S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander

                               NO. 5-95-0336

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

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

     JUSTICE MAAG delivered the opinion of the court:

     The plaintiffs, Vaughan Oil Company and Charles A. Vaughan,
filed a complaint against the defendants, Paul Caldwell and the law
firm of Caldwell, Troutt, and Alexander, on August 4, 1986,
alleging legal malpractice and conflict of interest.  On August 6,
1990, proof that Paul Caldwell had filed a petition for relief
under Chapter 7 of the United States Bankruptcy Code in the United
States Bankruptcy Court for the Middle District of Florida was
filed with the circuit court of Marion County.  A review of the
docket sheet maintained by the clerk of the circuit court of Marion
County reveals no entries respecting this case from the date of the
filing of the bankruptcy petition on August 6, 1990, until April
22, 1991.  On April 22, 1991, the record reveals a docket entry
stating "cause DWP-close file."  Both of the parties apparently
agree that "DWP" means dismissed for want of prosecution.  On April
12, 1993, plaintiffs filed a motion to reinstate their action for
attorney malpractice.  The defendants entered a special and limited
appearance and on May 7, 1993, filed a motion to strike plaintiffs'
motion to reinstate.  The defendants argued that the trial court
lost jurisdiction of the case 30 days after dismissal, and that the
only way of obtaining reinstatement was through a petition under
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 1992)), and that plaintiffs did not petition the court
pursuant to section 2-1401.  The defendants argued that because the
plaintiffs had not alleged the elements of a section 2-1401
petition, the motion was inappropriate and did not invoke the
circuit court's jurisdiction.  On September 3, 1993, the circuit
court entered an order upholding the special and limited appearance
as to Paul Caldwell but denied it as to Caldwell, Troutt, and
Alexander.  
     On September 27, 1993, subsequent to the court's denial of
their special and limited appearance, Caldwell, Troutt, and
Alexander moved to dismiss the motion to reinstate, citing the lack
of factual allegations of due diligence in filing the section 2-
1401 petition and the existence of a meritorious claim.  On March
30, 1994, the plaintiffs filed an amended motion to reinstate,
specifically citing section 2-1401.  In their motion, the plain-
tiffs stated the following three reasons as to why they had not
pursued the case from April 1991 through March 1993: (1) the claim
against Paul Caldwell could not be pursued due to the bankruptcy
stay; (2) the decision in Collins v. Reynard, 154 Ill. 2d 48, 607 N.E.2d 1185 (1992), was good law from March 28, 1990, through
December of 1992, and plaintiffs believed they no longer had a
viable attorney malpractice suit against the defendants because
Collins barred the recovery of economic damages for attorney
malpractice actions sounding in tort; and (3) there were ongoing
settlement discussions between plaintiffs' counsel and representa-
tives of defendants and their insurers.  
     On April 20, 1994, defendants again moved to dismiss the
amended motion to reinstate.  The circuit court entered an order on
December 30, 1994, allowing plaintiffs' petition to reinstate. 
Specifically, the court stated that the plaintiffs should have
properly referred to the motion to reinstate as a section 2-1401
petition, and that they should have also made factual allegations
regarding the meritorious claim.  The court went on to note,
however, that the motion was "squarely a section [2-]1401 motion"
because the focus had been upon the diligence in presenting the
claim and the motion.  The court also noted that it was "not
inclined to further delay this proceeding with evidentiary hearings
not anticipated by section [2-]1401."  On January 13, 1995, the
defendant, Caldwell, Troutt, and Alexander, filed a motion to
rehear and reconsider.  In its motion, the defendant claimed that
the circuit court had not allowed the defendant, Caldwell, Troutt,
and Alexander, an opportunity to present evidence either by way of
affidavit or by live testimony to controvert the allegations of
plaintiffs' section 2-1401 petition.  On March 2, 1995, the defen-
dant, Caldwell, Troutt, and Alexander, filed the affidavits of M.
Patrice Wilson, insurance adjuster for CNA Insurance Companies, and
Thomas L. Browne, defendant's former attorney.  Both affidavits
contradicted plaintiffs' attorney's affidavit with regard to the
amount and significance of telephone contact between plaintiffs'
attorney and defendant's representatives.  On that same date, the
circuit court vacated the order granting the section 2-1401
petition.  On April 19, 1995, the circuit court reconsidered the
motion to reinstate and granted it for the reasons set forth in its
December 30, 1994, docket entry.  The defendant, Caldwell, Troutt,
and Alexander, filed its notice of appeal on May 11, 1995.
     The defendant, Caldwell, Troutt, and Alexander, claims that
the trial court abused its discretion in refusing to resolve
factual disputes arising from the section 2-1401 petition filed by
the plaintiffs, and that the plaintiffs failed to establish due
diligence as a matter of law.
     We will not address the defendant's contentions, however,
because this court does not have jurisdiction of this case for the
following reasons.   
     Pursuant to Supreme Court Rule 301, "[e]very final judgment of
a circuit court in a civil case is appealable as of right." 
(Emphasis added.)  155 Ill. 2d R. 301.  A final judgment has
traditionally been defined as a "determination by the court on the
issues presented by the pleadings which ascertains and fixes
absolutely and finally the rights of the parties in the lawsuit." 
Towns v. Yellow Cab Co., 73 Ill. 2d 113, 119, 382 N.E.2d 1217, 1219
(1978).  An order dismissing a cause for want of prosecution is not
a final and appealable order under Supreme Court Rule 301.  Flores
v. Dugan, 91 Ill. 2d 108, 112, 435 N.E.2d 480, 481 (1982).  This is
so in the instant case because this case was dismissed for want of
prosecution on April 22, 1991.  At that time, the plaintiff was
entitled to an absolute right to refile the same action against the
same parties and reallege the same causes of action within one year
pursuant to section 13-217 of the Code of Civil Procedure (Ill.
Rev. Stat. 1991, ch. 110, par. 13-217).  See Flores, 91 Ill. 2d  at
112, 435 N.E.2d  at 482.  Although we recognize that section 13-217
has been amended and now reads differently, the new version of the
statute does not apply to this case.  See 735 ILCS 5/13-217 (West
Supp. 1995).  It is well established that a petition for relief
from judgment under section 2-1401 applies only to relief from
final orders and judgments.  735 ILCS 5/2-1401(a) (West 1992).  For
an order to be considered "final" so as to render section 2-1401
applicable, the order must dispose of the merits of the cause in
such a manner that no further proceedings can be had in the trial
court.  See Prendergast v. Rush-Presbyterian-St. Luke's Medical
Center, 78 Ill. App. 3d 538, 541, 397 N.E.2d 432, 435 (1979).  
     While we recognize that there are cases that have limited the
Flores decision (Robinson v. Commonwealth Edison Co., 238 Ill. App.
3d 436, 440-41, 606 N.E.2d 615, 618 (1st Dist. 1992); Howard Ecker
& Co. v. Terracom Development Group, Inc., 116 Ill. App. 3d 918,
919, 452 N.E.2d 781, 783 (1st Dist. 1983); Yorke v. Stineway Drug
Co., 110 Ill. App. 3d 1009, 1013, 443 N.E.2d 644, 647 (1st Dist.
1982)), we disagree with the reasoning in these cases.  These
decisions limit Flores solely to a direct appeal from an order
dismissing an action for want of prosecution.  Yorke and Ecker held
that the Flores decision does not apply to section 2-1401 petitions
and, therefore, an appeal from a section 2-1401 petition contesting
a dismissal for want of prosecution is appealable.  Further, in
Robinson, the court held that "once the statutory refiling period
has run, the Flores rationale no longer applies and the litigation
is terminated--i.e.[,] the DWP [dismissal for want of prosecution]
order becomes final and appealable."  Robinson, 238 Ill. App. 3d at
441, 606 N.E.2d  at 618.  We disagree.   
     In this case, the circuit court dismissed the case for want of
prosecution on April 22, 1991.  As we previously stated, this
dismissal for want of prosecution was not a final and appealable
order under Supreme Court Rule 301.  We believe that the substance
and nature of an order is determined at the time it is entered. 
Its nature does not change with the passage of time as the
aforementioned cases suggest.  The fact that the statutory one-year
period for refiling has passed does not alter the character and
nature of the trial court's ruling at the time that it was made. 
Hence, the plaintiffs' failure to satisfy a condition subsequent,
namely, the filing of a pleading within the parameters of section
13-217 and Flores, did not alter the character and nature of the
underlying order.  Cf. Martin v. Marks, 80 Ill. App. 3d 915, 918-
19, 400 N.E.2d 711, 713-14 (1980) (court held that order of
dismissal was not final and appealable even though plaintiff failed
to amend within the 30-day time period).  Accord Doner v. Phoenix
Joint Stock Land Bank, 381 Ill. 106, 108-09, 45 N.E.2d 20, 22
(1942).  Accordingly, as the order of April 22, 1991, was not a
final judgment, it was not subject to attack by way of a section 2-
1401 petition.  Although the plaintiffs' original motion to
reinstate was not captioned as a section 2-1401 petition, the trial
court treated it as such, and this was error.  Because the
dismissal for want of prosecution against Paul Caldwell and
Caldwell, Troutt, and Alexander is not a final and appealable
order, plaintiffs' motion to reinstate can only be treated as a
motion attacking an interlocutory order.  Since the plaintiffs'
motion to reinstate was granted on April 19, 1995, and is not a fi-
nal, appealable order, this court does not have jurisdiction of
this case.
     Furthermore, this court makes no findings with respect to the
efficacy of the bankruptcy stay.  For this court to address these
matters would be premature in light of the fact that the circuit
court retains jurisdiction in this case.
     For the foregoing reasons, this appeal is dismissed for lack
of jurisdiction for want of a final order under Supreme Court Rule
301 (155 Ill. 2d R. 301).

