ILLINOIS OFFICIAL REPORTS

Appellate Court

R.M. Lucas Co. v. Peoples Gas Light & Coke Co., 2011 IL App (1st) 102955

Appellate Court

Caption

R.M. LUCAS COMPANY and CHICAGO TITLE LAND TRUST No.

3000121848, Plaintiffs-Appellants, v. THE PEOPLES GAS LIGHTAND

COKE COMPANY, Defendant-Appellee.

 District & No. First District, Third Division

Docket No. 1-10-2955

Filed December 14, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In a negligence action against a gas utility arising from a fire and

explosion allegedly caused by the failure of the gas pipe serving

plaintiffs’ building, the denial of plaintiffs’ petition under section 2-1401

of the Code of Civil Procedure to vacate the dismissal of their action with

prejudice was affirmed where plaintiffs defied the trial court’s discovery

deadlines and ignored defendant’s discovery requests.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 08-L-2572; the Hon.

Ronald S. Davis, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Charles J. Ryan, of O’Connell & Ryan, of Chicago, for appellants.

Joann T. Angarola, David M. Macksey, and Garret L. Boehm, Jr., all of

Johnson & Bell, Ltd., of Chicago, for appellee.

Panel JUSTICE MURPHY delivered the judgment of the court, with opinion.

Presiding Justice Steele and Justice Salone concurred in the judgment and

opinion.

OPINION

¶ 1 Plaintiffs, R.M. Lucas Co. (Lucas) and Chicago Title Land Trust No. 3000121848 (Land

Trust), appeal from an order of the circuit court of Cook County denying their petition to

vacate the court’s dismissal of their action with prejudice. On appeal, plaintiffs contend that

the court erred by denying their petition to vacate where they set forth a meritorious claim

of negligence and were diligent in presenting their claim and filing their petition to vacate.

Plaintiffs further contend that dismissal of their action was an inappropriate sanction. Forthe

reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On March 6, 2008, plaintiffs filed a one-count complaint alleging negligence against

defendant, The Peoples Gas Light and Coke Company, in connection with a fire/explosion

in a building at 3211 South Wood Street in Chicago. Plaintiffs asserted that the incident

occurred on March 10, 2006, and that the property constituted Lucas’s principal place of

business and was owned by the Land Trust. Plaintiffs further asserted that defendant owned

the gas meter and gas main for that building and had a duty to ensure that its gas line, fittings,

meter, and valves were properly installed and were maintained in a safe and reasonable

manner. Plaintiffs alleged that defendant breached its duty in numerous ways and that they

had suffered property damage and incurred expenses as a direct and proximate result of those

breaches.

¶ 4 Defendant filed its appearance and answer, and on July 1, 2008, the circuit court entered

a case management order in which it directed that discoverywas to be completed by October

28, 2008, and scheduled a case management conference for January 6, 2009. On August 19,

2008, defendant served plaintiffs with interrogatories and a request for production of

documents. On January 6, 2009, the court entered a second case management order in which

it directed that discovery was to be completed by June 30, 2009.

¶ 5 On June 15, 2009, defendant filed a motion to compel plaintiffs to answer its outstanding

interrogatories and request for production of documents. Defendant asserted that on October

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17, 2008, and May 18, 2009, it had sent letters to plaintiffs pursuant to Illinois Supreme

Court Rule 201(k) (eff. July 1, 2002) requesting responses to its discovery requests. On June

24, 2009, the court entered a third case management order in which it directed plaintiffs to

respond to defendant’s outstanding discovery requests by July 3, 2009, and scheduled a case

management conference for July 15, 2009.

¶ 6 On September 16, 2009, defendant filed a motion for sanctions against plaintiffs pursuant

to Illinois Supreme Court Rule 219(c)(v) (eff. July 1, 2002) in which it requested the court

dismiss plaintiffs’ complaint with prejudice for their repeated failure to respond to its

outstanding interrogatories and request for production of documents. Defendant asserted that

plaintiffs had failed to comply with discovery rules and the court’s orders regarding its

discovery requests and that dismissal was the only reasonable remedy. On September 24,

2009, the court entered an order continuing the motion for sanctions and requiring plaintiffs

to answer defendant’s interrogatories by October 1, 2009. On October 5, 2009, the court

granted defendant’s motion for sanctions, dismissed plaintiffs’ complaint with prejudice, and

stated that if plaintiffs complied with all outstanding discovery requests by November 9,

2009, it might consider vacating the dismissal. On November 9, 2009, plaintiffs filed a

motion requesting the court extend the date of discovery compliance to November 20, 2009,

due to a medical emergencyconcerningplaintiffs’ counsel’s daughter. Plaintiffs’ motion was

noticed for presentment, and on November 20, 2009, it was stricken from the call.

