed during the coverageperiod as long as Dr. Jennings reported the claim to the insurer in writing as required by the policy withinthe coverage period. Dr. Jennings was required to report any circumstance that might later result in a claimeven if no claim had yet been made.

After the surgery, Dr. Jennings moved to Washington and entered into a professional liability policywith Physicians after filling out an application for insurance. The policy was effective from July 1, 1992,to January 1, 1993, with a retroactive date of August 1, 1991. Physicians renewed the policy twice; therenewal provisions are identical to the initial policy provisions. The policy provided Dr. Jennings withcoverage and legal defense for any claim resulting from direct patient treatment as long as Dr. Jenningsreported the claim to the insurer as required by the policy within the coverage period and no exclusionsapplied. The policy did not cover any potential claim which Dr. Jennings was aware or reasonably shouldhave been aware as of the effective date regardless of whether it had been reported. On the application, Dr.Jennings stated that he was not aware of any factor that might ripen into a claim.

On December 16, 1993, Josephine Weaver, Heistand's guardian, filed a medical malpractice suitagainst Dr. Jennings. The complaint alleged that Dr. Jennings failed to evaluate and control Heistand's bloodloss both during and after the surgery. Dr. Jennings tendered the lawsuit to both Physicians and Continental. Physicians hired counsel to defend Dr. Jennings; Continental refused to provide either coverage or a defense.

On July 19, 1994, Physicians filed a declaratory judgment action against Dr. Jennings, Continental,and Heistand's guardian.⁽¹⁾ Count I requested a finding that Physicians owed no duty to defend or indemnifyDr. Jennings in the underlying action. Physicians argued that because Dr. Jennings knew or reasonablyshould have known that the surgery was a "potential claim," Exclusion (u) precluded coverage under itspolicy. Count II requested an alternative finding that Continental was required to contribute to Dr. Jennings'defense because Dr. Jennings reported the surgery to Continental as a possible claim under its policy. CountII also requested a finding that Continental owed a duty to contribute to any judgment or settlement that Dr.Jennings might be obligated to pay. Continental filed a counterclaim in which it requested a finding that Dr.Jennings was not entitled to defense or indemnification under its policy. Continental argued that Dr.Jennings was not covered under its "claims-made" policy because the surgery was not reported as a claimduring the coverage period.

In December 1997, the jury in the underlying action rendered a verdict in favor of Dr. Jennings.⁽²⁾ Physicians and Dr. Jennings signed a settlement agreement in which Physicians dismissed Dr. Jennings fromthe declaratory judgment action and agreed to pay him $50,000 for attorney fees spent in defending thataction. Physicians continued to deny that Dr. Jennings was entitled to coverage for the underlying lawsuit.

Continental, Physicians, and Dr. Jennings filed cross-motions for summary judgment. After ahearing, the trial court denied the motions. The judge found that a material issue of fact existed as to whether(1) Dr. Jennings knew or reasonably should have known that a potential claim might be brought against himat the time he entered into the agreement with Physicians; and (2) Continental received notice of the claimwithin the effective dates of its policy. The judge also found that Washington law applied to the disputebetween Physicians and Dr. Jennings.

During discovery, depositions of the following six witnesses were taken: Dr. Jennings, Daniel Nash(Continental's insurance representative), Donna DiTuri (a claims examiner for Continental), Dr. EdwardBrunner (Physicians' expert), Dr. Timothy Starck (Dr. Jennings' expert), and John Karlen (Physicians'underwriting vice president). It appears that the parties gave opening statements on May 7, 1999. Continental submitted a trialbrief. The parties stipulated to several facts and various provisions of the two policies. The parties alsostipulated to the testimony of the six witnesses who had previously been deposed. On June 29, 1999, the trial court ruled that Dr. Jennings was entitled to coverage under Physicians'policy but not under Continental's policy. The judge indicated that he had read Continental's trial brief, theparties' closing arguments, and the stipulated material. The judge found that exclusion (u) did not applybecause the Heistand surgery was not a "medical incident"; that Dr. Jennings was under no notice of anypossible claim against him in connection with the surgery; that Continental's policy was a claims-madepolicy; and that Dr. Jennings had not reported the incident to Nash within the meaning of Continental'spolicy.

On July 23, 1999, Physicians filed a notice of appeal (No. 1-99-2643).

On July 29, 1999, Continental filed a motion to tax costs pursuant to section 5-109 of the Code ofCivil Procedure (735 ILCS 5/5-109 West 1998)).

Physicians and Continental stipulated pursuant to Supreme Court Rule 309 (134 Ill. 2d R. 309) tothe dismissal of Physicians' appeal without prejudice to refiling it. On September 28, 1999, the trial courtentered an order dismissing the appeal. On September 29, 1999, Physicians filed a second notice of appeal(No. 1-99-3445) from both the June 29, 1999, and August 31, 1999, orders.

On August 31, 1999, the trial court awarded Continental costs in the amount of $1,595.85. Apparently, this sum included $1,375.85 for six deposition transcripts and $220 for Continental's appearancefees and counterclaim costs.

On April 13, 2000, Continental filed a motion to strike the portion of Physicians' opening brief askingthis court to review the trial court's declaratory judgment order, arguing that this court lacked jurisdictionover that order. This court ordered the motion taken with the case.

