{ "id": 5256449, "name": "ANTONIO PADILLA, Special Adm'r of the Estate of Maria Padilla, Deceased, Plaintiff-Appellant, v. ELADIO E. VAZQUEZ et al. (Juan A. Zabaleta et al., Defendants)", "name_abbreviation": "Padilla v. Vazquez", "decision_date": "1991-11-08", "docket_number": "No. 1-90-1831", "first_page": "1018", "last_page": "1027", "citations": [ { "type": "official", "cite": "223 Ill. App. 3d 1018" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "457 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "98 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121957 ], "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0382-01" ] }, { "cite": "530 N.E.2d 230", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. 2d 370", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217995 ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0370-01" ] }, { "cite": "368 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. App. 3d 990", "category": "reporters:state", "reporter": "Ill. 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App. 3d 875", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5626863 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0875-01" ] }, { "cite": "215 N.E.2d 271", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "34 Ill. 2d 358", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2878761 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/34/0358-01" ] }, { "cite": "240 N.E.2d 621", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "40 Ill. 2d 442", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857692 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/40/0442-01" ] }, { "cite": "165 N.E.2d 294", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "18 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328089 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/18/0502-01" ] }, { "cite": "406 N.E.2d 164", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 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App. 3d", "case_ids": [ 3193108 ], "year": 1977, "pin_cites": [ { "page": "1053" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/1051-01" ] }, { "cite": "559 N.E.2d 135", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "141" }, { "page": "138-39" } ], "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 502", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3171305 ], "weight": 4, "pin_cites": [ { "page": "769" }, { "page": "768" }, { "page": "768" }, { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0766-01" ] } ], "analysis": { "cardinality": 807, "char_count": 20689, "ocr_confidence": 0.777, "pagerank": { "raw": 7.156415960393288e-08, "percentile": 0.42875453356547044 }, "sha256": "72f89d8a7c34c83c25ebfef74bbf24c73a7b0b1996c6241240fb2bc4655bff56", "simhash": "1:8bfc528eedc4894c", "word_count": 3435 }, "last_updated": "2023-07-14T19:46:44.574739+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ANTONIO PADILLA, Special Adm\u2019r of the Estate of Maria Padilla, Deceased, Plaintiff-Appellant, v. ELADIO E. VAZQUEZ et al. (Juan A. Zabaleta et al., Defendants)." ], "opinions": [ { "text": "JUSTICE LaPORTA\ndelivered the opinion of the court:\nThe subject of this appeal is an order entered by the circuit court of Cook County denying plaintiff\u2019s motion pursuant to section 2 \u2014 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401) which sought vacation of a final agreed order of dismissal which had been previously entered in favor of defendants-appellees. The trial judge\u2019s denial of the motion was based upon her finding that plaintiff failed to personally serve the defendants-appellees with a copy of the motion. Plaintiff appeals, asserting that defense counsel\u2019s appearance and objections to the motion constituted a waiver of the service requirement for a section 2 \u2014 1401 petition.\nPlaintiff instituted this action on June 27, 1986, against defendants, Eladio E. Vazquez, M.D. and Eladio E. Vazquez, M.D., Ltd., and other medical providers, alleging that the death of his wife on July 2, 1984, was the result of negligent medical care rendered from 1981 to November 1983. On August 11, 1986, defense counsel filed an appearance and motion to dismiss, challenging plaintiff\u2019s capacity to sue and the sufficiency of the complaint. No further activity concerning these defendants appears of record until January 16, 1987, when the trial court entered an agreed order which stated that the motion of defendants was granted; all causes of action against them were dismissed with prejudice; and plaintiff\u2019s causes of action against all remaining defendants continued.