Appellate Law

De Novo Standard Of Review For Petition To Vacate Dismissal When Trial Court Does Not Take Testimony

By Steven R. Merican

Christopher Mills sued Ryan McDuffa. Mills claimed he was injured when his car was rear ended by McDuffa. Two of Mills?s attorneys withdrew, and when Mills did not appear for a court hearing his case was dismissed for want of prosecution.

About four months later, a new lawyer for Mills filed a petition under Illinois Rule of Civil Procedure 2-1401 (relief from judgments more than 30 days old) to vacate the dismissal order. The trial court read the parties? briefs and heard oral argument, but did not take live testimony from witnesses. The court then granted Mills?s petition.

McDuffa appealed. Their conclusions were opposite, but both McDuffa and Mills suggested that the standard of review was abuse-of-discretion. Nevertheless, the Second District Illinois Appellate Court ruled that the standard of review was de novo. The trial court?s decision to vacate the dismissal received no discretion because ?the parties? filings with the [trial] court were functionally equivalent to cross-motions for summary judgment, and the court?s disposition of Mills?s section 2-1401 petition was functionally equivalent to a grant of summary judgment to Mills. We review grants of summary judgment de novo.?

In the end, Mills?s order vacating the dismissal was reversed and sent back to the trial court for an evidentiary hearing. The whole case, Mills v McDuffa, No. 2-08-0305 (7/21/09), is available by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on November 15, 2009 (boomark / email).