THIRD DI VISI ON March 30, 2007

No. 1-05-4138

UNIVERSAL

UNDERWRITERS INSURANCE ) Appeal from COMPANY, ) the Circuit Court ) of

Co ok Co un ty. Plaintiff -Appella nt, ) ) v. ) No. 02 L 966 ) JUDGE & JAMES, LTD. and JAY S. JUDGE, ) Honorab le ) Robert Lopez Cepero, Defend ants-App ellees. ) Judge Presi ding.

PRESID ING

JUSTICE

THEI S deliver

ed the opi nion of the

court: Plaintiff Universal Underwriters I nsurance Company

(Universal) appeals from the trial court’s grant of summary judgment to defendants Judge & James, L td., and Jay S. Judge (Judge) (collectively, de fendants) in this legal malpractice action. Univer sal argues that the trial court erred i n: (1) determining

that def endants c ommitted no

legal malprac tice whe

n they failed to appeal the circuit court’s 1995 order bec ause that order was not final and appealable ; (2) finding that defendants did not commit malpractice when they failed to appeal either the 1998 order directing Universal to arbitrate or the 2000 judg ment confirming the arbitration award; and (3) failing to enter summary

judgment in Universal’s favor on defendants’ sta tute of limitations and statute of repose defenses. For the following reasons, we reverse and re mand for further procee dings. Universal, a Kansas corporation, issued an insuranc e policy to Carriag e Chevrolet, Inc., a1-05-4138

2

car dealership in St. Louis, Missouri, effec tive from April 1, 1990 to April 1, 1991. The policy included, inter alia , premises liability, property damage, and automobile insurance. Additiona

lly, Universa

l issued a n umbrella

policy with a $1 mi llion limit to Carriag e Chevro let. On January 29, 1991, Michele He flin, a Carriage Chevrolet salesperson, was driving a car owned by Carr

iage Chevrolet with its permission in Alton, Illinois. While Heflin was rendering assistanc e to a disa

bled vehi cle, ano ther ca

r struck Heflin, i njuring her. He flin file d suit ag ainst that driver and received $25,000, the limit of the driver’s policy . Heflin then sought recovery under the Universal umbrella policy issued to Carriage Chevrolet, arg uing that it provided underinsured motorist coverage. When Universa l denied her claim, Heflin filed a declara tory judgment action in 1993 in Madison County, I llinois. Heflin asked the court to determine and adjudicate the rights and liabilities of the parties with respect to the umbre lla policy. She sought a declaratory

judgment determining that the umbrella covera ge applied to the underinsured motorist coverage of Carriag e Chevrolet, for which Heflin was a third-party beneficiary , and that Universal was obligated to negotiate that c laim with Heflin, pursuant to its policy provisions. Universal hired defendants Jay Judge and his law firm, Judge & James, to defend it in this action. In May 1995, Universal filed a motion to strike and dismiss Heflin’s suit. Heflin then filed a mo tion for su

mmary judgmen t, argu ing that she was in sured und

er the Un iversal u mbrella policy and that Universa

l wrongfully

refused to arbitrate her claim. She sought a judgment finding that she was insured under this policy . On June 5, 1995, the trial court entered an order finding that Hef lin was an

insured u nder the umbrella policy , which pr

ovided $1 million in

covera ge, ba sed on a f

inding that the contract so provided , that an a

mbiguity existed the

rein1-05-4138

3

which was construed in Heflin’s favor, and that He flin had complied with all provisions as required by

that policy. The cour

t denied Universal’s motion to strike and dismiss. However, Universal’s response to Heflin’s motion for summary judgment was not due until June 16, 1995. Universa l then file d a motion f

or reconsidera

tion and r eheari ng, ask ing the c ourt to re consider its grant of summary

judgment to Heflin in light of Universal’s response. Universal also argued that Heflin was not an insured under the umbrella policy, the umbrella policy did not include any underinsured motorist coverage, and that e ven if Heflin was covered under that policy , the umbrella policy only

covered an insured’s liability to another party

and did not cover any

injury to the insured herself. On July 31, 1995, t

he Madison County

circuit c ourt deni ed Unive rsal’s mo tion to reconsider, but, on its own motion, vacated its June 5, 1995 order granting He flin’s motion for summary judgme

nt so that it could consider Universal’s response. Having consider ed the response , the tria

l court or dered that it “still

agree s with the r

easoning of the pla

intiff an d gran ts plaintiff ’s summar

y ju dgment motion ag ainst Univ ersal.” Defend ants, as c ounsel for Universal, did not take an appeal from this order. On October 31, 1996, Unive rsal filed, in the 1993 declaratory

judgment action, an emergenc y motion for a protec

tive order to quash or continue the evidence deposition of one of Helfin’s experts. I n a January 7, 1997 order , the trial court found that the July 31, 1995 order was final and a ppealable as it disposed of all issues before the court and, thus, the court no longer had jurisdiction to rule on Universal’s motion. Heflin filed a second suit against Universal in 1998 to enforc e the arbitration clause. Universal responded, inter alia , that Heflin was not covered under the policy and that the policy1-05-4138

