
                               NO. 5-95-0336



                                  IN THE



                        APPELLATE COURT OF ILLINOIS



                              FIFTH DISTRICT

_________________________________________________________________



S. C. VAUGHAN OIL COMPANY and        )  Appeal from the

CHARLES A. VAUGHAN,                  )  Circuit Court of 

                                     )  Marion County.  

     Plaintiffs-Appellees,           )

v.                                   )  No. 86-L-96

                                     )

CALDWELL, TROUTT, and ALEXANDER,     )  

                                     )

     Defendant-Appellant,            )

and                                  )

                                     )

PAUL CALDWELL,                       )  Honorable

                                     )  David L. Sauer, 

     Defendant.                      )  Judge, presiding.  

_________________________________________________________________



     JUSTICE MAAG delivered the opinion of the court:



     The plaintiffs, Vaughan Oil Company and Charles A. Vaughan,

filed a complaint against the defendants, Paul Caldwell and the law

firm of Caldwell, Troutt, and Alexander, on August 4, 1986,

alleging legal malpractice and conflict of interest.  On August 6,

1990, proof that Paul Caldwell had filed a petition for relief

under Chapter 7 of the United States Bankruptcy Code in the United

States Bankruptcy Court for the Middle District of Florida was

filed with the circuit court of Marion County.  A review of the

docket sheet maintained by the clerk of the circuit court of Marion

County reveals no entries respecting this case from the date of the

filing of the bankruptcy petition on August 6, 1990, until April

22, 1991.  On April 22, 1991, the record reveals a docket entry

stating "cause DWP-close file."  Both of the parties apparently

agree that "DWP" means dismissed for want of prosecution.  On April

12, 1993, plaintiffs filed a motion to reinstate their action for

attorney malpractice.  The defendants entered a special and limited

appearance and on May 7, 1993, filed a motion to strike plaintiffs'

motion to reinstate.  The defendants argued that the trial court

lost jurisdiction of the case 30 days after dismissal, and that the

only way of obtaining reinstatement was through a petition under

section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401

(West 1992)), and that plaintiffs did not petition the court

pursuant to section 2-1401.  The defendants argued that because the

plaintiffs had not alleged the elements of a section 2-1401

petition, the motion was inappropriate and did not invoke the

circuit court's jurisdiction.  On September 3, 1993, the circuit

court entered an order upholding the special and limited appearance

as to Paul Caldwell but denied it as to Caldwell, Troutt, and

Alexander.  

     On September 27, 1993, subsequent to the court's denial of

their special and limited appearance, Caldwell, Troutt, and

Alexander moved to dismiss the motion to reinstate, citing the lack

of factual allegations of due diligence in filing the section 2-

1401 petition and the existence of a meritorious claim.  On March

30, 1994, the plaintiffs filed an amended motion to reinstate,

specifically citing section 2-1401.  In their motion, the plain-

tiffs stated the following three reasons as to why they had not

pursued the case from April 1991 through March 1993: (1) the claim

against Paul Caldwell could not be pursued due to the bankruptcy

stay; (2) the decision in Collins v. Reynard, 154 Ill. 2d 48, 607

N.E.2d 1185 (1992), was good law from March 28, 1990, through

December of 1992, and plaintiffs believed they no longer had a

viable attorney malpractice suit against the defendants because

Collins barred the recovery of economic damages for attorney

malpractice actions sounding in tort; and (3) there were ongoing

settlement discussions between plaintiffs' counsel and representa-

tives of defendants and their insurers.  

     On April 20, 1994, defendants again moved to dismiss the

amended motion to reinstate.  The circuit court entered an order on

December 30, 1994, allowing plaintiffs' petition to reinstate. 