\nOn July 15, 1987, six months after the entry of the dismissal order, plaintiff filed a motion to vacate the dismissal order. In this motion, plaintiff asserted that the dismissal order of January 16, 1987, was predicated upon the defense counsel\u2019s representation that plaintiff\u2019s decedent had last been under the care of defendants on June 3, 1981, which would have been more than four years prior to the filing of plaintiff\u2019s complaint on June 27, 1986. The motion asserted further that subsequent to January 15, 1987, plaintiff\u2019s counsel acquired receipts issued by defendants showing that plaintiff\u2019s decedent had seen defendants for medical care as late as November 1982, within the four-year limitations period. The motion alleged that plaintiff\u2019s counsel immediately brought this information to the attention of defense counsel. The motion also included a conclusory statement that plaintiff\u2019s attorneys had exercised due diligence in seeking to vacate the dismissal order and that the entry of the order was based upon a mutual mistake of fact.\nThe motion was not verified and was not supported by affidavits, but did include as exhibits copies of correspondence between plaintiff\u2019s attorney and defense counsel regarding the receipts and can-celled checks discovered after the dismissal and referred to in the motion.\nPlaintiff\u2019s motion was scheduled for hearing on September 24, 1987, by a notice of motion sent to defense counsel. Notice was not given directly to defendants. The hearing on the motion did not take place on that date and was continued several times by agreement. On August 19, 1988, the court set a briefing schedule and set the matter for a status hearing on November 10,1988.\nOn September 26, 1988, defendants filed a memorandum in opposition to plaintiff\u2019s motion, arguing that the trial court lacked subject matter jurisdiction over the motion. In support of this argument, defendants\u2019 motion asserted that the motion was untimely brought and that the allegations in the motion did not justify the relief requested. The hearing on the motion was thereafter continued to January 31,1989.\nOn January 31, 1989, the associate attorney handling the case for plaintiff was out of the country, and attorney Robert Clifford appeared in his stead. At that hearing, the trial court voiced some confusion over the precise nature of the motion, and Clifford indicated that the motion was brought pursuant to section 2 \u2014 1401. Both the trial court and defense counsel expressed some surprise at this comment, stating that the face of the motion did not specifically refer to section 2 \u2014 1401 and that it was not accompanied by any affidavits. Defense counsel argued that the motion was inadequate as a section 2 \u2014 1401 petition based upon the lack of supporting affidavits. Defense counsel argued further that the motion should be denied on its merits because there was no evidence that the receipts and cancelled checks recently obtained by plaintiff\u2019s attorney related to treatment of plaintiff\u2019s decedent after June 1981.\nThe trial court held that in order to be considered as a section 2\u2014 1401 petition, it was necessary that the motion comply with the requirements of section 2 \u2014 1401. Despite the fact that more than two years had elapsed after the entry of the dismissal order, the trial court granted plaintiff leave to file supporting affidavits.\nThereafter, plaintiff\u2019s counsel filed with the court his own affidavit which attested that in March 1987, he obtained from plaintiff certain receipts issued by defendant and cancelled checks negotiated by defendant after June 1981. Plaintiff\u2019s counsel\u2019s affidavit averred further that no evidence had been produced which would indicate that certain of these receipts and checks related to services rendered to any person other than the plaintiff\u2019s decedent. The plaintiff did not file an affidavit executed by him or attesting to relevant matters of which he had personal knowledge.\nOn March 31, 1989, the next court appearance, defense counsel stated that she appeared by a \u201cspecial and limited appearance\u201d to contest the trial court\u2019s in personam jurisdiction based upon lack of personal service of defendant. The trial court set a briefing schedule on the issue of whether defendant had waived the personal service requirement in section 2 \u2014 1401. At each and every subsequent court appearance, defense counsel stated that she was present by virtue of a \u201cspecial and limited appearance,\u201d but the record does not disclose that a special and limited appearance was ever filed by defendants.\nOn August 23, 1989, after considering the briefs of the parties on the jurisdiction issue, the trial court found that the plaintiff\u2019s previously filed motion to vacate was \u201ctransformed\u201d into a section 2 \u2014 1401 petition on January 31, 1989, by virtue of Mr. Clifford\u2019s statement that the motion was brought pursuant to section 2 \u2014 1401. The court ruled that it was necessary for plaintiff to personally serve defendant with the petition and that service had not been waived. The court then ordered plaintiff to serve defendant with the petition and continued hearing on the merits of the motion to November 1,1989.