                                                 FIFTH DIVISION
                                                 January 29, 2010




No. 1-08-3042


ANTHONY JACKSON,                             )       Appeal from the
                                             )       Circuit Court of
     Plaintiff-Appellee,                     )       Cook County.
                                             )
          v.                                 )
                                             )
KENDALL HOOKER,                              )       Honorable
                                             )       Elizabeth M.
     Defendant-Appellant.                    )       Budzinski,
                                             )       Judge Presiding.



     JUSTICE HOWSE delivered the opinion of the court:

     Plaintiff Anthony Jackson filed a complaint for damages

against defendant Kendall Hooker for injuries stemming from

defendant’s operation of an automobile.    The trial court granted

plaintiff’s motion for default after defendant failed to answer

plaintiff’s complaint.     Following a prove-up hearing, the trial

court entered judgment in plaintiff’s favor and awarded $700,000

in damages.    On appeal, defendant contends the trial court abused

its discretion in granting plaintiff’s petition for relief from

the court’s sua sponte dismissal of plaintiff’s complaint for

want of prosecution.   Defendant also contends the trial court

erred in denying his motion to vacate the default judgment.

     For the reasons that follow, we affirm the trial court’s

order vacating the dismissal for want of prosecution.     We reverse
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the court’s order denying defendant’s motion to vacate the

default judgment entered against him and remand for further

proceedings consistent with this opinion.

                            BACKGROUND

     On January 11, 2007, plaintiff filed a two-count complaint

against defendant, alleging negligence and battery.     Plaintiff

alleged that on June 29, 2006, defendant and a third party “began

an altercation.”   While plaintiff’s arm was inside the rear

driver-side window of defendant’s vehicle, defendant rolled up

the window and trapped plaintiff’s arm between the window and the

door frame.   Plaintiff was outside the vehicle.    Defendant then

drove away with plaintiff’s arm still trapped.     When defendant

stopped the vehicle, plaintiff’s arm was violently pulled out,

which caused him to fall from the vehicle and strike his head on

the street.   Plaintiff alleged he suffered closed-head injuries

and extensive injuries to his shoulder as a result of the

incident.

     On August 1, 2007, defendant was personally served with

process.    Several prior attempts to serve defendant at his home

address had been unsuccessful due to “no contact.”     Plaintiff

notified defendant’s insurer, GEICO, of the pending lawsuit on

August 7, 2007.    On August 27, 2007, GEICO informed plaintiff’s

counsel that it would not be providing defendant any coverage or



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defense for the lawsuit.

     On September 26, 2007, plaintiff filed a motion for default

judgment based on defendant’s failure to answer the complaint or

otherwise plead in accordance with Illinois Supreme Court Rule

18(b) (210 Ill. 2d R. 18(b)).    An undated certificate of service

attached to the motion for default was served by mail to

defendant’s address.    The trial court granted the motion for

default on October 5, 2007.    Neither defendant nor his insurer

attended the default hearing.    A prove-up hearing was scheduled

for November 9, 2007.

     After neither plaintiff nor his counsel appeared at the

November 9 prove-up hearing, the trial court sua sponte dismissed

the cause for want of prosecution.     On March 12, 2008, plaintiff

filed a motion to vacate dismissal for want of prosecution.      A

certificate of service attached to the motion indicated defendant

could not be served with notice because plaintiff did not have

defendant’s current address.    On March 19, 2008, the trial court

denied plaintiff’s motion to vacate without prejudice with leave

to refile the motion under section 2-1401 of the Illinois Code of

Civil Procedure (735 ILCS 5/2-1401 (West 2008)).

     On March 27, 2008, plaintiff filed a petition for relief

from dismissal for want of prosecution under section 2-1401.      The

trial court granted the petition for relief and set the matter



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for a prove-up hearing on June 9, 2008.    On April 20, 2008,

defendant was personally served with notice of the prove-up

hearing.    On June 9, 2008, plaintiff appeared at the prove-up

hearing and presented testimony regarding his injuries and

medical bills.    Neither defendant nor his insurer appeared.   The

trial court entered judgment in plaintiff’s favor and awarded

$700,000.

