In Illinois, judgments are final after 30 days.1 Is there anything we can do about a judgment once the 30 days have elapsed? Yes, there is. You can still get relief under those circumstances; it’s just harder. Once upon a time, there were writs coram nobis and similar things that might have been of help. Now one remedy fits all. All former writs and procedures for relief from final judgment have been abolished and replaced by 735 ILCS 5/2-1401. That’s where you find relief once a judgment is final.
If you look up Section 2-1401 on Westlaw, it will tell you that there are 1711 pages and 720 notes of decisions. As you might well imagine, this is a pretty popular statute. Most of us are highly likely to run into it at one time or another in our practices. It cuts across the entire spectrum of litigation. The annotations contain tort cases, criminal cases, divorce cases, adoption cases, parentage cases, probate cases, collection cases, real estate cases and administrative cases, among others. The list goes on and on.
Well, what can you tell a client who comes in to the office complaining of that blankety-blank plaintiff who is trying to attach his assets? As always, you first have to ask him or her a lot of questions about the circumstances that gave rise to the dispute and the judgment. Then you can advise your client. Here’s what you need to know.
Was There Jurisdiction In The First Place?
The first thing to ask is whether the court properly exercised jurisdiction over the client. Was the client properly served with summons and complaint? Had the client appeared in the action? If there was improper service, the judgment is void from the beginning and can be vacated at any time. If there was no jurisdiction, you do not have to avail yourself of Section 2-1401 because there was no valid judgment in the first place. You should check out 735 5/2-201 et seq. on service of process, and 735 ILCS 5/2-301 on special and limited appearances.
If the court did have jurisdiction and the 30 days are gone, you must proceed to Section 2-1401. If your client is a party defendant, the most likely situation is that a default judgment was entered against him or her. If your client is a party plaintiff, you’re probably dealing with a dismissal for want of prosecution. Section 2-1401 applies to these two most common situations and many others as well. It applies to both civil and criminal cases.
Did The Court Lose Jurisdiction?
The first thing to remember is that once the 30 days have elapsed, the trial court has lost jurisdiction of the matter.2 Even though the 2-1401 petition must be filed in the same proceeding in which the judgment was entered,3 the court must reacquire jurisdiction in order to entertain a 2-1401 petition. This happens when you provide notice to the parties as required by Supreme Court Rules 105 and 106. The notice requirement boils down to personal service or certified mail. Failure to abide by this requirement is the first common mistake I have encountered in defending scores of 2-1401 petitions. Thirty days have gone by. You come into court with just a notice of motion. This is not good enough unless the opposing attorney wants to waive notice (in your dreams!). You must start right out with proper service.
What Do You Put In The Petition?
The second thing to remember is that the petition must be verified or supported by affidavit as to matters not of record.4 If you just dump an unverified petition to vacate in the hopper, it’s not good enough. This is another common mistake.
When you actually draft the petition, you must allege the prerequisites to the granting of relief. They are:
a) A meritorious claim or defense, and
b) Due diligence.5
Be careful here! You must allege not just the words meritorious defense and due diligence. You must plead and prove the actual facts that constitute these requirements.6 The burden of proof is preponderance of the evidence.7 This is another mistake lawyers commonly make. Conclusions are not good enough.
Let’s take them one by one. How do you allege a meritorious claim or defense? A meritorious defense is one that, if believed by the trier of fact, would defeat the plaintiff’s claim.8 The Halle case was a personal injury case. The defendant’s allegations in the 2-1401 petition specifically disputed the speed limit and the speed at which the defendant was alleged to have been traveling. It did not just say the defendant was not negligent. The defendant’s petition was also supported by affidavits alleging facts to support his denial of willful and wanton conduct and that the damages awarded were in excess of the proofs.9 These specific facts were held to establish a meritorious defense and to support vacation of the judgment.
It doesn’t matter what kind of case it is. For instance, in commercial cases, individuals who get sued frequently assert the defense that the obligation is one of a corporation and not the individual. Facts that make out this defense will constitute a meritorious defense for purposes of 2-1401.10 A land trustee who has naked title but no control over the premises cannot be held liable under the Dram Shop Act. These facts constitute a meritorious defense for purposes of 2-1401.11 Conversely, the owner of the premises in Kulikowski who did exercise control over those premises did not have a meritorious defense to at least one of the plaintiff’s causes of action. He had not alleged or identified in the record enough facts to establish the defense of complicity and the judgment against him for personal injuries stood.12 The meritorious defense requirement does not mean you must show you will win at trial. You must only plead and prove facts which, if believed by the trier of fact, will defeat the plaintiff’s complaint.13
What about due diligence? You have to be diligent twice. First, you must have been diligent in asserting the claim or defense in the original action.14 In the Kildeer case, the objectors to the annexation alleged sufficient facts to show diligence (or, negatively stated, lack of negligence) for their failure to originally object in a timely manner to the annexation. They pointed out several specific facts: the village split what was essentially one annexation into three, publication of notice in a newspaper other than the one usually used, and the complexity of the legal description. The court held that these facts were sufficient to excuse the objectors’ original failure to object on time.
