## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S 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 C HI CAGO TI TL E LAND TRUST No. 3 0 0 0 1 2 1 8 4 8
, Pl a in

ti f f s

- A p p ellants, v. THE PEOPLE S GA S LI G H T A N D COKE COMPANY, Def

endant- Appellee

.

District & N o. First District, Third Division Docke t No. 1-10-2955

Filed Dec ember 14, 2011

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a neg lige nce action ag ainst a g as utilit y arising from a fire and explos ion alleged l y cause d by the failure of the g as pipe serving plaintiffs’ building, the denial of plaintiffs’ petition under section 2-1401 of the Code of Civil Procedur e to vaca te the dismiss al of their action with prejudice was aff

irmed wher e plaintiffs defie d the trial court’s discovery deadlines a

nd ignor ed def

endant’ s discovery

reque sts.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 08-L -2572; the Hon. Ronald S. Davis, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Charles J. Ry an, of O ’Connell & Ryan, of Chica g o, for a ppellants.

J oann T. Ang arola
, David M. Mackse y , and Gar ret L . Boe hm, J r., all of J ohnson & B ell, Ltd., of Chicag o, for a ppellee.

Panel J USTI CE MU RPHY de livered the judgme nt of the cour t, with opinion. Presiding J ustice Steele and J ustice Salone concur red in the judgme nt and opinion.

OP INION

¶ 1 Plaintiffs, R.M. Lucas Co. (L ucas) and Chicag o Title L and Trust No. 3000121848 (L and Trust), appea l from an order of the circ uit court of Cook County deny i n g t h ei r petition to

vacate the court’s dismiss al of their action with prejudice

. On appea l, plaintiffs contend that the court err ed by denying their petition to vacate where they set forth a meritorious claim of neg lige nce a

nd wer e dilige nt in pr esenting their claim and filing their petition to vacate. Plaintiffs further contend that dismiss al of their action was an inappropria te sanction. For the

rea sons that follow, we a ffirm.

¶ 2 BA CKGROUND ¶ 3 On Marc h 6, 2008, plaintiffs filed a o n e- co u n t co m plaint alleg ing neg lige nce a g ainst defe ndant, The Peoples Gas L ight and Coke Company
, in c onnection with a fire/e x plosion in a building at 3211 S o u t h W o o d Street in Chicag o. Plaintiffs asser ted that the incident

occur red on Marc h 1 0
, 2006, and that the proper ty constituted Lucas’ s principal place of business and was owned by the L and Trust. Plaintiffs further asser ted that defe ndant owned the g as meter and g as main for that building and had a duty to ensure that its g as line, fittings, meter, and valves wer e proper ly installed and wer e m ai n t ained in a safe and rea sonable

manner

. Plaintiffs a lleg ed that defe ndant brea ched its duty in nume rous way s and that they had suffe red proper

ty damag e and incurre d expenses as a direc t and proxi mate result of those brea ches. ¶ 4 Def

endant filed its appea

ranc e and answe r, and on J uly 1, 2008, the circ uit court e ntere d

a case manag ement order in which it direc ted that discovery was to be completed by October 28, 2008, and schedule d a case manag ement confe renc e for J anuar y 6, 2009. On August 19, 2008, defe ndant serve d plaintiffs with i n t er ro gat ories and a reque st for production of documents. On J anuar

y 6, 2009, the court enter ed a second case manag ement order in which it directed that discovery

was to be c ompleted by

J une 30, 2009. ¶ 5 On J une 15, 2009, defe ndant filed a motion to compel plaintiffs to answe r its outst anding interrog atories and reque st for production of documents. Def endant asser

ted that on October

-2-17, 2008, and May 18, 2009, it had sent letters to plaintiffs purs u an t t o I llinois Supreme

