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August 01, 2001
Nos. 2--00--0814 & 2--00--0818 cons.

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_______________________________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Minor plaintiffs, Mariah Sunderland and Ryder Sunderland,through their next friends, Edward Sunderland and MirandaSunderland, and Edward and Miranda Sunderland individually, fileda medical malpractice complaint against defendants, Steven A.Portes, M.D., Daniel J. Lynch, M.D., Primary Care Family Center,S.C. (collectively Primary Care defendants), Sam Sookhakitch, M.D.,Sam Sookhakitch, M.D., Ltd. (collectively Sookhakitch), andrespondents in discovery who are not parties to this appeal. In1997 the trial court granted summary judgment in favor ofSookhakitch and later dismissed plaintiffs' cause of action withprejudice in its entirety. In 1999, the minor plaintiffs, pursuantto section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 1998)), filed a petition to vacate the summary judgmentorder and the dismissal order.

The trial court entered an order that allowed the minors torefile their cause of action against all defendants and, at thesame time, granted defendants' motions to dismiss the minors'petition to vacate. The court later entered an order vacating thesummary judgment order and the dismissal order. Both Sookhakitchand the Primary Care defendants have appealed from the ordergranting the minors leave to refile their cause of action. Inaddition, Sookhakitch appeals from the court's vacatur of the ordergranting summary judgment in his favor, and the Primary Caredefendants appeal from the vacatur of the order dismissing thecause of action with prejudice as to all defendants. Defendantscontend that the trial court lacked the authority to vacate thesummary judgment and dismissal orders and to allow the minorplaintiffs to refile their cause of action. Their appeals havebeen consolidated.

We have jurisdiction over this matter pursuant to SupremeCourt Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3)), which provides forthe interlocutory review of a judgment or order granting or denyingthe relief requested in a petition under section 2--1401 of theCode.

On March 2, 1995, plaintiffs filed a complaint allegingmedical negligence in connection with the prenatal care defendantsprovided to Miranda Sunderland while she was pregnant with minorsMariah and Ryder Sunderland. The complaint alleged that theminors, who were born on October 26, 1994, suffered severe,disabling, permanent brain damage as a result of defendants'negligence. Miranda and Edward Sunderland, the minors' parents,brought the action on behalf of the minors as their next friends.

Plaintiffs were represented by the Law Offices of Patrick A.Salvi, P.C., which later changed its name to Salvi & Schostok, P.C. The Salvi firm withdrew as plaintiffs' counsel on April 9, 1997. The record is silent regarding the reason for the withdrawal. Theorder granting the Salvi firm leave to withdraw stated, in relevantpart:

"B). Plaintiff has 21 days to file appearance of newcounsel.

C). If no new counsel appears within 21 days of thisdate, this case shall be dismissed."

Plaintiffs did not obtain new counsel after the Salvi firmwithdrew.

On May 21, 1997, Sookhakitch filed and presented a motion forsummary judgment. The summary judgment motion was based solelyupon Sookhakitch's affidavit stating that he did not violate thestandard of care in treating Miranda Sunderland or the minors. Thesummary judgment motion was uncontested, as plaintiffs were notrepresented by counsel and no one appeared on their behalf. Thetrial court granted summary judgment in Sookhakitch's favor on May21, 1997. The court's order contained a finding, pursuant toSupreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), that there wasno just reason to delay enforcement or appeal.

On June 5, 1997, the case came up on a "special progresscall." Finding no appearance in the court file on behalf ofplaintiffs, the trial court entered an order dismissing their causeof action with prejudice as to all defendants and all respondentsin discovery.

Nothing further happened in the case until approximately twoyears later, on June 4, 1999, when the minors, through theirguardian ad litem, Joseph Poell, filed a petition pursuant tosection 2--1401 of the Code to vacate the summary judgment orderand the dismissal order entered against them. The petition tovacate further requested that the minors be allowed to proceed withtheir action against defendants and file an amended complaint.

The petition to vacate alleged that Judge David Hall hadappointed Poell as the minors' guardian ad litem in matters thathad been filed in other divisions of the circuit court of LakeCounty. On or about December 22, 1998, Judge Hall authorized Poellto investigate whether the minors had a viable medical negligenceaction against any of the physicians who treated them or theirmother prior to their delivery. On June 3, 1999, an order wasentered in case numbers 96--D--1394 and 97--F--476 authorizingPoell to file a medical negligence action on the minors' behalf. Further, the minors alleged that the court should have appointed aguardian ad litem for them in 1997 instead of dismissing theircause of action with prejudice.

