Saturday, June 14, 2014

Illinois Appellate Court: DWP Order Not Appealable Until Period for Refiling Expires

By Gretchen Harris Sperry
Associate, Hinshaw & Culbertson LLP

In Federal National Mortgage Association v. Tomei, 2014 IL App (2d) 130652, the Illinois Appellate Court, Second District, held that it lacked jurisdiction to review a trial court's order vacating a dismissal for want of prosecution (DWP). Federal National filed a mortgage foreclosure action against Tomei. Following Federal National's failure to appear for a status hearing, the trial court dismissed the case for want of prosecution. Thereafter, Federal National filed a motion to vacate the DWP pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2012)), citing a "docketing error" for its failure to appear. The trial court granted the motion and reinstated the case.

Tomei appealed under Illinois Supreme Court Rule 304(b)(3) (eff. Feb, 26, 2010), arguing that Federal National should not have been relieved of the consequences of its own negligence under the standards of section 2-1401. Federal National argued that the appellate court lacked jurisdiction because, in substance, its motion was brought pursuant to section 2-1301(e) of the Code (735 ILCS 5/2-1301(e) (West 2012)).

Section 2-1301(e) gives the court discretion to set aside any default before a final order is entered, including a DWP order. Importantly, the court noted that section 13-217 of the Code (735 ILCS 5/13-217 (West 1994)) generally affords a plaintiff one year to refile an action after a DWP order. Therefore, a DWP order is interlocutory for the year after the trial court enters that order and becomes final only when the refiling period under section 13-217 expires.

Conversely, a section 2-1401 petition allows the trial court to vacate a final judgment more than 30 days after its entry, provided that the movant demonstrates due diligence. Pursuant to Rule 304(b)(3), an order granting or denying relief under section 2-1401 is immediately appealable.

The appellate court agreed with Federal National. It held that, based on the character of Federal National's pleading (as opposed to the label), the trial court should have converted its section 2-1401 motion to a section 2-1301(e) petition, which was the proper vehicle to set aside a DWP order. Therefore, the "[trial court's] grant of the motion produced an interlocutory order, not a final one" and "an appeal was improper." As a result, the appellate court dismissed for lack of jurisdiction.

Recommended Citation: Gretchen Harris Sperry, Illinois Appellate Court: DWP Order Not Appealable Until Period for Refiling ExpiresThe Brief, (June 14, 2014),

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