Court Rule 201(k) (ef

f. J uly 1, 2002) reque sting response s to its discovery reque sts. On J une 24, 2009, the court enter ed a third case manag ement orde r in which it direc ted plaintiffs to respond to defe ndant’s outstanding discovery reque sts by J uly 3, 2009, and schedule d a case manag ement conf

ere nce f or Jul y 15, 2009. ¶ 6 On September 16, 2 0 0 9
, d e f endant filed a motion for sanctions ag ainst plaintiffs pursuant to I llinois Supreme Court Rule 219(c) (v) (ef f. J uly 1, 2002) in which it reque sted the cour t dismiss plaintiffs’ complaint with prejudice for their repe ated failure to respond to its outstanding interrog atories and reque st for production of documents. Def endant a s s e rted that plaintiffs had failed to comply with discovery rules and the court’s order s reg arding its discovery reque sts and that dismiss al was the only rea sonable reme dy

. On September 24, 2009, the court enter ed an order continuing the motion for sanctions and requiring plaintiffs
to answe r defe ndant’s interrog atories by October 1, 2009. On October 5, 2009
, the court gr a nte d d efe ndant’s motion for sanctions, dismiss ed plaintiffs’ complaint with prej u d ic e , a n d stated that if plaintiffs complied with all outstanding discovery requests by November 9, 2009, it might consider vacating the dismiss al. On November 9, 2009, plaintiffs fi l ed a motion reque sting the court extend the date of discovery compliance to November 20, 2009, due to a medical emer g ency conce rnin g p laintiffs’ counsel’s daughter. Plaintiffs’ motion was noticed for

prese ntment, and on Novembe r 20, 2009, it was stricke n from the c all. ¶ 7 On J une 4, 2010, plaintiffs filed a petition brought pursuant to section 2-1401 of the Code of Civil Procedur e (735 I L CS 5/2-1401 (West 2008)) to vacate the circ uit court’s dismiss al of their a ction. Plaintiffs a sserted that they had been r epre sented by Eug ene W. B eele r, Jr., who had been their counsel for approximately 35 y ear s and had become a trusted advisor to J ohn L . Ba

rry , the pre sident and sol e shareholder of Lucas and the beneficiar y of the L and Trust. Ba rry related in his signe d aff idavit attache d to the petition that he and Be eler had been in regular communication from the t i me of the incident until October 2009, when Be eler stopped answe ring his phone calls and returning his messag es. During that time, Be eler had
not informed Ba

rry of defe ndant’s discovery reque sts, the court’s order s, defe ndant’s motion for sanctions, th e co u rt ’s dismiss al of the action, or plaintiffs’ motion for an extension of time to respond to the discovery reque sts. Despite repe ated attempts to contac t Be eler
, Ba rry

was unable to obta in a

ny information from him reg arding the case from mid-October 2009
to late-F ebrua

ry 2010, at which time he asked another attorney to chec k the court fi l e and l ea rned that the action had been dismiss ed. On Marc h 16, 2010, plaintiffs reta ined new counsel, who familiarized himself with the case and Be eler ’s conduct and filed the petition at issue as soon as possible. ¶ 8 Plaintiffs maintained that they wer e entitled to relief from the dismiss al of their ac tion beca use they had set forth a meritorious neg lige nce cl a im ag ainst defe ndant and wer e diligent in prese nting their claim and in bring ing their s ec t i on 2-1401 petition. Plaintiffs also maintained that the equities wa rr an ted vaca ting the dismiss al of their action wher e Be eler actively and knowing ly conce aled materia l information reg arding the status of their case and dismiss al with prejudice was the initial sanction imposed by the circ uit court. ¶ 9 Plaintiffs also attache d a si g ned af fidavit from professional enginee r Kim Mnisz ewski
to t h ei r petition in which he related that he had investigated the explos ion g iving rise to

-3-plaintiffs’ complaint, that the explos ion was cause d by a g as leak stemming from a separ ated

g as fitting in de fenda

nt’s service equipment, and that it wa s unlikely that Lucas employ ees contributed to the ex plosion. Plaintiffs also attache d a gas inc ident repor t from the I llinois Commerce Commi ssion (I CC) which related that the I CC pipeline safe ty staff had deter mined that the p ro b ab l e cause of the explos ion was a natura l g as leak arising from a poly ethylene service pipe that had become separ ated from the service head adapte r to which it had been attached. ¶ 10 On August 12, 2010, defe ndant filed a response to plaintiffs’ section 2-1401 petition in which it asser