Specifically, the court stated that the plaintiffs should have

properly referred to the motion to reinstate as a section 2-1401

petition, and that they should have also made factual allegations

regarding the meritorious claim.  The court went on to note,

however, that the motion was "squarely a section [2-]1401 motion"

because the focus had been upon the diligence in presenting the

claim and the motion.  The court also noted that it was "not

inclined to further delay this proceeding with evidentiary hearings

not anticipated by section [2-]1401."  On January 13, 1995, the

defendant, Caldwell, Troutt, and Alexander, filed a motion to

rehear and reconsider.  In its motion, the defendant claimed that

the circuit court had not allowed the defendant, Caldwell, Troutt,

and Alexander, an opportunity to present evidence either by way of

affidavit or by live testimony to controvert the allegations of

plaintiffs' section 2-1401 petition.  On March 2, 1995, the defen-

dant, Caldwell, Troutt, and Alexander, filed the affidavits of M.

Patrice Wilson, insurance adjuster for CNA Insurance Companies, and

Thomas L. Browne, defendant's former attorney.  Both affidavits

contradicted plaintiffs' attorney's affidavit with regard to the

amount and significance of telephone contact between plaintiffs'

attorney and defendant's representatives.  On that same date, the

circuit court vacated the order granting the section 2-1401

petition.  On April 19, 1995, the circuit court reconsidered the

motion to reinstate and granted it for the reasons set forth in its

December 30, 1994, docket entry.  The defendant, Caldwell, Troutt,

and Alexander, filed its notice of appeal on May 11, 1995.

     The defendant, Caldwell, Troutt, and Alexander, claims that

the trial court abused its discretion in refusing to resolve

factual disputes arising from the section 2-1401 petition filed by

the plaintiffs, and that the plaintiffs failed to establish due

diligence as a matter of law.

     We will not address the defendant's contentions, however,

because this court does not have jurisdiction of this case for the

following reasons.   

     Pursuant to Supreme Court Rule 301, "[e]very final judgment of

a circuit court in a civil case is appealable as of right." 

(Emphasis added.)  155 Ill. 2d R. 301.  A final judgment has

traditionally been defined as a "determination by the court on the

issues presented by the pleadings which ascertains and fixes

absolutely and finally the rights of the parties in the lawsuit." 

Towns v. Yellow Cab Co., 73 Ill. 2d 113, 119, 382 N.E.2d 1217, 1219

(1978).  An order dismissing a cause for want of prosecution is not

a final and appealable order under Supreme Court Rule 301.  Flores

v. Dugan, 91 Ill. 2d 108, 112, 435 N.E.2d 480, 481 (1982).  This is

so in the instant case because this case was dismissed for want of

prosecution on April 22, 1991.  At that time, the plaintiff was

entitled to an absolute right to refile the same action against the

same parties and reallege the same causes of action within one year

pursuant to section 13-217 of the Code of Civil Procedure (Ill.

Rev. Stat. 1991, ch. 110, par. 13-217).  See Flores, 91 Ill. 2d at

112, 435 N.E.2d at 482.  Although we recognize that section 13-217

has been amended and now reads differently, the new version of the

statute does not apply to this case.  See 735 ILCS 5/13-217 (West

Supp. 1995).  It is well established that a petition for relief

from judgment under section 2-1401 applies only to relief from

final orders and judgments.  735 ILCS 5/2-1401(a) (West 1992).  For

an order to be considered "final" so as to render section 2-1401

applicable, the order must dispose of the merits of the cause in

such a manner that no further proceedings can be had in the trial

court.  See Prendergast v. Rush-Presbyterian-St. Luke's Medical

Center, 78 Ill. App. 3d 538, 541, 397 N.E.2d 432, 435 (1979).  

     While we recognize that there are cases that have limited the

Flores decision (Robinson v. Commonwealth Edison Co., 238 Ill. App.

3d 436, 440-41, 606 N.E.2d 615, 618 (1st Dist. 1992); Howard Ecker

& Co. v. Terracom Development Group, Inc., 116 Ill. App. 3d 918,

919, 452 N.E.2d 781, 783 (1st Dist. 1983); Yorke v. Stineway Drug

Co., 110 Ill. App. 3d 1009, 1013, 443 N.E.2d 644, 647 (1st Dist.

