{ "id": 5289834, "name": "GARY K. LODOLCE et al., Plaintiffs-Appellants, v. CENTRAL Du PAGE HOSPITAL et al., Defendants-Appellees", "name_abbreviation": "Lodolce v. Central Du Page Hospital", "decision_date": "1991-07-23", "docket_number": "No. 2\u201480\u20141316", "first_page": "902", "last_page": "913", "citations": [ { "type": "official", "cite": "216 Ill. App. 3d 902" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "212 Ill. App. 3d 115", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600176 ], "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0115-01" ] }, { "cite": "16 Ill. App. 3d 688", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2524695 ], "weight": 2, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0688-01" ] }, { "cite": "22 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2938894 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/22/0621-01" ] }, { "cite": "136 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564853 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "70" }, { "page": "71-72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0067-01" ] }, { "cite": "7 Ill. App. 3d 881", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2677804 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0881-01" ] }, { "cite": "75 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3277383 ], "year": 1972, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0614-01" ] }, { "cite": "199 Ill. App. 3d 109", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467791 ], "year": 1979, "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0109-01" ] }, { "cite": "38 Ill. 2d 571", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2863024 ], "year": 1990, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0571-01" ] }, { "cite": "101 Ill. App. 3d 432", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3081692 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0432-01" ] }, { "cite": "175 Ill. App. 3d 227", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554949 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0227-01" ] }, { "cite": "194 Ill. App. 3d 52", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498033 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "56-57" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0052-01" ] }, { "cite": "85 Ill. 2d 253", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469019 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-2d/85/0253-01" ] }, { "cite": "102 S. Ct. 3495", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "73 L. Ed. 2d 1375", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "458 U.S. 1112", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 636518, 636683, 636524, 636535, 636509 ], "opinion_index": 0, "case_paths": [ "/us/458/1112-03", "/us/458/1112-05", "/us/458/1112-02", "/us/458/1112-01", "/us/458/1112-04" ] }, { "cite": "100 Ill. App. 3d 917", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5500474 ], "year": 1982, "pin_cites": [ { "page": "920" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0917-01" ] }, { "cite": "83 Ill. 2d 559", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5472671 ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0559-01" ] }, { "cite": "80 Ill. App. 3d 981", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3234998 ], "year": 1981, "pin_cites": [ { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0981-01" ] }, { "cite": "103 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152590 ], "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0536-01" ] } ], "analysis": { "cardinality": 831, "char_count": 24738, "ocr_confidence": 0.782, "pagerank": { "raw": 1.0216281725023472e-07, "percentile": 0.5453748461782907 }, "sha256": "48b2fa4bff74dd825b8c22e15b42de0154962cb32e4bc9228f2634e8cf6428fc", "simhash": "1:e8a2132f831a9873", "word_count": 4241 }, "last_updated": "2023-07-14T16:24:26.558535+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GARY K. LODOLCE et al., Plaintiffs-Appellants, v. CENTRAL Du PAGE HOSPITAL et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE GEIGER\ndelivered the opinion of the court:\nThe plaintiffs, Gary K. Lodolce and Marcena Lodolce, appeal from the trial court\u2019s denial of a petition filed pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (the 2 \u2014 1401 petition) (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401). The 2 \u2014 1401 petition sought to reinstate a medical malpractice action that the trial court had dismissed for want of prosecution. On appeal, the plaintiffs argue that the trial court abused its discretion in refusing to reinstate their action. We dismiss the appeal for want of jurisdiction.