Wednesday, April 16, 2014

Illinois Appellate Court: Section 2-1401 Cannot be Used to Dismiss a Complaint or Petition

By Charlie Ingrassia
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

Section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2010)) provides relief from final orders and judgments more than 30 days after the trial court enters such an order. In In re Commitment of DeSilvestro, 2013 IL App (3d) 120563, the Illinois Appellate Court clarified that section 2-1401 provides relief only from final judgments and orders, and the statutory provision could not be used to dismiss a complaint or petition.

In DeSilvestro, the respondent, in 2004, negotiated a guilty plea to four counts of aggravated criminal sexual assault in exchange for four concurrent sentences of seven years' imprisonment. In 2009, the respondent was released on mandatory supervised release (MSR). Later that year, the State obtained a warrant for the respondent's arrest after he allegedly violated terms of his MSR. In 2010, with the respondent back in custody, the State filed a petition to detain him pursuant to the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 (West 2010)). Following a probable cause hearing, the trial court entered an order finding probable cause for the Department of Human Services to detain the respondent.  

In 2011, nearly a year later, the respondent filed a motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2010)), claiming that the State lacked personal jurisdiction over him as a result of having failed to properly serve him with process of the commitment proceedings. Four months later, and while his section 2-619 motion to dismiss was still pending, the respondent filed an additional motion to dismiss, claiming that the State lacked subject matter jurisdiction. In July 2011, the trial court denied both motions; and in December 2011, it denied the respondent's motion to reconsider.

In March 2012, the respondent filed a “motion to dismiss pursuant to section 2- 1401(f)” of the Code, which reiterated many of the allegations contained in his motion to dismiss for lack of subject matter jurisdiction. In June 2012, the trial court denied the respondent's 2-1401 motion. The respondent appealed, claiming that the trial court erred in denying that motion.

The Illinois Appellate Court, Third District, dismissed the respondent's appeal for lack of jurisdiction. The reviewing court quoted the statutory language provided in section 2-1401 and concluded that the provision provided relief from final judgments and orders. The court concluded, "[w]e can find no authority to support [the] respondent’s contention that section 2-1401 provides a procedural mechanism to dismiss a petition or a complaint."

The reviewing court, relying on People v. Vincent, 226 Ill. 2d 1, 7 (2007), further emphasized that a petition seeking relief under section 2-1401 must be filed in the same proceeding, even though the petition is not a continuation of the prior proceeding. In this case, the court emphasized, a final order had not been entered because a detention order was not a final order. Rather, the respondent's section 2-1401 motion attacked the sentencing order entered in his prior criminal case, which was a different proceeding. The court emphasized that "the [r]espondent cannot use a section 2-1401 petition filed in this case to seek relief from a final order in another case." Finally, the reviewing court noted that the denial of a motion to dismiss was not a final order, and labeling a motion to dismiss as a section 2-1401 motion "did not convert the motion to a section 2-1401 petition."

Justice Carter specially concurred, noting that this appeal should have been dismissed pursuant to Illinois Supreme Court Rule 304(b) (eff. Feb. 26, 2010) and EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 13, where the state's high court held that the denial of an improperly filed section 2-1401 petition was not appealable under Rule 304(b).

Recommended Citation: Charlie Ingrassia, Illinois Appellate Court: Section 2-1401 Cannot be Used to Dismiss a Complaint or PetitionThe Brief, (April 16, 2014),

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