On May 19, 2000, Physicians filed a motion to vacate the trial court's September 28, 1999, dismissalorder pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)). Themotion states that "[u]pon belief that defendant's motion [for costs] rendered plaintiff's first notice of appealpremature, plaintiff and defendant stipulated in writing to dismiss 'plaintiff's appeal without prejudice to therefiling of the appeal.'" The motion further states that if Continental's attorney had not agreed to the dismissalof Physicians' first notice of appeal without prejudice to refiling it, Physicians would not have dismissed theappeal; it was the parties' intent that Physicians would be allowed to pursue its appeal from the trial court'sdeclaratory judgment order; that Physicians "did not know and had no reason to suspect" that Continentalwould move to strike a portion of Physicians' brief; that Physicians acted diligently in filing its motion tovacate; and that Continental would not be prejudiced if the trial court vacated the dismissal order. Attachedto the motion is an affidavit signed by Physicians' attorney.

Continental did not file a motion to strike the petition. It did, however, file a response in which itstated that the trial court's dismissal order was not a final order for purposes of section 2-1401. The responsefurther stated that section 2-1401 does not address errors of law, namely, the erroneous belief thatContinental's motion for costs rendered the first notice of appeal premature. Continental asserted thatPhysicians' attorney proposed, drafted, and sent the stipulation to Continental and that Continental's attorneydid not suggest, revise, or encourage the stipulation. Continental argued that the courts are not bound byparties' stipulations on questions of law such as jurisdiction. Furthermore, Continental maintained that bysigning the stipulation it did not agree that the appellate court would have jurisdiction over the trial court'sdeclaratory judgment order once Physicians filed its second notice of appeal. Attached to the response is anaffidavit signed by Continental's attorney.

After a hearing on June 15, 2000, the trial court granted the motion and entered an order vacatingthe dismissal order.

On June 21, 2000, Physicians filed a motion to strike Continental's motion to strike. Physiciansargued that Continental's motion to strike is moot because the trial court's order vacating the dismissal ofPhysicians' first appeal rendered the dismissal order a nullity. This court ordered the motion taken with thecase.

Continental has filed a motion advising this court that it has filed a timely appeal of the trial court'sJune 15, 2000, order (No. 1-00-2235). This court granted the motion and consolidated Nos. 1-99-3445 and1-00-2235.

Succinctly stated, the jurisdictional issues we must address are (1) whether the order of June 29,1999, which related to coverage, was a final order and the effect of the dismissal of the notice of appeal asto that order; (2) the consequences of the fact that the notice of appeal was dismissed by stipulation "withoutprejudice;" and (3) the jurisdictional impact upon the vacation of the order dismissing the notice of appealpursuant to section 2-1401 of the Code of Civil Procedure some eight months later.

The first issue we must address is whether this court has jurisdiction over the trial court's June 29,1999, declaratory judgment order. Specifically, we must determine the effect of Continental's motion forcosts on Physicians' first notice of appeal. Continental asserts that its motion for costs was not a post-trialmotion that extended the time for filing a notice of appeal. Continental contends that because Physiciansdismissed the July 23, 1999, appeal, the notice of appeal filed on September 29, 1999, vested this court withjurisdiction only as to the trial court's August 31, 1999, order relating to costs.

A final order or judgment is a determination by the court on the issues presented by the pleadingswhich ascertains and fixes absolutely and finally the rights of the parties to the litigation. Towns v. YellowCab Co., 73 Ill. 2d 113 (1978). A final order in a civil case is appealable pursuant to Supreme Court Rule303 (155 Ill. 2d R. 303). Rule 303(a)(1) provides that a notice of appeal must be filed within 30 days afterentry of the final judgment appealed from or, "if a timely post-trial motion directed against the judgment isfiled ***, within 30 days after the entry of the order disposing of the last pending postjudgment motion." 155 Ill. 2d R. 303(a)(1). Rule 303(a)(2) provides that a notice of appeal filed before entry of the orderdisposing of the last pending postjudgment motion has no effect and must be withdrawn by the party whofiled it by moving for dismissal pursuant to Rule 309. 155 Ill. 2d R. 303(a)(2). The impact of a timelypostjudgment motion is effective whether filed before or after the notice of appeal. A new notice of appealmust be filed within 30 days after entry of the order disposing of the last pending posttrial motion. In orderto qualify as a posttrial motion pursuant to Rule 303, a motion must be directed against the original judgment. Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458 (1990). The motion must request one of the typesof relief specified in section 2-1203 of the Code of Civil Procedure. Marsh, 138 Ill. 2d at 461. Specifically,the motion must request a rehearing, retrial, modification, or vacation of judgment. 735 ILCS 5/2-1203(West 1998).