\nOn October 6, 1988, the plaintiffs filed their complaint against Central Du Page Hospital (Central Du Page) and Dr. Harb Boury (Dr. Boury). On November 15, 1989, on Dr. Boury\u2019s motion, the complaint was dismissed for want of prosecution. On December 5, 1989, the plaintiffs obtained an order vacating the dismissal and reinstating the action. On January 2, 1990, Dr. Boury moved to vacate the December 5, 1989, order. On February 15, 1990, the trial court order granted Dr. Boury\u2019s motion and vacated the vacatur of the November 15, 1989, order of dismissal. On March 12, 1990, the plaintiffs moved to vacate the dismissal, and the trial court denied this motion. On March 14, 1990, the plaintiffs moved to reconsider the trial court\u2019s ruling. On April 3, 1990, the trial court denied this motion and ruled that the original dismissal order of November 15, 1989, would stand. On April 24, 1990, the plaintiffs filed a \u201cmotion for a rehearing.\u201d On June 13, 1990, this motion was stricken by the trial court. On August 16, 1990, the plaintiffs filed the 2 \u2014 1401 petition. On November 1, 1990, the trial court denied the motion. On November 27, 1990, the plaintiffs brought this appeal.\nThe facts of this case are more complicated than the foregoing may suggest, and we now set them out in depth.\nThe plaintiffs\u2019 complaint was a refiling of an action that had been voluntarily dismissed without prejudice on October 19, 1987 (see Ill. Rev. Stat. 1987, ch. 110, par. 13 \u2014 217). The plaintiffs alleged that Dr. Boury and Central Du Page had been negligent in treating Gary Lodolce\u2019s malignant tumor. On November 1, 1988, Dr. Boury entered his appearance and filed an answer, a notice to depose Gary Lodolce on January 20, 1989, and a set of interrogatories. Central Du Page entered its appearance on November 7, 1988, and filed its answer on November 14, 1988. Central Du Page also served the plaintiffs with interrogatories, to which the plaintiffs filed their reply on December 13,1988.\nAn initial status hearing was set for January 9, 1989. On that date, counsel for Central Du Page appeared. He explained to Judge Peccarelli that he had received a telephone call from the plaintiff\u2019s attorney. She had a \u201cvery good reason\u201d for not appearing, though he could not remember what it was. He suggested moving back the status date, and the court set March 10,1989, for a status hearing.\nOn January 20, 1989, the plaintiffs filed their response to Dr. Boury\u2019s interrogatories. On February 14, 1989, they filed requests for production directed toward both defendants, and on February 27, 1989, filed interrogatories directed toward both defendants.\nOn March 10, 1989, the court entered an order, drafted by counsel for Dr. Boury, setting the case for status review on May 10, 1989. On that day, counsel for Dr. Boury appeared and informed the judge that discovery was well underway. The judge agreed to continue the case for a status hearing on July 12, 1989, allowing Dr. Boury to depose Gary Lodolce as scheduled meanwhile.\nOn June 8, 1989, the plaintiffs filed amended interrogatories directed to Dr. Boury. Dr. Boury filed his answers to the interrogatories on July 6, 1989.\nOn July 12, 1989, counsel for Dr. Boury appeared at the scheduled hearing. He told the judge that one plaintiff\u2019s deposition had been taken, that Dr. Boury had yet to he deposed and would be out of the country until August. He did not know where plaintiffs\u2019 counsel was and suggested another status date. The court ordered the case continued for a status hearing on September 13,1989.\nOn September 13, 1989, counsel for Dr. Boury appeared at the scheduled hearing before Judge Lewis. Dr. Boury\u2019s attorney informed the judge that he did not know where the plaintiffs\u2019 attorney was, that the plaintiffs had done very little in the case to date, and that he would ask for a dismissal with prejudice if the plaintiffs made no appearance. The court entered an order continuing the case for a status hearing on November 15,1989.