Find Laws Find Lawyers Free Legal Forms USA State Laws
Laws-info.com » Cases » Illinois » 5th District Appellate » 2001 » S.C. Vaughan Oil Co. v. Caldwell, Troutt, and Alexander 
S.C. Vaughan Oil Co. v. Caldwell, Troutt, and Alexander 
State: Illinois
Court: 5th District Appellate
Docket No: 5-99-0713 Rel
Case Date: 04/24/2001

Notice
Decision filed 04/24/01.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same

NO. 5-99-0713

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH JUDICIAL DISTRICT

______________________________________________________________________________________________

S.C. VAUGHAN OIL COMPANY,) Appeal from the
) Circuit Court of
Plaintiff-Appellant,) Marion County.
)
and)
)
CHARLES A. VAUGHAN,)
)
Plaintiff,)
)
             ) No. 86-L-96
)
CALDWELL, TROUTT, andALEXANDER,)
)
Defendant-Appellee,)
)
and)
)
PAUL CALDWELL,) Honorable
) David L. Sauer,
Defendant.) Judge, presiding.

_______________________________________________________________________________________________

PRESIDING JUSTICE CHAPMAN delivered the opinion of the court:

S.C. Vaughan Oil Company (plaintiff) appeals from the trial court's order denying itspetition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West1998)) to vacate the judgment. We affirm.

The procedural history of this case is lengthy. It was satisfactorily outlined in theprevious supreme court decision of S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander,181 Ill. 2d 489, 693 N.E.2d 338 (1998). That decision remanded the case to the fifthdistrict. We concluded in S.C. Vaughan Oil Co. v. Caldwell, Troutt, & Alexander, 299 Ill.App. 3d 892, 702 N.E.2d 602 (1998), that an evidentiary hearing was required on the section2-1401 petition, and we remanded the case to the trial court. The trial court then conductedthe evidentiary hearing and denied the motion to reinstate because it found that plaintiffsfailed to establish due diligence both in presenting the underlying claim to the court and infiling the section 2-1401 petition. It is from that ruling that plaintiff now appeals.

Section 2-1401 provides a statutory procedure for vacating a final judgment after 30days from its entry. 735 ILCS 5/2-1401 (West 1998). The purpose of a section 2-1401petition is to bring before the court facts which were not known at the time of the judgmentand which, if known, would have prevented the judgment. See Physicians InsuranceExchange v. Jennings, 316 Ill. App. 3d 443, 457, 736 N.E.2d 179, 190 (2000). To beentitled to relief, the petitioner must show by a preponderance of the evidence (1) theexistence of a meritorious defense or claim, (2) due diligence in the original action, and (3)due diligence in filing the section 2-1401 petition. Smith v. Airoom, Inc., 114 Ill. 2d 209,220-21, 499 N.E.2d 1381, 1386 (1986).

Whether the petition should be granted is within the sound discretion of the trialcourt. Smith, 114 Ill. 2d at 221, 499 N.E.2d at 1386. A reviewing court will not disturb thelower court's decision regarding the petition absent an abuse of discretion. Smith, 114 Ill.2d at 221, 499 N.E.2d at 1386.

Plaintiffs argued that the mistake made by the clerk of the circuit court, the confusionsurrounding the stay resulting from the bankruptcy filed by Paul Caldwell, and theuncertainty regarding damages because of the decision of Collins v. Reynard, 195 Ill. App.3d 1067, 553 N.E.2d 69 (1990), rev'd, 154 Ill. 2d 48, 607 N.E.2d 1185 (1992), were enoughto require the court to relax the due diligence requirements.

Although it is true that some decisions have relaxed or even excused the duediligence requirements (Manny Cab Co. v. McNeil Teaming Co., 28 Ill. App. 3d 1014, 329N.E.2d 376 (1975); George F. Mueller & Sons, Inc. v. Ostrowski, 19 Ill. App. 3d 973, 313N.E.2d 684 (1974)), nothing in the record indicates that this is a case where there is anyunconscionable conduct by the opposing party which would require that the due diligencerequirement be relaxed.

A review of the chronological development of this case supports the trial court'sconclusion that plaintiffs failed to use diligence both in presenting their case to the trial courtin the original action and in filing their section 2-1401 petition. With regard to the originalaction, the record clearly establishes that plaintiffs failed to follow the progress of the case,as required by Ezcuck v. Chicago Transit Authority, 39 Ill. 2d 464, 236 N.E.2d 719 (1968),by failing to inquire about its status for a period of 32 months. In addition, action was onlytaken at that time because an associate at their firm found that the case had been dismissedalmost two years earlier.

In addition, plaintiffs failed to use due diligence in filing their section 2-1401petition. Due diligence in filing the petition requires the petitioner to have a "reasonableexcuse" for failing to act within the appropriate time. Smith, 114 Ill. 2d at 222, 499 N.E.2dat 1386. To determine the reasonableness of the excuse, a court must consider all thecircumstances. Smith, 114 Ill. 2d at 222, 499 N.E.2d at 1387. Additionally, such a petitioncannot be used to relieve a party or counsel of the consequences of his or her ownnegligence. Physicians Insurance Exchange, 316 Ill. App. 3d at 457, 736 N.E.2d at 190. The amount of time elapsed between the dismissal and the next action taken by plaintiffswas nearly two years. The three "excuses" presented by plaintiffs are not reasonable underthe circumstances of this case.

It is also important to note that plaintiffs had constructive notice of the dismissal forwant of prosecution. According to Fourth Judicial Circuit Court Rule of Practice 7-3, afterone year of inactivity the court may dismiss the cause of action for want of prosecution, andthe clerk of the circuit court must give notice to the attorneys of record of the entry of suchan order. 4th Judicial Cir. Ct. R. 7-3 (eff. November 16, 1984).

It is undisputed that the dismissal for want of prosecution was entered after only 8

Illinois Law

Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
    > Minimum Wage in Illinois
Illinois Agencies
    > Illinois DMV

Comments

Tips