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SECOND DIVISION
March 19, 2002

Plaintiff LaSalle National Trust, N.A. (LaSalle), filed acomplaint for unpaid rent against defendants Jerome Lamet andStephanie Kanwit, tenants who had rented office space from LaSalle. Defendants counterclaimed, seeking reformation. After years ofcourt hearings and transfers, the trial court dismissed the causefor want of prosecution. LaSalle filed a motion to quash thedismissal order as void. The court denied the motion. LaSalle nowappeals, asking that this cause be remanded for furtherproceedings.

Initiated in 1993, this cause was eventually assigned to JudgeLoretta Douglas of the Cook County Circuit Court, Law Division, onMarch 31, 1998, "for all purposes, including supervision ofdiscovery, hearing any and all dispositive motions, the schedulingof trial and trial." According to LaSalle, no date was set forappearance, status or hearing. On April 17, 1998, again accordingto LaSalle, Judge Douglas entered an order dismissing LaSalle'scause "for want of prosecution" without providing notice to eitherparty and outside their presence in court.

In order to protect their counterclaims, defendants filed amotion to vacate the April 1998 dismissal on June 1, 1998. Defendants never served LaSalle or filed notice for hearing on thismotion; therefore, it was never heard by the court. However, onAugust 26, 1998, defendants received notice that LaSalle had fileda petition to quash the April 1998 dismissal for lack of dueprocess, which was based upon LaSalle's claim that neither partyhad received notice of that hearing. LaSalle's petition was heardon August 31, 1998, with both parties present in court. JudgeDouglas determined that since more than 30 days had passed sincethe entry of the dismissal she had no jurisdiction to hear thispetition and recommended to LaSalle that it "serve notice asrequired for Relief from Judgment." We do not address whether thetrial court had jurisdiction to consider the "petition to quash" onAugust 31, 1998, because LaSalle never appealed that ruling.

LaSalle never filed or served notice for Relief from Judgmentunder section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)), as the court had instructed. Instead, LaSallechose to file a second petition to quash the April 1998 dismissal,again claiming it was void for lack of due process. LaSalle,however, did not file this second petition until June 1999, 14months after the court entered the April 1998 dismissal and 10months after the court specifically told LaSalle on August 31,1998, to proceed under the provision for relief from judgment. Judge Douglas, presiding over LaSalle's second petition to quash,allowed a full briefing and oral arguments. On December 16, 1999,she denied LaSalle's petition and finally disposed of the case,finding that LaSalle "failed to act with the requisite duediligence in filing its section 2-1401 petition for relief and inbringing it for hearing."

LaSalle appeals from both the April 1998 dismissal for want ofprosecution and the December 1999 denial of its second petition toquash. LaSalle first contends that the April 1998 dismissal wasvoid for lack of notice to the parties, a violation of proceduraldue process. Second, LaSalle contends this void order may bequashed at any time, without having to pursue relief under section2-1401. Consequently, LaSalle claims, the trial court should havequashed the April 1998 dismissal, and we, in turn, should reversethe trial court's order of December 1999 thereby remanding thiscause for further proceedings. We disagree.

LaSalle's first claim that the April 1998 dismissal order wasvoid for lack of notice is incorrect for the following reasons: (1)the record suggests that the parties were given notice to appear bycourt order; and (2) even if the order was entered without notice,it would not be void but only voidable.

We first observe that LaSalle's claim that "all parties aswell as the trial court herein" acknowledge that no notice wasgiven is unsupported by any citation to the record. In fact, therecord suggests that notice to appear was given. This is shown bythe order entered by Judge Douglas on April 17, 1998, which states,"This cause coming on for status, the Court finds and orders asfollows: This cause is dismissed for want of prosecution forfailure of Plaintiff(s) to appear pursuant to prior Court order." Thus, the order entered by Judge Douglas states that LaSalle failedto appear pursuant to prior court order. There is also evidence inthe record that on March 31, 1998, the matter was set for a statushearing in front of Judge Douglas on April 17, 1998. This is shownby an exhibit attached to an affidavit prepared by LaSalle'sattorney. That exhibit, labeled H, contains a computerizedprintout of the history of this case while pending in the lawdivision. That printout not only shows that on March 31, 1998 thecase was assigned to Judge Douglas, the printout also shows that onthat same date Judge Douglas set the case on the status call forApril 17, 1998.

Moreover, in the December 16, 1999 order denying LaSalle'spetition to quash, Judge Douglas states that it is LaSalle's claim"that it received no further notice from this Court or the CountyClerk's office as to the dates for status or hearing, even though[it] is the custom and practice of the assignment court room [togive such notice]." Although Judge Douglas acknowledged that theparties claimed that they were not notified, her order does notgive any credence to this claim.