A motion to tax costs is not a posttrial motion that tolls the running of the time within which a noticeof appeal must be filed under Rule 303(a)(2). For example, in Mitchell v. Atwood Enterprises, Inc., 253 Ill.App. 3d 475 (1993), the trial court entered an order on January 4, 1993, allocating a settlement amountbetween the parties. On January 15, 1993, the employer moved to determine costs. On January 21, 1993,the employer filed its notice of appeal from the trial court's order. On February 1, 1993, the trial courtawarded the employee costs. The employee moved to dismiss the appeal. The appellate court held that theemployer's motion for costs raised a matter that was supplemental to the issues in the notice of appeal andtherefore did not extend the proper time for appeal of the trial court's January 4, 1993, order. Mitchell, 253Ill. App. 3d at 478. As a result, the employer's notice of appeal was sufficient to vest the appellate court withjurisdiction over the trial court's allocation of the settlement. In Berger v. Matthews, 216 Ill. App. 3d 942(1991), the court held that a motion for deposition costs is collateral to the trial court's judgment. In In reApplication of Lake County Collector, 279 Ill. App. 3d 133 (1996), the court found that the respondent'smotion for statutory costs was not a motion directed against the trial court's order vacating the tax deed. Butsee Perkins v. Harris, 308 Ill. App. 3d 1076 (1999) (defendant's appeal, apparently filed 30 days after themotion for costs, found to be timely).

The fact that Illinois courts have found that certain motions for attorney fees are not directed againstthe trial court's judgment provides further support for this result. For example, in Marsh, the plaintiff fileda notice of appeal on the same day the defendant filed a motion for sanctions under section 2-611 of the Codeof Civil Procedure.⁽³⁾ The Illinois Supreme Court held that the defendant's motion for sanctions was not aposttrial motion within the meaning of Rule 303(a) because it did not seek a modification of the originaljudgment, which related to alleged zoning violations by a church. Marsh, 138 Ill. 2d at 462. The courtreasoned that the question of whether sanctions were appropriate required "an independent determination,entirely distinct from judgment previously entered." Marsh 138 Ill. 2d at 462. See also Berger, 216 Ill. App.3d at 944 (motion for attorney fees under Rule 137 is not a posttrial motion for jurisdictional purposes); F.H.Prince & Co. v. Towers Financial Corp., 266 Ill. App. 3d 977 (1994) (same).

Here, Continental's motion sought costs accrued in the course of taking depositions. The declaratoryjudgment order related to medical malpractice coverage under competing insurance policies. The trial court'sgranting of Continental's motion did not result in modifying its original judgment. Therefore, Continental'smotion was not directed against the declaratory judgment order. As in Marsh, the trial court's decision onthe issue of deposition costs had no bearing on the effect of the trial court's declaratory judgment order. Continental's motion for costs did not directly challenge the judgment that was the basis of Physicians' firstnotice of appeal. Therefore, Physicians' first notice of appeal was timely and vested this court withjurisdiction over the trial court's declaratory judgment order.

Supreme Court Rule 309 provides that "[b]efore the record on appeal is filed in the reviewing court,the trial court may dismiss the appeal of any party (1) on motion of that party or (2) on stipulation of theparties." 134 Ill. 2d R. 309. See also Comfort v. Wheaton Family Practice, 229 Ill. App. 3d 828 (1992). OnSeptember 28, 1999, the trial court dismissed the appeal pursuant to the parties' stipulation under Rule 309. The record was filed in this court on November 30, 1999. Therefore, the trial court properly dismissedPhysicians' notice of appeal. A trial court is revested with jurisdiction upon dismissal of an appeal. Rickardv. Pozdal, 31 Ill. App. 3d 542 (1975). Therefore, this court lost jurisdiction of the trial court's declaratoryjudgment order upon the trial court's dismissal of Physicians' appeal.

We reject Physicians' argument that the stipulation prevents Continental from attacking the trialcourt's dismissal order. Generally, a stipulation between parties will be enforced unless it is a result of fraudor is contrary to the public morals. Catholic Bishop v. Village of Justice, 84 Ill. App. 3d 827 (1980). However, appellate jurisdiction cannot be conferred by agreement, waiver, or estoppel. See Currie v. Lao,148 Ill.2d 151 (1992); Bernhauser v. Glen Ellyn Dodge, Inc., 288 Ill. App. 3d 984 (1997); Martin v. Cajda,238 Ill. App. 3d 721 (1992). Schumacher v. Continental Air Transport Co., 204 Ill. App. 3d 432 (1990), isdistinguishable. Although the Schumacher court held that the plaintiff was estopped from challenging thetimeliness of the defendant's posttrial motion, the plaintiff unintentionally misled the defendant by not tellingdefense counsel that he had the written order entered nunc pro tunc. Schumacher, 204 Ill. App. 3d at 434.In contrast, Physicians does not allege that Continental misled it by agreeing to the stipulation. Therefore,the parties' stipulation does not change the fact that this court lost jurisdiction over the trial court'sdeclaratory judgment order once the trial court dismissed Physicians' appeal.

We must next determine whether the trial court had jurisdiction to award costs to Continental. Thefiling of a notice of appeal transfers jurisdiction from the trial court to the appellate court instanter. R.W.Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153 (1998). However, the trial court retains jurisdictionto determine matters collateral or incidental to the judgment. In re Marriage of Sawyer, 264 Ill. App. 3d 839(1994). "Collateral or supplemental matters include those lying outside the issues in the appeal or arisingsubsequent to delivery of the judgment appealed from." Town of Libertyville v. Bank of Waukegan, 152 Ill.App. 3d 1066, 1073 (1987). The trial cannot enter an order that would modify the judgment or its scope. Sawyer, 264 Ill. App. 3d at 850. For example, in Town of Libertyville, the trial court found that it did nothave jurisdiction to hear the defendants' application for attorney fees and costs filed pursuant to section 7-123(a) of the Code of Civil Procedure because the plaintiff had previously filed a notice of appeal from thejudgment dismissing its complaint. The appellate court, in reversing, held that the notice of appeal from thefinal judgment in the condemnation proceeding did not deprive the trial court of jurisdiction to hear thecollateral or supplemental matter of fees and costs. Town of Libertyville, 152 Ill. App. 3d at 1073. See alsoMitchell, 253 Ill. App. 3d at 478 (employer's motion for costs raised a matter supplemental to the issuesrecognized in the notice of appeal).