¶ 7 On June 4, 2010, plaintiffs filed a petition brought pursuant to section 2-1401 of the Code

of Civil Procedure (735 ILCS 5/2-1401 (West 2008)) to vacate the circuit court’s dismissal

of their action. Plaintiffs asserted that they had been represented by Eugene W. Beeler, Jr.,

who had been their counsel for approximately 35 years and had become a trusted advisor to

John L. Barry, the president and sole shareholder of Lucas and the beneficiary of the Land

Trust. Barryrelated in his signed affidavit attached to the petition that he and Beeler had been

in regular communication from the time of the incident until October 2009, when Beeler

stopped answering his phone calls and returning his messages. During that time, Beeler had

not informed Barryof defendant’s discoveryrequests, the court’s orders, defendant’s motion

for sanctions, the court’s dismissal of the action, or plaintiffs’ motion for an extension of

time to respond to the discovery requests. Despite repeated attempts to contact Beeler, Barry

was unable to obtain any information from him regarding the case from mid-October 2009

to late-February 2010, at which time he asked another attorney to check the court file and

learned that the action had been dismissed. On March 16, 2010, plaintiffs retained new

counsel, who familiarized himself with the case and Beeler’s conduct and filed the petition

at issue as soon as possible.

¶ 8 Plaintiffs maintained that they were entitled to relief from the dismissal of their action

because theyhad set forth a meritorious negligence claim against defendant and were diligent

in presenting their claim and in bringing their section 2-1401 petition. Plaintiffs also

maintained that the equities warranted vacating the dismissal of their action where Beeler

actively and knowingly concealed material information regarding the status of their case and

dismissal with prejudice was the initial sanction imposed by the circuit court.

¶ 9 Plaintiffs also attached a signed affidavit from professional engineer Kim Mniszewski

to their petition in which he related that he had investigated the explosion giving rise to

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plaintiffs’ complaint, that the explosion was caused by a gas leak stemming from a separated

gas fitting in defendant’s service equipment, and that it was unlikely that Lucas employees

contributed to the explosion. Plaintiffs also attached a gas incident report from the Illinois

Commerce Commission (ICC) which related that the ICC pipeline safety staff had

determined that the probable cause of the explosion was a natural gas leak arising from a

polyethylene service pipe that had become separated from the service head adapter to which

it had been attached.

¶ 10 On August 12, 2010, defendant filed a response to plaintiffs’ section 2-1401 petition in

which it asserted that plaintiffs’ failure to respond to its discovery requests and the court’s

orders was not excused by their counsel’s negligence and that dismissal was an appropriate

sanction. Defendant also asserted that plaintiffs had not acted with diligence in filing their

petition to vacate where it was not filed until three months after Barry had allegedly learned

of the dismissal of plaintiffs’ claim. Plaintiffs filed a reply, and on September 16, 2010, the

circuit court heard oral arguments and entered an order denying plaintiffs’ petition to vacate.

¶ 11 ANALYSIS

¶ 12 Plaintiffs contend on appeal that the circuit court erred by denying their section 2-1401

petition to vacate. Where a circuit court’s disposition of a section 2-1401 petition is

functionally equivalent to a grant or denial of summary judgment, this court will review the

circuit court’s ruling under the same standard as we would a ruling on a motion for summary

judgment. Mills v. McDuffa, 393 Ill. App. 3d 940, 948 (2009); see also People v. Vincent,

226 Ill. 2d 1, 16-17 (2007). In this case, plaintiffs have filed a section 2-1401 petition with

supporting affidavits, defendant has submitted a response in opposition, the parties have

engaged in oral argument, and the circuit court has not conducted an evidentiary hearing. As

such, the circuit court’s denial of plaintiffs’ section 2-1401 petition was the functional

equivalent of a grant of summary judgment in favor of defendant, and we will therefore

review the court’s order under the same standard as we would a grant of summary judgment.