ted that plaintiffs’ f

ailure to re spond to its di scover y reque sts and the court’s order s was not excused by their counsel’s neg lige nce and that dismiss al was an appropr iate sanction. De fenda

nt also asser

ted t hat pl aintiffs had not acte d with diligenc e in filingtheir petition to vaca

te wher e it was not filed until three months afte r Ba rry had alleg edly lear

ned of the dismiss al of plaintiffs’ claim. Plaintiffs filed a reply
, and on September 16, 2010, the circ uit court hear d oral arg uments and enter ed an order deny ing plaintiffs’ petition to vacate.

¶ 11 ANALYSI S ¶ 12 Plaintiffs contend on appea l that the circ uit c ourt err ed by denying their section 2-1401 petition to vaca

te. Where a circ uit court’ s dispositi on of a section 2-1401 petition is functionally equivalent to a g rant or denial of summary judgme nt, this court will revie w the circ uit court’s ruling under the same standard as we would a ruling on a motion for summary judgme nt. Mills v. McDuffa
, 393 I ll. App. 3d 9 4 0
, 9 4 8 (2009); see also People v. Vincent
, 226 I ll. 2d 1, 16-17 (2007). In this c ase, plaintiffs have filed a section 2-1401 petition with supporting aff

i davits, defe ndant has submitt ed a response in opposition, the parties have
eng ag ed in oral argument, and the circ uit court has not conducte d an evidentiar y hear ing. As such, the circ uit cour t ’s d enial of plaintiffs’ section 2-1401 petition was the functional
eq u i v al ent of a g rant of summary judgme nt in favor of defe ndant, and we will there fo re revie w the court’s order under the same standard as we would a g rant of summary judgme nt. Mills , 393 I ll. App. 3d at 948. ¶ 13 Summary judgme nt is proper wher e the plea dings, depositions, admissions, affidavits, and exhibi ts on file, when viewed in the light most favor able to the nonmoving party , show that there is no g enuine issue of m ater ial fac t and the moving party is entitled to judgme nt

as a matter of law. Jones v. C h i cago HMO Ltd. of Illinois
, 191 I ll. 2d 278, 291 (2000). A triable issue of fac t e x ists whe re there is a dispute as to a materia l f

act or wher e rea sonable minds might differ in draw ing infere nces from fac ts which are not in dispute. Petrovich v. Share Health Plan of

Illinois, Inc.
, 188 I ll. 2d 17, 31 (1999). We revie w the g rant of a motion for summary judgme nt de novo

. Gene ral Casualty Insurance Co. v

. Lacey
, 199 I ll. 2d 281, 284 (2002). ¶ 14 To obtain relief from a previous judgmen t o r order under section 2-1401, a party must establish by a preponde ranc e of the evidenc e a defe nse or claim that would have prec luded entry of the judgme nt in the orig inal action and its diligenc e in both discovering the defe nse

or claim and prese nting the petition. Vincent
, 226 I ll. 2d at 7-8. Plaintiffs asser t that they are entitled to relief from the dismiss al of their action beca use they have set forth a meritorious

-4-neg lige nce claim and have demonstrated their diligenc e in prese nting that claim to the circ uit

court a nd in bring ing the ir section 2-1401 pe tition. ¶ 15 To establish the exis tence of a meritorious claim for purposes of obtaining relief from a previous judgme nt or order pursuant to section 2-1401, the petitioner must plead sufficie nt fac ts to support the alleg ations in its complaint. Coleman v. Caliendo
, 361 I ll. App. 3d 850, 854-55 (2005). Plaintiffs maintain, and def endant doe s not dispute, that they have pleaded sufficie nt fac ts to establish a meritorious claim of ne g lige nce a g ainst defe ndant. ¶ 16 To state a leg ally sufficie nt claim of neg lige nce, plaintiffs must alleg e fac ts establishing that defe ndant owed them a duty of car e, that defe ndant brea ched that duty
, and that the brea ch was the proxi mate cause of their injuries. Thompson v. Gordon
, 241 I ll. 2d 428, 438 (2011). Gas is a dang erous commodity
, an d d ef endant there fore owed plaintiffs a duty to inspect and maintain its li nes so that it could safe ly provide them with natura l g as. Metz v. Central Illinois Electric & Gas Co.
, 32 I ll. 2d 446, 450 (1965); Cosgrove v. Commonwealth Edison Co.
, 315 I ll. App. 3d 651, 654- 55 (2000). When viewe d in the light most fa vorable
to plaintiffs, their complaint and the signe d aff idavits and I CC repor