\nAt the November 15, 1989, hearing, counsel for both defendants appeared, but the plaintiffs again were unrepresented. The trial court dismissed the case for want of prosecution.\nOn December 5, 1989, the plaintiffs filed a motion to vacate the dismissal for want of prosecution. The plaintiffs\u2019 principal attorney, Alan C. Hoffman, submitted an affidavit in support of the motion. The affidavit stated that his absence at the status hearings \u201cwas done without any willful or intentional disregard,\u201d but was due to \u201cclinical [sic] and docketing errors.\u201d\nOn December 5, 1989, at 9 a.m., Judge Lewis heard the plaintiffs\u2019 motion to reinstate. Loretta Ursini of the plaintiffs\u2019 law firm appeared; the defendants were not represented. After Ursini informed Judge Lewis that the defendants had received notice, the court entered an order vacating the dismissal, reinstating the case, and setting a status hearing for February 9,1990.\nOn January 2, 1990, Dr. Boury moved to vacate the order reinstating the case. Dr. Boury alleged that the plaintiffs never sent him notice of their motion and that he found out about the motion on December 18, 1989, when his counsel received a copy of the December 5 order. The court gave the plaintiffs 14 days to respond to the motion and set February 9, 1990, for a hearing on the motion. The plaintiffs filed their response on January 23, 1990. On February 9, 1990, the court continued the case to February 15, 1990, for a hearing on both the status of the case and the defendant\u2019s motion. The case was assigned to Judge Robert E. Byrne.\nOn February 15, counsel for Dr. Boury appeared at the hearing. He informed the court that he did not know where the plaintiffs\u2019 attorney was. He agreed with Judge Byrne that the plaintiffs\u2019 motion to vacate had been timely filed, but stated that Dr. Boury had never received notice of the motion or an opportunity to respond. The judge said that it was his understanding that if he granted Dr. Boury\u2019s motion, the plaintiffs could still renotice their motion for hearing because their motion had been timely filed. The court then entered a written order stating that (1) the defendant\u2019s motion was granted; (2) the December 5, 1989, order was vacated; and (3) the order of November 15, 1989, dismissing the cause for want of prosecution hereby stood and the case was \u201cdismissed for want of prosecution as of November 15, 1989.\u201d\nOn March 5, 1990, the plaintiffs filed their notice of motion to vacate the dismissal for want of prosecution. On March 12, 1990, they filed the motion to vacate the \u201cDismissal for want of Prosecution entered on February 15, 1990[.]\u201d In support of the motion to vacate the dismissal order, the plaintiffs\u2019 principal attorney attached an affidavit stating that his absence at the status hearings was the result of \u201cclerical and docketing errors\u201d and not of \u201cany intentional or willful disregard.\u201d\nThe court heard the plaintiffs\u2019 motion on March 12, 1990. Counsel for the plaintiffs and for Dr. Boury were present. The following discussion ensued:\n\u201cMR. HOFFMAN: Your Honor, this comes on, on Plaintiff\u2019s [sic] motion to vacate a DWP.\nThere was a prior DWP entered and the case got somewhat confused.\n* * *\nTHE COURT: There was, on 2/15 an order to \u2014 motion to vacate an order of 12/5.\nMR. HOFFMAN: There is currently pending \u2014 to clarify everything, the most recent thing that we got pursuant to that was a DWP that was entered on that date.\nThat\u2019s what I want to vacate.\nTHE COURT: 2/15?\nMR. HOFFMAN: 2/15.\nTHE COURT: Any objection?\nMR. TERLIP [sic] [counsel for Dr. Boury]: My objection is simply that his matter has been up before.\nThe history was that it was DWP\u2019d on November 15th.\n* * *\nMR. TERLIP [sic]: That motion finally came up on the 15th [of February],\nMR. HOFFMAN: That was the day of the snow storm, your Honor.\nMy associate was supposed to be here. I was unable to be here.\nTHE COURT: December 5th, motion to vacate.\nNow, you\u2019re in a 2 \u2014 1401 situation.\nYour motion is certainly not within the grounds of 2 \u2014 1401 if he objects.