1982)), we disagree with the reasoning in these cases.  These

decisions limit Flores solely to a direct appeal from an order

dismissing an action for want of prosecution.  Yorke and Ecker held

that the Flores decision does not apply to section 2-1401 petitions

and, therefore, an appeal from a section 2-1401 petition contesting

a dismissal for want of prosecution is appealable.  Further, in

Robinson, the court held that "once the statutory refiling period

has run, the Flores rationale no longer applies and the litigation

is terminated--i.e.[,] the DWP [dismissal for want of prosecution]

order becomes final and appealable."  Robinson, 238 Ill. App. 3d at

441, 606 N.E.2d at 618.  We disagree.   

     In this case, the circuit court dismissed the case for want of

prosecution on April 22, 1991.  As we previously stated, this

dismissal for want of prosecution was not a final and appealable

order under Supreme Court Rule 301.  We believe that the substance

and nature of an order is determined at the time it is entered. 

Its nature does not change with the passage of time as the

aforementioned cases suggest.  The fact that the statutory one-year

period for refiling has passed does not alter the character and

nature of the trial court's ruling at the time that it was made. 

Hence, the plaintiffs' failure to satisfy a condition subsequent,

namely, the filing of a pleading within the parameters of section

13-217 and Flores, did not alter the character and nature of the

underlying order.  Cf. Martin v. Marks, 80 Ill. App. 3d 915, 918-

19, 400 N.E.2d 711, 713-14 (1980) (court held that order of

dismissal was not final and appealable even though plaintiff failed

to amend within the 30-day time period).  Accord Doner v. Phoenix

Joint Stock Land Bank, 381 Ill. 106, 108-09, 45 N.E.2d 20, 22

(1942).  Accordingly, as the order of April 22, 1991, was not a

final judgment, it was not subject to attack by way of a section 2-

1401 petition.  Although the plaintiffs' original motion to

reinstate was not captioned as a section 2-1401 petition, the trial

court treated it as such, and this was error.  Because the

dismissal for want of prosecution against Paul Caldwell and

Caldwell, Troutt, and Alexander is not a final and appealable

order, plaintiffs' motion to reinstate can only be treated as a

motion attacking an interlocutory order.  Since the plaintiffs'

motion to reinstate was granted on April 19, 1995, and is not a fi-

nal, appealable order, this court does not have jurisdiction of

this case.

     Furthermore, this court makes no findings with respect to the

efficacy of the bankruptcy stay.  For this court to address these

matters would be premature in light of the fact that the circuit

court retains jurisdiction in this case.

     For the foregoing reasons, this appeal is dismissed for lack

of jurisdiction for want of a final order under Supreme Court Rule

301 (155 Ill. 2d R. 301).



     Appeal dismissed.  



     CHAPMAN and WELCH, JJ., concur.

                                      NO. 5-95-0336

                                     IN THE

                          APPELLATE COURT OF ILLINOIS

                                 FIFTH DISTRICT

___________________________________________________________________________

S. C. VAUGHAN OIL COMPANY and        )  Appeal from the

CHARLES A. VAUGHAN,                  )  Circuit Court of 

                                     )  Marion County.  

     Plaintiffs-Appellees,           )

v.                                   )  No. 86-L-96

                                     )

CALDWELL, TROUTT, and ALEXANDER,     )  

                                     )

     Defendant-Appellant,            )

and                                  )

                                     )

PAUL CALDWELL,                       )  Honorable

                                     )  David L. Sauer, 

     Defendant.                      )  Judge, presiding.  

___________________________________________________________________________



Opinion Filed:                  December 4, 1996

___________________________________________________________________________



Justices:      Honorable Gordon E. Maag, J.

                         

               Honorable Charles W. Chapman, J., and 

               Honorable Thomas M. Welch, J.,

               Concur

___________________________________________________________________________

                         

Attorneys      Bruce L. Carmen, Michael A. Lawder, Hinshaw & Culbertson,

for            222 North LaSalle Street, Suite 300, Chicago, IL 60601-1081

Appellant      

___________________________________________________________________________



Attorney       Robert I. Auler, Auler Law Offices, P.C., 202 W. Green 

for            Street, Urbana, IL 61801

Appellee       

___________________________________________________________________________





