Harris Trust & Savings Bank v. Illinois Fair Plan Ass'n

Citations: 194 Ill. App. 3d 761; 551 N.E.2d 378; 141 Ill. Dec. 385; 1990 Ill. App. LEXIS 210Docket: No. 1—88—3267

Court: Appellate Court of Illinois; February 20, 1990; Illinois; State Appellate Court

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An appeal was made regarding the denial of a motion to vacate a dismissal order with prejudice in a case involving plaintiff Jack E. Kocur and defendant Illinois Fair Plan Association (IFPA). The court examined whether the trial court erred in denying the motion and if Kocur was entitled to relief under section 2.1401 of the Code of Civil Procedure. The dismissal followed Kocur’s alleged acceptance of a $47,000 settlement offer from IFPA after fires damaged his apartment building in 1977. Kocur filed a second complaint in 1983 after an initial dismissal for want of prosecution in 1982. He disputed the existence of a settlement, claiming coercion by his attorney when he signed the release. Following the dismissal, a claim was made for inclusion as a payee on the settlement draft due to a junior mortgage. Kocur filed a pro se motion to vacate the settlement, which was deemed untimely as it was filed more than 30 days after the dismissal order. The court found that Kocur’s arguments, including reliance on precedent cases, did not provide grounds for vacating the dismissal, and ultimately affirmed the trial court's decision. The court reiterated that it lacked jurisdiction to hear a motion to vacate filed outside the 30-day window after the dismissal.

Relief after a 30-day period following a dismissal order can only be obtained through compliance with section 2.1401(a) of the Illinois Code of Civil Procedure. In this case, the only timely motion filed was on September 9, 1988, which sought to enforce a settlement amounting to $47,000 and to determine the rightful recipient of the settlement proceeds, without challenging the validity of the settlement itself. A subsequent motion alleging coercion was filed on September 29, 1988, exceeding the 30-day limit, thus lacking jurisdiction for consideration. 

Section 2.1401 allows for vacating final orders after the initial appeal period, requiring that petitions be filed in the same proceeding, supported by affidavits, and that all parties be notified as per Supreme Court Rule 106. Effective notice must be served to all parties, not just their counsel, and must specify the issues to be addressed. In this instance, the plaintiff failed to meet both the procedural and substantive criteria of section 2.1401, as he did not provide adequate notice to the necessary parties or inform the defendant of his intent to raise coercion at the hearing. Consequently, the trial court lacked jurisdiction to consider the plaintiff's motion.

In *Vortanz v. Elmhurst Memorial Hospital*, the Illinois Appellate Court addressed the plaintiff's motion to dismiss his attorney, which was deemed insufficient to establish jurisdiction in the trial court. The plaintiff's petition did not meet the requirements of section 2.1401, primarily because he failed to demonstrate due diligence in raising claims of coercion soon after becoming aware of a settlement he had not authorized. Although he learned of the settlement by mid-August 1988, he did not act until September 29. The court noted that prior case law, particularly *Dassion v. Homan*, indicated that section 2.1401 cannot absolve parties from their mistakes or their attorney’s actions. The plaintiff attempted to distinguish his case using *Glenner v. Chicago Transit Authority* and *McMillin v. Economics Laboratory, Inc.*, but the court found those cases inapplicable due to differences in timing and circumstances surrounding the motions. Additionally, the court considered the potential prejudice to the defendant if the dismissal were vacated, given the long duration since the initial events and the extensive preparations already undertaken for trial. Ultimately, the court affirmed the trial court's denial of the plaintiff’s motion to vacate the dismissal.