\nWe have to follow the rules.\nYour motion to vacate will be denied without prejudice.\nYou can file a 2 \u2014 1401 motion.\nIf you can meet that burden, I\u2019ll be happy to consider it.\nMR. HOFFMAN: It\u2019s still within 30 days.\nTHE COURT: No, it\u2019s not.\nOnce the order was vacated, we\u2019re back to the 15th.\nMR. HOFFMAN: And there was a prior motion that was filed.\nTHE COURT: The order of December 5th, vacating the DWP[,] was vacated.\nSo, now you\u2019re back to November 15th. You\u2019re vacating a November 15th DWP.\nYou\u2019re not within 30 days.\nYou\u2019ve got to comply within [sic] 2 \u2014 1401.\nMR. HOFFMAN: All right.\nTHE COURT: So we\u2019ll deny this without prejudice.\nAnd if you can re-file it, do your motion as a 2 \u2014 1401, I\u2019ll be happy to hear it.\nMR. HOFFMAN: Thank you, your Honor.\u201d\nThe court entered a written order stating that the plaintiffs\u2019 motion to vacate the dismissal order of November 15, 1990, was denied \u201cwithout prejudice.\u201d On March 14, 1990, two days later, the plaintiffs filed a \u201cmotion for reconsideration\u201d of the \u201cmotion presented on February 15, 1990, and the matter heard on March 12, 1990.\u201d The motion, which was unsworn, stated that the plaintiff\u2019s principal attorney was unable to appear at the February 15 hearing and had assigned the matter to Loretta Ursini, that a severe snowstorm prevented her from getting to court that day, and that on the morning of February 15 Ursini informed opposing counsel that she would be unable to appear. The motion also stated that the original motion to vacate the November 15, 1989, dismissal was timely filed and was properly re-noticed.\nThe plaintiffs did not appeal the February 15, 1990, order reinstating the dismissal.\nOn April 3, 1990, the court heard the March 14 \u201cmotion to reconsider.\u201d With counsel for both defendants present, the following exchange between the plaintiffs\u2019 attorney and Judge Byrne took place:\n\u201cMR. HOFFMAN: I don\u2019t think the Court, last time this matter was up, took into consideration a motion which was pending at the time.\nTHE COURT: There was a motion to vacate a DWP which I denied.\nMR. HOFFMAN: There was also a motion for \u2014 at that time, your Honor, to vacate another DWP which was previously filed.\nSo, it was a motion which had been previously filed.\nTHE COURT: Let\u2019s see your motion.\nMR. HOFFMAN: There were two motions that were present last time.\nThe Court only ruled on one.\nTHE COURT: That\u2019s all I have to rule on.\nI\u2019m not going to vacate it.\nIf I\u2019m not going to vacate it, I\u2019m not going to vacate it.\nIf I don\u2019t vacate your DWP, I don\u2019t have to listen to the other motions.\nMR. HOFFMAN: All right. Fine.\nTHE COURT: Okay.\nSo, if that\u2019s what you want me to reconsider, that\u2019s denied.\nMR. HOFFMAN: I think the Court, as I understand its ruling, refused to vacate the DWP that was entered on which date?\nTHE COURT: The one that I refused to vacate, 11/15/89.\nMR. HOFFMAN: Okay.\nAnd I\u2014\nTHE COURT: That\u2019s the one I refused to vacate, so it\u2019s DWP\u2019d.\nThere is nothing to re-consider [sic].\nMR. HOFFMAN: I think the Court stated it was too late, the way in which to file the motion on that was 2 \u2014 1401, 6\u2014 1301.\nTHE COURT: Read your order, Counsel.\nI denied the motion pursuant to 2 \u2014 1301.\nMR. HOFFMAN: Thank you.\u201d\nOn that day, April 3, 1990, the court entered a written order stating that, after the hearing on the plaintiffs\u2019 \u201cmotion to reconsider this courts [sic] rulings of 11/15/89, 2/15/90 and 3/12/90,\u201d the motion was denied and the ruling of November 15, 1989, dismissing the case for want of prosecution stood.\nOn April 24, 1990, the plaintiffs filed a \u201cmotion for rehearing.\u201d The motion stated that the plaintiffs requested (1) a rehearing of the April 3, 1990, motion to reconsider and (2) that the court vacate the dismissal for want of prosecution.