Continental relies on Premier Electrical Construction Co. v. Morse/Diesel, Inc., 257 Ill. App. 3d 445(1993), for the contention that a motion to tax costs does not affect appellate jurisdiction over all matters thatare the subject of the appeal once the notice of appeal is filed. However, we find that Premier actuallysupports Physicians' position. In Premier, the trial court granted summary judgment in favor of the defendanton April 30, 1992. On May 29, 1992, the plaintiff filed its notice of appeal. On that same date, the defendantfiled a motion to tax costs pursuant to section 5-110 of the Code of Civil Procedure.⁽⁴⁾ The trial court struckthe motion, finding that it lacked jurisdiction to decide the motion since a notice of appeal had been filed. This court held that the trial court had jurisdiction to hear the motion to tax costs. Premier, 257 Ill. App. 3dat 462. Although the court did not expressly hold that the motion was collateral to the trail court's judgment,it found that the filing of a notice of appeal in the underlying action did not affect the trial court's jurisdictionto consider the motion. Premier, 257 Ill. App. 3d at 462.

Illinois courts have also held that a trial court has jurisdiction over a motion for sanctionsnotwithstanding a previously filed notice of appeal. For example, in American National Bank & Trust Co.v. Bus, 212 Ill. App. 3d 133 (1991), the trial court entered summary judgment in favor of the defendants onDecember 22, 1989. The defendants filed a section 2-611 motion for sanctions on January 19, 1990. OnJanuary 22, 1990, the plaintiffs filed a notice of appeal from the order granting summary judgment todefendants. The trial court subsequently denied the motion for sanctions. The appellate court held that theplaintiffs' appeal from the underlying judgment did not deprive the trial court of jurisdiction to consider thesection 2-611 motion. American, 212 Ill. App. 3d at 137. See also In re Estate of Trampenau, 88 Ill. App.3d 690 (1980) (same); Chicago Title & Trust Co. v. Czubak, 67 Ill. App. 3d 184 (1978) (finding that an orderfor attorney fees and costs under section 41 of the Civil Practice Act, the predecessor to section 2-611, relatesto a matter not affected by the appeal or dependent on the outcome of the suit).

Therefore, we find that Physicians' July 23, 1999, notice of appeal from the trial court's declaratoryjudgment order did not deprive the trial court of jurisdiction to hear the matter of deposition costs pursuantto section 5-109.

Continental asserts that the trial court's dismissal order was not final for purposes of section 2-1401. Relief from a final and appealable order after 30 days is governed by the provisions of section 2-1401 of theCode of Civil Procedure. Johnson v. Empire Mutual, 70 Ill. App. 3d 780 (1979). Final orders are those thatresolve a separate and distinct part of the controversy, conclude the litigation on the merits, or dispose of theparties' rights in relation to all or part of the controversy. Bank of Ravenswood v. Domino's Pizza, 269 Ill.App. 3d 714 (1995). In Mutual Reserve Fund Life Ass'n v. Smith, 169 Ill. 264, 265 (1897), the IllinoisSupreme Court stated:

"A final judgment means, not a final determination of the rights of the parties with referenceto the subject matter of the litigation, but merely of their rights with reference to theparticular suit. It is not at all necessary that the judgment should be upon the merits, if itdefinitely puts the case out of court. It is the termination of the particular action whichmarks the finality of the judgment. A judgment of non-suit or dismissal is final."

In Kjellberg v. Muno, 340 Ill. App. 133 (1950), the court held that a trial court order dismissing an appealis a final order because otherwise there could be no review of the dismissal.

The words "without prejudice" in a dismissal order does not render it nonfinal for purposes of section2-1401. A dismissal may be final for the purpose of appeal although it is without prejudice to the bringingof another action. Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157 (1982). In People ex rel. Waite v.Bristow, 391 Ill. 101, 112 (1945), the court stated:

"Where an appeal is voluntarily dismissed by the appellant, the effect is to remove theappeal and the cause from the docket and from the jurisdiction of the court. The only effectof including the words 'without prejudice' in the order dismissing the appeal was to showthat the judgment was neither affirmed nor reversed, nor the case decided on the merits. Itleft the appellant in the same position it was before the appeal was filed. The rights of theparties were in nowise affected by reason of the fact that the appeal had been taken andsubsequently dismissed without prejudice. It left the judgment of the circuit court in fullforce and effect, the same as if no appeal had ever been taken. The appellant was free toperfect another appeal in any manner authorized by statute."