4

did not contain an arbitration clause for underinsured motorist covera ge. In an or

der dated October 9, 1998, the trial court found that this was a separate and distinct lawsuit from the declaratory

judgment action. It held that the pre vious case had determined that Heflin was covered under Universal’s umbrella policy and that Universal did not appeal that decision. Although Universal sought to relitigate cove rage issues, the court held that those issues had already been decided, denied Universal’s motion for summary judgment, and granted Heflin’s motion to strike Universal’s affirmative defenses. The cour t found that the policy contained a n arbitration clause and ordered the par ties to arbitrate Heflin’s claim. Defendants, as Universal’s counsel, did not appeal this order. On January 13, 2000, Universa l and Heflin proceeded to arbitration and the ar bitrators awarde d her $2, 975,000 in damage s. On Mar

ch 2, 2000 , Heflin f

iled an a ction in the

circuit court of Madison County to confirm the a rbitration award under section 11 of the Uniform Arbitration Act (710 ILCS 5/11 (West 2000)). Universal then filed a motion to reject the award. On October 26, 2000, the trial court denied Universal’s re quest to reject the arbitration award and confirmed the award. Defenda nts, as counsel for Universal, did not appeal this judgment. On Januar

y 5, 2001, Hef

lin issued a

citation t o discove r assets a gainst U niversa l to enforce the judgment. On March 30, 2001, H eflin filed a motion to order pay ment of the judgment in the trial court. On April 4, 2001, Universal, through def endants, filed an emergency motion for leave to file a complaint seeking a writ of mandamus or a supervisory order in the Illinois Supreme Court. The motion stated that Heflin had filed three la wsuits against Universal

concer ning und erinsur ed motoris t covera

ge, none of whic

h contained a fina

l and appe alable1-05-4138

1 Additionally, as Universal cla rified in its response to defendants’ summary judgment motion, Uni

versal a lleged that if, and only if, the July 31, 1995 order was not final and appealable, Universal would argue that defendants committed malpractice by failing to take an interlocutory appe al from the October 9, 1998 order compelling a rbitration and attacking the underlying

issue of coverage. 5 order. I t argue d that the

July 3 1, 1995 or

der was not final a

nd, thus, the subsequ

ent two la wsuits must be dismissed because another action remained pending . Alternatively, Univer sal argued th at if th at or de r w as fi na l, th e o th er tw o s ui ts we re ba rr ed by res judic ata . Universal asked the supreme court to vacate the October 26, 2000 orde r, dismiss the newest lawsuit, reduce the arbitra tion awar d to the umbrella po licy ’s $1 millio n limit, det ermine w hether t he proce edings i

n the latest two lawsuits were void, and stay payment of the judg

ment. The supreme court denied the writ on May 3, 2001. On May 7, 2001, the trial c ourt entered an order requiring Universal to pay the

judgment of $2,975,000 plus interest to date of $141,577.08. On May 17, 2001, Universal, through new counsel, settled Heflin’s claim for $3 million, representing the judg ment amount plus a portion of the interest due. On Januar

y 23 , 2002, Un

iversal f iled this le gal mal

practic e case a

gainst d efenda nts. I n its amended complaint, Universal contended that defenda nts owed Universal a duty of care, which included the obligation to take timely appeals and to timely see k other remedies in the event of adverse and err oneous jud

gments. Defend

ants bre ached their dutie s by neglec ting or o therwise failing to timely appe al the July 31, 1995 order and the October 26, 2000 order. 1 Universa l also alleged that defendants breac hed their duties by fa

iling to raise the $1 million umbrella policy limit as a d

efense or limitati on on dama

ges in th e arbitr

ation pro ceeding , failing

to file a t imely1-05-4138

6

motion to reconsider the arbitration award or file a timely petition to vacate or modify the award, and failing to address the merits of the arbitration awa rd or argue that the arbitrators e xceeded their powers by e

ntering an award in excess of the policy limits. Universal alleged that but for these br eaches , it would ha

ve preva iled in ch alleng ing the d

eclara tory judgmen t finding Heflin to be an insu

red unde r the umbr

ella polic y a nd in the a

lternati ve, Unive rsal woul d have su

ccessf ully had the $2,975,000 arbitration award vacated a s exceeding the policy limits. Universal sought $3 million in da

mages. On May 31, 2005, def

endants filed their third affirmative defense of the statute of limitations and the statute of repose. In response, U niversal argued that these defe nses did not apply to this cas e and tha

t, if they did, defe ndants sho

uld be est opped fr om raising

them. On July 7, 2005, defendants filed a motion for summary judgment on Universal’s legal malpractice comp laint, ar guing that they committed

no malpra

ctice be cause U

niversa l voluntar ily paid a void judgment by

settling Heflin’s case, foreg oing any collateral attack to set aside such void judg ment. The

y c ontended

that the tr

ial cour t’s Octob er 26, 20 00 order was void b ecause the umbre lla policy

containe d no agr

eement to arbitra te and tha t the tria l court e xceeded “ its specific subject matter jurisdiction” to order arbitration and ente r judgment on the arbitration award where there was no a rbitration agreement. Defenda nts also contended that the earlier orders entered in the Heflin cases, including the July 31, 1995 order, were not final and appealable. In its response , Universal argued that the July 31, 1995 order was final and appeala ble and that the October 26, 2000 orde r was not void. Both

parties a ttached the umbre lla policy, various pleading s from the Heflin cases, e-mail and letter corr espondence, and the1-05-4138

