{ "id": 5222600, "name": "JANICE PICARDI, Plaintiff-Appellee, v. FLOYD EDWARDS et al., Defendants-Appellants", "name_abbreviation": "Picardi v. Edwards", "decision_date": "1992-05-08", "docket_number": "No. 1\u201490\u20140517", "first_page": "905", "last_page": "910", "citations": [ { "type": "official", "cite": "228 Ill. App. 3d 905" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "427 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 1135", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5501555 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/1135-01" ] }, { "cite": "241 N.E.2d 129", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 2d 112", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5323319 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/99/0112-01" ] }, { "cite": "579 N.E.2d 924", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5799245 ], "weight": 4, "pin_cites": [ { "page": "419" }, { "page": "419" }, { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0418-01" ] }, { "cite": "466 N.E.2d 1280", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 374", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598692 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0374-01" ] }, { "cite": "422 N.E.2d 610", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "85 Ill. 2d 253", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469019 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/85/0253-01" ] } ], "analysis": { "cardinality": 476, "char_count": 9655, "ocr_confidence": 0.796, "pagerank": { "raw": 5.9545418563042006e-08, "percentile": 0.37103862039833213 }, "sha256": "ab2dd10f78ddca5cfc8054e1f4bc638c33b57d6313b782c8e9c812655431f5b8", "simhash": "1:06ae118d04f69d64", "word_count": 1646 }, "last_updated": "2023-07-14T16:00:32.943049+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JANICE PICARDI, Plaintiff-Appellee, v. FLOYD EDWARDS et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nDefendants Floyd Edwards and Patricia Gray appeal from a trial court order denying their section 2 \u2014 1401 petition (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401) for want of jurisdiction.\nOn October 9, 1985, plaintiff Janice Picardi filed this suit against defendants, alleging breach of contract to purchase a condominium unit in Palatine, Illinois. On July 9, 1986, the suit was dismissed for want of prosecution. On October 10, 1986, the suit was reinstated. On March 18, 1988, the suit was dismissed for want of prosecution for the second time. On April 21, 1988, plaintiff filed a petition to vacate the dismissal of the complaint on the ground that she had not received notice of the trial call. On June 22, 1988, the trial court granted plaintiff\u2019s petition and reinstated the action.\nSubsequently, the cause appeared on the trial call on February 9, 1989. Defendants did not appear and were held to be in default. On April 5, 1989, plaintiff presented an ex parte prove up to a jury, which awarded damages of $32,000. The court entered judgment on the verdict.\nOn April 27, 1989, defendants were served with plaintiff\u2019s motion to dismiss defendants\u2019 counterclaim. On May 4, 1989, defendants moved to vacate the February 9, 1989, default judgment against them, on the ground that they did not receive notice of plaintiff\u2019s April 21, 1988, petition to vacate and did not know the complaint had ever been reinstated on June 22, 1988.\nOn September 18, 1989, plaintiff responded to defendants\u2019 section 2 \u2014 1401 petition, arguing that improper notice of defendants\u2019 section 2 \u2014 1401 petition was given, and that the petition was improperly verified and thus was not in compliance with section 2 \u2014 1401. On September 27, 1989, a hearing was held, where the court suggested that defendants refile the petition.\n\u201cTHE COURT: It doesn\u2019t qualify as a 2 \u2014 1401. It isn\u2019t sworn to.\nDEFENSE COUNSEL: If that is what is necessary, I will\nget it sworn. Your Honor, I simply want to transfer it.\n* * *\nTHE COURT: This is not a 2 \u2014 1401 petition.\nDEFENSE COUNSEL: That is fine, your Honor. I will refile it.