Initially, the petition to vacate was filed in the wrongdivision under case number 95--MR--407, instead of 95--L--407. After a few weeks, the case was transferred to the law division andeventually was brought before Judge Bernard Drew, who had enteredthe summary judgment and dismissal orders.

Defendants moved to dismiss the petition to vacate pursuant tosection 2--615 of the Code (735 ILCS 5/2--615 (West 1998)). Afterthe matter was fully briefed, Judge Drew denied defendants' motionsto dismiss, finding that, due to the minors' age and disability,there was no lack of due diligence in filing the petition tovacate. Defendants filed a "Motion to Clarify" Judge Drew's order. Judge Drew did not rule on the motion to clarify because heretired. Instead, the matter was transferred to Judge TerrenceBrady.

On May 19, 2000, Judge Brady entered an order grantingdefendants' motions to dismiss the petition to vacate on thegrounds that (1) the summary judgment order entered on May 21,1997, was voidable; and (2) the order entered on June 5, 1997,dismissing plaintiffs' cause of action with prejudice was not afinal order because the trial court lacked the authority to dismissthe cause with prejudice at that time. Consequently, Judge Bradyconcluded that, because the orders the minor plaintiffs sought tovacate were not final, relief under section 2--1401 was notavailable. In addition to dismissing the petition to vacate, JudgeBrady ordered that the minors had the right to refile a cause ofaction against all defendants in a new, separately filed andnumbered case.

Defendants moved to reconsider Judge Brady's ruling. Theminor plaintiffs filed a motion to vacate the summary judgmentorder of May 21, 1997, and the dismissal order of June 5, 1997,because Judge Brady did not specifically vacate those orders in theorder of May 19, 2000. On June 29, 2000, Judge Brady denieddefendants' motion to reconsider and granted the minors' motion tovacate, commenting on the record that the May 21, 1997, and June 5,1997, orders were voidable and the court had intended to vacatethem in its order of May 19, 2000. Defendants' timely appealfollowed.

A petition for relief from judgment invokes the equitablepowers of the trial court, which should prevent enforcement of ajudgment when it would be unfair, unjust, or inequitable. In reMarriage of Stufflebeam, 283 Ill. App. 3d 923, 928 (1996). "Theprimary concern in ruling on a motion to vacate is whethersubstantial justice is being done between the litigants and whetherit is reasonable under the circumstances to proceed to trial on themerits." Marren Builders, Inc. v. Lampert, 307 Ill. App. 3d 937,941 (1999). A reviewing court will not disturb a trial court'sruling on a section 2--1401 petition to vacate absent an abuse ofdiscretion. In re Marriage of McGlothlin, 312 Ill. App. 3d 1145,1147 (2000). An abuse of discretion occurs when the trial courtacts arbitrarily or when the trial court's decision exceeds thebounds of reason and ignores established principles of lawresulting in substantial prejudice. Marren, 307 Ill. App. 3d at941. We agree with the trial court that the summary judgment orderentered against defendants was voidable and properly vacated. Wedisagree, however, with the basis of the trial court's ruling.

In its order of May 19, 2000, the trial court stated asfollows with respect to the summary judgment order:

"1. The trial court entered a voidable order on May 21,1997, when it granted Defendants SOOKHAKITCHs' motion forsummary judgment against the Plaintiff minors. Indeed, by thecourt's own language in its order of April 7, 1997 [sic, thecorrect date of the order is April 9, 1997], it cautioned thePlaintiffs that if no new counsel appeared within 21 days, thecase shall be dismissed. Such dismissal procedurally couldonly be a non-final order without prejudice." (Emphasis inoriginal.)

While not entirely clear, it appears from the above order that thetrial court ruled that the summary judgment order was voidablebecause any dismissal that resulted from the trial court's order ofApril 9, 1997, was not a final order. We do not agree with thisanalysis. At the time the summary judgment order was entered, nodismissal order had been entered against plaintiffs. Although theorder of April 9, 1997, said that the case "shall be dismissed" ifno new counsel appeared for plaintiffs within 21 days, the orderwas not self-executing. The order dismissing plaintiffs' cause ofaction as to all defendants with prejudice was not entered untilJune 5, 1997, approximately two weeks after the summary judgmentorder was entered. Consequently, plaintiffs' cause of action wasstill pending at the time the summary judgment order was enteredand, contrary to the trial court's ruling, the summary judgmentorder was a final order. We do agree with the trial court,however, that the summary judgment order was voidable. Based onour review of the record, we conclude that the order was voidablebecause the minors did not have adequate representation at the timethe order was entered and the trial court should have appointed aguardian ad litem for them.