7

depositions of Judge and several experts. Universa l also incl uded an e -mail fr

om Judge to

Universa l, dated M ay

10, 2001, w

herein Judge stated that he believed he should have reacted to the trial court’s October 26, 2000 order. He state d that he should not ha ve filed a notice of appea l, but shoul d have fi led a motion to vacate that judgment, stating that “[t]he reason we did not was be cause the Order of 10/26/00

never c ame to my

attention .” Judge

stated tha

t althoug h the orde r was re ceived i

n his offic e in November, he did not learn of it until he fired the attorney involved in his office who never informed Judge of the order. On September 21, 2005, Universal filed a motion for a summary determination on defenda nts’ statu te of limita

tions and s tatute of

repose d efense s, argu

ing that these de fenses d

id not apply to this case and that, if they did, defendants should be estopped from raising them. On Decemb er 14, 20 05, the tr ial cour t grant ed defe ndants’ motion for

summary judgmen t and, thus , found Universal’s motion for summary determination on defendants’ statute of limitations and repose defenses moot. Universal then filed this timely appeal. In an action for legal malpractice, a plaintiff must plead and prove that: the defe ndant attorne y ow ed the pla

intiff a d uty of due ca re arisi ng from the attorney- client relationship; that the defendant breached that duty ; and that as a proximate result, the plaintiff suffered actual damages. Govern menta l Interi nsura nce Ex change v . Jud ge , 221 Ill. 2d 195, 199, 850 N.E.2d 183, 186-87 (2006). The burden of pleading a nd proving actual damages re quires establishing that “but for” the attorney ’s negligence, the plaintiff would ha ve been successful in the underlying

suit, and thus, a legal malpractice plaintiff must litigate “a case within a case.”1-05-4138

8

Govern menta l Interi nsura nce Ex change , 221 Ill. 2d at 200, 850 N.E.2d at 187. I n an action allegi ng that a n attorne y f ailed to p erfec t an appe al, the pl aintiff m ust prove that he or

she would have been successful on appeal if the a ppeal had properly

been perfected. Governmental Interin suran ce Exc hange , 221 Ill. 2d at 200, 850 N.E.2d at 187. Su mm ar y judgment should be granted “without delay if the pleadings, depositions, and admissions

on file, to gether

with the affidavit s, if any , show tha

t there is no genu ine issue as to any materia

l fact and that the moving party is entitled to a judgment as a matter of law.” 735 IL CS 5/2-1005(c) (West 2004). Although su mm ar y judgment can aid in the expeditious disposition of a lawsuit, it remains a drastic means of disposing of litigation and, therefor e, should be allowed only wher e the right of the moving party is clear and free from doubt. Bagent v. Blessing Care Corp. , No. 102430 (Ill. Jan. 19, 2007). The movant bears the initial burden of production in a motion for summary judg ment. Bourgonje v. Machev , 362 Ill. App. 3d 984, 994, 841 N.E.2d 96, 106 (2005). A defendant moving for summary judgment may me et its burden of producti on either

by presentin

g evide nce that , left unr

ebutted, would ent

itle it to jud

gment a s a matter of law or by demonstr

ating th at the pla

intiff wil l be unabl e to prove an eleme nt of his cause of action. Bourg onje , 362 Ill. App. 3d at 994, 841 N.E.2d at 106. If a defenda nt prese nts facts that would demonstrate its entitlement to judgment as a matter of law , the burd en then sh

ifts to the plaintiff to present some evidence allowing the imposition of liability on the defendant and supporting each element of his cause of a ction, thereby de fining a material issue of fact to be determined at trial. Bourg onje , 362 Ill. App. 3d at 994-95, 841 N.E.2d at 106. Our standar d of review i s de novo

. St ate Aut om obi le M ut ual Insu ran ce C o. v . Ki ngs por t De vel opm ent , LLC , 3641-05-4138

9

Ill. App. 3d 946, 951, 846 N.E.2d 974, 979 (2006). Universal argues that the trial court er red in granting summary

judgment to defendants on its legal malpractice complaint. First, Universal conte nds that the July 31, 1995 order in the Heflin declaratory

judgment action, which found that Heflin was an insured under Universal’s umbrella policy and e

ntitled to underinsured motorist coverage, was final and a ppealable. Because this order was final and a ppealable, Universal contends, defendants bre ached their duties to Universal by fa

iling to perfect an appeal from this order. D efendants respond that the July 31, 1995 order was not final because it did not adjudicate all underinsure d motorist coverage issues. Specifically, def

endants contend that the July 31, 1995 order was not final because it did not award Heflin money

damages, did not state that the umbrella policy provided underinsured motorist coverage with an arbitration clause r equiring either a three-person arbitration or arbitration under the American Arbitration Association, and did not order the parties to proceed to arbitration. Although defendants never spec ify which of the f our elements of a legal malpractice claim Universal failed to prove, we assume that this argument challenges the e lement of breach. Defendants misunderstand the nature of declar atory judg

ments. Under section 2-701 of the Code o f Civil Proc edure ( the Code)(735 I

LCS 5/2 -701 (Wes t 2004)), “[t]he cour t may , in cases of actual controversy , make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination * * * of the construction of * * * any deed, will, contract or other written instrumen t, and a de clarati on of the r ights of the part ies inter ested.” 735 I LCS 5/2 -701(a)