\nOn February 6, 1990, plaintiff filed with the court a document entitled \u201cAffidavit of Special Process Server.\u201d The affidavit was executed by Ron Peters, who identified himself as a \u201cspecial process server\u201d and attested that on November 29, 1989, he personally served defendant with plaintiff\u2019s motion to vacate the dismissal order. The record does not, however, contain any motion to appoint a special process server, nor any order appointing Mr. Peters as a special process server.\nAfter several continuances, the trial court finally heard the merits of plaintiff\u2019s motion on May 21, 1990. At that hearing, the court and defense counsel made reference to an affidavit executed by defendant which averred that he had never been personally served with a copy of plaintiff\u2019s motion to vacate. This affidavit does not, however, appear in the record.\nThe trial court denied plaintiff\u2019s section 2 \u2014 1401 petition, finding that plaintiff had failed to personally serve defendant with a copy of the petition. Plaintiff has appealed, asserting that defense counsel\u2019s appearance and objections to the motion constituted a waiver of the service requirement for a section 2 \u2014 1401 petition and that the trial court erred in denying his section 2 \u2014 1401 petition to vacate the order of dismissal.\nIn analyzing a pleading, a court of review will look to the content of the pleading rather than its label. (Schiffman v. Bowman (1980), 88 Ill. App. 3d 766, 769, 411 N.E.2d 71, 74.) Once more than 30 days have elapsed after the entry of a final order or judgment, a party may request relief only under section 2 \u2014 1401. (Schiffman, 88 Ill. App. 3d at 768, 411 N.E.2d at 73.) Where a motion to vacate is filed more than 30 days after the final judgment of the trial court, it must be considered as a motion for relief under section 2 \u2014 1401. Schuman v. Department of Revenue (1967), 38 Ill. 2d 571, 573, 232 N.E.2d 732; Gruss v. Beverley (1990), 201 Ill. App. 3d 502, 511, 559 N.E.2d 135, 141; Halleck v. Trumfio (1980), 85 Ill. App. 3d 1051, 1053, 407 N.E.2d 867; Slade v. Bowman (1977), 49 Ill. App. 3d 242, 245, 364 N.E.2d 922.\nIn the instant case, the plaintiff\u2019s motion to vacate was filed July 15, 1987, more than 30 days after, but within two years of, the entry of the dismissal order. Clearly, the only manner in which he could seek relief from this final order at the trial level was by virtue of a section 2 \u2014 1401 petition. (Schiffman, 88 Ill. App. 3d at 768, 411 N.E.2d at 73.) It is evident that even if the motion did not satisfy all of the technical requirements contained in section 2 \u2014 1401, it was a timely filed motion for relief under that section and should have been treated as such by the trial court at all times after its filing.\nContrary to the arguments of defense counsel, the motion was not \u201ctransformed\u201d into a section 2 \u2014 1401 petition merely by the appearance and comments of Mr. Clifford on January 31, 1989. No new petition was filed at that time, and nothing in the actions of Mr. Clifford could have altered the basic nature or substance of the motion itself. Thus, the July 15, 1987, motion to vacate must be considered as a motion for relief under section 2 \u2014 1401, and its adequacy must be judged against the requirements of that section.\nDefendant asserts, and the trial court found, that the motion must be denied because plaintiff failed to personally serve defendant with a copy thereof. Plaintiff appropriately argues, however, that defense counsel\u2019s appearance and objections to the motion constituted a general appearance and a waiver of the service requirement in section 2-1401.\nA party seeking relief under section 2 \u2014 1401 must give notice to opposing parties according to Supreme Court Rules 105 and 106. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401.) Under these rules, notice is to be given by (1) personal service, (2) by prepaid registered mail with return receipt requested, or (3) by publication. (134 Ill. 2d Rules 105, 106.) Notice is indispensable to due process, and compliance with the rules is essential to jurisdiction. Public Taxi Service, Inc. v. Ayrton (1973), 15 Ill. App. 3d 706, 710, 304 N.E.2d 733.\nYet, any defects in the service of a section 2 \u2014 1401 petition are waived when the defendant generally appears in court on the petition. Sabatino v. Kozy Kottage Inn, Inc. (1981), 102 Ill. App. 3d 375, 378-79, 430 N.E.2d 73; Schiffman, 88 Ill. App. 3d at 769, 411 N.E.2d at 73; Community Bank & Trust Co. v. Pavlich (1980), 84 Ill. App. 3d 1080,1082-83, 406 N.E.2d 164; Slade, 49 Ill. App. 3d at 246.