                                                                                 FILED
                                    2015 IL App (4th) 131080                      August 5, 2015
                                                                                   Carla Bender
                                          NO. 4-13-1080                        th
                                                                              4 District Appellate
                                                                                    Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,                         )      Appeal from
           Plaintiff-Appellee,                               )      Circuit Court of
           v.                                                )      Vermilion County
JOSHUA KRUGER,                                               )      No. 99CF357
           Defendant-Appellant.                              )
                                                             )      Honorable
                                                             )      Michael D. Clary,
                                                             )      Judge Presiding


               JUSTICE TURNER delivered the judgment of the court, with opinion.
               Presiding Justice Pope and Justice Steigmann concurred in the judgment and
opinion.

                                            OPINION

¶1             On October 28, 2011, defendant, Joshua Kruger, filed a pro se petition for relief

from judgment under section 2-1401 of the Code of Civil Procedure (Procedure Code) (735

ILCS 5/2-1401 (West 2010)). Defendant's section 2-1401 petition requested vacature of the

Vermilion County circuit court's October 25, 2010, judgment denying defendant's request for a

search of the deoxyribonucleic acid database. On November 4, 2011, the trial court sua sponte

denied defendant's section 2-1401 petition on the merits. Defendant appealed the court's denial.

In a March 1, 2013, summary order, this court reversed the trial court's denial because (1)

defendant had not properly served the State and (2) the court's denial occurred prior to the

expiration of the 30-day period for which the State had to respond to the petition. People v.

Kruger, No. 4-11-1033 (Mar. 1, 2013) (unpublished summary order under Supreme Court Rule
23(c)).

¶2             Prior to this court's summary order, defendant filed in the trial court a motion for

discovery related to his section 2-1401 petition. On March 15, 2013, defendant filed a motion

for leave to file an amended section 2-1401 petition, which the court allowed in April 2013. In

May 2013, defendant filed an amended motion for discovery. On October 22, 2013, the court

again entered a sua sponte order. In its order, the court first noted defendant had still not

properly served the State with his section 2-1401 petition, and thus it dismissed defendant's

petition for want of prosecution. The court further noted that, even if the petition was not

dismissed for want of prosecution, the petition was ripe for adjudication and should be denied on

the merits. We note defendant did not file an amended section 2-1401 petition before the court's

October 2013 order.

¶3             Defendant filed a timely notice of appeal from the trial court's October 2013

order, and the office of the State Appellate Defender (OSAD) was appointed to represent him.

On appeal, OSAD moves to withdraw its representation of defendant, contending no colorable

argument can be made an error occurred because the court followed the appropriate procedures

for reviewing and dismissing defendant's section 2-1401 petition. This court granted defendant

to and including May 6, 2015, to file additional points and authorities. Defendant filed a

response, and the State filed an appellee brief. Defendant also filed a reply brief. After

reviewing the briefs, we deny OSAD's motion to withdraw without prejudice.

¶4                                     I. ANALYSIS

¶5             We begin by supplementing our decision in Powell v. Lewellyn, 2012 IL App

(4th) 110168, 976 N.E.2d 1106. There, we stated that, when the petitioner fails to properly serve

the opposing party within "a reasonable period of time," the trial court has the power to dismiss




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the case for want of prosecution. Powell, 2012 IL App (4th) 110168, ¶ 14, 976 N.E.2d 1106.

However, we did not mention the court may also dismiss the action "under Illinois Supreme

Court Rule 103(b) (eff. July 1, 2007) if defendant fails to exercise reasonable diligence in

serving the State." People v. Prado, 2012 IL App (2d) 110767, ¶ 9, 979 N.E.2d 564. A

dismissal for lack of diligence in obtaining service prior to the expiration of applicable statute of

limitations under Rule 103(b) is distinct from a dismissal for want of prosecution. Green v.

Wilmont Mountain, Inc., 92 Ill. App. 3d 176, 180, 415 N.E.2d 1076, 1080 (1980). Since the two

types of dismissals are distinct and have different ramifications, we set forth a description of

them below.

¶6                                     A. Rule 103(b)

¶7             As stated, Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) allows for

dismissals of an action where the petitioner "fails to exercise reasonable diligence to obtain

service on" the opposing party. With a Rule 103(b) dismissal, if the lack of diligence occurs

before the expiration of the applicable statute of limitations, then the trial court may dismiss the

action without prejudice. Ill. S. Ct. R. 103(b) (eff. July 1, 2007). However, if the lack of

diligence occurs after the expiration of the applicable statute of limitations, then the court must

dismiss the action with prejudice as to the party that did not receive proper service. Ill. S. Ct. R.

103(b) (eff. July 1, 2007). Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) further

provides the following: "In considering the exercise of reasonable diligence, the court shall

review the totality of the circumstances, including both lack of reasonable diligence in any

previous case voluntarily dismissed or dismissed for want of prosecution, and the exercise of

reasonable diligence in obtaining service in any case refiled under section 13-217 of the Code of

Civil Procedure." Moreover, Rule 103(b) does not contain a specific time limitation on when




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service should occur. Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207, 213, 880 N.E.2d 171,

175 (2007).