\nAttached to this latest motion were a \u201cmemorandum in support of motion for a rehearing\u201d and eight exhibits. The memorandum argued that the court erred in vacating the December 5, 1989, order of reinstatement. The motion also argued that the trial court erred in its March 12, 1990, holding that the plaintiffs could attack the ruling of February 15, 1990, only by a section 2 \u2014 1401 petition. The memorandum argued finally that the plaintiffs properly filed their December 5, 1989, motion within 30 days of the dismissal order and, according to Supreme Court Rule 184 (134 Ill. 2d R. 184), were entitled to have that motion heard. The memorandum concluded with a request that the court vacate the dismissal for want of prosecution and reinstate the case. The exhibits included papers already on file with the court. On May 25, 1990, the plaintiffs filed miscellaneous amendments to the memorandum.\nOn June 8, 1990, the plaintiffs filed a notice of a hearing on the motion to be held before Judge Byrne on June 12, 1990. On June 12, 1990, counsel for Dr. Boury appeared for the hearing. Nobody appeared for the plaintiffs. Dr. Boury\u2019s attorney explained to the judge that the plaintiffs wanted to withdraw the motion for rehearing. He explained further that he had \u201cnoticed up\u201d the motion for June 13, apparently while the plaintiffs had \u201cnotic[ed] it up\u201d for June 12. The judge suggested simply holding the hearing the next day; Dr. Boury\u2019s attorney agreed. Judge Byrne said that he would make the appropriate notation in the file. He asked Dr. Boury\u2019s attorney, \u201cIt\u2019s your motion to hear their motion tomorrow?\u201d and the latter replied, \u201cThey have asked to withdraw today. I don\u2019t know what they are doing tomorrow. I want some sort of resolution.\u201d\nThe next day, Dr. Boury\u2019s attorney appeared alone before Judge Byrne and the following exchange took place:\n\u201cTHE COURT: Do you want the motion stricken?\nMR. TERLIP [sic]: Here\u2019s the problem today, Judge:\nThere was no notice sent out for today\u2019s date, because my secretary set this date up, but then Plaintiffs noticed up their motion yesterday, if you recall.\nTHE COURT: Do you want an order, yesterday, striking the motion?\nMR. TERLIP [sic]: Correct, Q]ust to show that it\u2019s withdrawn or stricken.\nTHE COURT: Put it to nunc pro tunc, yesterday.\nMR. TERLIP [sic]: Thank you, your Honor.\nTHE COURT: Okay.\nThat\u2019s \u2014 that\u2019s better. I was thinking of that when no one showed up.\nMR. TERLIP [sic]: And I didn\u2019t want it to linger there in space for the next who knows how long.\u201d\nThe court\u2019s written order of June 13, 1990, stated that the plaintiffs\u2019 motion for rehearing had been heard and that, on the court\u2019s own motion, the motion for rehearing was stricken, nunc pro tunc June 12, 1990.\nOn August 16, 1990, the plaintiffs filed their \u201cPetition for Relief Pursuant to Section 2 \u2014 1401.\u201d The affidavit stated that the plaintiffs were seeking relief from the November 15, 1989, dismissal for want of prosecution.\nAttached to the petition was an affidavit from the plaintiffs\u2019 principal attorney, Alan C. Hoffman, explaining his absences from the November 15, 1989, and February 15, 1990, hearings. The affidavit stated that, rather than resulting from any intentional or willful disregard of the court, his absence at the former hearing was \u201cpartially due to an error in docketing.\u201d Specifically, he had telephoned Dr. Boury\u2019s attorney and informed the latter that he might miss the status hearing because he needed to consult with an expert witness in another case and that the \"witness was available only on the morning of November 15. Hoffman received the impression from this conversation that Dr. Boury\u2019s attorney would present the case\u2019s status to the court and tell the court of Hoffman\u2019s whereabouts and of the fact that Hoffman could be reached by cellular telephone.\nHoffman\u2019s affidavit also stated that he had assigned an associate to handle the February 15, 1990, hearing and that she could not make it to the hearing because of the severe snowstorm that began the evening of February 14.\nThe section 2 \u2014 1401 petition stated further that although the plaintiffs noticed their April 24, 1990, \u201cmotion for rehearing\u201d for hearing on June 12, 1990, they withdrew the motion shortly before that date on the advice of counsel whom they had retained to argue the motion.