\nTHE COURT: I suggest you continue the matter, refile the petition.\nPLAINTIFF\u2019S COUNSEL: Wait, I think the order should deny it.\nTHE COURT: This motion will be denied. It is not an appropriate motion under 2 \u2014 1401.\nDEFENSE COUNSEL: That is fine.\nTHE COURT: File it some other time.\nDEFENSE COUNSEL: Denied without prejudice. Thank you, your Honor.\nPLAINTIFF\u2019S COUNSEL: Wait a second.\nTHE COURT: Wait a while. We just did that. It is denied.\nDEFENSE COUNSEL: All right.\u201d\nThe court entered an order stating that \u201cthe motion is hereby denied for failure to abide by Rule 1401.\u201d\nOn October 27, 1989, defendants refiled the section 2 \u2014 1401 petition with the requisite verification. Plaintiff moved to dismiss the second 2 \u2014 1401 petition on the ground that the September 27, 1989, order was final and appealable and the trial court no longer had jurisdiction to hear defendants\u2019 \u201csecond petition.\u201d Initially, on December 18, 1989, the court denied plaintiff\u2019s motion to dismiss the section 2 \u2014 1401 petition. At the hearing, plaintiff argued that the trial court had no jurisdiction because the court had dismissed the section 2\u2014 1401 motion on September 21, 1989, and under Rule 304(b)(3) (134 Ill. 2d R. 304(b)(3)), it was a final and appealable order.\n\u201cTHE COURT: Did I dismiss their motion to [sic] strike it?\nDEFENSE COUNSEL: You denied it.\nTHE COURT: It was not verified?\nDEFENSE COUNSEL: No.\nPLAINTIFF\u2019S COUNSEL: That was the grounds \u2014 well, wait a second. The motion is here for failure to abide by rule 1401. Now, we raise quite a few areas where we said they were defective. We said it didn\u2019t allege a meritorious defense. It didn\u2019t do, we allege\u2014\nTHE COURT: I am sure the reason I struck it is because on its face it didn\u2019t comply with the statute, because it wasn\u2019t a verified petition.\nPLAINTIFF\u2019S COUNSEL: You denied it.\nTHE COURT: I really didn\u2019t deny it on merits. I denied it because we didn\u2019t agree on the form.\nPLAINTIFF\u2019S COUNSEL: If that\u2019s true, then they should have come in within 30 days and asked to modify the order or do something, but under 304(3)(b) [sic], if you read the supreme court rule, it says sets forth. ***\n* * *\n*** It specifically states that a judgment order granting or denying any of the relief prayed under section 2 \u2014 1401 of the code is a final and appealable order.\n* * *\nThe order that you entered basically denied their motion. It didn\u2019t strike it. It didn\u2019t give them leave to add an affidavit. It denied it.\n* * *\nTHE COURT: Counsel, wouldn\u2019t it be much more economic [sic] and much more direct and more within the keeping of the decisions in this area for this matter to be disposed of on the merits unless you can show me your prejudice by the virtue of the fact \u2014 your witness\u2019 testimony is gone stale, this whole matter\u2014\n* * *\nWhy don\u2019t you let this matter proceed on its merits.\u201d filed within 30 days of a previous 2 \u2014 1401 petition that was denied *** ff\nThe court then entered an order denying plaintiff\u2019s motion to dismiss defendants\u2019 second section 2 \u2014 1401 petition for lack of jurisdiction and giving plaintiff leave to answer the petition on its merits.\nHowever, on January 16, 1990, the court reconsidered and denied defendants\u2019 section 2 \u2014 1401 petition. The court entered an order stating: \u201cThe 1401 petition is denied on reconsideration of plaintiff\u2019s motion to dismiss initially denied on December 18, 1989, the court holding that it does not have jurisdiction to consider a 2 \u2014 1401 petition\nOn February 15,1990, defendants filed this appeal.\nOpinion\nDefendants contend that the September 27, 1989, denial of their first section 2 \u2014 1401 petition (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014 1401) to vacate was not a final and appealable order under Illinois Supreme Court Rule 304(b)(3) (134 Ill. 2d R. 304(b)(3)).