Before discussing the guardian ad litem issue, however, wewill address whether the minors met the requirements for a petition to vacate. Both the Primary Care defendants andSookhakitch contend that the minors failed to meet thoserequirements. To succeed on a section 2--1401 petition to vacate,the moving party must set forth specific allegations demonstrating(1) a meritorious claim or defense, (2) due diligence in presentingthe defense or claim to the circuit court in the original action,and (3) due diligence in bringing the petition to vacate. McGlothlin, 312 Ill. App. 3d at 1147. A section 2--1401 petitionallows a party to bring before the trial court matters that, ifknown at the time of judgment, would have precluded its entry. Inre Marriage of Himmel, 285 Ill. App. 3d 145, 148 (1996). However,postjudgment review is not to be used to relitigate matters thatwere or could have been raised on direct appeal or to relieve aparty of its own mistakes or negligence. Himmel, 285 Ill. App. 3dat 148.

Defendants argue that the minors did not allege any new factsin their petition to vacate that were not before the trial courtwhen it entered the summary judgment and dismissal orders. Wedisagree. At the time the summary judgment and dismissal orderswere entered, the trial court knew that the minor plaintiffs'attorneys had withdrawn but did not know that the minors' parentswould never obtain new counsel and would do absolutely nothing toprotect the minors' interests. These were sufficient new facts tosatisfy the requirements of section 2--1401.

The Primary Care defendants further assert that the minorswere not duly diligent, ignoring the well-established principlethat courts may relax due diligence requirements in cases ofmanifest injustice (Safety-Kleen Corp. v. Canadian UniversalInsurance Co., 258 Ill. App. 3d 298, 302 (1994)). We agree withthe trial court that justice requires the relaxation of the duediligence requirements in this case. Because of the minors' age,disability, and lack of representation during the two years thatpassed between the entry of the summary judgment and dismissalorders and the filing of the petition to vacate, it would bemanifestly unjust to find a lack of due diligence. Moreover, theminors' guardian ad litem filed the petition to vacate the dayafter he was authorized to do so. Accordingly, there was no lackof due diligence that would have prevented the vacatur of eitherthe summary judgment or dismissal order.

Turning to the guardian ad litem issue, we hold that thesummary judgment order was voidable because of the trial court'sfailure to appoint a guardian ad litem for the minors prior toentering summary judgment against them and dismissing their causeof action. Sookhakitch argues that the trial court was notrequired to appoint a guardian ad litem because the minors' parentsrepresented them as next friends. While it is generally true thatthe failure to appoint a guardian ad litem is not reversible errorwhen a minor is represented by a next friend (Morgan v. Hamlet, 345Ill. App. 107, 109 (1951)), we hold that such is not the case when,as here, the next friends abandoned their obligation to protect theminors' interests.

Sookhakitch fails to acknowledge the long-standing rule thatminor parties are wards of the court (Johnson v. Turner, 319 Ill.App. 265, 286 (1943)) whom the court has a duty to protect "evenfrom the neglect of their representative in order to do substantialjustice" (emphasis added) (Brandon v. DeBusk, 85 Ill. App. 3d 645,648 (1980)). Thus, when a court has notice that a minor is presentwithout proper representation, the court has a duty to appoint aguardian ad litem to protect the minor's interests. McDonald v.McGowan, 163 Ill. App. 3d 697, 699 (1987). Once the court has doneso, the court must monitor the guardian ad litem to make sure thathe or she is properly protecting the minor's interests. Skaggs v.Industrial Comm'n, 371 Ill. 535, 542 (1939).

We see no reason why the duty to appoint a guardian ad litemshould not apply when next friends utterly fail to protect theinterests of the minors whom they purport to represent, as did theparents in this case. Courts have held that in cases where a nextfriend's interests conflict with the minor's interests, such aswhere the next friend is a parent who opposes allowing the minorvisitation with the other parent, the trial court is obligated toappoint a guardian ad litem for the minor before deciding any issuethat may affect the minor. McDonald, 163 Ill. App. 3d at 699.While the record in the case before us does not reveal a conflictof interest per se, in our view the parents' failure to do anythingto prosecute the minors' cause of action was so harmful to theminors' interests as to require the appointment of a guardian adlitem.