\nIn the case at bar, the motion to vacate was filed July 15, 1987, and served upon defense counsel. No objection was made at that time to the designation of the motion or to the fact that there was no affidavit evidencing personal service of the motion upon the defendant doctor. Instead, defense counsel opposed the motion in September 1988, contending that the motion was untimely and should be denied on the merits because there was no evidence that the newly discovered receipts and cancelled checks related to treatment of plaintiff\u2019s decedent. As already noted, the motion was not untimely because it was filed only six months after the entry of the dismissal order and well within the two-year period set forth in section 2 \u2014 1401.\nAppellate counsel stated during oral argument before this panel that defense counsel argued during the January 31, 1989, hearing that the trial court did not have jurisdiction to consider the plaintiff\u2019s motion to vacate.\nCareful review of the transcript of that hearing indicates that Mr. Clifford advised the court at the outset of the hearing that plaintiff\u2019s motion to vacate was predicated upon section 2 \u2014 1401. At page 7 of the transcript, defense counsel stated that she had been unsure as to the nature of the motion because it was filed well beyond the 30th day after entry of the agreed order and because it did not comply with the technical requirements of section 2 \u2014 1401. Defense counsel then stated that because the agreed order of dismissal contained Rule 304(a) language, the matter had to be taken up on appeal and the trial court was without subject matter jurisdiction to hear the motion. The remainder of the comments made by defense counsel related to the merits of the motion to vacate and to the sufficiency of the evidence upon which the motion to vacate was based.\nAt no time during the January 31, 1989, hearing did defense counsel enter or mention a \u201cspecial and limited appearance\u201d on the basis of a lack of personal jurisdiction. Moreover, the memorandum filed by defense counsel in September 1988 in opposition to the motion to vacate raised the question of the court\u2019s subject matter jurisdiction but made no mention of a lack of personal jurisdiction over defendants. The first mention of a \u201cspecial and limited appearance\u201d occurred in March 1989.\nCounsel for defendant appeared before the court on several scheduled court dates between July 1987 and January 1989, but never objected to the lack of personal service upon defendant. The record reflects that on many of these occasions, defense counsel argued that the motion should be denied on its merits. It was not until March 1989 that defense counsel voiced any objection to the fact that the defendant doctor had not been personally served. At each subsequent hearing date, defense counsel advised the trial judge that she appeared by virtue of a \u201cspecial and limited appearance,\u201d but the record does not reflect that any such document was ever filed with the court.\nWe hold that defense counsel\u2019s presence before the trial court and arguments on the merits of plaintiff\u2019s motion constituted a general appearance and a waiver of the necessity to personally serve the defendant with a copy of the motion.\nDefendant\u2019s general appearance and waiver of the personal service requirement do not, however, alter the fact that the motion filed by plaintiff did not comply with the other requirements of section 2\u2014 1401 and was properly denied.\nAs a general rule, a court loses the power to review its judgments after the passage of 30 days. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.) Consequently, a request to vacate a prior judgment is properly before the trial court only when presented by petition in accordance with section 2 \u2014 1401. Pape v. Department of Revenue (1968), 40 Ill. 2d 442, 240 N.E.2d 621; Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 215 N.E.2d 271; Garcia v. Lozada (1978), 58 Ill. App. 3d 875, 374 N.E.2d 1078; Spears v. Spears (1977), 52 Ill. App. 3d 695, 367 N.E.2d 1004.\nSection 2 \u2014 1401 clearly states that \u201c[rjelief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this [sjection\u201d and that \u201c[t]he petition must be supported by affidavit or other appropriate showing as to matters not of record.\u201d Ill. Rev. Stat. 1991, ch. 110, pars. 2 \u2014 1401(a), (b).\nThe motion filed by plaintiff in this case clearly fails to comply with the requirements of section 2 \u2014 1401. The motion was not verified and was not supported by affidavit. It is, therefore, insufficient as a matter of law. Stallworth v. Thomas (1980), 83 Ill. App. 3d 747, 404 N.E.2d 554; Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 482, 386 N.E.2d 284, 286; Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App. 3d 753, 756, 357 N.E.2d 187.