     Appeal dismissed.  

     CHAPMAN and WELCH, JJ., concur.                                      NO. 5-95-0336
                                     IN THE
                          APPELLATE COURT OF ILLINOIS
                                 FIFTH DISTRICT
___________________________________________________________________________
S. C. VAUGHAN OIL COMPANY and        )  Appeal from the
CHARLES A. VAUGHAN,                  )  Circuit Court of 
                                     )  Marion County.  
     Plaintiffs-Appellees,           )
v.                                   )  No. 86-L-96
                                     )
CALDWELL, TROUTT, and ALEXANDER,     )  
                                     )
     Defendant-Appellant,            )
and                                  )
                                     )
PAUL CALDWELL,                       )  Honorable
                                     )  David L. Sauer, 
     Defendant.                      )  Judge, presiding.  
___________________________________________________________________________

Opinion Filed:                  December 4, 1996
___________________________________________________________________________

Justices:      Honorable Gordon E. Maag, J.
                         
               Honorable Charles W. Chapman, J., and 
               Honorable Thomas M. Welch, J.,
               Concur
___________________________________________________________________________
                         
Attorneys      Bruce L. Carmen, Michael A. Lawder, Hinshaw & Culbertson,
for            222 North LaSalle Street, Suite 300, Chicago, IL 60601-1081
Appellant      
___________________________________________________________________________

Attorney       Robert I. Auler, Auler Law Offices, P.C., 202 W. Green 
for            Street, Urbana, IL 61801
Appellee       
___________________________________________________________________________