Wilkins v. Dellenback, 2-86-0352

• Decision Date: 06 November 1986
• Docket Number: No. 2-86-0352,2-86-0352
• Citation: 500 N.E.2d 692,149 Ill.App.3d 549
• Parties: , 102 Ill.Dec. 799 Regina WILKINS, Plaintiff-Appellant, v. Barbara DELLENBACK, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 692

500 N.E.2d 692

149 Ill.App.3d 549, 102 Ill.Dec. 799

Regina WILKINS, Plaintiff-Appellant, v. Barbara DELLENBACK, M.D., Defendant-Appellee.

No. 2-86-0352.

Appellate Court of Illinois Second District.

Nov. 6, 1986.

Schwartz & Rubin, Stephen J. Caron, John B. Schwartz, Goldberg & Goldberg, Chicago, for plaintiff-appellant.

Wildman Harrold Allen & Dixon, Ruth E. Van Demark, Robert A. Strelecky, Robert M. Collins, Chicago, for defendant-appellee.

Justice REINHARD delivered the opinion of the court:

Plaintiff, Regina Wilkins, appeals from an order of the circuit court of Kane County denying her petition for relief from a final judgment pursuant to section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1401) for failing to file her petition within two years of the entry of the final dismissal order for want of prosecution. Ill.Rev.Stat.1985, ch. 110, par. 2-1401(c).

Plaintiff raises the following issues on appeal: (1) whether the date of mailing of her petition should constitute the date of filing for the purposes of the time restrictions imposed by section 2-1401(c) (Ill.Rev.Stat.1985, ch. 110, par. 2-1401(c)); and (2) whether defendant's actions of filing a motion to vacate any defaults and to answer the complaint, as well as her participation in discovery, after the matter was dismissed served to revest the trial court's jurisdiction over the case.

The record indicates that on May 1, 1980, plaintiff filed a complaint in the circuit court of Cook County asserting a cause of action for medical malpractice against defendant, Dr. Barbara Dellenback. On the motion of defendant in a special and limited appearance, the matter was transferred to the circuit court of Kane County and filed there on June 9, 1982. The case appeared on the "Automatic call of the Docket" under local rule 4.2 for the sixteenth judicial circuit on May 26, 1983, because there had been no action in the matter in the previous nine months. The record reveals that notice was mailed prior to this date by the clerk of the circuit court to counsel for plaintiff advising that an order for dismissal for want of prosecution would be entered unless good cause was shown. No one appeared on May 26, and the trial court entered a dismissal order in the matter which was filed on June 2, 1983.

On August 22, 1983, defendant filed a notice of motion to vacate all defaults and answer the complaint showing proof of service on plaintiff's counsel. However, when the motion appeared on the trial court's call on September 8, 1983, it was stricken as the case had been disposed of previously. Plaintiff also had filed discovery requests with the court two days prior to this motion being stricken from the call. The record indicates that plaintiff's counsel wrote the circuit court on December 20, 1984, asking to be advised of the status of the case. Counsel for plaintiff was advised by telephone on December 26, 1984, that the matter had been dismissed, and he mailed a section 2-1401 petition to vacate the dismissal order on May 31, 1985, to the circuit clerk of Kane County. The petition, however, was not filed until June 4, 1985. In the petition, plaintiff's counsel asserted that he had no notice of the "4.2 Call" or the dismissal order and had received the motion of defendant to vacate defaults and for leave to file an answer. He also represented that the law firm had moved in August 1983.

Defendant filed a motion in opposition to the petition. She argued that plaintiff failed to establish due diligence in presenting the petition as it was not filed until after the two-year filing period had elapsed. Plaintiff responded, however, that her petition, while stamped as filed on June 4, 1985, was constructively filed on May 31, 1985, when the petition was mailed to the circuit clerk, and was therefore within the two-year period. The trial court heard the arguments of the parties, considered the pleadings and motions on record, and took the matter under advisement instructing both sides to file with the court any additional authority in support of their positions. Plaintiff, during the arguments to the trial court, apparently raised the issue of revestment of jurisdiction by defendant's filing of a motion and participating in discovery after the dismissal order was entered.

On January 13, 1986, the trial court, finding that plaintiff filed her petition on June 4, 1985, more than two years after the entry and the filing of the dismissal order, and finding that there were no facts alleged to indicate that defendant fraudulently concealed or prevented discovery of the dismissal order, denied plaintiff's petition. Plaintiff moved for a rehearing of her petition contending that as the dismissal order was filed on June 2, 1983, not May 26, 1983, and as the petition was mailed on May 31, 1985, the petition should be considered to have been filed on May 31 and within two years of the filing of the dismissal order. The trial court modified its original order to include a finding that defendant appeared on her motion to vacate defaults and for leave to file her answer, but that the court struck the motion on September 8, 1983, as the case had already been dismissed. The trial court then denied plaintiff's motion to reconsider.