Mills, 393 Ill. App. 3d at 948.

¶ 13 Summary judgment is proper where the pleadings, depositions, admissions, affidavits,

and exhibits on file, when viewed in the light most favorable to the nonmoving party, show

that there is no genuine issue of material fact and the moving party is entitled to judgment

as a matter of law. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291 (2000). A

triable issue of fact exists where there is a dispute as to a material fact or where reasonable

minds might differ in drawing inferences from facts which are not in dispute. Petrovich v.

Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999). We review the grant of a motion

for summary judgment de novo. General Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281,

284 (2002).

¶ 14 To obtain relief from a previous judgment or order under section 2-1401, a party must

establish by a preponderance of the evidence a defense or claim that would have precluded

entry of the judgment in the original action and its diligence in both discovering the defense

or claim and presenting the petition. Vincent, 226 Ill. 2d at 7-8. Plaintiffs assert that they are

entitled to relief from the dismissal of their action because they have set forth a meritorious

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negligence claim and have demonstrated their diligence in presenting that claim to the circuit

court and in bringing their section 2-1401 petition.

¶ 15 To establish the existence of a meritorious claim for purposes of obtaining relief from a

previous judgment or order pursuant to section 2-1401, the petitioner must plead sufficient

facts to support the allegations in its complaint. Coleman v. Caliendo, 361 Ill. App. 3d 850,

854-55 (2005). Plaintiffs maintain, and defendant does not dispute, that they have pleaded

sufficient facts to establish a meritorious claim of negligence against defendant.

¶ 16 To state a legally sufficient claim of negligence, plaintiffs must allege facts establishing

that defendant owed them a duty of care, that defendant breached that duty, and that the

breach was the proximate cause of their injuries. Thompson v. Gordon, 241 Ill. 2d 428, 438

(2011). Gas is a dangerous commodity, and defendant therefore owed plaintiffs a duty to

inspect and maintain its lines so that it could safely provide them with natural gas. Metz v.

Central Illinois Electric & Gas Co., 32 Ill. 2d 446, 450 (1965); Cosgrove v. Commonwealth

Edison Co., 315 Ill. App. 3d 651, 654-55 (2000). When viewed in the light most favorable

to plaintiffs, their complaint and the signed affidavits and ICC report attached to their section

2-1401 petition raise material questions of fact as to whether defendant breached its duty to

properly inspect and maintain its gas lines (Cosgrove, 315 Ill. App. 3d at 655) and whether

that breach was the proximate cause of their injuries. We therefore determine that plaintiffs

have pleaded sufficient facts to establish a meritorious claim of negligence against defendant.

¶ 17 Plaintiffs next maintain that they have demonstrated that theywere diligent in presenting

their negligence claim to the circuit court where Barry remained in regular contact with

Beeler until he cut off contact in mid-October 2009 and their failure to respond to

defendant’s discovery requests was due to Beeler’s active concealment of the developments

in the case. Defendant responds that plaintiffs are bound byBeeler’s actions and that section

2-1401 does not relieve a party of the consequences of its counsel’s negligence.

¶ 18 A litigant is generally bound by the mistakes or negligence of its counsel. Ameritech

Publishing of Illinois, Inc. v. Hadyeh, 362 Ill. App. 3d 56, 60 (2005). A party must follow

the progress of its case, and a section 2-1401 petition will not relieve a party of the

consequences of its attorney’s neglect of a matter. Paul v. Gerald Adelman & Associates,

Ltd., 223 Ill. 2d 85, 105 (2006). Thus, plaintiffs are bound by Beeler’s actions, and section

2-1401 does not provide them with relief from the consequences of their failure to respond

to defendant’s discovery requests or comply with the circuit court’s orders.

