People v. Vari

48 N.E.3d 265

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.David VARI, Defendant–Appellant.

No. 3–14–0278.

Appellate Court of Illinois, Third District.

Jan. 26, 2016.

Michael J. Pelletier and Thomas A. Karalis, both of State Appellate Defender's Office, Ottawa, for appellant.

James Glasgow, State's Attorney, Joliet (Laura E. DeMichael–Bialon, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice McDADE delivered the judgment of the court, with opinion.

¶ 1 Defendant, David Vari, appeals from the trial court's dismissal of his section 2–1401 petition (735 ILCS 5/2–1401 (West 2014) ). Defendant concedes that he failed to deliver proper service upon the State, but argues that the proper remedy for such a failure is not dismissal of the petition, but quashing of service. We dismiss the appeal for lack of jurisdiction.

¶ 2 FACTS

¶ 3 In 2005, defendant pled guilty to one count of predatory criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West 1996)). The trial court accepted defendant's guilty plea and sentenced him to a term of 18 years' imprisonment. On direct appeal, this court affirmed defendant's conviction and sentence. People v. Vari, No. 3–08–0493, 406 Ill.App.3d 1219, 376 Ill.Dec. 177, 998 N.E.2d 719 (2010) (unpublished order under Supreme Court Rule 23 ).

¶ 4 On January 21, 2014, defendant filed a pro se petition for relief from judgment pursuant to section 2–1401 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–1401 (West 2014) ). The petition was delivered to the State via standard United States mail. On January 28, 2014, the State filed a special limited appearance, asserting that the trial court did not have personal jurisdiction over the State because defendant had improperly served the State via standard U.S. mail. The State, having filed a combined motion to dismiss, also argued that defendant's petition was otherwise meritless and untimely. Each filing was served upon defendant. Defendant made no response to the State's motion.

¶ 5 On March 13, 2014, the trial court granted the State's motion to dismiss on jurisdictional grounds. The trial court's written order read in full: “Case comes on defendant's 2–1401 petition [dated January 15, 2014]. State moves to dismiss based on lack of jurisdiction because the defendant failed to properly serve the State under Supreme Court Rules 105 & 106. Case dismissed for lack of jurisdiction.” The circuit clerk's office subsequently sent defendant a letter informing him of the court's order dismissing his pro se petition. The letter read in full: “Attached is a docket entry made by the Honorable DANIEL J ROZAK on 3/13/2014 with regard to the aforementioned cause[.] You are hereby informed of the proceedings in your case[.]”

¶ 6 ANALYSIS

¶ 7 Before embarking on a substantive analysis of the issues on appeal, we must first consider our own jurisdiction. Though defendant addresses this issue only briefly, and the State does not address it at all, a reviewing court has an independent duty to sua sponte consider questions of jurisdiction. People v. Smith, 228 Ill.2d 95, 104, 319 Ill.Dec. 373, 885 N.E.2d 1053 (2008).

¶ 8 Of particular concern in the present case is whether the trial court's order dismissing defendant's petition for a lack of jurisdiction constitutes a final, appealable order. It is a well-settled axiom that an appellate court's jurisdiction is limited to appeals from final judgments. E.g., EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 9, 367 Ill.Dec. 474, 982 N.E.2d 152. This limit on the appellate court's jurisdiction is established by the Illinois Constitution. Ill. Const. 1970, art. VI, § 6 (providing that appeals “from final judgments of a Circuit Court are a matter of right to the Appellate Court” (emphasis added)). The limitation is further codified by supreme court rule. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994). (“Every final judgment of a circuit court in a civil case is appealable as of right.” (Emphasis added.)). Though certain exceptions to this rule have been created by statute or supreme court rule (Kemp, 2012 IL 113419, ¶ 9, 367 Ill.Dec. 474, 982 N.E.2d 152 ; see, e.g., Ill. S.Ct. R. 306 (eff. July 1, 2014)), none of those exceptions would apply in the present case.

¶ 9 Our supreme court has defined a final judgment as “a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” Flores v. Dugan, 91 Ill.2d 108, 112, 61 Ill.Dec. 783, 435 N.E.2d 480 (1982). The court has also stated on many occasions that a judgment is final, and thus, appealable, when it “dispose[s] of all issues between the parties and * * * terminate[s] the litigation.” Kemp, 2012 IL 113419, ¶ 11, 367 Ill.Dec. 474, 982 N.E.2d 152. A final judgment has also been defined as a judgment that “determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment.” People ex rel. Scott v. Silverstein, 87 Ill.2d 167, 171, 57 Ill.Dec. 585, 429 N.E.2d 483 (1981) ; see also Flores, 91 Ill.2d at 112–13, 61 Ill.Dec. 783, 435 N.E.2d 480 (recognizing—and accepting—each of these commonly recited definitions of a final judgment).