Plaintiff contends on appeal that mailing her section 2-1401 petition to the office of the circuit court clerk within the two-year time period of section 2-1401(c) (Ill.Rev.Stat.1985, ch. 110, par. 2-1401(c)) constitutes a filing of the petition for purposes of the time restrictions of the statute. She argues that the case law, court rules, and statutes establish a policy in Illinois favoring the time of mailing over the actual receipt of a document as the filing date of that document. (See In re Marriage of Morse (1986), 143 Ill.App.3d 849, 851-53, 98 Ill.Dec. 67, 493 N.E.2d 1088; A.S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill.App.3d 746, 749-50, 71 Ill.Dec. 477, 450 N.E.2d 1356; Holesinger v. Dubuque Feeder Pig Co., Inc. (1982), 104 Ill.App.3d 39, 41-43, 59 Ill.Dec. 859, 432 N.E.2d 645.) Defendant responds by arguing that plaintiff's authority involves the continuation of an existing action and that, unlike notices of appeal and post-trial motions, a section 2-1401 petition is not a continuation of an existing action, but is a new action, similar to filing the original complaint, and must be considered filed only when it passes to the exclusive custody and control of the clerk of the circuit court.

Section2-1401 of the Code of Civil Procedure provides a statutory mechanism by which relief from a final order or judgment may be obtained by a party in the trial court more than 30 days after the entry of the final order when the trial court has lost jurisdiction over the cause. (Ill.Rev.Stat.1985, ch. 110, par. 2-1401(a); Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill.2d 201, 209, 85 Ill.Dec. 356, 473 N.E.2d 955.) A petition under this section, however, is not a continuation of the original proceeding but a commencement of a new cause of action. (Ill.Rev.Stat.1985, ch. 110, par. 2-1401(b); Ostendorf v. International Harvester Co. (1982), 89 Ill.2d 273, 279, 60 Ill.Dec. 456, 433 N.E.2d 253.) Like other pleadings, the petition must be in writing, filed with the clerk of the circuit court and made part of the record (Lofendo v. Ozog (1983), 118 Ill.App.3d 237, 239, 73 Ill.Dec. 709, 454 N.E.2d 806), and as such is subject to motions to dismiss for failure to state a cause of action, and must be considered in the same manner as a civil complaint. (Ostendorf v. International Harvester Co. (1982), 89 Ill.2d 273, 279-80, 60 Ill.Dec. 456, 433 N.E.2d 253.) Section 2-1401(c) specifies that "[t]he petition must be filed not later than 2 years after the entry of the order or judgment." (Emphasis added.) Ill.Rev.Stat.1985, ch. 110, par. 2-1401(c).

The uniform practice in the trial court has been to require actual receipt by the circuit clerk, as evidenced by the file stamp, before a paper is considered filed. (See People ex rel. Pignatelli v. Ward (1949), 404 Ill. 240, 245, 88 N.E.2d 461; Gietl v. Commissioners of Drainage District No. 1 (1943), 384 Ill. 499, 501-02, 51 N.E.2d 512; Brelsford v. Community High School District No. 36 (1927), 328 Ill. 27, 31, 159 N.E. 237; Coles v. Terrell (1896), 162 Ill. 167, 169-70, 44 N.E. 391; Hamilton v. Beardslee (1869), 51 Ill. 478, 480-81; Fairfax Family Fund, Inc. v. Couch (1982), 103 Ill.App.3d 492, 494, 59 Ill.Dec. 176, 431 N.E.2d 461; Dooley v. James A. Dooley Associates Employees Retirement Plan (1981), 100 Ill.App.3d 389, 395, 55 Ill.Dec. 703, 426 N.E.2d 1028.) Although the weight of recent authority evinces a policy favoring the acceptance of the mailing date rather than the receiving date of certain documents, such as a post-trial motion or a notice of appeal, as the filing date of those documents with the clerk of the circuit court (see In re Marriage of Morse (1986), 143 Ill.App.3d 849, 851-53, 98 Ill.Dec. 67, 493 N.E.2d 1088; A.S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill.App.3d 746, 749-50, 71 Ill.Dec. 477, 450 N.E.2d 1356), this policy has never been applied to the filing of pleadings such as a complaint or a section 2-1401 petition. The legislature has provided for relief from judgments pursuant to section 2-1401 and has required the "filing" of a section 2-1401 petition requesting such relief. In Okumura v. Nisei, Bowlium, Inc. (1976), 43 Ill.App.3d 753, 2 Ill.Dec. 210, 357 N.E.2d 187, the court stated that "[t]o constitute filing [of a petition under section 2-1401, formerly section 72], the document must pass into the exclusive custody and control of the clerk to be made part of the court records." (43 Ill.App.3d 753, 755, 2 Ill.Dec. 210, 357 N.E.2d 187.) There is no provision in the Code of Civil Procedure providing for the mailing date as the date of filing for a section 2-1401 petition.

Section 1.25(1) of "An Act to...