It is well established that "[w]here the court hasjurisdiction of the subject matter and of the person, a judgmentobtained against a minor, where no guardian ad litem had beenappointed or where a guardian ad litem who had been appointed hadso culpably failed to represent the minor in the action thatjudgment was entered, is voidable and may be set aside byappropriate proceedings." Rom v. Gephart, 30 Ill. App. 2d 199,207-08 (1961). A petition for relief from the judgment is theappropriate method for requesting that such judgment be vacated. Rom, 30 Ill. App. 2d at 208 (referring to section 72 of the CivilPractice Act (Ill. Rev. Stat. 1961, ch. 110, par. 72 (now 735 ILCS5/2--1401 (West 1998)))). In our view it makes no differencewhether judgment has been entered against a minor defendant or aminor plaintiff. In either case the minor's rights have beensignificantly affected such that the interests of justice requirethat the judgment be vacated. Accordingly, because the minors inthe case at bar had no representation whatsoever at the time thesummary judgment motion was filed and granted, we agree with thetrial court that the summary judgment order was voidable and shouldbe vacated.

Next, we address the court's vacatur of the order dismissingthe minors' cause of action with prejudice following their parents'failure to obtain new counsel. Judge Brady held that the dismissalorder was not final because Judge Drew did not have the authorityto dismiss the cause of action with prejudice. We agree.

Section 13--217 of the Code (735 ILCS 5/13--217 (West 1998))provides that when an action is dismissed for want of prosecutionthe plaintiff "may commence a new action within one year or withinthe remaining period of limitation, whichever is greater." Here,the statute of limitations applicable to the minor plaintiffsprovided:

"If the person entitled to bring an action, specified inSections 13--201 through 13--210 of this Act, at the time thecause of action accrued, is under the age of 18 years, or isunder a legal disability, then he or she may bring the actionwithin 2 years after the person attains the age of 18 years,or the disability is removed." 735 ILCS 5/13--211 (West 1998).

According to section 13--211, the limitations period for theminors' cause of action had not expired at the time the dismissalorder was entered and still has not expired. Consequently, becausethe minors still had the right to refile, Judge Drew lacked theauthority to dismiss their cause of action with prejudice for wantof prosecution and Judge Brady properly vacated the dismissal withprejudice.

The Primary Care defendants argue that a dismissal for want ofprosecution with prejudice is a final and appealable order. Thisargument completely ignores the general principle that dismissalsfor want of prosecution are not final orders. Our supreme courthas held that an order dismissing a cause for want of prosecution(DWP order) becomes final only when the period for refilingexpires. S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181Ill. 2d 489, 502 (1998). A DWP order cannot be considered final aslong as the option to refile is still available to the plaintiff. Vaughan, 181 Ill. 2d at 501-02. The cases the Primary Caredefendants cite are inapposite. None of them stands for theproposition that a DWP order entered with prejudice contrary tostatutory authority is a final and appealable order for section 2--1401 purposes. Accordingly, because the statute of limitations asto the minors' cause of action had not expired, the trial court hadno authority to enter a DWP order with prejudice. Judge Bradycorrectly ruled that the order entered by Judge Drew could not beconsidered final for section 2--1401 purposes.

The Primary Care defendants also argue that the order of June5, 1997, did not dismiss the case with prejudice for want ofprosecution, but instead dismissed it as a sanction under SupremeCourt Rule 219(c) (166 Ill. 2d R. 219(c)) due to plaintiffs'failure to comply with the court's previous order stating that theyhad 21 days to obtain new counsel. We find this argument bothdisingenuous and utterly without merit. There is nothing in therecord to indicate that the trial court dismissed the cause ofaction pursuant to Rule 219(c). There was no motion for sanctionsin the record. The court's order neither mentions Rule 219(c) norrefers to sanctions. If the court had dismissed the cause withprejudice as a sanction, it would have been required, under Rule219(c), to specifically set forth in the judgment order or in aseparate order its reasons and the basis of any sanction. We findno such reasoning in the record; indeed, there is no reference atall to Rule 219(c). Moreover, to dismiss the case with prejudicefor the sole reason that plaintiffs had not obtained new counselless than two months after their counsel withdrew would have beena drastic and inappropriately harsh sanction. We find itimplausible that the trial court would impose such a sanction,especially without making a record of it. It is abundantly clearthat the order of June 5, 1997, was a dismissal for want ofprosecution that was erroneously entered with prejudice and,subsequently, was properly vacated.

For the foregoing reasons, the judgment of the circuit courtof Lake County is affirmed.

Affirmed.

HUTCHINSON, P.J., and BYRNE, J., concur.