¶ 10 It is a general rule that the dismissal of a complaint without prejudice is not final and appealable. E.g., People v. Mattis, 367 Ill.App.3d 432, 435, 305 Ill.Dec. 239, 854 N.E.2d 1149 (2006) ; Paul H. Schwendener, Inc. v. Jupiter Electric Co., Inc., 358 Ill.App.3d 65, 73, 293 Ill.Dec. 893, 829 N.E.2d 818 (2005) (dismissing appeal on grounds court had no jurisdiction following a dismissal without prejudice). In Flores, our supreme court considered whether a dismissal without prejudice for want of prosecution stood as a final appealable order. Flores, 91 Ill.2d at 112–13, 61 Ill.Dec. 783, 435 N.E.2d 480. In that case, the parties and court agreed that the plaintiffs, following the dismissal, maintained an “absolute right to refile this cause under section 24 of the Limitations Act (Ill.Rev.Stat.1979, ch. 83, par. 24a).” Id. at 112, 61 Ill.Dec. 783, 435 N.E.2d 480. It was this right to refile, the court held, that dictated that the dismissal was not final and appealable, noting that plaintiffs could “refile the action against the same party or parties and to reallege the same causes of action.” Id. The court concluded that the absence of a binding judgment on the merits left the appellate court without jurisdiction: “If an order possesses such a degree of finality, it would clearly be res judicata and would prevent relitigating the issues involved.” Id. at 113–14, 61 Ill.Dec. 783, 435 N.E.2d 480.

¶ 11 The Flores court also emphasized the practical considerations underlying its position. Id. at 115, 61 Ill.Dec. 783, 435 N.E.2d 480. Notably, the court pointed out that plaintiff's remedy of refiling their action “is in fact a more expeditious and less expensive remedy than an appeal.” Id. Moreover, the court pointed out:

“Following the dismissal, plaintiffs could have refiled immediately, and a disposition on the merits could have been made much sooner than if the trial judge's ruling had been appealed to the appellate court, reversed and remanded, and then set for trial on the merits. Also, the costs involved in refiling would have been substantially less than those involved in the appellate process.” Id.

¶ 12 In distinguishing Flores in later cases, the court has reiterated that the holding in Flores turned on the question of prejudice. Kahle v. John Deere Co., 104 Ill.2d 302, 305, 84 Ill.Dec. 650, 472 N.E.2d 787 (1984). Specifically, the court stated: “The rationale of the Flores opinion was that even if the trial judge abused his discretion in dismissing the case, the plaintiff, if he refiled, ultimately was not prejudiced.” Id.; see also S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill.2d 489, 501–02, 230 Ill.Dec. 209, 693 N.E.2d 338 (1998) (finding order final where plaintiff was prejudiced by inability to refile).

¶ 13 Those cases in which the supreme court has distinguished Flores have also further clarified when a dismissal is final and appealable. In S.C. Vaughan, the court held that an order dismissing a complaint for want of prosecution was a final and appealable order where that order resulted in the plaintiffs no longer having an absolute right to refile. S.C. Vaughan Oil Co., 181 Ill.2d at 502, 230 Ill.Dec. 209, 693 N.E.2d 338. The expiration of the filing period, the court explained, would effectively terminate the litigation between the parties. Id. In essence, though the complaint had been dismissed “without prejudice,” the expiration of the filing period rendered the dismissal actually prejudicial to the plaintiffs. See id. at 499, 501–02, 230 Ill.Dec. 209, 693 N.E.2d 338.

¶ 14 In Kahle, the court determined that dismissals “without prejudice,” in certain circumstances, may be appealable for limited purposes. Kahle, 104 Ill.2d at 307, 84 Ill.Dec. 650, 472 N.E.2d 787. In that case, the trial court dismissed plaintiff's case without prejudice pursuant to section 2–1009 of the Code (See 735 ILCS 5/2–1009 (West 2014) ). Kahle, 104 Ill.2d at 303, 84 Ill.Dec. 650, 472 N.E.2d 787. The section, the court noted, allowed a plaintiff to dismiss his or her action without prejudice “ ‘at any time before trial or hearing begins.’ ” Id. at 305, 84 Ill.Dec. 650, 472 N.E.2d 787 (quoting Ill.Rev.Stat.1981, ch. 110, ¶ 2–1009 ). However, if a trial or hearing has begun, that section of the Code dictates that the plaintiff may only dismiss his or her action on terms set by the trial court. Id. at 305–06, 84 Ill.Dec. 650, 472 N.E.2d 787. Unless the dismissal order was appealable by the defendants to determine whether the trial or hearing had begun, the court reasoned, that issue would permanently evade review. Id. at 306, 84 Ill.Dec. 650, 472 N.E.2d 787.

¶ 15 The foregoing principles have recently been applied in the context of...