(West1-05-4138

10

2004). Further, the statute provides that “if a decla ration of rights is the only r elief asked, the case may be set for early

hearing as in the case of a motion.” 735 I LCS 5/2-701(b) (West 2004). The central purpose of declara tory relief is to allow the c ourt to address a controversy one step soone

r than nor mal afte r a disput e has ar isen, but b efore t

he parti es take steps that w ould give rise to a claim for damag es or other relief. Beahri nger v. Page , 204 Ill. 2d 363, 372-73, 789 N.E.2d 12 16, 1223 ( 2003). “ The reme dy o f decla ratory judgmen t is to be lib erally

applied t o provide a method by whic h a binding declaration of rights may be rendered before the pa rties make an irrevocable chang e in position that might jeopardize those rights.” Illinois State T oll Highway Authority v. Amoco Oil Co. , 336 Ill. App. 3d 300, 305, 783 N.E.2d 658, 662 (2003). Further, in deciding issues of insurance c overage, the court should limit its rulings to the issues set out in the pleadings, should not decide issues which go bey ond coverage, and must not determine disputed factual issues that are crucia l to an insured’s liability in the underly ing lawsuit. 16 Ill. L. &

Prac. Declar

atory Judgments

§56, at 208 (2004). Further, unlike other

causes o f action

that ref er spec ifically

to the ava

ilability of relie f, such a s a neg ligenc e claim which requires an allegation of dama ges, the declaratory

judgment statute requires only that the judgment terminate a part of the controversy

. In re Marriag e of Be st , 369 Ill. App. 3d 254, 259, 859 N.E.2d 173, 180 (2006). Moreover, Supreme Court Rule 301 provides that every final judgment of a circuit court in a civil case is appealable as of right. 155 I ll. 2d R. 301. Rule 303(a)(1) provides, in relevant part, that the notice of appeal from final judgments in civil ca ses “must be filed with the clerk of the circuit court within 30 day s after the entry of the final judgment appealed from.” 155 I ll. 2d1-05-4138

11

R. 303(a)(1). “A final judgment is a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rig

hts of the parties in the lawsuit.” Big Sky E

xcavating, Inc. v. I

llinois Bell Telephone Co. , 217 Ill. 2d 221, 232-33, 840 N.E.2d 1174, 1182 (2005). A judgme nt is final if it dete rmines the

litigati on on the me

rits so that, if affirmed, the only

thing remaining is to proceed with execution of the judgme nt. In re Marriage of Ehga

rtner-Shachter , 366 Ill. App. 3d 278, 283, 851 N.E.2d 237, 243 (2006). “‘An order granting summary

judgment is a final order.’ ” Shutkas Electric, Inc. v. For d Motor Co. , 366 Ill. App. 3 d 76, 8 0, 851 N.E.2 d 66, 6 9 (200 6), qu otin g Diggs v. Suburban Medical Center , 191 Ill. App. 3d 828, 836, 548 N.E.2d 373, 378 (1989). Further , a decla

ratory judgmen t has the f orce of a final ju dgment w ith respe ct to the r

ights of the parties subject to that judgment. Board of Trustees of Addison Fire Protection District No. 1 Pension F

und v. Stamp , 241 I ll. App. 3d 873, 881, 6 08 N.E.2d

1274, 1282(1993). F inality attaches to a declaratory

judgment on the date judgment is entered. Djikas v. Grafft , 344 I ll. App. 3d 1, 10, 799 N.E.2d 887, 895 (2003). Additionally, an or der granting summary

judgment in a declaratory

judgment action is final under Supreme Court Rule 301 such that a notice of appeal must be filed within 30 day s of the entry of the order. See Pappas v. Waldron , 323 I ll. App. 3d 330, 334-36, 751 N.E.2d 1276, 1279-80 (2001). See, e.g. , Illinois Farmers I nsurance Co. v. Marchwiany , 222 I ll. 2d 472, 8 56 N.E.2d 439 (2006 ); State Fa

rm Mutual A

utomobile Insurance Co. v. Coe , 367 I ll. App. 3d 604, 855 N .E.2d 173 (2006); Mercury Indemnity

Co. of Illinois v. Kim , 358 I ll. App. 3d 1, 830 N.E .2d 603 (2 005); Parish v. Country Mutual I nsurance Co. , 351 Ill. App. 3d 693, 814 N.E.2d 166 (2004) (declaratory judgment actions construing1-05-4138

12

underinsured motorist coverage). In this case, the July

31, 1995 order was final and appealable. I n her complaint for a declar atory judgmen t, broug ht pursua nt to secti on 2-701 o f the Code , Heflin a sked the c ourt to determine and adjudicate the rights and liabilities of the par ties with respect to Universal’s umbrella policy and to ente r a declaratory

judgment construing that policy . She asked the court to deter mine that t

he umbre lla cove

rage a pplied to the underi

nsured mo torist coverage of its insured, Carriage Chevrolet, and that Universal was obligated to negotiate that claim with Heflin, pursuant to its policy pr

ovisions. She did not r

equest money

damage s. In the June 5, 1995 order, the Madison County circuit court found that Heflin was “in fact an insured included under the Umbrella Section of the policy in question based upon a finding that the contract so provides and that an ambiguity exists therein which is construed in plaintiff’s favor” and that Heflin complied with all provisions as required in that policy . The court then entered summary

judgment for Heflin, finding that she was an insure d under the umbrella policy in questio n which pr

ovided $1 million in c overag e. Althou gh the c ourt vac ated this order to consider Universal’s response to the motion for summary judgment, the court again entere d summary judgme

nt in Heflin’s favor on July 31, 1995 beca use it continued to agree with Heflin’s reasoning. Accordingly