¶ 19 Plaintiffs assert that they should be relieved from the consequences of Beeler’s conduct

because this case presents an extraordinary situation that warrants such relief. In support,

plaintiffs first cite to Cohen v. Wood Brothers Steel Stamping Co., 227 Ill. App. 3d 354, 360

(1992), in which this court reversed the denial of the plaintiff’s section 2-1401 petition where

the plaintiff’s counsel “abruptly and unexplicably[sic] abandoned both his client and his law

firm without attending court and without adequately documenting the files for which he

retained responsibility.” In doing so, the court held that the interests of justice and fairness

compelled the exercise of its equitable powers and required the application of a relaxed due

diligence standard. Id. Plaintiffs also cite to Coleman v. Caliendo, 361 Ill. App. 3d at 855-56,

in which this court relied on Cohen in affirming the grant of the plaintiff’s section 2-1401

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petition where the plaintiff’s counsel inexplicably and abruptly abandoned him prior to trial.

¶ 20 Just as in Cohen and Caliendo, in this case plaintiffs’ failure to diligently present their

negligence claim to the circuit court was caused by the unanticipated and inexplicable

conduct of Beeler where he failed to comply with defendant’s discovery requests or the

court’s orders or inform Barry of such requests and orders. Thus, plaintiffs would seem to

be entitled to relief pursuant to this court’s holdings in Cohen and Coleman.

¶ 21 Defendant maintains, however, that this court should not follow its prior holding in

Cohen or Coleman because those decisions have little, if any, precedential value following

our supreme court’s subsequent decision in People v. Vincent, 226 Ill. 2d 1 (2007). In

Vincent, 226 Ill. 2d at 5, the defendant’s section 2-1401 petition challenging the validity of

his sentences was denied by the trial court, and that denial was then affirmed by the appellate

court. Id. The question raised before our supreme court was “whether a trial court may

dispose of a properly served section 2-1401 petition without benefit of responsive pleadings

and without giving the petitioner notice of the impending ruling and the opportunity to

address the court prior to the ruling.” Id. The court answered that question in the affirmative

(id. at 9, 12-14) and ultimately affirmed the trial court’s dismissal of the defendant’s section

2-1401 petition on the merits (id. at 18-19).

¶ 22 In doing so, the court examined its prior decisions regarding section 2-1401 petitions and

determined there were five possible dispositions of such a petition: “the trial judge may

dismiss the petition; the trial judge may grant or deny the petition on the pleadings alone

(summary judgment); or the trial judge may grant or deny relief after holding a hearing at

which factual disputes are resolved.” Id. at 9. The court emphasized that actions brought

pursuant to section 2-1401 are civil proceedings and are to be litigated in accordance with

the usual rules of civil procedure regardless of whether the petitioner is seeking relief from

a civil or criminal judgment. Id. at 11. The court then addressed the standard of review that

is to be applied to a trial court’s ruling on a section 2-1401 petition and concluded that the

standard of review will vary depending on the type of disposition ordered by the trial court.

Id. at 17.

¶ 23 In reaching that conclusion, the court noted that it had previously held that a reviewing

court was to review a trial court’s ruling on a section 2-1401 petition under an abuse of

discretion standard. Id. at 14. However, the court determined that the use of that standard was

“the result of an erroneous belief that a section 2-1401 petition ‘invokes the equitable powers

of the court, as justice and fairness require.’ ” Id. at 15 (quoting Elfman v. Evanston Bus Co.,

27 Ill. 2d 609, 613 (1963)). The court explained that section 2-1401 had equitable origins in

the common law writs it replaced and that when the legislature abolished those common law

writs in favor of a statutory remedy, “it became inaccurate to continue to view the relief in

strictly equitable terms.” Id. at 15-16. The court further reasoned that the application of civil

practice rules and precedent to section 2-1401 petitions “factored out anynotions about a trial

court’s ‘discretion’ to do justice” and that it made little sense to apply an abuse of discretion

standard when relief was no longer purely discretionary. Id. at 16.

¶ 24 In Cohen, 227 Ill. App. 3d at 360, this court explained that it was exercising its equitable

powers in the interests of fairness and justice by reversing the denial of the plaintiff’s section