t attache d to their section 2-1401 petition raise materia l questions of fac t as to whether defe ndant brea ched its duty to proper ly inspect and maintain its g as lines ( Cosgrove
, 315 I ll. App. 3d at 655) and whether that brea ch was the proxi mate cause of their injuries. We there fore deter mine that plaintiffs have pleade d sufficie nt fac ts to establish a meritorious clai m o f n e g li g e nce ag ainst defe ndant. ¶ 17 Plaintiffs next maintain that they have demonstrated that they wer e diligent in pr esenting their neg lige nce claim to the circ uit court wher e Ba rry rema ined in regular contac t with Be eler until he cut off contac t in mid-October 2009 and their failure to resp o n d to defe ndant’s discovery reque sts was due to Be eler ’s active conce alment of the developments in the case

. Def

endant responds that plaintiffs are bound by Be eler ’s actions and that section 2-1401 does not re lieve a pa rty of the c onsequenc es of its counsel’ s neg lige nce. ¶ 18 A litigant is g ener ally bound by the m i s t ak es o r n eglig ence of its counsel. Ameritec h Publishing of Illinois, In c. v. Hadye h
, 362 I ll. App. 3d 56, 60 (2005). A party must follow the p ro gre s s o f its case , and a section 2-1401 petition will not relieve a party of the
conseque nces of its attorney ’s neg lect of a matter. Paul v. Gerald Adelman & Associates, Ltd.
, 223 I ll. 2d 85, 105 (2006). Thus, plaintiffs ar e bound by Be eler ’s actions, and section 2-1401 does not pr ovide them with r elief from the conseque nces of their failure to r espond to defe ndant’s discove ry

reque sts or comply

with the circ uit court’s orde rs. ¶ 19 Plaintiffs asser t that they should be relieve d from the conseque nces of Be eler ’s conduc t beca use this case prese nts an extraordinary situation that war rants such relief

. In sup p ort, plaintiffs first cite to Cohen v. W ood Brothers Steel Stamping Co.
, 227 I ll. App. 3d 354, 360 (1992), in which this court reve rsed the denial of the plaintiff’s section 2-1401 petition wher e the plaintiff’s counsel “abr uptly and unexpli cably [ sic ] abandone d both his client and his law firm without attending court and without adequately documen ting the files for which he
reta ined re sponsibili ty .” In doing so, the court he ld that the interests of justice and fa irness compelled the exercise of its equitable power s and require d the application of a relax ed due diligenc e standard. Id. Plaintiffs also cite to Coleman v. Caliendo
, 361 I ll. App. 3d at 855-56, in which thi s court re lied on Cohen in aff irming the g rant of the pl aintiff’s section 2-1401

-5-petition wher e the plaintiff’s counsel inexpl icably and abruptly abandone d him prior to trial.

¶ 20 J ust as in Cohen and Caliendo , in this case plaintiffs’ failure to diligently prese nt their
neg lige nce claim to the circ uit court was cause d b y the unanticipated and inexpl icable conduct of Be eler wher e he failed to comply with defe ndant’s discovery reque sts or the court’s orders or in form Ba rry of such reque sts and orders. Thus, plaintiffs would seem to be entitled to re lief pursua nt to this court’s holding s in Cohen and Coleman. ¶ 21 Def

endant m ai n t ai n s , h o weve r, that this court should not follow its prior holding in Cohen or Coleman beca