, the trial court’s July 31, 1995 order g ranted Heflin all of the relief she sought in her declaratory

judgment action. The order fixed absolutely the rights of the parties on the issues raised in Heflin’s complaint concerning the issue of coverage and left no issues remaining. Therefore, the judg ment was final and appealable as of the date of its entry. Defendants argue that the July 31, 1995 order was not final because it did not order the1-05-4138

13

parties to proceed to arbitration and did not specify which form of arbitration was required. However, as stated above, section 2-701(a ) provides that a declaration of rights has the f orce of a final judgment whether or not consequential relief is or could be claimed. 735 ILCS 5/2-701(a) (West 2004). Section 2-701(c) then provides that “[i]f further relief based upon a declaration of right becomes necessary

or proper after the declara tion has been made, application may be made by p etition to a

ny c ourt havi

ng juris diction fo

r an orde r direc ted to any

party or partie s whose rights have been determined by the declaration to show cause why the further relief should not be granted forthwith.” 735 I LCS 5/2-701(c) (West 2004). Read together, these provisions indicate that consequential or incidental relief, not previously reque sted, but based on the rights previously determined in the initial declaration, may be claimed and obtained following the entry of a final and appealable declar atory judg

ment order. Djikas , 344 I ll. App. 3d

at 11-12, 799 N.E.2 d at 896. H owever , a motion r equestin g such r elief is not a posttrial motion within the meaning of Rule 303(a)(1) because it is not directed a gainst the original judgment, but is incidental to that judgment. Djikas , 344 Ill. App. 3d at 12, 799 N.E.2d at 896. “T

herefore, while

it appea rs from se ction 2-7 01 that the court wil l retain j urisdicti on to entertain a request for further re lief after the initial declaration without any time limitation, that retention of jurisd

iction doe s not dela

y or postpone t

he final ity o f the issue s originally decided so as to render the original decision nonfinal and nona ppealable.” Djikas , 344 Ill. App. 3d at 12, 799 N.E.2d at 896. Accordingly , in this case, the parties could have filed motions subsequent to the entry of the July 31, 1995 order concer ning arbitration and other issues incidental to the declara tory1-05-4138

14

judgment order, but these motions would not make the July 31, 1995 orde r not final or appealable. Further, based on sec tion 2-701, we reject defendants’ contention that the two

su bs eq ue nt la ws ui ts fi le d b y He fl in we re ba rr ed by res judic ata . Rather, the issue of whether He fl in wa s c ov er ed un de r t he um br el la po li cy w as ba rr ed by res judic ata because it was decided in th e o ri gi na l d ec la ra to ry j ud gm en t a ct io n a nd , t hu s, co ul d n ot be ra is ed ag ai n b y ei th er pa rt y. Defendants cite Pekin Insurance Co. v. Be nson , 306 Ill. App. 3d 367, 714 N.E.2d 559 (1999), and claim that it stands for the proposition that the trial court’s order finding underins ured motorist cove

rage was not final beca

use it did not termina

te all mat ters in controve rsy , includin

g arbit ration, d etermina tion of lia bility , and dama

ges. De fendant s misrepresent the holding of that case. I n Pekin Insurance Co. , the insurer filed a declaratory judgment action to determine whether it owed Tammy Benson underinsured motorist benefits. On cross-motions for summary judg ment, the court interpreted the policy and ruled in favor of Benson, finding her vehicle to be cove red under the policy

. Pekin Insurance Co. , 306 Ill. App. 3d at 371, 714 N.E.2d at 563. The insurer filed a notice of appea l from this coverage order. B enson then requested arbitration of her claim in the trial court a nd the insurer moved to stay the arbitration pending the appeal from the dec laratory judg ment action. The trial court granted the stay, but ordere d that the insurer pay interest on any subseque nt arbitration award as a condition of the stay. The insure

r then filed an amended notice of appeal a sking this court to reverse the condition of an interest pay ment in the stay order. Pekin Insurance Co. , 306 Ill. App. 3d at 370, 714 N.E.2d at 562. On appeal, the Pekin Insurance Co. court addressed the merits of the insurer’s appe al1-05-4138

15

from the declaratory

judgment action, affirming the trial court’s f inding that the policy did af ford Benson underinsured motorist coverage . There was no dispute that this court had jurisdiction over the trial court’s order finding cove rage in the declaratory

judgment action. However, the appellate court found that it lacked jurisdiction over the trial court’s orde r staying the arbitration hearing because that order did not resolve all issues concerning the arbitration, and thus, the order was not final. Pekin Insurance Co. , 306 Ill. App. 3d at 375, 714 N.E.2d at 565. That court did not hold that the underinsured motorist coverage finding in the de claratory judgment action was not final and appealable, as defenda nts in the present case contend. Rather, Pekin Insurance Co. supports Universal’s argument that the July 31, 1995 order resolving the declarator y judgment action was final and appealable. Therefore, defendants’ ar gument that they

did not breach their duties to Universal because the July 31, 1995 order was not final and appealable is without merit. Defendants failed to meet the ir burde

n of produ

ction in the se summar

y ju dgment proceed

ings bec ause the

y f ailed to present evidence that entitles them to judgment as a matter of law or evidence that Universal would be u

nable to prove an e lement of its cause of action. There fore, th e trial c ourt err ed in granting summary

judgment to defendants on this issue. Next, defendants contend that they committed no legal malpractice by not appealing the October 26, 2000 or

der conf irming the arbitr

ation awa rd beca use that order wa s void and i t could be collaterally

attacked at any

time. They claim that Universal foreclosed any such collateral attack by settling

the case in May

2001. Again, although defendants’ a rgument is not structured in terms of the elements of a legal malpractice action, we assume that defendants are c hallenging1-05-4138