     On July 9, 2008, defendant filed a motion to vacate the

default judgment entered on June 9, 2008.    On August 7, 2008,

defendant filed a brief in support of his motion to vacate the

prove-up judgment.    The trial court denied defendant’s motion on

October 7, 2008.    Defendant appeals.

                              ANALYSIS

                 I. Dismissal for Want of Prosecution

     Defendant contends the trial court abused its discretion by

granting plaintiff’s motion to vacate the dismissal for want of

prosecution (DWP).    Specifically, defendant contends the trial

court erred in granting plaintiff’s section 2-1401 petition to

vacate the dismissal because the petition failed to satisfy

section 2-1401's stringent pleading requirements.

     Initially, plaintiff counters defendant waived any issues

regarding the sufficiency of plaintiff’s section 2-1401 petition,

or the trial court’s subsequent reinstatement of the case, by



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failing to raise the issues during the proceedings below or in

the notice of appeal.

     The record reflects defendant never sought to challenge the

trial court’s decision to vacate the DWP during the proceedings

below.    Nor did defendant raise the issue in his notice of

appeal.    “It is axiomatic that questions not raised in the trial

court are waived and may not be raised for the first time on

appeal.”    Shell Oil Co. v. Department of Revenue, 95 Ill. 2d 541,

550, 449 N.E.2d 65 (1983); McKinnon v. Yellow Cab Co., 31 Ill.

App. 3d 316, 318, 333 N.E.2d 659 (1975) (“The remaining arguments

of defendants–that the service of plaintiffs’ [petition to

vacate] was improper; that the petition did not bear plaintiff’s

signatures; and that the petition did not allege that plaintiffs

had a meritorious cause of action–were not raised in the trial

court, and therefore are considered waived”).

     Waiver aside, we find the trial court did not abuse its

discretion in vacating the dismissal order.    In reaching our

conclusion, we note we may affirm the trial court’s decision on

any ground substantiated by the record, regardless of the trial

court’s actual reasoning in reaching the decision.    City of

Chicago v. Holland, 206 Ill. 2d 480, 492, 795 N.E.2d 240 (2003).

     Our supreme court has recognized that if a plaintiff’s

action is dismissed for want of prosecution (DWP), the plaintiff



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has the option, under section 13-217 of the Code of Civil

Procedure, to refile the action within one year of the entry of

the DWP order or within the remaining period of limitations,

whichever is greater.   735 ILCS 5/13-217 (West 2008); S.C.

Vaughan Oil Co. v. Caldwell, Trout & Alexander, 181 Ill. 2d 489,

497 (1998).   A DWP becomes a final order only when the section

13-217 period for refiling the action expires.    S.C. Vaughan Oil

Co., 181 Ill. 2d at 502; Flores v. Dugan, 91 Ill. 2d 108, 114,

435 N.E.2d 480 (1982); Progressive Universal Insurance Co. v.

Hallman, 331 Ill. App. 3d 64, 67, 770 N.E.2d 717 (2002).

Accordingly, a DWP remains an unappealable interlocutory order

until plaintiff’s option to refile expires.    S.C. Vaughan Oil

Co., 181 Ill. 2d at 507; Hallman, 331 Ill. App. 3d at 67, citing

Sunderland v. Portes, 324 Ill. App. 3d 105, 113, 753 N.E.2d 1251

(2001).

     Section 2-1301(e) of the Code provides “[t]he court may in

its discretion, before final order or judgment, set aside any

default.”    735 ILCS 5/2-1301(e) (West 2008); Illinois Bone &

Joint Institute v. Kime, No. 1-08-2739, slip op. at 4 (December

18, 2009).

     In light of S.C. Vaughan Oil Co. and Kime, we find plaintiff

was not required to file a section 2-1401 petition in order for

the trial court to vacate the DWP in this case.   Although



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plaintiff filed his motion to vacate more than 30 days after the

trial court entered the DWP, the motion was filed well within the

period for refiling an action under section 13-217 of the Code.

A DWP only becomes a final order when the section 13-217 period

for refiling the action expires.       S.C. Vaughan Oil Co., 181 Ill.

