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Cook v. Burnette6/26/2003
e, the default judgment entered against those defendants was void. The court also permitted Bank One to withdraw its section 2-1401 petition (count II) and did not rule on the legal sufficiency of that count. As previously stated, the court already allowed LaSalle to strike its initial section 2-1401 petition on November 22, 1999, and to file an amended petition that had no reference to section 2-1401.
On April 11, 2000, LaSalle filed a motion for involuntary dismissal of the complaint. On April 13, 2000, Cook filed his appeal of the trial court's grant of the defendant banks' amended petitions to vacate. On April 14, 2000, Bank One filed its own motion for involuntary dismissal of the complaint. The LaSalle and Bank One motions for involuntary dismissal were fully briefed and assigned to hearing before the trial court; however, the court placed the action on the stay calendar pending this appeal.
Bank One and LaSalle filed a joint motion with this court to dismiss the appeal on the grounds that the March 16, 2000, orders were not final and appealable orders. On July 6, 2000, this court denied their motion to dismiss the appeal on the grounds that "this court has jurisdiction over the appeal pursuant to Illinois Supreme Court Rule 304(b)(3)." Both Bank One and LaSalle filed motions to reconsider the dismissal of the appeal on the basis that the section 2-1401 portions of their amended petitions had been withdrawn, and thus, the trial court did not grant any relief under section 2-1401. The motions to reconsider were granted, and consequently, the defendant banks' motion to dismiss the appeal was taken with this case.
In our previous order, Cook v. Burnette, No. 1-00-1289 (2001) (unpublished order under Supreme Court Rule 23), we did not reach plaintiff's substantive argument. Based upon the Illinois Supreme Court's initial decision in Sarkissian v. Chicago Board of Education, No. 88530 (January 29, 2001), we held that the trial court's order vacating the default judgment could not be characterized as a final, appealable order as is required under Supreme Court Rules 301 and 313 (155 Ill. 2d Rs. 301, 303 (appeal from a final order)). Moreover, we found that because the trial court's order was not akin to and did not constitute the grant of a section 2-1401 motion, it would not be considered a new action directly appealable under Supreme Court Rule 304(b)(3). 155 Ill. 2d R. 304(b)(3).
On July 3, 2002, after rehearing the arguments on the matter, the supreme court, in a new opinion, found that an order granting a motion to vacate a judgment as void was actually an order granting a motion that, in substance, was a section 2-1401 motion. Sarkissian, 201 Ill. 2d at 105. Accordingly, the court in Sarkissian held that "any order granting or denying such relief is a final ruling, appealable pursuant to Supreme Court Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3))." Sarkissian, 201 Ill. 2d at 105.
Thereafter, on December 5, 2002, the Illinois Supreme Court vacated our previous order in Cook, with directions to reconsider our ruling in light of the supreme court's subsequent decision in Sarkissian. Because Sarkissian clearly holds that we are to construe the banks' petitions to vacate the default judgment as valid section 2-1401 motions, we must also construe the trial court's grant of those petitions as a final, appealable order under Rule 304(b)(3). Consequently, we deny the defendant banks' motions to dismiss and now consider the merits of plaintiff's arguments.
Plaintiff first asserts that the LaSalle and Bank One petitions to vacate the June 26, 1997, judgment are time-barred. For this, plaintiff notes that section 2-1401 contains a two-year limitations
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