COOK v. EMMA BURNETTE (2001)

MODIFIED UPON DENIAL OF REHEARING

The present case arises from an order vacating an $800,000 default judgment against defendants Talman Home Federal Savings and Loan Association (FSB predecessor to LaSalle Talman Bank, FSB predecessor to LaSalle Bank, hereinafter LaSalle) and First National Bank of Chicago, now doing business as Bank One (Bank One). It originates from a wrongful death and survival action brought by plaintiff-appellant Nathaniel Cook (Cook), the special administrator of the estate of Mary Holiday, alleging damages sustained when she died in a house fire. The complaint named as defendants Emma Burnette (Burnette), LaSalle, and Bank One; but only prayed for relief against Burnette, who is not a subject of this appeal. Both LaSalle and Bank One did not appear or file answers to the complaint, and a default judgment for $800,000 was jointly and severally entered against them. Subsequently, LaSalle and Bank One petitioned the court to vacate the default judgment as being void. The trial court ruled that because there was no prayer for relief in the plaintiff's complaint as against LaSalle and Bank One (in the ad damnum clause), the default judgment entered against them was void. However, the court did not dismiss the complaint at law.

After the $800,000 judgment was deemed to be void, the banks filed for an involuntary dismissal of the complaint, and plaintiff filed his notice of appeal. The banks then filed a motion with this court to dismiss the appeal on the grounds that the orders vacating the default judgment was not a final and appealable order. This court denied the motion to dismiss the appeal on the ground that an order granting a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)) is appealable as of right. Both banks then filed a motion to reconsider on the grounds that their section 2-1401 petitions had been withdrawn. This court granted the motion to reconsider the motion to dismiss the appeal, which has been taken with this case. For the reasons that follow, we find that this court lacks jurisdiction to reach the merits of this case, and therefore dismiss the appeal.

On November 28, 1995, Cook filed a complaint for wrongful death and survival against defendants Burnette, LaSalle, and Bank One. He alleged that the defendants negligently maintained and controlled certain real property in the City of Chicago. As a result of these negligent acts or omissions, a fire occurred which caused the death of Mary Holiday. Throughout the complaint, several allegations were made regarding the defendants' joint liability for Mary Holiday's death. However, in the prayer for relief, compensation was sought from only Ms. Burnette.

LaSalle was served with the summons and complaint on December 1, 1995, which LaSalle then forwarded to its parent company, ABN AMRO North America, Inc. Subsequently, the complaint and summons were misplaced. On May 16, 1997, the trial court entered an order defaulting LaSalle for a failure to answer or appear in this cause. LaSalle admits receiving a copy of that default order, but did not file a responsive pleading to the complaint or a motion to vacate the order at that time and did not retain an attorney to appear on its behalf.

With regard to Bank One, it was individually served a summons and the complaint on December 7, 1995. Based on its business practices, it asserts, it tendered its defense of the action to LaSalle and the City of Chicago¹ . However, due to the passage of time, the destruction of documents and movement of personnel, Bank One was unable to locate any documents that confirmed its tender of its defense to LaSalle or the city. As with LaSalle, Bank One was defaulted on May 16, 1997, and also received a copy of the order.

The third defendant, Burnette, was served with an alias summons and complaint on June 27, 1996. On May 16, 1997, the court entered a default order against Burnette as well.

Finally, on June 26, 1997 -the date the court set the cause for prove-upthe trial court entered a default judgment against all defendants, jointly and severally in the amount of $800,000, for failing to appear.

On October 1, 1999, LaSalle filed a motion to vacate the default under section 2-1401 of the Code of Civil Procedure. The motion alleged that Cook fraudulently concealed the grounds for relief; that once the default judgment was entered, LaSalle acted with due diligence in bringing the motion; and that LaSalle had a meritorious defense to Cook's claim in that LaSalle held only a mortgagee's interest in the property at issue. The motion was subsequently stricken, at LaSalle's request, and on November 22, 1999, LaSalle was granted leave to file an amended motion.

On December 17, 1999, LaSalle filed an amended motion to vacate the default judgment. That motion was based on the fact that the default judgment entered against it on June 26, 1997, was void ab initio. It argued that Cook's failure to include LaSalle in the complaint's prayer for relief was a fatal flaw that rendered the judgment against LaSalle void; however, it did not use section 2-1401 as a basis for its argument. In addition to filing the amended motion to vacate the judgment, LaSalle also filed a section 2-619 motion, under the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)), to dismiss Cook's complaint alleging that it had no interest in the subject property and, therefore, no duty to inspect or maintain that property.

Earlier, on September 19, 1999, Bank One filed its own section 2-1401 petition to vacate as well. There, Bank One also argued that because Cook had fraudulently concealed the entry of the default judgment, its petition was timely even though the two-year limitations period of section 2-1401 had expired. Bank One also claimed that it had a meritorious defense because it only had an interest as trustee of an assigned mortgage in the property.