\nPlaintiff maintains that the trial court properly dismissed the second 2 \u2014 1401 petition for lack of jurisdiction, and that this court similarly has no jurisdiction to consider the appeal from the denial of the second section 2 \u2014 1401 petition.\nGenerally, it is true that the filing of a second section 2 \u2014 1401 petition does not toll the 30 days provided for filing an appeal from the first section 2 \u2014 1401 petition. See Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610; In re Marriage of Ohlson (1984), 126 Ill. App. 3d 374, 466 N.E.2d 1280.\nOur recent decision in Romo v. Allin Express Service, Inc. (1991), 219 Ill. App. 3d 418, 579 N.E.2d 924, which was decided after briefs were filed in this case, is fully dispositive of this appeal. In Romo, this division held that the trial court\u2019s dismissal of plaintiff's first section 2 \u2014 1401 motion without prejudice \u201cinvited a refiling, and thus [the trial court] retained jurisdiction over the [second] petition filed 22 days later.\u201d (Romo v. Allin Express Service, Inc., 219 Ill. App. 3d at 419.) The trial judge in Romo stated:\n\u201cNow, there is no question that your petition does not set forth specific factual allegations of your having a meritorious claim. *** At this point my order is, your petition is denied without prejudice.\u201d (Romo v. Allin Express Service, Inc., 219 Ill. App. 3d at 419.)\nWe held that this language \u201cmakes this judgment substantially similar to an order granting leave to amend.\u201d Romo v. Allin Express Service, Inc., 219 Ill. App. 3d at 419, citing Elliott Construction Corp. v. Zahn (1968), 99 Ill. App. 2d 112, 241 N.E.2d 129 (trial court has authority to grant leave to amend a section 2 \u2014 1401 petition; time for filing notice of appeal is tolled until the amended petition is filed); Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 427 N.E.2d 645 (same).\nHere, the facts are even stronger. The trial court expressly invited defendants to refile the section 2 \u2014 1401 petition when it stated at the September 27, 1989, hearing, \u201cI suggest you continue the matter, refile the petition\u201d; and \u201cFile it some other time.\u201d At the Decernber 18, 1989, hearing, the court recalled that it intended to give defendants the opportunity to refile the petition, when it stated:\n\u201cTHE COURT: I am sure the reason I struck it is because on its face it didn\u2019t comply with the statute, because it wasn\u2019t a verified petition.\n* * *\nI really didn\u2019t deny it on merits. I denied it because we didn\u2019t agree on the form.\u201d\nWe conclude, as we did in Romo, that the trial court erred in finding it had no jurisdiction to entertain the second section 2 \u2014 1401 petition. We decline to address the merits of the section 2 \u2014 1401 petition until the trial court has had the opportunity to do so.\nFinally, we find no merit in plaintiff\u2019s argument that defendants and their attorneys should be sanctioned because, as plaintiff argues, they \u201chave refused to justify under the law how they were entitled to file a second 2 \u2014 1401 petition.\u201d Both the facts in this record and the law cited herein clearly support defendants\u2019 right to file a second section 2 \u2014 1401 petition.\nAccordingly, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a hearing on the merits of the final section 2 \u2014 1401 petition.\nJudgment reversed and remanded with directions.\nLORENZ and MURRAY, JJ., concur.", "type": "majority", "author": "JUSTICE GORDON" } ], "attorneys": [ "Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, Diane I. Jennings, and Douglas W. Lohmar, Jr., of counsel), for appellants.", "Nisen & Elliott, of Chicago (John K. Kneafsey, of counsel), for appellee." ], "corrections": "", "head_matter": "JANICE PICARDI, Plaintiff-Appellee, v. FLOYD EDWARDS et al., Defendants-Appellants.\nFirst District (5th Division)\nNo. 1\u201490\u20140517\nOpinion filed May 8, 1992.\nLord, Bissell & Brook, of Chicago (Hugh C. Griffin, Diane I. Jennings, and Douglas W. Lohmar, Jr., of counsel), for appellants.\nNisen & Elliott, of Chicago (John K. Kneafsey, of counsel), for appellee." }, "file_name": "0905-01", "first_page_order": 925, "last_page_order": 930 }