\nAt the hearing on January 31, 1989, the trial court recognized and informed plaintiff\u2019s attorney that the July 15, 1987, motion was insufficient to comply with the requirements of section 2 \u2014 1401. Rather than deny the relief requested, the court afforded plaintiff the opportunity to file affidavits in support of the motion so as to comply with that requirement of section 2 \u2014 1401. Thereafter, counsel for plaintiff filed only an affidavit of his own which described how he came into possession of the receipts and cancelled checks at issue and which asserted that there was no evidence indicating that these documents related to treatment of any person other than the plaintiff\u2019s decedent. The plaintiff did not file an affidavit executed by him or attesting to relevant matters of which he had personal knowledge.\nAlthough it is true that, in ruling on a motion to dismiss a section 2 \u2014 1401 petition, all well-pleaded facts are to be taken as true, this rule does not extend to conclusions drawn by the pleader. (People v. Jayne (1977), 52 Ill. App. 3d 990, 368 N.E.2d 422.) In order to be legally sufficient, a request for relief under section 2 \u2014 1401, based upon matters outside the trial record, must be supported by the sworn allegations of the party or parties having personal knowledge of the relevant facts, set forth either by verified petition or by attached affidavit. Mitchell, 68 Ill. App. 3d at 482, 386 N.E.2d at 286; Okumura, 43 Ill. App. 3d at 756, 357 N.E.2d at 190.\nIn the instant case, plaintiff\u2019s motion to vacate was not verified and was not supported by his affidavit attesting to matters outside the record which were within his personal knowledge. Even after the court granted leave to file supporting affidavits 18 months after the motion was filed, the only affidavit presented to the court was that of plaintiff\u2019s attorney, who did not have personal knowledge of many of the facts asserted therein. These circumstances make it evident that the plaintiff\u2019s motion was insufficient when judged against the requirements of section 2 \u2014 1401.\nMoreover, in order to be entitled to relief under section 2 \u2014 1401, the petitioner must allege and prove that he has a meritorious defense; that it was through no fault or neglect of his own that the meritorious defense was not presented to the trial court; that he exercised due diligence in defending the original action; and that he exercised due diligence in filing the petition for section 2 \u2014 1401 relief, and the petitioner must set forth specific factual allegations supporting each of the above elements. Mitchell, 68 Ill. App. 3d at 482, 386 N.E.2d at 286.\nPlaintiff\u2019s motion failed to set forth factual allegations, but asserted mere conclusions as grounds for the relief requested. The motion offered no explanation for his failure to file a petition seeking to vacate the dismissal within 30 days and alleged no facts demonstrating his exercise of due diligence in presenting his claim or in filing the motion to vacate. The motion to vacate asserted merely the conclusory statement that plaintiff\u2019s attorney exercised due diligence in seeking to vacate the dismissal order. These conclusory allegations were manifestly inadequate to meet the requirements of section 2\u2014 1401, and the plaintiff\u2019s motion was wholly insufficient to warrant relief under that section. (Kaput v. Hoey (1988), 124 Ill. 2d 370, 530 N.E.2d 230; Gruss, 201 Ill. App. 3d at 508, 559 N.E.2d at 138-39.) Consequently, the trial court properly denied plaintiff\u2019s motion to vacate the prior agreed order which dismissed defendants from the action.\nIt is well established that a court of review may affirm a decision of the trial court upon any grounds appearing in the record despite the fact that the lower court\u2019s determination was predicated upon another basis. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.\nFor the foregoing reasons, the order of the circuit court of Cook County is affirmed.\nAffirmed.\nRAKOWSKI, P.J., and McNAMARA, J., concur.", "type": "majority", "author": "JUSTICE LaPORTA" } ], "attorneys": [ "Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Keith A. Hebeisen, and Robert R Sheridan, of counsel), for appellant.", "Lord, Bissell & Brook, of Chicago (R. Dennis Rasor, Hugh C. Griffin, Mary Ellen Busch, and Diane I. Jennings, of counsel), for appellees." ], "corrections": "", "head_matter": "ANTONIO PADILLA, Special Adm\u2019r of the Estate of Maria Padilla, Deceased, Plaintiff-Appellant, v. ELADIO E. VAZQUEZ et al. (Juan A. Zabaleta et al., Defendants).\nFirst District (6th Division)\nNo. 1 \u2014 90\u20141831\nOpinion filed November 8, 1991.\nRehearing denied January 23, 1992.\nRobert A. Clifford & Associates, of Chicago (Robert A. Clifford, Keith A. Hebeisen, and Robert R Sheridan, of counsel), for appellant.\nLord, Bissell & Brook, of Chicago (R. Dennis Rasor, Hugh C. Griffin, Mary Ellen Busch, and Diane I. Jennings, of counsel), for appellees." }, "file_name": "1018-01", "first_page_order": 1042, "last_page_order": 1051 }