The effect of a dismissal order is determined by its substance and not by its form. Boonstra v. Cityof Chicago, 214 Ill. App. 3d 379 (1991). For example, in Prendergast v. Rush-Presbyterian-St. Luke'sMedical Center, 78 Ill. App. 3d 538 (1979), the plaintiff's lawsuit alleged that the defendants unfairly deniedher the right to continue her education for a master's degree. The trial court entered a consent orderdismissing the cause. The trial court granted the plaintiff's section 2-1401 petition. The appellate courtrejected the defendant's argument that the "without prejudice" language of the consent order rendered itinterlocutory in nature. The court reasoned that the consent order was final because there was no furtheraction that the plaintiff could have taken in the trial court to relieve her from the effects of the order. Prendergast, 78 Ill. App. 3d at 541. In Nashlund v. Sabade, 39 Ill. App. 3d 139, 143 (1976), the trial courtentered an order granting the plaintiffs' motion to dismiss their negligence suit "without prejudice to refile." The plaintiffs subsequently filed a section 2-1401 petition to vacate the dismissal order, which the trial courtgranted. The court, in affirming, held that the trial court had jurisdiction to consider the petition because theorder was an agreed-upon dismissal as opposed to a voluntary nonsuit. Nashlund, 39 Ill. App. 3d at 146. The court went on to address whether the trial court abused its discretion in granting the petition, therebyimplying that the dismissal order was final and appealable.

Applying these principles, we find that the trial court's dismissal order in the instant case was a finaland appealable order. As in Nashlund, the trial court entered an agreed-upon dismissal of Physicians's firstnotice of appeal. The declaratory judgment order was final and appealable. The phrase "without prejudice"in the dismissal order shows that the parties were in the same position as they were before the appeal wasfiled. There was no further action that Physicians could have taken in the trial court to relieve it from theeffects of that order. Physicians' only option at that point was to file another notice of appeal. Accordingly,the trial court's June 15, 2000, order responding to the petition under section 2-1401 rendered its dismissalof the notice of appeal a nullity and revested this court with jurisdiction over the declaratory judgment order.

Finally, we must determine whether the trial court abused its discretion in granting Physicians'section 2-1401 petition without an evidentiary hearing. The transcript from the hearing on the petitionestablishes that the judge did not address the substance of the petition.⁽⁵⁾ Therefore, our scope of review islimited to a consideration of whether the petition to vacate is substantially insufficient at law. SeeWashington v. Clayter, 91 Ill. App. 3d 489 (1980) (finding that because the defendant did not present theappellate court with a transcript of the hearing on the motion, he waived all points that could be reviewedonly by a consideration of what actually transpired at the hearing); Stallworth v. Thomas, 83 Ill. App. 3d 747(1980) (because there was no transcript of the hearing on the defendant's section 2-1401 petition in therecord, the court limited its review to whether the petition was substantially insufficient at law).

The purpose of a section 2-1401 petition is to bring before the trial court facts not appearing in therecord which, if known to the trial court at the time judgment was entered, would have prevented thejudgment. Ostendorf v. International Harvester Co., 89 Ill. 2d 273 (1982); In re Charles S., 83 Ill. App. 3d515 (1980); Klein v. Steel City National Bank, 212 Ill. App. 3d 629 (1991). The petition must allege (1) theexistence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the trialcourt in the original action; and (3) due diligence in filing the section 2-1401 petition. Klein, 212 Ill. App.3d at 636. The petitioner must prove each element by a preponderance of the evidence. Smith v. Airoom,Inc., 114 Ill. 2d 209 (1986). A section 2-1401 petition may be granted solely on the basis of the affidavitssupporting and opposing the petition if they do not controvert one another. Ostendorf, 89 Ill. 2d at 285-86. However, an evidentiary hearing is required if the central facts of a section 2-1401 petition are disputed. Ostendorf, 89 Ill. 2d at 286. Central facts are those that are sufficient to support an order vacating thejudgment, not those that must be proven to succeed in the underlying action on its merits. Smith v. Cole, 256Ill. App. 3d at 810. The motion is addressed to errors of fact, not law. In re Charles S., 83 Ill. App. 3d at517; First National Leasing Corp. v. E.T.P. of Chicago, Inc., 158 Ill. App. 3d 882 (1987). "The granting orrefusing of section 2-1401 relief must be decided according to the principles of fundamental fairness ***." Commercial National Bank v. Mehta, 144 Ill. App. 3d 924, 930 (1986). The conduct of the parties and theircounsel may be examined in determining the sufficiency of the petition. Washington, 91 Ill. App. 3d at 495. The petition cannot be used to relieve a party of the consequences of his own negligence or that of hisattorney. A reviewing court will not reverse a trial court's decision to grant or deny such a petition absentan abuse of discretion. Allstates Tool Corp. v. Arachnid, Inc., 177 Ill. App. 3d 573 (1988).

To prove the existence of a meritorious defense or claim, a petitioner must allege facts that wouldhave prevented entry of the judgment if they had been known by the trial court. To prove due diligence inpursuing that claim or defense before judgment, the petitioner must allege that the failure to discover andpresent those facts before the judgment was not caused by his own fault or negligence. Therefore, Physiciansmust show that the ground asserted for relief would have prevented entry of the judgment had it been knownby the trial court and that the failure to discover or present the ground for relief was not the result of its ownlack of diligence. Physicians' diligence in filing the petition is not an issue since it filed the petitionapproximately one month after Continental's motion to strike.