use those decisions have littl e, if any , prec edential value following

our sup re m e court’s subsequent decision in People v. Vincent
, 226 I ll. 2d 1 (2007). In Vincent
, 226 I ll. 2d at 5, the defe ndant’s section 2-1401 petition c halleng ing the validity of his sentenc es was denied by the trial court, and that denial was then aff irmed by the appellate
court. Id. The qu es t i o n ra ised befor e our supreme court was “whe ther a trial court may dispose of a proper ly serve d section 2-1401 petition without benef it of responsive pleading s and without g iving the petitioner notice of the impending ruling and the opportunity to addre ss the court prior to the ruling .” Id. The court answe red that question in the aff irmative ( id. at 9, 12-14) and ultimately aff irmed the trial court’s dismiss al of the defe ndant’s section 2-1401 petition on the merits ( id. at 18-19). ¶ 22 In doing so, the court examined its prior decisions reg arding section 2-1401 petitions and deter mined there wer e five possible dispositi ons of s u ch a petition: “the trial judge may d i s miss the petition; the trial judge may g rant or deny the petition on the pleading s al o n e (summary judgme nt); or the trial judge may g rant or deny relief af t er h o l d ing a hear ing at which fac tual disputes are resolved.” Id. at 9. T h e co u rt emphasized that actions broug ht pursuant to section 2-1401 are civil proce eding s and are to be li tigated i n acc ordanc e with the usual rules of civil proce dure reg ardle ss of whether the petitioner is seeking relief from

a civil or criminal judgme nt. Id. at 11. The court then addre ssed the standard of revie w that is to be applied to a trial c ourt’s ruling on a section 2-1401 petition and conc luded that the standard of revie w will vary depending on the ty pe of dispositi on order ed by the trial court. Id. at 17. ¶ 23 In rea chingthat conclusion, the court noted that it ha d previously held that a revie wing
court was to revie w a trial court’s rul i n g o n a s ection 2-1401 petition under an abuse of discretion standard. Id. at 14. Howeve r, the court deter mined that the use of that standard was “the result of an err oneous belief that a section 2-1401 petition ‘invokes the equitable power s of the court, as justice and fairne ss require .’ ” Id. at 15 (quoting Elfman v. Evanston Bus Co.
, 27 I ll. 2d 609, 613 (1963))

. The court explained that section 2-1401 had equitable orig ins in the common law writs it repla ced and that when the leg islature abolished those common law writs in favor of

a statutory

reme dy , “it beca

me inacc urate to continue to view the r elief in strictly equitable terms.” Id. at 15-16. The court further rea soned that the application of civil
prac tice rules and prec edent to section 2-1401 petitions “fa ctore d out any notions about a trial court’s ‘discre tion’ to do justice” and that it made littl e sense to apply an abuse of discretion standard when re lief wa s no longe r pure ly discretionar

y

. Id. at 16. ¶ 24 In Cohen
, 227 I ll. App. 3d at 360, this court explained that it was exercising its e quitable
power s in the interests of fairne ss and justice by reve rsing the denial of the plaintiff’s section

-6-2-1401 petition. In Coleman
, 361 I ll. App. 3d at 856, this court af fi rm ed the g rant of the plaintiff’s section 2-1401 petition based on the sa me re asoningemployed in Cohen and on considerati ons of justice and fairne ss. In Vincent
, 226 I ll. 2d at 15-16, our supreme court explained that the belief that a section 2-1401 petition invokes the equitable powe rs of the
court was mistaken an d t h at the application of civil prac tice rules and prec edent to such petitions fac tored out any n otions reg arding a court’s discretion to do justice. Thus, the equitable considerations upon which this court based its decisions in Cohen and Coleman are

no longe r rele vant in resolving a section 2-1401 petition and those case s have been overr uled by Vincent to the extent this court held that a relax ation of the due diligenc e st an d ar d is
appropr iate wher e petitioner’s counsel has eng ag ed in u n an t i cipated and inexpl icable misconduct. We theref

ore decline to relax the due dili g encestandard in this ca se or de part from the g ener al rule that a party is bound by the mistakes and neg lige nce of its counsel. As such, we deter

mine that plaintiffs wer e not dilige nt in prese nting their neg lige nce claim to the circuit court where they failed to respond to defe ndant’s dis covery re qu es t s or comply with the circ uit court’s order s and there fore conclude that the circ uit court did not err in denying the ir section 2-1401 pe tition t o vacate. ¶ 25 Plaintiffs further contend that they are entitled to relief under section 2-1401 beca use the