\nDr. Boury filed a memorandum in opposition to the petition. In their reply, filed October 23, 1990, the plaintiffs included an affidavit of Linda Bell, one of their attorneys. Bell stated that on June 11, 1990, she telephoned counsel for each defendant and told them that the plaintiffs were withdrawing the \u201cMotion for Rehearing\u201d that was scheduled for hearing the next day.\nOn November 1, 1990, the court heard the section 2 \u2014 1401 petition. Linda Bell told the court that on June 11 she \u201cspoke to the Court clerk here, or your secretary, and notified her of our intent to withdraw the [April 24, 1990,] motion.\u201d She also stated that she had informed opposing counsel of the plaintiffs\u2019 intent to withdraw the motion. She argued that under local court rule 6.04, Dr. Boury\u2019s motion to strike the motion for rehearing was premature because less than 60 days had passed between April 24,1990, and June 12,1990.\nCounsel for Dr. Boury replied that he had simply noticed the plaintiffs\u2019 motion for rehearing and was not moving to strike the motion on June 13. He denied having spoken with the plaintiffs\u2019 counsel on June 11 and stated that he had been unaware of the plaintiffs\u2019 intention to withdraw the motion until he arrived in court on June 12.\nAfter further argument, the trial judge announced that he would deny the section 2 \u2014 1401 petition. Crucial to his decision was that, since the original dismissal, the plaintiffs had failed to exercise diligence in pursuing the matter as required by section 2 \u2014 1401 (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401). The trial judge emphasized that the plaintiffs\u2019 attorney failed to appear for the February 15, 1990, hearing or to notify the court that he would not appear. The trial judge also explained that he denied the plaintiffs\u2019 March 12, 1990, motion to vacate the order of November 15, 1990, because the motion did not conform to a local court rule which required such motions to be noticed and heard within 60 days of filing. The judge noted that although he told counsel on March 12, 1990, that the plaintiffs would have to bring their motion under section 2 \u2014 1401, the plaintiffs waited five months to file their section 2 \u2014 1401 petition. The court issued its written order denying the section 2 \u2014 1401 petition, and the plaintiffs appealed.\nWe conclude that we may not reach the merits of this appeal. Although the parties have not raised the matter of our jurisdiction, we must do so sua sponte and dismiss the appeal if jurisdiction is lacking. (Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539.) For the reasons that follow, we have determined that we may not entertain the plaintiffs\u2019 appeal.\nThe trial court dismissed the plaintiffs\u2019 cause of action twice: once on November 15, 1989, when it issued an order so stating, and again on February 15, 1990, when it \u201creinstated\u201d the dismissal by vacating the December 5, 1990, vacatur of the original dismissal. The trial court\u2019s order of December 5, 1990, left the merits pending and was therefore not final or appealable. (See Williams v. A.E. Staley Manufacturing Co. (1980), 80 Ill. App. 3d 981, 984, rev\u2019d on other grounds (1981), 83 Ill. 2d 559.) Dr. Boury\u2019s motion to vacate the December 5, 1989, order was in essence, therefore, a new motion to dismiss the complaint.\nWhen the trial court granted Dr. Boury\u2019s motion on February 15, 1990, the plaintiffs had 30 days in which to challenge this order by way of a post-judgment motion pursuant to section 2 \u2014 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1301(e)). The trial court was therefore incorrect insofar as it held that the plaintiffs\u2019 March 12, 1990, motion to reconsider was untimely and could not be considered. There is simply nothing in the procedural rules that allowed the trial court to make its dismissal order effective \u201cas of November 15, 1989,\u201d three months previous, and thereby cut off the plaintiffs\u2019 opportunity to move for reconsideration of the order pursuant to section 2 \u2014 1301(e). That the December 5, 1989, reinstatement was vacated did not make it void. See American Consulting Association, Inc. v. Spencer (1981), 100 Ill. App. 3d 917, 920, cert. denied (1982), 458 U.S. 1112, 73 L. Ed. 2d 1375, 102 S. Ct. 3495 (movant\u2019s failure to notify opposing party of intention to move for default judgment does not render default judgment void).