Physicians' petition alleges that it would not have dismissed the appeal had Continental not signedthe stipulation; however, Physicians could have dismissed the appeal without the stipulation under Rule 309. See 134 Ill. 2d R. 309(a)(1). In any event, Physicians' affidavit alleges that at the time the stipulation wasentered into, both parties believed that Continental's motion for costs rendered Physicians' first appealpremature. Continental's affidavit states that its attorney did not encourage the filing of the stipulation. Theaffidavit further states that Continental's attorney did not represent to Physicians' attorney that the first noticeof appeal was premature or that the appellate court would have jurisdiction to review the declaratoryjudgment order if the appeal was dismissed. Physicians would like this court to find that a dispute exists asto what the parties believed at the time the stipulation was entered into. However, the real issue is whetherPhysicians could have discovered that the motion for costs did not render its appeal premature. Becausethere is no factual dispute concerning a central issue, the trial court did not err by granting the petitionwithout an evidentiary hearing.

Physicians' apparent misunderstanding as to the effect of Continental's motion under Rule 303 wasa procedural mistake of law. Procedural questions of law do not provide sufficient grounds upon which tovacate a judgment. See First National Leasing Corp. v. E.T.P. of Chicago, Inc., 158 Ill. App. 3d 882 (1987)(discussing rules allowing period of time for party to file supplemental appearance after withdrawal ofcounsel). If, after researching the issue, Physicians was unsure as to what effect such a motion had underRule 303, it could have asked the trial court to either insert Rule 304(a) findings into the declaratoryjudgment order or certify a question to this court under Rule 308 as to the effect of a motion for costs. Physicians' diligence is not apparent from the record. We note that the due diligence requirement may berelaxed if actual fraud or unconscionable conduct played a part in the trial court's judgment. See Ruiz v.Wolf, 250 Ill. App. 3d 121, 127 (1993). Physicians' petition and affidavit do not allege that Continentalfraudulently concealed the fact that the appeal was timely or that Continental prevented Physicians fromdiscovering this information. During oral argument, Continental's attorney indicated that he knew at the timehe signed the stipulation that the first appeal was timely and that a dismissal would divest this court ofjurisdiction over the declaratory judgement order. Nonetheless, Continental's attorney had no obligation tosuggest this to Physicians' attorney.

We find that the trial court abused its discretion in granting Physicians' section 2-1401 petitionbecause it is substantially insufficient at law. Accordingly, this court no longer has jurisdiction over the trialcourt's declaratory judgment order.

[NONPUBLISHABLE MATERIAL REMOVED UNDER SUPREME COURT RULE 23.]

Physicians argues that the trial court erred as a matter of law in taxing the costs associated with thedepositions because they were not "necessary." Physicians contends that Illinois courts permit litigants torecover the cost of discovery depositions only when the deposition testimony must be submitted for aparticular witness or witnesses at a trial where other witnesses take the stand and testify. Physicians furthercontends that a trial on stipulated facts is no different than disposing of a case by motion, for whichdepositions costs are not taxable.

Any costs assessed against a losing party must be specifically allowed by statute. Section 5-109 ofthe Code of Civil Procedure provides:

"Defendant to recover costs. If any person sues in any court of this state, in anyaction, wherein the plaintiff may have costs in case judgment is entered in favor of theplaintiff and the action is voluntarily dismissed by the plaintiff or is dismissed for want ofprosecution or judgment is entered against the plaintiff, then judgment shall be entered infavor of defendant to recover defendant's costs against the plaintiff *** to be taxed ***."735 ILCS 5/5-109 (West 1998).

In addition, Supreme Court Rule 208 provides:

"(a) Who Shall Pay. The party at whose instance the deposition is taken shall paythe fees of the witness and of the officer and the charges of the recorder or stenographer forattending. The party at whose request a deposition is transcribed and filed shall pay thecharges for transcription and filing. The party at whose request a tape-recorded depositionis filed without having been transcribed shall pay the charges for filing, and if suchdeposition is subsequently transcribed the party requesting it shall pay the charges for suchtranscription. If, however, the scope of the examination by any other party exceeds thescope of examination by the party at whose instance the deposition is taken, the fees andcharges due to the excess shall be summarily taxed by the court and paid by the other party.

* * *

(d) Taxing as Costs. The aforesaid fees and charges may in the discretion of thetrial court be taxed as costs." 134 Ill. 2d Rs. 208(a), (d).

A trial court's decision to award costs and fees pursuant to Rule 208 will not be disturbed on reviewabsent an abuse of discretion. Galowich v. Beech Aircraft Corp., 209 Ill. App. 3d 128 (1991) (Galowich II).

As stated previously, six discovery depositions were taken in the instant case. Dr. Jennings statedthat he supervised a resident during the Heistand surgery and participated where needed. The following day,Dr. Jennings became concerned that Heistand had suffered some type of central nervous system injury eitherduring the operation or afterwards. Dr. Jennings later learned that Heistand suffered a stroke secondary tothe blood loss and the drop in blood pressure during surgery. Within two days after the surgery, Dr. Jenningsspoke with Dr. Menhusen, the anesthesiology department chairman, about reporting the matter to theirliability insurance carrier because the case involved a "bad outcome." By "bad outcome," Dr. Jennings meantthat the patient's condition was different from what had been expected or hoped in a negative way. Dr.Jennings did not recall the specifics of his conversation with Dr. Menhusen, but recalled that Dr. Menhusenindicated that he would report the matter to Continental. Dr. Jennings did not recall if Dr. Menhusen toldhim to report it to Nash.