On November 22, 1999, Bank One filed an amended two-count petition to vacate the judgment. The first count alleged that the June 26, 1997, judgment was void for not complying with Supreme Court Rule 105 (134 Ill.2d R. 105) because the prayer section of the complaint did not request monetary or any other relief from Bank One. If Cook wished to obtain relief from Bank One other than that indicated in the prayer, it argued, he needed to amend his complaint. Further, it alleged that the complaint did not state a cognizable claim against Bank One, a mortgagee of the property. The second count requested that the judgment be vacated pursuant to section 2-1401.

Cook then filed motions to dismiss Bank One's and LaSalle's amended petitions pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1998)). However, before Judge Fleishman could rule upon these motions, he passed away. Consequently, the motions were transferred to Judge Varga, who heard them on March 16, 2000. On that date, Bank One moved instanter that the court deny Cook's motion against it on the grounds that the default judgment was void. Furthermore, it requested that it be allowed to withdraw count II, the section 2-1401 portion of its petition, and that the court grant count I of its amended petition to vacate the default judgment as void.

After extensive argument, the trial court granted both LaSalle's and Bank One's motions to vacate the default judgment of June 26, 1997. It reasoned that because Cook's complaint at law did not pray for any relief against LaSalle and Bank One, 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 response to the defendant banks' motion before this court, plaintiff asserts that we may hear this appeal under either Supreme Court Rules 301 and 303 (155 Ill.2d Rs. 301, 303) (appeal from a final order) or Supreme Court Rule 304(b)(3) (155 Ill.2d R. 304(b)(3)) (appeal from orders involving petitions brought under section 2-1401 of the Code). In order to determine which, if any, of the rules cited by plaintiff provides this court with jurisdiction, a comparison of the rules' requirements with the procedural history of the case becomes necessary.

Rules 301 and 303 govern appeals from cases in which the final order has disposed of the entire controversy.

“A judgment or order is considered final if it ‘disposes of the rights of the parties either upon the entire controversy or upon some definite and separate part thereof.’ In re Estate of French, 166 Ill.2d 95, 101, 651 N.E.2d 1125, 1128 (1995); see also Tyler v. Tyler, 230 Ill.App.3d 1009, 1011, 596 N.E.2d 119 (1992). A final judgment has also been defined as one that ‘decides the controversy between the parties on the merits and fixes their rights, so that, if the judgment is affirmed, nothing remains for the trial court to do but to proceed with its execution.’ In re J.N., 91 Ill.2d 122, 127, 435 N.E.2d 473 (1982).” Puleo v. McGladrey & Pullen, 315 Ill.App.3d 1041, 1043-44 (2000).

Stated another way, plaintiff claims, the test for jurisdiction is whether the order terminates the litigation on the merits or retains jurisdiction over matters of substantial controversy. McCaffrey v. Nauman, 204 Ill.App.3d 761 (1990).

In the present case, plaintiff argues that the court did not retain jurisdiction over any matters of substantial controversy. In Cook's words:

“The June 26, 1997 judgment as to Bank One and LaSalle was vacated on the grounds that the complaint was a nullity as to those two defendants and the resulting judgment void. The order vacating the judgment did not give Mr. Cook leave to [re-] plead his count. [The court] granted Count I of Bank One's amended petition and allowed Bank One's request to vacate and allowed LaSalle leave of court to withdraw its section 2-619 motion to dismiss Mr. Cook's complaint. The March 16, 2000 order left no issues undecided and set no future court dates.”

He also points the following colloquy as an indication that the court and both bank defendants agreed that there were no issues reserved for future litigation:

Alternatively, plaintiff claims that an order disposing of a petition to vacate a void order is appealable for the same reasons as an order granting or denying a section 2-1401 petition under the rationale of Rule 304(b)(3). That rule allows for the direct appeal of “[a] judgment or order granting or denying any of the relief prayed in a petition under section 2-1401 of the Code of Civil Procedure.” 155 Ill.2d R. 304(b)(3). Namely, plaintiff argues, this court has found that a section 2-1401 proceeding is not a continuation of the original action in which the final judgment was entered but, rather, is a new action. Burnicka v. Marquette National Bank, 88 Ill.2d 527, 530 (1982). Consequently, under Rule 304(b)(3), an order that denies or grants any relief prayed for in this new 2-1401 proceeding is final and appealable. Village of Glenview v. Buschelman, 296 Ill.App.3d 35, 39 (1998). Likewise, he notes, this court has found that a petition to vacate a void order or judgment is also akin to the institution of a new action. JoJan Corp. v. Brent, 307 Ill.App.3d 496, 504 (1999). Therefore, he concludes that since petitions to vacate a void judgment and section 2-1401 petitions are both considered to be new actions, the same rules governing appealability apply to both, i.e ., an order disposing of either petition is final and appealable.

