                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




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




Appellate Court            R.M. LUCAS COMPANY and CHICAGO TITLE LAND TRUST No.
Caption                    3000121848, Plaintiffs-Appellants, v. THE PEOPLES GAS LIGHT AND
                           COKE COMPANY, Defendant-Appellee.



District & No.             First District, Third Division
                           Docket No. 1-10-2955


Filed                      December 14, 2011


Held                       In a negligence action against a gas utility arising from a fire and
(Note: This syllabus       explosion allegedly caused by the failure of the gas pipe serving
constitutes no part of     plaintiffs’ building, the denial of plaintiffs’ petition under section 2-1401
the opinion of the court   of the Code of Civil Procedure to vacate the dismissal of their action with
but has been prepared      prejudice was affirmed where plaintiffs defied the trial court’s discovery
by the Reporter of         deadlines and ignored defendant’s discovery requests.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-L-2572; the Hon.
Review                     Ronald S. Davis, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Charles J. Ryan, of O’Connell & Ryan, of Chicago, for appellants.
Appeal
                            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. For the
        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 discovery was 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 emergency concerning plaintiffs’ 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. Barry related 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 Barry of defendant’s discovery requests, 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 they had 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 they were 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 by Beeler’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 any notions 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 prejudice was 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 by the 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 discovery requests 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 discovery requests 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 attorney-
       client 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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