2d at 502; Flores, 91 Ill. 2d at 114; Kime, slip op. at 13.

     Because the DWP was still interlocutory–-not final–-in

nature until the refiling period expired, section 2-1401 was

inapplicable when plaintiff filed his motion to vacate and could

not form the basis for vacating the DWP here.      See S.C. Vaughan

Oil Co., 181 Ill. 2d at 508; Kime, slip op. at 4.      However, the

trial court retained jurisdiction over plaintiff’s cause of

action and had the authority to vacate the dismissal under

section 2-1301(e) of the Code.     See Hallman, 331 Ill. App. 3d at

68, citing 735 ILCS 5/2-1301(e) (West 2000) (“because the time

for refiling under section 13-217 had not expired, the trial

court retained jurisdiction to vacate the DWP and to enter the

default judgment.   Accordingly, the decision to grant plaintiff’s

motion rested within the trial court’s discretion”).

     We find the trial court did not abuse its discretion in

vacating the DWP in this case.

                      II. Default Judgment

     Defendant contends the trial court erred in denying his



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motion to vacate the default judgment.   Specifically, defendant

contends the trial court erred in determining his motion to

vacate was governed by section 2-1401 of the Code.

     The question at issue here requires us to determine when the

default judgment was actually entered in this case.

     The trial court initially granted plaintiff’s motion for

default on October 5, 2007.   A prove-up hearing was scheduled for

November 9, 2007.   After neither plaintiff nor his counsel

appeared at the November 9 prove-up hearing, the trial court sua

sponte dismissed the cause for want of prosecution.   When the

dismissal for want of prosecution was vacated by the trial court,

a new prove-up hearing was scheduled for June 9, 2008. Following

the June 9 prove-up hearing, the trial court entered judgment in

plaintiff’s favor and awarded $700,000 in damages.

     On July 9, 2008, defendant filed a motion to vacate the

prove-up judgment, pursuant to section 2-1301(e) of the Code.

Defendant filed a brief in support of his motion to vacate on

August 7, 2008.   In determining defendant’s motion to vacate

should be evaluated under section 2-1401, not section 2-1301(e),

the court noted that even if it did vacate the prove-up judgment,

“the [October 5, 2007,] default judgment would still stand and

you would just have a new prove-up hearing.   So that doesn’t give

you the relief that you’re seeking.”   Because defendant had not



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filed a motion to vacate the default order under section 2-

1301(e) within 30 days of its entry on October 5, 2007, the trial

court determined defendant’s motion to vacate the default should

be considered under section 2-1401.    The court then denied the

motion, finding defendant had not met the section 2-1401 standard

for vacating a default judgment.

     In support of his contention that section 2-1401 was the

appropriate standard, plaintiff relies on this court’s decision

in Gruss v. Beverley, 201 Ill. App. 3d 502, 559 N.E.2d 135

(1990).   In Gruss, the trial court entered an order of default

against the defendants on October 26, 1988.    A prove-up hearing

was set for November 18, 1988.    After neither defendants nor

their counsel appeared at the prove-up, the trial court entered

judgment in the plaintiff’s favor.     On November 23 the defendants

filed a motion to vacate the October 26 order of default.    On

December 27 the defendants filed an amended motion to vacate the

November 18 default judgment.    After the plaintiff argued the

December 27 amended motion to vacate was brought more than 30

days after the November 18 default judgment, the trial court said

it would treat the amended motion to vacate as a section 2-1401

petition.   Gruss, 201 Ill. App. 3d at 504.

     In finding the trial court did not abuse its discretion in

treating the amended December 27 motion as a section 2-1401



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petition, this court noted no explanation was offered for the

time lapse between the entry of the judgment on November 18 and

the filing of the amended motion to vacate default and judgment

on December 27.    Gruss, 201 Ill. App. 3d at 507.     The court noted

that although the defendant clearly knew about the entry of the

November 18 judgment, the amended motion to vacate the judgment

was not filed within 30 days of its entry.        Gruss, 201 Ill. App.