16

the element of breach. They argue that the October 26, 2000 order was void because the declaratory

judgment action remained pending, the petition to confirm the a rbitration award failed to state a cause of action, and absent pr oof of an agreement to arbitra te up to $2,975,000, the trial court lacked “specific subject matter jurisdiction” to c onfirm the arbitration award. Defend ants’ ar guments are without merit, mainly because they misunder stand the

nature o f void judgmen ts. Whether a judgment is void or voidable depends on whether the cour t entering the challenged order possessed jurisdiction over the pa rties and the subject matter. In re Marriage of Mitchell , 181 I ll. 2d 169, 1 74, 692 N. E.2d 281, 2 84 (1998) . Judgment s may be colla terally attacked as void only w

here there is a complete want of jurisdiction in the court that enter ed the judgment, regarding e ither the subject matter or the parties. Smith v. Bartley , 364 Ill. App. 3d 725, 728, 847 N.E.2d 642, 645 (2006). “A voidable judgment, however, is one e ntered erroneously by

a court having jurisdiction and is not subject to collateral attack.” Marriage of Mitchell , 181 Ill. 2d at 174, 692 N.E.2d at 284. Once a c ourt has obtained jurisdiction, an order will not be

render ed void nor will the court lose jurisdiction merely be cause of an error or impropriety in the court’s de termination of the facts or law. Smith , 364 Ill. App. 3d at 728, 847 N.E.2d a t 645; In re

Custody of Ay ala , 344 Ill. App. 3d 574, 584, 800 N.E.2d 524, 534 (2003). Additionally, although a void orde r may be a

ttacked at any

time, either directly or collater ally , the issue

of voidne ss must be r

aised in the context o f a proc eeding that is pro

perly pending in the courts. People v. Flowers , 208 Ill. 2d 291, 308, 802 N.E.2d 1174, 1184 (2003). See also Marriage of Ehga rtner-Shachter , 366 Ill. App. 3d at 289, 851 N.E.2d at 247. “ ‘I f a1-05-4138

17

court lacks jurisdiction, it cannot confer any relief, even from prior judgments that are void. The reason is obvious. Absent jurisdiction, an order directed at the void judgment would itself be void and of no effect.’ ” Marriage of Ehga rtner-Shachter , 366 Ill. App. 3d at 289, 851 N.E.2d at 247, q uoti ng Flowers , 208 Ill. 2d at 308, 802 N.E.2d at 1184. Compliance with the rules gover ning ap peals is n ecessa

ry before a revie wing co urt may properl y c onsider a

n appea l from a judgment or order that is, or is asserted to be, void. Revolution Portfolio, LL C v. Bea

le , 341 I ll. App. 3d 10 21, 1025, 7 93 N.E.2d 900, 904 ( 2003). Th

us, the ap pellate c ourt is not v ested wit h authority to conside

r the mer its of a ca se mere ly b ecause the disput

e involve s an alle gedly

void order or judgment. Flowers , 208 Ill. 2d at 308, 802 N.E.2d at 1184. First, defendants contend that the October 26, 2000 orde r was void because the July 31, 1995 order was not final and appealable and, thus, the de claratory judgment action remained pending. However, as discussed above, the July 31, 1995 order was final and a ppealable, and thus, the declaratory

judgment action was over long befor e the October 26, 2000 order was entered. Additionally, a s mentioned above, the October 26, 2000 order would be void only if the trial court lacked subject matter jurisdiction over the case or personal jurisdiction over the parties. The fact that a previous case wa s pending between the parties would not render the court’s order vo id. Accordingly , we reje ct defe

ndants’ a rgumen t. Second, defendants argue that the Oc tober 26, 2000 order was void because Hef lin’s application to confirm the arbitration award “totally failed to state a cause of action.” They contend that the application did not contain any facts showing the existence of an agr eement betwee n Univer sal and H eflin to a rbitrate up to $2,97 5,000 and , thus, the complain t failed t o1-05-4138