The parties do not dispute that the case was assigned to JudgeDouglas on March 31, 1998. There is also no dispute that LaSallewas notified to appear in the assignment room on March 31, 1998,but it did not do so. Additionally, in the December 1999 order,denying LaSalle's petition to quash, Judge Douglas indicated thatshe "dismissed this matter for want of prosecution for failure ofPlaintiff to appear pursuant to Court Order." From our review ofthe record, it appears that the case was set for status on April17, 1998 and LaSalle failed to appear, just as it had on March 31,1998.

Assuming arguendo that the April 17, 1998 order was enteredwithout notice, the order would not be void. While LaSalle iscorrect when it states a void order is subject to attack at anytime, the question of

"whether a judgment is void or voidabledepends on whether the court entering thechallenged order possessed jurisdiction overthe parties and the subject matter.[Citation.] If jurisdiction is lacking, anysubsequent judgment of the court is renderedvoid and may be attacked collaterally.[Citation.] 'Judgments entered in a civilproceeding may be collaterally attacked asvoid only where there is a total want ofjurisdiction in the court which entered thejudgment, either as to the subject matter oras to the parties.' [Citation.] A voidablejudgment, however, is one entered erroneouslyby a court having jurisdiction and is notsubject to collateral attack. [Citation.] Once a court has acquired jurisdiction, anorder will not be rendered void merely becauseof an error or impropriety in the issuingcourt's determination of the law.[Citations.]" In re Marriage of Mitchell, 181Ill. 2d 169, 174, 692 N.E.2d 281 (1998).

In this case LaSalle contends that the order was void becauseit was entered without notice. LaSalle does not suggest that the court lacked jurisdiction over the parties or the subject matter. It simply claims that there was no notice given. However, there isno question that the circuit court had jurisdiction in this matter. Therefore, even if the order was entered without notice, which wedo not find, the order was voidable, not void.

Moreover, we have previously held that the " 'failure tonotify plaintiff that [a] dismissal order ha[s] been entered [does]not make the order void.' " Cooper v. United Development Co., 122Ill. App. 3d 850, 854, 462 N.E.2d 629 (1984), quoting Watts v.Medusa Portland Cement Co., 132 Ill. App. 2d 227, 230, 268 N.E.2d721 (1971). In Watts we specifically held that a dismissal forwant of prosecution based upon the failure to give notice did notmake the order void. Watts, 132 Ill. App. 3d at 230.

Our decision in Cooper is also illustrative. There, theplaintiffs claimed that because they did not receive notice fromthe trial court of an order dismissing their complaint, the orderwas void. While this court agreed that the plaintiffs neverreceived notice, we refused to void the trial court's order. Instead, this court declared that it was the plaintiffs' duty tofollow the progress of their own cause, and although the trialcourt's failure to notify them was improper, the order of dismissalwas still valid. Cooper, 122 Ill. App. 3d at 856-57.

The instant case is very similar to Cooper and merits the sameconclusion. Though it would have been improper for the trial courtto enter the dismissal for want of prosecution on April 17, 1998,without providing notice to LaSalle, that failure, even if itoccurred, does not render the order void. LaSalle had a duty tocontrol its own litigation and follow the progress of its own causeof action. Smith v. Airoom, Inc., 114 Ill. 2d 209, 227, 499 N.E.2d1381 (1986); see also S.C. Vaughan Oil Co. v. Caldwell, Troutt &Alexander, 181 Ill. 2d 489, 506, 693 N.E.2d 338 (1998) (the choiceof whether and when to refile a cause after suffering a dismissalfor want of prosecution lies with the plaintiff).

In fact, LaSalle did have notice quite early in this cause,providing it with enough time to do what was legally necessary tovacate the dismissal. Defendants here, who seem to suggest thatthey were not given notice of the April 1998 dismissal, certainlyknew about it by June 1998, when they filed a motion to have itvacated in order to protect their counterclaims. Comparatively,that LaSalle may claim it did not "know" of the dismissal at thistime shows it was lax in its duty to stay apprised of its cause. Moreover, the record reveals that LaSalle must have known of theApril 1998 dismissal as early as August 26, 1998, when defendantsreceived notice that LaSalle filed a petition to quash thatdismissal. Furthermore, it is clear that LaSalle had actualknowledge of the dismissal by August 31, 1998, when LaSalle wasundeniably present in court arguing that petition. Therefore,though LaSalle may not have received notice that a hearing was tobe held in April 1998, it did know at least by August 1998, onlyfour months later, that a dismissal for want of prosecution hadbeen entered. LaSalle cannot hide behind its procrastination andclaim an order affecting its case was void simply because the trialcourt did not provide notice. See Cooper, 122 Ill. App. 3d at 856-57.