3d at 507.    The court held that “[i]f defendants’ motion had been

filed by December 18, the provisions of section 2-1301 would have

permitted the court to vacate the judgment on such terms and

conditions as it elected to impose.”        Gruss, 201 Ill. App. 3d at

507.    Because defendants’ motion was filed 10 days after the

expiration of the 30-day period, however, it was properly

considered under section 2-1401.        Gruss, 201 Ill. App. 3d at 507.

       More recently, this court has recognized an order of default

is not a final judgment because it does not dispose of the case

and determine the rights of the parties.        Fidelity National Title

Insurance Co. of New York v. Westhaven Properties Partnership,

386 Ill. App. 3d 201, 211, 898 N.E.2d 1051 (2007).       Instead, “an

order of default is simply an interlocutory order that precludes

the defaulting party from making any additional defenses to

liability but in itself determines no rights or remedies.”

Fidelity National Title Insurance, 386 Ill. App. 3d at 211.



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Supreme Court Rule 304(a) provides “any judgment that adjudicates

fewer than all the claims or the rights and liabilities of fewer

than all the parties *** is subject to revision at any time

before the entry of a judgment adjudicating all the claims,

rights, and liabilities of all the parties.”        210 Ill. 2d R.

304(a).

      The default judgment is the specific act that terminates the

litigation and decides the dispute.        Wilson v. Teloptic Cable

Construction Co., 314 Ill. App. 3d 107, 111, 731 N.E.2d 899

(2000).   “It is final if it grants the plaintiff relief and

either resolves the case entirely or is final as to one party or

cause of action and is certified in accord with the requirements

of Supreme Court Rule 304(a).”     Wilson, 314 Ill. App. 3d at 111-

12.   A default judgment is comprised of two factors: “(1) a

finding of the issues for the plaintiff; and (2) an assessment of

damages.”   Wilson, 314 Ill. App. 3d at 112.      “Section 2-1301(e)

is available to seek relief from any nonfinal order of default or

from a final default judgment within 30 days of its entry.”

(Emphasis in original).   Stotlar Drug Co. v. Marlow, 239 Ill.

App. 3d 726, 728, 607 N.E.2d 346        (1993).

      Applying the above factors to the present case, it is clear

the October 5, 2007, order granting plaintiff’s motion for

default constituted only an interlocutory order of default, not a



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final default judgment for the purposes of section 2-1301(e) of

the Code.    The final and appealable default judgment in this case

was entered following the prove-up hearing on June 9, 2008, when

the trial court found in plaintiff’s favor and awarded $700,000

in damages.    See Wilson, 314 Ill. App. 3d at 112.

        Defendant had the right to seek relief under section 2-

1301(e) from any nonfinal order of default entered in the case or

from a final default judgment within 30 days of its entry.      See

Stotlar, 239 Ill. App. 3d at 729.       Nothing in section 2-1301(e)

suggests defendant was required to file two motions in order for

the trial court to properly vacate the order of default and

default judgment.    Therefore, a section 2-1301(e) motion to

vacate the default should have been considered timely up to 30

days after the final default judgment was entered on June 9,

2008.    See 735 ILCS 5/2-1301(e) (West 2008); Washington Mutual

Bank, F.A. v. Archer Bank, 385 Ill. App. 3d 427, 432, 895 N.E.2d

677 (2008).

     Defendant filed his request to vacate the default judgment

entered in this case on July 9, 2008, within the 30-day window

following entry of the final judgment.      Accordingly, we find the

trial court erred in determining defendant’s motion to vacate

should be evaluated under section 2-1401, not section 2-1301(e).

See 735 ILCS 5/2-1301(e) (West 2008); Stotlar, 239 Ill. App. 3d



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at 729.

     Because the trial court did not evaluate defendant’s motion

to vacate under the standards for a section 2-1301(e) motion, we

find it necessary to remand the matter for reconsideration under

those standards.   See Washington Mutual Bank, F.A., 385 Ill. App.

3d at 432.

                         CONCLUSION

     We affirm in part, reverse in part, and remand the matter

for further proceedings consistent with this opinion.

     Affirmed in part and reversed in part; cause remanded.

     TOOMIN, P.J., and SMITH, J., concur.




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