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2-1401 petition. In Coleman, 361 Ill. App. 3d at 856, this court affirmed the grant of the

plaintiff’s section 2-1401 petition based on the same reasoning employed in Cohen and on

considerations of justice and fairness. In Vincent, 226 Ill. 2d at 15-16, our supreme court

explained that the belief that a section 2-1401 petition invokes the equitable powers of the

court was mistaken and that the application of civil practice rules and precedent to such

petitions factored out any notions regarding a court’s discretion to do justice. Thus, the

equitable considerations upon which this court based its decisions in Cohen and Coleman are

no longer relevant in resolving a section 2-1401 petition and those cases have been overruled

by Vincent to the extent this court held that a relaxation of the due diligence standard is

appropriate where petitioner’s counsel has engaged in unanticipated and inexplicable

misconduct. We therefore decline to relax the due diligence standard in this case or depart

from the general rule that a party is bound by the mistakes and negligence of its counsel. As

such, we determine that plaintiffs were not diligent in presenting their negligence claim to

the circuit court where they failed to respond to defendant’s discovery requests or comply

with the circuit court’s orders and therefore conclude that the circuit court did not err in

denying their section 2-1401 petition to vacate.

¶ 25 Plaintiffs further contend that they are entitled to relief under section 2-1401 because the

circuit court’s dismissal of their action with prejudicewas an inappropriate sanction. Initially,

plaintiffs have not demonstrated that they were diligent in discovering their claim that the

court entered an inappropriate sanction by a preponderance of the evidence where the court

granted defendant’s motion for sanctions on October 5, 2009, and they did not challenge that

ruling until they filed their section 2-1401 petition on June 4, 2010. To the extent plaintiffs

allege that the delay was attributable to the misconduct of Beeler, they are not relieved of the

consequences of his actions for the reasons stated above.

¶ 26 Moreover, the sanction entered bythe circuit court in this case was not inappropriate. The

purpose of imposing sanctions is to coerce compliance with court rules and orders, and the

decision to impose sanctions lies within the sound discretion of the circuit court and will not

be disturbed on review absent an abuse of that discretion. Koppel v. Michael, 374 Ill. App.

3d 998, 1004 (2007). In determining whether a sanction was warranted, a reviewing court

must consider the conduct that gave rise to the sanction order and the effect of that conduct

on the parties. Hartnett v. Stack, 241 Ill. App. 3d 157, 173 (1993).

¶ 27 The record shows that defendant filed a motion requesting sanctions against plaintiffs

pursuant to Illinois Supreme Court Rule 219(c)(v) and that the circuit court granted that

motion. Rule 219(c)(v) provides that a party’s claims may be dismissed with or without

prejudice as a sanction for unreasonably failing to comply with discovery rules. Ill. S. Ct. R.

219(c)(v) (eff. July 1, 2002). Dismissal of a cause of action is a drastic sanction that is

justified only when the sanctioned party has shown a deliberate, contumacious, or

unwarranted disregard for the court’s authority. Shimanovsky v. General Motors Corp., 181

Ill. 2d 112, 123 (1998).

¶ 28 In this case, defendant provided plaintiffs with its discoveryrequests on August 19, 2008,

and the circuit court directed that discovery was to be completed by October 28, 2008.

Despite defendant’s numerous requests for responses to its discoveryrequests and the court’s

orders setting discovery deadlines and directing plaintiffs to respond to the discovery

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requests, plaintiffs had not yet provided any response on October 5, 2009, when the court

granted defendant’s motion for sanctions. In dismissing plaintiffs’ action, the court indicated

that it might consider vacating the dismissal if plaintiffs complied with all outstanding

discovery requests by November 9, 2009, but plaintiffs failed to do so. As such, the circuit

court did not abuse its discretion by dismissing plaintiffs’ action with prejudice where they

defied discovery deadlines set by the court and ignored defendant’s discovery requests.

Vaughn v. Northwestern Memorial Hospital, 210 Ill. App. 3d 253, 261-62 (1991).

¶ 29 We also note that while we are affirming the denial of plaintiffs’ section 2-1401 petition

to vacate the circuit court’s dismissal of their action against defendant with prejudice, they

may be able to obtain some relief for their injuries from the explosion and fire giving rise to

their negligence claim in a civil action. See Wolfe v. Wolf, 375 Ill. App. 3d 702, 709 (2007)

(to establish a legal malpractice claim, a plaintiff must establish the existence of an attorneyclient relationship establishing a duty on the part of the attorney, a breach of that duty by the

attorney, the fact that it would have prevailed on the underlying action but for the attorney’s

negligence, and actual damages).

¶ 30 CONCLUSION

¶ 31 Accordingly, we affirm the judgment of the circuit court of Cook County.

¶ 32 Affirmed.

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