You also have to be diligent in the bringing of the 2-1401 petition itself. You can’t just hang around and do nothing if you know what’s going on. In European Transpa, Inc. v. Shrader15, the defendant was kept informed by the plaintiff all the way along. The defendant received notice of the motion for default judgment, and was told on the day the default judgment was entered that it was necessary to file a motion to vacate within 30 days. The defendant still sat on his hands for 100 days. He lost. Here’s a practice tip: As a plaintiff, you should always give notice to a defendant in default of your motion for default or default judgment, even though you are not technically required to do so. It will go a long way toward protecting your judgment in case of a 2-1401 petition. By the way, all the cases cited above hold that the standard of review is abuse of discretion.
How Diligent Do You Need To Be?
Due diligence can present some complications. The cases uniformly hold that a party cannot be excused from his or her own negligence, or even that of his or her attorney.16 In the De Met case, Mrs. De Met got a default divorce by publication. The court reserved alimony and property rights. A little more than a month after the entry of judgment, an attorney filed a motion to vacate, which was denied. The appellate court did not say so, but it appears that this attorney made one or more of the mistakes mentioned above. He probably just dumped a naked motion to vacate in the hopper after more than 30 days had gone by. More than eight months after the entry of judgment, the attorney filed a general appearance in the matter and a hearing was held on support payments. Mr. De Met was ordered to pay. Almost exactly a year after the original default judgment, Mr. De Met’s attorney finally filed a Section 72 petition to vacate the original judgment (Section 72 was the previous designation of Section 2-1401). Mr. De Met alleged his wife had deserted him and not vice versa, and that there were therefore no grounds for divorce. Too bad for him. He was too late. The trial judge didn’t even let him testify at the hearing on the Section 72 (2-1401) petition. When he complained to the appellate court, the panel agreed with the trial court that he had not been duly diligent and that the petition was no good on its face. Therefore, testimony was unnecessary. The court held that it is the duty of every litigant to follow his case, and he is not justified in solely relying on his attorney. Litigants beware!
This brings us to another important issue. It happens that a litigant has a meritorious defense but completely drops the ball when it comes to due diligence. What then? Well, there is a sort of safety valve. Petitions brought under Section 2-1401 are addressed to the discretion of the court. The court is allowed to relax the requirement of due diligence where equity and good conscience require it.17 The court is thus given the power to avoid the worst miscarriages of justice. Even if you blow it, you can still get the judgment vacated—sometimes. As always, equity and good conscience can reside in the eye of the beholder.
What Are The Grounds For Relief?
Of the many examples of a judgment vacated, my favorite is Marriage of Palacios.18 Mr. Palacios hit it big on the lottery. He then decided he would divorce his wife. The case was settled, proved up and judgment was entered. The only problem was he didn’t tell his wife about his lottery winnings. Did Mr. Palacios think he could keep it secret forever? Naturally, the now ex-wife found out about it and brought a 2-1401 petition. The court readily vacated the judgment because of the fraudulent concealment of a really big marital asset, and was affirmed on appeal. This is the archetype of the kind of case for which 2-1401 was created.
The judgment does not have to be a default against a party defendant. As indicated above, the dismissal for want of prosecution is also the frequent subject of 2-1401 petitions. The leading case is Esczuk v. Chicago Transit Authority.19 The plaintiff’s attorney blew a pretrial date. He said he had no notice of the pretrial. The case was dismissed for want of prosecution. When the attorney did not see the case come up for trial in the Law Bulletin when it should have, he pulled the court file and found out about the d.w.p. This was a year later. The trial court denied the Section 72 petition and the appellate court reversed. The Supreme Court reversed the appellate court and affirmed the trial court. The Supreme Court found that the attorney said only that he had not received the usual post card notice, not that it had not been sent. One wonders, of course, how it would be possible to plead and prove that the Clerk of the Circuit Court of Cook County ever sent or didn’t send notice. More to the point, the Court held that you have got to follow the progress of your case, and the attorney in Esczuk did not do so. There was apparently no dispute that the plaintiff had a meritorious claim. Too bad! The lesson to be learned here is that you must keep a tickler file for all your cases and check on them regularly. Also, the difference of opinion found in the appellate court decision and the Supreme Court decision illustrates the principle that equity, good conscience, justice and all those wonderful things are certainly in the eye of the beholder. When the beholder is the Supreme Court, anyone who disagrees is wrong.