\nEven if the trial court reasoned unsoundly in denying the plaintiffs\u2019 March 12, 1990, motion, the plaintiffs\u2019 proper recourse was to appeal. The plaintiffs were entitled to a single post-judgment motion only. (Sears v. Sears (1981), 85 Ill. 2d 253; B-G Associates, Inc. v. Giron (1990), 194 Ill. App. 3d 52, 56-57; Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill. App. 3d 227; Cronin v. Altman (1981), 101 Ill. App. 3d 432.) The plaintiffs did not appeal the March 12, 1990, denial of the one post-judgment motion to which they were entitled; rather, they filed a \u201cmotion for reconsideration\u201d on March 14, 1990, within 30 days of the February 15, 1990, dismissal order and a \u201cmotion for rehearing\u201d on April 24, 1990, more than 30 days from the dismissal. Even were we to consider the March 14 motion valid (based on the trial court\u2019s written specification that the March 12 motion was denied \u201cwithout prejudice\u201d), the April 24 motion was not authorized under section 2 \u2014 1301. Not only was it repetitive, but it was filed more than 30 days after the February 15, 1990, order dismissing the complaint. That it was filed within 30 days of the denial of the March 14 motion, even assuming that the March 14 motion was permissible, is immaterial. See Giron, 194 Ill. App. 3d at 57.\nWhen a motion to vacate a judgment is brought more than 30 days after the entry of a final judgment, that motion will ordinarily be construed as a petition for relief from a final judgment under section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401). (Schuman v. Department of Revenue (1967), 38 Ill. 2d 571, 573; Northern Illinois Gas Co. v. Midwest Mole, Inc. (1990), 199 Ill. App. 3d 109, 115; Nenadic v. Grant Hospital (1979), 75 Ill. App. 3d 614, 620; Mehr v. Dunbar Builders Corp. (1972), 7 Ill. App. 3d 881.) We therefore construe the April 24, 1990, \u201cmotion for rehearing,\u201d which sought to vacate the dismissal of the plaintiffs\u2019 cause of action, as a petition under section 2 \u2014 1401.\nAlthough the plaintiffs may have intended to withdraw this motion before hearing, they did not in fact ever do so, and the motion was stricken on June 13, 1990. The plaintiffs never appealed from the order striking the motion. The August 16, 1990, section 2 \u2014 1401 petition was therefore the second section 2 \u2014 1401 petition that the plaintiffs filed at the trial level.\nA party that has not timely appealed the denial of a section 2 \u2014 1401 petition may not seek relief by filing a second such petition. (People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 70; Goldstick v. Saporito (1974), 22 Ill. App. 3d 621; Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill. App. 3d 688, 690.) Where there has been no timely appeal from the denial of the first such petition, an appeal from the second and invalid petition will not vest the appellate court with jurisdiction. (Village of Island Lake v. Parkway Bank & Trust Co. (1991), 212 Ill. App. 3d 115, 123; McGraw, 136 Ill. App. 3d at 71-72; Goldstick, 22 Ill. App. 3d 621; Werth, 16 Ill. App. 3d 688.) We therefore dismiss the appeal.\nAppeal dismissed.\nINGLIS and BOWMAN, JJ., concur.", "type": "majority", "author": "JUSTICE GEIGER" } ], "attorneys": [ "Alan C. Hoffman, of Alan C. Hoffman & Associates, of Chicago and Francis X. Riley, of Wheaton, for appellants.", "Henry J. Burt, Jr., of Rathje, Woodward, Dyer & Burt, and Lenard C. Swanson and Bruce S. Terlep, both of Wildman, Harrold, Allen & Dixon, both of Wheaton, for appellees." ], "corrections": "", "head_matter": "GARY K. LODOLCE et al., Plaintiffs-Appellants, v. CENTRAL Du PAGE HOSPITAL et al., Defendants-Appellees.\nSecond District\nNo. 2 \u2014 80\u20141316\nOpinion filed July 23, 1991.\n\u2014 Rehearing denied August 28,1991.\nAlan C. Hoffman, of Alan C. Hoffman & Associates, of Chicago and Francis X. Riley, of Wheaton, for appellants.\nHenry J. Burt, Jr., of Rathje, Woodward, Dyer & Burt, and Lenard C. Swanson and Bruce S. Terlep, both of Wildman, Harrold, Allen & Dixon, both of Wheaton, for appellees." }, "file_name": "0902-01", "first_page_order": 924, "last_page_order": 935 }