Because the April 1998 dismissal was not void, LaSalle'ssecond contention that we must reverse the trial court's December1999 order and quash the dismissal is also incorrect. Generally,dismissal of a plaintiff's cause for want of prosecution is not afinal and appealable order. Marren Builders, Inc. v. Lampert, 307Ill. App. 3d 937, 941, 719 N.E.2d 117 (1999). This is because aplaintiff is afforded the legal remedy of refiling his cause withinone year of the entry of the dismissal or within the remainingperiod of limitations, whichever is greater. 735 ILCS 5/13-217(West 1998). However, the Illinois Supreme Court has fashioned anexception to this general rule. Once a plaintiff's opportunity torefile under section 13-217 has expired, the dismissal for want ofprosecution concludes the litigation between the parties andbecomes a final and appealable order. S.C. Vaughan Oil Co., 181Ill. 2d at 509.

A plaintiff who chooses not to pursue his legal remedy ofrefiling under section 13-217 within the time allowed (therebymaking the dismissal for want of prosecution a final order), butwho still seeks to vacate that dismissal, must petition the trialcourt under the legal remedy provided in section 2-1401. S.C.Vaughan Oil Co., 181 Ill. 2d at 506-07. In order to receive relieffrom the dismissal under this section, the petitioner must setforth facts demonstrating (1) the existence of a meritorious claimor defense; (2) due diligence in presenting that claim or defensein the original action; and (3) due diligence in filing the actualsection 2-1401 petition for relief. S.C. Vaughan Oil Co., 181 Ill.2d at 496, citing Smith, 114 Ill. 2d at 220-21. Whether a section2-1401 petition is granted is within the sound discretion of thetrial court. Smith, 114 Ill. 2d at 221; Cooper, 122 Ill. App. 3dat 857. Therefore, its decision will not be disturbed unless thetrial court abused its discretion. Marren Builders, Inc., 307 Ill.App. 3d at 941; Kaput v. Hoey, 124 Ill. 2d 370, 378, 530 N.E.2d 230(1988).

In the instant case, the trial court dismissed LaSalle's causefor want of prosecution on April 17, 1998. LaSalle's legal remedyat this point was to refile the cause under section 13-217 sometimeon or before April 19, 1999, one year after the entry of thedismissal (April 19, 1999, falling on Monday). However, LaSallechose not to refile its cause. Instead, LaSalle filed a petitionto quash the April 1998 dismissal in August 1998. Because 30 dayshad passed since the April dismissal, the court held, with bothparties present, that it had no jurisdiction to consider thepetition to quash. However, the court specifically recommendedthat LaSalle next seek relief under section 2-1401. Again, we neednot address the trial court's August 1998 ruling because LaSallenever challenged it.

In August 1998, instead of either refiling the cause (sincethe one year limit under section 13-217 had not expired), orfollowing the court's suggestion, LaSalle did nothing. It chose towait until June 1999 to proceed, some 14 months after the April1998 dismissal and 10 months after the court told LaSalle to filea petition for relief. Moreover, by June 1999, the section 13-217one year limit had clearly expired. Thus, the only legal remedythen open to LaSalle to vacate the dismissal for want ofprosecution was, as the court had suggested in August 1998, to filea section 2-1401 petition for relief. And yet, instead of doingthis, LaSalle chose to file a second petition to quash the April1998 dismissal.

Because by June 1999, more than one year had passed since theApril 1998 dismissal, LaSalle was obligated to meet therequirements of a section 2-1401 petition if it wanted relief. OnDecember 16, 1999, the trial court found that while LaSalle had ameritorious claim, which originated in 1993, and exhibited duediligence in initially filing its complaint, it did not meet therequirement of due diligence in filing a section 2-1401 petitionand bringing it before the court. LaSalle waited 10 months, fromAugust 1998 to June 1999, to do anything regarding its cause, afterthe court specifically told it what procedure to follow. Illinoiscase law strongly indicates that a delay of such length isunacceptable. See In re Marriage of Delk, 281 Ill. App. 3d 303,308-09, 328 N.E.2d 85 (1996) (eight month delay unjustified);Salazar v. Wiley Sanders Trucking Co., 216 Ill. App. 3d 863, 872-73, 576 N.E.2d 552 (1991) (nine month delay unjustified); Cooper,122 Ill. App. 3d at 856-57 (over three month delay unjustified);American Reserve Corp. v. Holland, 80 Ill. App. 3d 638, 644-45, 400N.E.2d 102 (1980) (two month delay unjustified). Therefore, inlight of the record, we find no reason to disturb either the trialcourt's April 17, 1998, dismissal for want of prosecution or itsDecember 16, 1999, order denying LaSalle's petition to quash thatdismissal.

Accordingly, the judgment of the trial court is affirmed. Wealso reject defendants' request for sanctions against LaSalle.

Affirmed.

GORDON and CAHILL, JJ., concur.