Dr. Jennings reported the matter to Nash during a conversation approximately one to two weeks afterthe surgery. The conversation took place after a presentation Nash gave to the anesthesia department. Dr.Jennings did not remember if he gave Nash specific details about the "bad outcome" and did not recall if hegave Nash the patient's name. Nash acted as if he already knew about the matter. Nash did not instruct Dr.Jennings to report a possible incident or claim. Rather, Nash indicated that Dr. Jennings did not have to doanything further.

At the time he signed Physicians' application, Dr. Jennings was aware of Heistand's complicationsand knew that the possibility of litigation is increased if there is a bad outcome. Dr. Jennings understood thatphysicians in cardiology and neurology who consulted on the case opined that anesthesiology contributedin some way to Heistand's bad outcome; however, he claimed there was no real basis for their opinions.

Nash was employed by the medical malpractice plan affiliated with Olympia. The plan was insuredby Continental, and Nash was the primary contact person for the physicians. Nash did not recall anyonebringing up the Heistand situation at the meeting. If the matter was mentioned in terms of a claim, Nashwould have told that person to put it in writing. He did not know if he had a telephone conversation with Dr.Menhusen regarding Heistand's outcome. It was possible that Dr. Menhusen verbally reported the Heistandmatter to him, but he could not recall it. It was possible that he had a conversation with Dr. Jenningsregarding the Heistand matter, but he did not remember it. Nash probably passed along verbal reports toContinental but he could not recall anything specifically. When Nash passed on a verbal report toContinental it would be informal and not an actual claim.

DiTuri stated that she receives notification of claims or potential claims from brokers and insureds. On rare occasions, reports of claims came in by phone. During training, she was told not to accept a verbalreport and to ask the person to follow up with a written report. Until she receives written information, it isnot considered a report. During 1991 and 1992 she may have had communications with Nash in which hereported claims to her. In determining that no claim had been reported in connection with the Heistandmatter, she reviewed Continental's computer information and the file in the declaratory judgment action.

Dr. Brunner stated that he has reviewed 60 to 80 cases for purposes of determining whether thereis medical negligence. He has never been asked to review a case for insurance coverage purposes, nor doeshe consider himself an expert in insurance matters as to what is a claim. It was his opinion that on and beforeJuly 1, 1992, Dr. Jennings was aware and/or reasonably should have been aware that a claim or suit mightbe brought against him as the supervising anesthesiologist during the Heistand surgery. Dr. Brunner opinedthat Dr. Jennings should have answered "Yes" to question 42 because Heistand had a significant disability.

Dr. Starck opined that, as a result of the operation, Heistand sustained a significant disability. Dr.Jennings was responsible for generating a plan of action and an anesthetic plan, as well as reviewing chartscompleted while he was out of the room. He did not know what Dr. Jennings' intention was in reporting thematter to Dr. Menhusen. If Dr. Menhusen told Dr. Jennings to report the matter to the malpractice carrier,Dr. Jennings would do so as a good preventative measure but would not predict that a claim was likely. IfDr. Jennings believed that he had no responsibility for the bad outcome because he was not in the operatingroom at the time, that belief was unreasonable. The only practice Dr. Starck was aware of was to report aclaim when some sort of activity was initiated, such as a summons or records request.

Karlen stated that Physicians did not learn the circumstances surrounding the Heistand matter untilsometime after Dr. Jennings was served with the complaint in the Weaver lawsuit. Had Physicians beenprovided with that information prior to the effective date of the policy, it would have either excluded theincident from coverage or would not have offered "prior acts" coverage to Dr. Jennings. Question 42 isdesigned to "ferret out" circumstances that would lead to a claim or suit even if the prospective insuredbelieves that the claim or suit would be without merit.

In Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157 (1982) (Galowich I), the Illinois Supreme Courtheld that Rule 208(d) authorizes that deposition costs can be taxed on the opposing party only if thedepositions were necessary at trial. Therefore, the court ruled, such costs could not be assessed against aplaintiff who voluntarily dismissed a lawsuit before trial. Galowich I, 92 Ill. 2d at 166. The court reasonedthat this interpretation of Rule 208(d) was in accordance with the principle that a successful litigant is notentitled to recover the ordinary expenses of litigation. The court wanted to avoid the situation where partiestook unnecessary discovery depositions and then forced the opposing party to pay for them. The courtfurther stated:

"Though there may be instances in which a discovery deposition would become anecessity-as when a crucial witness died or disappeared before trial-it is difficult to say thatall or even most of the depositions routinely taken in preparation for trial are necessary." 92 Ill. 2d at 166.

In Galowich II, this court interpreted the rule articulated in Galowich I and held that costs for depositionsshould be awarded if (1) the deposition is used at trial; and (2) the deposition is "necessary." The courtdefined necessity as "something that has the condition or quality of being necessary, that is 'indispensable'or 'needed to achieve a certain result.'" Galowich II, 209 Ill. App. 3d at 142. Therefore, the court held thatdepositions used to refresh a recollection or impeach a witness were not indispensable. 209 Ill. App. 3d at142.