c irc u it c o u

r t’ s d is missal of their action with prejudice was an inappropriate sanction. Initially
, plaintiffs have not demonstrated that they wer e dil ige nt in di s co v er i n g their claim that the
court enter ed an inappropriate sanction by a preponde ranc e of the evidenc e wher e the court g rante d defe ndant’s motion for sanctions on October 5, 2009, and they did not challeng e that ruling until they filed their section 2-1401 petition on J une 4, 2010. To the extent plaintiffs alleg e that the delay was attributable to the misconduct of Be eler
, they are not relieve d of the
conseque nces of

his actions for the r easons state d above. ¶ 26 Moreove r, the sanction enter ed by the circ uit court in this case was not inappropriate. The
purpose of imposing sanctions is to coer ce compliance with c ourt rules and order s, and the decision to impose sanctions lies within the sound discretion of the circ uit court and will not be disturbed on revie w absent an abuse of that discretion. Koppel v. Michae l
, 374 I ll. App. 3d 998, 1004 (2007). I n deter mining whether a sanction was war rante d, a re v i ew i n g court must consider the conduct that g ave rise to the sanction order and the eff ect of that conduct on the par ties. Hartnett v. Stack, 241 I ll. App. 3d 157, 173 (1993). ¶ 27 The rec ord shows that defe ndant filed a motion reque sting sancti o n s aga i n s t plaintiffs pursuant to I l l i n o i s Supreme Court Rule 219(c) (v) and that the circ uit court g rante d that motion. Rule 219(c) (v) provides that a party ’s claims m ay b e d i s m i ssed with or without prejudice as a sanction for unrea sonably failing to comply with discovery rules. I ll. S. Ct. R. 219(c) (v) (ef

f. J uly 1, 2002). Dismissal of a cause of action is a drastic sanction that is j u s t i fied only when the sanctioned party has shown a deliberate, contumacious, or

unwar rante d disreg ard for the court’s authority

. Shimanovsky v. Gene ral Motors Corp.
, 181 I ll. 2d 112, 123 (1998). ¶ 28 In this case , defe ndant provided plaintiffs with its discovery reque sts on August 19, 2008, and the circ uit court direc ted that discovery was to be completed by October 28, 2008. Despite defe ndant ’ s numerous reque sts for response s to its discovery reque sts and the court’s order s setting discovery deadlines and direc ting plaintiffs to respond to the discovery

-7-re quests, plaintiffs had not y et provided any response on October 5, 2009, when th e co u rt

g rante d defe ndant’s motion for sanctions. In dismiss ing plaintiffs’ action, the court indicated that it might consider vacating the dismiss al if pl ai n t i ff s complied with all outstanding discovery reque sts by November 9, 2009, but pla intiffs failed to do so. As such, the circ uit
court did not abuse its discretion by dismiss ing plaintiffs’ action with prejudice wher e they defie d dis co v er y deadlines set by the court and ignor ed defe ndant’s discovery reque sts. Vaughn v. Northwestern Mem orial Hospital , 210 I ll. App. 3d 253, 261-62 (1991). ¶ 29 We also note that while we are aff irming the denial of plaintiffs’ section 2-1401 petition
to va cate the circ uit c ourt’s dismiss al of their action ag ainst defe ndant with pr ejudice, the y may be able to obtain some relief for their injuries from the explos ion and fire g iving rise to their neg lige nce claim in a civil action. See W olfe v. W olf
, 375 I ll. App. 3d 702, 709 (2007) (to establish a leg al malprac tice claim, a plaintiff must establish the exis tence of an attorney

client relationship establishing a duty on the part of the attorney , a brea ch of that duty by the attorney , the fac t that it would have preva iled on the underly ing action but for the attorney ’s
neg lige nce, a

nd actua l damag es).

¶ 30 CONCLUSI ON ¶ 31 Acc ording ly , we a ffirm the judgment of the c ircuit court of Cook County

.

¶ 32 Affir

med.

-8-