18

state a c ause of a

ction. De fendant s assert t hat a com plaint whi ch fails t

o state a cause of action is void and a judgment entered on such a complaint is also void and ca n be attacked at any

time. However, defendants’ cited ca se, Adcock v. Brakega te, Ltd. , 164 Ill. 2d 54, 645 N.E.2d 888 (1994), d emonstra tes the fa llacy in their a rgumen t. A defendant may

raise at any

time a claim that the complaint fails to state a cause of action. Adcock v. Brakega te Ltd. , 164 I ll. 2d 54, 61 , 645 N.E. 2d 888, 893 (1994). H owever , this exception to the wai

ver doct rine app lies only

when a c omplaint f

ails to sta te a rec ognized c ause of ac ti on an d d oe s n ot ap pl y where the complaint states a recog nized cause of action, but contains an incomplete or otherwise insufficient statement of that cause of action. Adcock , 164 Ill. 2d at 61-62, 645 N.E.2d at 893. See also City of Quincy v. Weinberg , 363 Ill. App. 3d 654, 660, 844 N.E.2d 59, 64 (2006). Courts draw a distinction between a complaint that alleg es no cause of action, w hich may be chall enged

at any time, and one which defectively

or imperf

ectly alleges a cause of action. Adcock , 164 Ill. 2d at 62, 645 N.E.2d at 893. In the present case, H eflin fil ed an ap

plication to confir m an arbi tration a ward, wh ich is a recognized cause of action in I llinois. See 710 ILCS 5/11 (West 2004). Any alleged deficiencies in this comp laint did no t render it void. The

refore , the comp laint was not void an

d defend ants could not challenge it at any time. Accordingly , the October 26, 2000 order confirming the arbitration award on that complaint was not void and defendants’ a rgument is without merit. Third, defendants contend that the October 26, 2000 order was void because it was beyond the subject matter jurisdiction of the court where Heflin never prove d that a policy provision or agreement to arbitrate up to $2,975,000 existed. They claim that Universal never1-05-4138

19

agree d to arbitr

ate and had no arb itration c lause for underi nsured mo torist cov erage . Defen dants further argue that the trial cour t exceeded its authority in confirming a $2,975,000 judgment outside the confines of the $1 million limits on the umbrella policy, which provided no underinsured motorist coverage, making the court’s order void. Under section 16 of the Uniform Arbitration Act, the making of an arbitration agreement providing for arb itration i

n this state

confer s jurisdic tion on any circuit c ourt of th

is state to enforc e the ag

reemen t under th is Act and

to enter judgmen t on an aw ard ther

eunder. 710 I LCS 5/16 (West 2004). Here, the trial court found that the umbrella policy contained underinsured motorist coverage and that Heflin was insured unde r that policy in the July

31, 1995 order resolvin g the de claratory

judgmen t action. The cour

t further found tha

t the arb itration c lause in Universal’s insurance policy applied to Heflin’s underinsured motorist claim in the 1998 action to compel arbitration. Defendants, as counsel for Universal, never timely a ppealed these orders

an d t he se is su es we re th en ba rr ed by res judic ata during the proceeding to confir m the arbitration award. Thus, the circuit court of Madison County had jurisdiction to confirm this arbitration award where the trial court found that the a rbitration clause in the umbrella policy allowed for arbitration in Illinois. Defendants rely

on CPM Productions, Inc. v. Mobb Deep, I nc. , 318 Ill. App. 3d 369, 742 N.E.2d 393 (2000), which, they claim, holds that a judgment entered outside the agr eement of the parties is a void judgment bey ond the subject matter jurisdiction of the trial court. CPM Productions, Inc. , contain s no such holding. R ather, i n that ca se , the court held that section 16 of the Uniform Arbitration Act was a “prerequisite to the c ircuit court’s exercise of jurisdiction over1-05-4138

20

an application seeking judgment on an awa rd specifically

conditioning the court’s jurisdiction on the particular locale of the arbitration proce edings as provided for in the parties’ ag reement.” CPM Productions, Inc. , 318 Ill. App. 3d at 378, 742 N.E.2d at 400. Bec ause the arbitration clause in the parties’ contract provided for a rbitration in New York and not Illinois, the CPM Productions, Inc. court held that the Illinois trial court lacked subjec t matter jurisdiction to enter judgment on the Illinois arbitrator’s award. CPM Productions, Inc. , 318 Ill. App. 3d at 373, 742 N.E.2d at 397. Here, as discussed above and consistent with the holding of CPM Productions, Inc. , Illinois circuit courts had subject matter jurisdiction over this arbitra tion award because the trial court in the Heflin cases found that this arbitration clause allowed f or arbitration in Illinois. The fact that the trial court’s decision to confirm this arbitration award in the a mount of $2,975,000 may have be en erroneous does not mean that the trial court lacke d subject matter jurisdiction over the award such that the order is void. Rather, if Unive rsal wished to challenge this ruling as erroneous or voidable, it had to do so in a timely filed appeal from the October 26, 2000 order. Accordingly , we reject defendants’ arg uments and hold that the October 26, 2000 order confirming the arbitration award was not void. Thus, def endants’ claim that they

did not breach any duty to Universal by

failing to appea l this orde r is withou

t merit. Defendants also seem to argue that they did not breach their duties to Universal by failing to appeal the October 26, 2000 order beca use, at the time Universal settled the Heflin matter, Universal had two available options to attack that order. Specifica lly, defendants c ontend that they could have

appealed the May

7, 2001 turnover order ordering Universal to pay the1-05-4138

21

$2,975,000 judgment plus interest and, within that appeal, collaterally attacked the October 26, 2000 judgment as void. However, as we explained above, the O ctober 26, 2000 order was not

vo id , a nd th us , i t c ou ld no t b e a tt ac ke d a t a ny t im e, as de fe nd an ts ar gu e. Ac co rd in gl y, defenda nts’ arg ument fa ils. Additiona

lly, defenda

nts asser t that they could hav e filed a

section 2 -1401 moti on to attack the Octobe

r 26, 2000

order a s void. We no te that de fendant s did not ra ise this ar gument i n their motion for summary judg ment. Issues not raised in the trial court ar e deemed waived and may not be raise d for the first time on appeal. L.A. Connection v. Penn-America I nsurance Co. , 363 I ll. App. 3d