Illinois courts have consistently denied deposition costs expended during pretrial proceedings. Forexample, in Premier Electrical Construction Co. v. Morse/Diesel, Inc., 257 Ill. App. 3d 445 (1993), the courtheld that discovery depositions listed in the defendants' motion to tax costs were not necessary for use at trialbecause a summary judgment, rather than a judgment on the merits, was entered. See also In re Petition ofthe Village of Kildeer to Annex Certain Territory, 191 Ill. App. 3d 713 (1989) (hearings on landowners'motions to vacate annexation ordinances are not considered "trials" for purposes of the award of costs);Howell v. Thompson, 161 Ill. App. 3d 466 (1987) (cost of evidence depositions used by a doctor inpreparation for his defense of a medical malpractice suit were not taxable where the patient dropped the suitbefore trial); Gebelein v. Blumfield, 231 Ill. App. 3d 1011 (1992) (trial court improperly taxed to thedefendant the deposition costs of the plaintiff's expert where the parties settled before trial). But see Villageof Franklin Park v. Aragon Management, Inc., 298 Ill. App. 3d 774 (1998) (finding that the trial court didnot abuse its discretion in denying the plaintiff's petition for costs since he did not support his summaryjudgment motion with the depositions).

We agree with Continental that the trial court could not have made findings of fact if the case hadbeen decided at the pretrial motion stage. In Wright v. St. John's Hospital of the Hospital Sisters of the ThirdOrder of St. Francis, 229 Ill. App. 3d 680 (1992), the plaintiff filed a retaliatory discharge suit against heremployer. The trial court's order granting summary judgment in favor of the employer included a sectionentitled "findings of fact." The appellate court stated:

"[A] trial court should grant a motion for summary judgment only when no genuine issueof material fact exists. When granting that motion, a trial court resolves only questions oflaw. By definition, a trial court should deny summary judgment if it must make 'findingsof fact.'" 229 Ill. App. 3d at 683.

Unlike Premier, Howell, and Gebelein, the instant case was resolved after a stipulated trial. The depositionswere used at trial because the parties relied on them in preparing the stipulated testimony. The trial court alsorelied on the stipulated testimony in finding that Dr. Jennings was entitled to coverage under Physicians'policy but not under Continental's policy. Therefore, the witnesses' stipulated testimony enabled the trialcourt to resolve the questions that had prevented it from granting summary judgment earlier.

However, we reject Continental's argument that the depositions were necessary because it wouldhave been impossible for the case to be tried on stipulated testimony otherwise. This court has strictlyinterpreted the necessity requirement. For example, in Cleveland Wrecking Co. v. Central National Bank,216 Ill. App. 3d 279 (1991), the court held that the depositions of demolition subcontractors taken by theplaintiff were not "strictly indispensable" to the bench trial of a mechanics' lien foreclosure action since thewitnesses had not died or disappeared. Similarly, in Boyle v. Manley, 263 Ill. App. 3d 200 (1994), the courtheld that the depositions of the parties and one of the witnesses were not indispensable to the bench trialsince those individuals were available and actually testified. Therefore, the plaintiff could not recover thecost of the depositions.

Here, the parties validated the "necessity" of the depositions by agreeing to use them at the stipulatedtrial. If these same six witnesses had actually testified before the trial judge, Continental could not haverecovered the cost of the depositions under the holdings of Cleveland Wrecking and Boyle. Therefore, thedepositions of these witnesses cannot fairly be considered "indispensable." Allowing the prevailing party ina stipulated trial to recover deposition costs would increase the cost of a stipulated trial, thereby conflictingwith the policy concerns expressed in Galowich I. We note that depositions used at a stipulated trial areunlike videotaped depositions, which have been considered taxable. See Perkins v. Harris, 308 Ill. App. 3d1076 (1999) (finding that a videotaped deposition played for the jury was "necessarily used at trial" becausethe physician's demanding surgery schedule prevented him from testifying at the trial).

For the foregoing reasons, we deny both motions to strike. We vacate Physicians' appeal of the trialcourt's declaratory judgment order for lack of jurisdiction. However, we find that even if appellatejurisdiction existed, we would affirm the trial court's finding that Dr. Jennings was covered only underPhysicians' policy. The trial court's award of deposition costs to Continental is reversed, and we reduce theaward by a total of $1,375.85 pursuant to our authority under Supreme Court Rule 366(a)(5) (155 Ill. 2d R.366(a)(5)).

No. 1-99-3445, Vacated; No. 1-00-2235, Reversed.

QUINN, P.J. and HARTMAN, J. concur.

1. ¹ Heistand's guardian was eventually dismissed from the declaratory judgment action.

2. ² Weaver filed a notice of appeal, but later abandoned it.

3. ³ Section 2-611 is now embodied in Supreme Court Rule 137 (155 Ill. 2d R. 137), whichprovides for sanctions, including reasonable attorney fees, where untrue pleadings are filed.

4. ⁴ Section 5-110 provides that a party may recover costs if the trial court enters judgmentin that party's favor upon any motion directed to the complaint. Section 5-109, which is theprovision under which Continental filed its motion, provides that a defendant can recover costs ifjudgment is entered against the plaintiff. Both statutes provide the same relief to a defendant butat different stages of a proceeding.

5. ⁵ Noting that the parties would dispute jurisdiction regardless of how he ruled, the trialjudge stated that "[i]f I am going to err, I usually like to err on the side of including matters ratherthan excluding matters so therefore I am going to grant the motion to vacate the order."