The Illinois Appellate Court stated: “In the present case, we find that any failure by the plaintiff to exercise due diligence was caused by circumstances beyond his control and that therefore “justice and good conscience” required the circuit court to grant his section 2-1401 petition and vacate the dismissal of his action for want of prosecution … In that respect, we note the extraordinary circumstances under which the plaintiff’s case was litigated. Unbeknownst to the plaintiff, in 2018, his attorney Woerthwein misappropriated $237,000 in client settlement funds and abruptly abandoned the firm. Attorney Miller, who had just been diagnosed with advanced stage prostate cancer, which required surgery, radiation, and chemotherapy, then assumed responsibility for the plaintiff’s case. At this point, the law firm was insolvent, and Miller had no associates or support staff to assist with docketing or handling any of the firm’s cases.”
“Despite his illness, Miller continued to prosecute the plaintiff’s case and to inform the plaintiff that his case was proceeding as scheduled. Both Miller and the plaintiff attested that in all their communications, Miller never told the plaintiff that he was ill or that the plaintiff’s case was not proceeding as it should. Nor did the plaintiff have any reason to think otherwise. Within the 10 months that he represented the plaintiff, Miller vacated the 2018 order of dismissal for want of prosecution, filed the second amended complaint with the section 2-622 medical expert report (735 ILCS 5/2-622 (West 2018)), completed all written discovery, appeared at numerous management conferences, and prepared and produced the plaintiff for his deposition. In addition, one day before his failure to appear for the May 23, 2019, management conference, Miller contacted the plaintiff to ask him whether he wanted to include any additional family members as trial witnesses.”
“The plaintiff attested that he first learned of Miller’s illness on June 26, 2019, after Miller informed him that his case had been dismissed for want of prosecution because of a docketing error and that he was withdrawing as the plaintiff’s counsel because he had cancer. The plaintiff further attested that Miller reassured him that he would be able to vacate the dismissal and reinstate the case, and that it was not until he appeared at the July 9, 2019, hearing on Miller’s motion to vacate that he learned that Miller had misled him and that vacatur was impossible because Miller had failed to file the motion on time. The plaintiff averred that he immediately sought new legal representation to determine his remedies, and that he subsequently hired his present counsel, who filed the instant section 2-1401 petition only after independently
determining that the plaintiff’s underlying wrongful death/medical malpractice action had merit. The plaintiff also attested that he was completely unaware of Woerthwein’s abandonment of the law firm and the impact this had on his case. His assertion is fully supported by the ARDC documents attached to his petition, which reveal that Woerthwein was not disbarred until May 2019, the same month that the circuit court entered the instant dismissal for want of prosecution.”
“What is more, the record irrefutably establishes that since the dismissal of the plaintiff’s action, Miller has retired, and the firm of Woerthwein & Miller has been dissolved. In addition, it is undisputed that throughout his representation of the plaintiff Miller has been without legal malpractice insurance.”
“Under these extraordinary circumstances, we believe that dismissal of the plaintiff’s meritorious action on a technicality, (i.e., attorney Miller’s failure to appear at a scheduled case management conference) would be unjust … equity requires the reversal of the circuit court’s order denying the plaintiff’s section 2-1401 petition.”
Source Karavos v. Northwestern Community Hospital, 2022 IL App (1st) 210383-U.
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