¶8             Our supreme court has noted that, in determining reasonable diligence under Rule

103(b), the court may consider many factors, including, but not limited to the following:

               "(1) the length of time used to obtain service of process; (2) the

               activities of plaintiff; (3) plaintiff's knowledge of defendant's

               location; (4) the ease with which defendant's whereabouts could

               have been ascertained; (5) actual knowledge on the part of the

               defendant of pendency of the action as a result of ineffective

               service; (6) special circumstances that would affect plaintiff's

               efforts; and (7) actual service on defendant." Case, 227 Ill. 2d at

               212-13, 880 N.E.2d at 175.

The passage of time is then considered in relation to all the other factors and circumstances of

the individual case. Case, 227 Ill. 2d at 213, 880 N.E.2d at 175. The determination of whether a

petitioner exercised reasonable diligence under Rule 103(b) rests within the trial court's sound

discretion. Segal v. Sacco, 136 Ill. 2d 282, 286, 555 N.E.2d 719, 720 (1990).

¶9             Additionally, we note "[a] dismissal with prejudice is usually considered a final

judgment." Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 502, 687 N.E.2d 871,

874 (1997). "Final orders are appealable as a matter of right under Illinois Supreme Court Rule

301 (eff. Feb. 1, 1994)." Fabian v. BGC Holdings, LP, 2014 IL App (1st) 141576, ¶ 12, 24

N.E.3d 307. Thus, if the Rule 103(b) dismissal is with prejudice and applies to all of the

opposing parties, the dismissal is immediately appealable. But see Ill. S. Ct. R. 304(a) (eff. Feb.

26, 2010) (addressing judgments as to fewer than all of the parties).




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¶ 10                                  B. Want of Prosecution

¶ 11           Under Illinois law, trial courts have the power to dismiss civil actions "for

inexcusable delay and lack of diligence," which is referred to as a dismissal for want of

prosecution. City of Crystal Lake v. Sak, 52 Ill. App. 3d 684, 688, 367 N.E.2d 989, 993 (1977).

Moreover, as previously stated, this court has held a trial court may dismiss a case for want of

prosecution when the petitioner has failed to properly serve the opposing party within "a

reasonable period of time." Powell, 2012 IL App (4th) 110168, ¶ 14, 976 N.E.2d 1106. The

determination of whether or not to dismiss a case for want of prosecution is governed by the

particular facts of the case and rests within the trial court's sound discretion. Department of

Revenue v. Steinkopf, 160 Ill. App. 3d 1008, 1018, 513 N.E.2d 1016, 1022 (1987).

¶ 12           A dismissal for want of prosecution is "not an adjudication on the merits, does not

prejudice the case of the party against whom it is entered, and does not bar a subsequent suit on

the same issues." Kraus v. Metropolitan Two Illinois Center, 146 Ill. App. 3d 210, 212, 496

N.E.2d 1080, 1082 (1986). Section 13-217 of the Procedure Code (735 ILCS 5/13-217 (West

1994)), provides that, after a dismissal for want of prosecution, the petitioner "may commence a

new action within one year or within the remaining period of limitation, whichever is greater."

(We note "[t]he version of section 13-217 in effect is the version that preceded the amendments

to Public Act 89-7 (Pub. Act 89-7, eff. March 9, 1995), which our supreme court found

unconstitutional in its entirety." Domingo v. Guarino, 402 Ill. App. 3d 690, 698 n.3, 932 N.E.2d

50, 58 n.3 (2010).) Thus, the one-year period for refiling applies even if the statute of limitations

has already expired. Since section 13-217 permits refiling, a dismissal for want of prosecution is

not final and appealable. S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489,

507, 693 N.E.2d 338, 346 (1998). It remains an unappealable interlocutory order until the




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petitioner's option to refile expires. S.C. Vaughan Oil Co., 181 Ill. 2d at 507, 693 N.E.2d at 346.

¶ 13                           C. Defendant's Section 2-1401 Petition

¶ 14           Now, we examine what type of dismissal the trial court found was appropriate for

defendant's section 2-1401 petition. In its October 2013 order, the court used the term

"dismissed for want of prosecution." While it noted defendant's failure to properly serve the

State, the court made no mention of Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) or

"the failure to exercise reasonable diligence." Thus, we disagree with the State's suggestion the

trial court dismissed defendant's petition under Rule 103(b) and conclude the court found a

dismissal for want of prosecution.

¶ 15           However, we note the trial court further found the matter was ripe for adjudication

and concluded defendant's section 2-1401 petition should be denied on its merits. It appears

from the court's order it intended to enter a final order denying defendant's section 2-1401

petition on the merits. Accordingly, we find the trial court's October 2013 was a sua sponte

denial of defendant's section 2-1401 petition on the merits. Accordingly, we have jurisdiction

over a final and appealable judgment under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).

Since OSAD's motion to withdraw as counsel focused solely on the court's dismissal finding and

did not address the court's denial of the petition on the merits, we deny OSAD's motion without

prejudice.

¶ 16                                   II. CONCLUSION

¶ 17           For the reasons stated, we deny without prejudice OSAD's motion to withdraw as

counsel. If OSAD finds no colorable claim of error can be made as to the trial court's ruling on

the merits, then OSAD may file a new motion to withdraw on that basis. If a new motion is not

filed within 28 days, this court will reestablish the briefing schedule.




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¶ 18   Motion denied without prejudice.




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