259, 266, 8 43 N.E.2d

427, 433 ( 2006). However, because the rec ord ref

lects that the trial court

ra is ed th is th eo ry sua sponte during t he summar

y ju dgment hearing , we will address it. Section 2-1401(f) provides: “Nothing contained in this Section affec ts any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.” 735 IL CS 5/2-1401(f) (West 2004). In a petition to vacate a void judg ment brou

ght purs uant to section 2-1401(f), the genera l rules pertaining to section 2- 1401 petitions--that they must be filed within two y

ears of the orde r or judg ment, tha t the petit ioner mus t alleg e a merit

orious de fense to the original action, and that the petitioner must show that the petition was brought with due diligence--do not apply

. Ford Motor Credit Co. v. Sperry , 214 Ill. 2d 371, 379, 827 N.E.2d 422, 427-28 (2 005). “Ra

ther, ‘[t]h e alleg ation tha

t the judg ment or or

der is void substitutes for and negates the need to allege a meritorious defense and due diligence .’ ” Ford Motor Credit Co. , 214 Ill. 2d at 3 79, 82 7 N.E. 2d at 4 28, qu otin g Sarkissian v. Chicago Board of Education , 201 I ll.1-05-4138

22

2d 95, 104, 776 N.E.2d 195, 202 (2002). In the present case , even if defendants had filed a section 2-1401(f) motion in the circuit court of Madison County challenging the October 26, 2000 judgment as void, it would have failed because that orde r was not void for all of the reasons set forth above. A ccordin

gly , we reje ct defe

ndants’ a rgumen ts. Defendants include one sentence in their brief that the October 26, 2000 order was not final and appea

lable “f or the sa me reas ons the 7/3 1/95 Orde r” was not final a

nd appea lable. Th is sentence was included in support of defendants’ sec tion 2-1401 argument. In or al argument before this court, defendants arg ued that the October 26, 2000 order was not final beca use the trial cou rt did not r

ule on Uni

versal’ s pending

motion to dis miss the complaint be fore en tering its judgment. However, defendants neve r made this argument in their summary judgment motion before the trial court. Defendants’ motion for summary judgment contained only one sentence referencing the fa

ct that defendants had filed the motion to dismiss in an effort to attack the arbitration award. Defendants never argued that the October 26, 2000 order was not final because this motion remained pending. As discussed above, a n issue not presented to or considered by

the trial court cannot be raised for the first time on appea l. L.A. Connection , 363 Ill. App. 3d at 266, 843 N.E.2d at 433. According ly, this argume

nt is waived. Theref ore, we find that d

efenda nts faile d to meet their burd en of pro duction on

their motion for

summary judgmen t becaus e they

did not pre sent evid

ence tha t, left unr ebutted, would entitle th em to judg

ment as a matter of law or de monstrate that Unive

rsal woul d be unab le to prove any e lement of its cause of action. Accordingly , the trial court erred in granting summary judgment to defendants and we must reverse tha t order and remand this case for further1-05-4138

23

proceedings. By

this opinion, we are not entering judgment in favor of Universal nor are we making a ny c omment on U

niversa l’s ability to ultimate ly prevail a

t trial. Ra ther, we simply hold that def endants a re not en titled to su

mmary judgmen t at this sta

ge of the litiga

tion base d on these facts and law. Last ly, Universa

l contend s that the t

rial cou rt should have ente

red summa

ry judgmen t in its favor on defen dants’ sta tute of lim

itations a nd statute of repos e defen ses. The

record reflects that the trial court never addressed the merits of Univer sal’s motion for summary deter mination, finding it moot because of its ruling that defendants wer e entitled to summary judg ment on Universa l’s leg al malpra

ctice c omplaint. T

herefore, we d

ecline to address this issue f

or the fir st time on ap

peal. Accord ingly , we rev erse the

trial cou rt’s orde r gran ting summa

ry judgmen t to defe ndants and rema nd this ca se for f

urther proceed

ings. Reversed and remanded. GREIMAN and CUNNI

NGHAM, JJ., concur.REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

_________________________________________________________________ UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Plaintiff-Appellant,

v. JUDGE & JAMES, LTD. , and JAY S. J UDGE, Defendants -Appellant s,

________________________________________________________________ No. 1-05-4138 Appellate

Court of Ill

inois First District, Third Division Filed: March 30, 2007

_________________________________________________________________ PRESIDING JUSTICE THEIS delivered the opinion of the court.

Greiman and Cunningham, JJ., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County Honorable R

obert Lope

z Ceper o, Judge P residing

_______________________________________________________________ __ For PLAI NTIFF - Bonita L. Sto ne APPELLANT James W. Hutchinson Paula S. K

im Katte n Muchin Rose nman LLP 525 W. Monroe St. Chicago, IL 60661 For DEF ENDANTS - Stephen P . Carpone lli APPEL LEES Raymond M. Rudnick 230 W. Monroe St., Suite 250 Chicago, IL 60606 Jay S. Judge Judge, Jam es & Kuj awa, LLC 422 N. Northwest Highway, Suite 200 Park Ridge, IL 60068