Some of the other grounds for relief include withdrawal of counsel without notice,20 perjured testimony, even if not knowingly presented by the state,21 and clerk’s error.22 Then there is also the "Fed Ex-Messed-Up" defense. In a 1989 case, Federal Express’s failure to deliver a pleading to the clerk was held to be a sufficient ground for relief.23 One wonders whether the holding would be the same now that customers have access to computer tracking of their packages. What constitutes due diligence in this situation?
Is There A Statute Of Limitation?
The statute of limitation for a 2-1401 petition is two years after the entry of the judgment sought to be vacated.24 The statute provides for the usual tolling situations and several not so usual ones. You should consult the statute and annotations for the details. The two years does not begin to run until the judgment is final. You should consult the case law on this subject, including Marriage of Leopando.25
One wrinkle in this area involves a dismissal for want of prosecution. A d.w.p. is not a disposition on the merits and is the functional equivalent of a voluntary dismissal. In such situations, the case may be refiled within one year of the dismissal or the statute of limitations, whichever is later.26 Just when does a dismissal for want of prosecution become a final order when there has been a d.w.p.? The Supreme Court has now told us.27 A d.w.p. does not become a final order that can either be appealed or be the subject of a 2-1401 petition until the time for refiling under 735 ILCS 5/13-217 expires. Therefore, a d.w.p. cannot be the subject of a 2-1401 petition until after the statute of limitations or the one-year period for refiling after a d.w.p. expires, whichever is later. The Supreme Court’s four-justice majority’s reasoning clearly favors refiling rather than attacking the d.w.p. If it is impossible to attack a d.w.p. by means of a 2-1401 petition for more than a year, what does that do to due diligence? The facts would have to be pretty extreme to establish due diligence. Of course, there are problems with refiling. You have to re-serve the defendant(s). You have to wait for a trial date. This is particularly onerous in Cook County. You may have to redo discovery. A word to the wise is sufficient. Follow your case. Don’t let it get dismissed. If it is dismissed, you may be stuck with refiling.
So there you have it. You can get relief from a judgment more than 30 days old. You have to revest the court with jurisdiction. You have to have the right facts. You have to plead and prove those facts. The facts have to show a meritorious claim or defense and due diligence in presenting the original claim or defense and in bringing the 2-1401 petition. You have to bring the 2-1401 petition within the time allowed. Even if your client hasn’t been as diligent as he or she should have been, you can still prevail if you have really good facts and the judge is in the right mood. These are the basics. There are more complications out there, so be certain to carefully check your facts against the case law.
1 735 ILCS 5/2-1301 (e)
2 Knightsbridge Realty Partners, Ltd.-75 v. Rudolph, 106 Ill. App. 3d 354 (First District 1982)
3 735 ILCS 5/2-1401 (b)
4 735 ILCS 5/2-1401 (b)
5 Resto v. Walker, 66 Ill. App. 3d 733 (First District 1978)
7 American Reserve Corp. v. Holland, 80 Ill. App. 3d 638 (First District 1980)
8 Halle v. Robertson, 219 Ill. App. 3d 564 (Second District 1991)
9 Id. 219 Ill. App. 3d at 568-569
10 National Industries, Incorporated v. Howard, 54 Ill. App. 3d 416 (Second District 1977)
11 Kulikowski v. Larson, 305 Ill. App. 110 (Third District 1999)
12 Id. 305 Ill. App 3d at 116-117
13 Id 305 Ill. App. 3d at 116
14 Petition of Village of Kildeer to Annex Certain Property, 162 Ill. App. 3d 262 (Second District 1987)
15 242 Ill. App. 3d 103 (Second District 1993)
16 De Met v. De Met, 74 Ill. App. 3d 680 (First District 1979)
17 Elfman v. Evanston Bus Company, 27Ill. 2d 609 (1963)
18 275 Ill. App. 3d 561(First District. 1995)
19 39 Ill. 2d 464 (1968).
20 Safety Kleen v. Canadian Universal Insurance Co., Ltd.,258 Ill. App. 3d 298 (Second District 1994)
21 People v. Cheeks, 252 Ill. App. 3d 377
22 McCoy v. Smith, 8 Ill. App. 2d 560 (First Distric 1956)
23 Cunningham v. Miller’s General Insurance Company, 188 Ill. App. 3d 689 (Fourth District 1989)
24 735 ILCS 5/2-1401 ©
25 96 Ill. 2d 114 (1983)
26 735 ILCS 5/13-217
27 S.C. Vaughn Oil Company v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489 (1998)
Timothy B. Newitt was one of two French majors in his entering class at Georgetown University Law Center where he received the J.D. in 1974. He studied foreign language at Wheaton College and the University of Illinois where he received the B.A. and M.A. degrees. He is a shareholder in Johnson, Westra, Broecker, Whittaker & Newitt, P.C. where he does mostly civil litigation.