LaSalle and Bank One, however, argue that although the March 16, 2000, orders did not set another date or reserve an issue for future resolution, they did not end the litigation. Instead, they claim that the orders did not dismiss the complaint with prejudice or vacate the inchoate judgments of May 16, 1997, and consequently, Cook may replead to seek monetary relief from the banks. In other words, where the right to recover compensation has not been entered as a judgment amount entered as of record in the case, there is no “final judgment” to satisfy the jurisdictional requirements of Rule 303. In response to plaintiff's alternative argument, LaSalle and Bank One claim that because there are no statutory exceptions that permit interlocutory review of an order which grants a petition to vacate a default judgment on the grounds that it is void - absent the express written finding of a trial court that there is no just reason for delaying the enforcement or appeal of its order under Rule 304(a)² -this court lacks jurisdiction to hear this appeal.

In Sarkissian v. Chicago Board of Education, No. 88530 (January 29, 2001), the Illinois Supreme Court recently confronted the issue of whether an order entered by the circuit court vacating a default judgment should be considered a final, appealable order. The plaintiff in that case obtained a default judgment in a personal injury action against the defendant in the circuit court after the defendant failed to appear. The circuit court later vacated the default judgment as void, finding that the board had not been properly served with summons. Sarkissian, slip op. at 1. The supreme court noted that cases of the appellate court had been divided as to whether such an order was final and appealable, but ultimately determined that it was the circumstances of the case which determined the character of the order or, rather, its “appealability.” Sarkissian, slip op. at 5. In arriving at this conclusion, the court analyzed its earlier decision of Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569 (1943). In Brauer, the court considered whether an order quashing service of summons on a foreign corporation was a final, appealable order.

“The court concluded that the order was final and appealable, explaining:

‘It is true, the order, in form, was only an order quashing the service of the summons. It was not an order dismissing the suit, nor was it in the form of a final judgment on the merits. Regardless of its form, however, it was a complete and final disposition of the case, based upon the conclusion the court had reached that appellee was not amenable to the service of process in the manner in which the summons was served. On that issue it was not only as effectual and conclusive but it was as final as any decision upon the merits. The result was the same.

If it should be held that an order of this character is not appealable, then there would be no method by which a plaintiff could obtain a review of an order of the trial court quashing the service of process.' Brauer, 383 Ill. at 577-78.” Sarkissian, slip op. at 4.

However, the defendant in Sarkissian argued to the court that the result in Brauer should only be limited to instances where the case was effectively at an end, because in Brauer, the defendant was not amenable to service of process. The Brauer court also stated:

“ ‘If an order quashing the service of process is not an appealable order, then the cause would be left on the docket of the trial court, undisposed of in form only, when, as a matter of fact, to all intents and purposes the cause was, in fact, finally disposed of. The plaintiff could not proceed further, except by obtaining service in some other manner. The facts alleged in this case, which must be accepted as true, show that service could not be obtained in any other manner. The order quashing the service was, therefore, as final and conclusive as any order which could have been entered. It was a decision on an issue which effectively barred any further proceedings by the plaintiff against the sole defendant in the cause. It was the only order the court was authorized to enter. To hold that no appeal would lie from such an order would be to leave appellant in the position of having its suit finally disposed of and deny to it the right to have that order reviewed.’ Brauer, 383 Ill. at 578.” Sarkissian, slip op. at 4-5.

In contrasting the facts before it to the facts in Brauer, the Sarkissian court found that the order entered by the circuit court was not a final disposition of the matter: “Here, the only impediment to proper service, and obtaining jurisdiction over the defendant, was the identity of the person who received the summons. The Board of Education is amenable to service, and the circuit court in the present case authorized the issuance of an alias summons to the Board.” Sarkissian, slip op. at 5. Consequently, the court held:

“We do not interpret Brauer as establishing a rule that any order quashing service is a final, appealable order. Rather, we believe that the character of an order depends on the circumstances of the case. In some instances, as in Brauer, it is properly characterized as final and appealable. In other cases, however, it is not. The circuit court's action here left the entire case at issue, and it manifested the judge's intent to retain jurisdiction over the matter. See Nelson v. United Airlines, Inc., 243 Ill.App.3d 795, 800 (1993).” Sarkissian, slip op. at 5.

Like Sarkissian, the facts of the present case indicate that the trial judge intended to retain jurisdiction over the matter. Here, the March 16, 2000, orders vacated the June 26, 1997, $800,000, default judgment that set the damages against the defendants, but did not vacate the initial unliquidated default judgments of liability entered on May 16, 1997. Further, it did not dismiss plaintiff's complaint with prejudice. As Bank One points out, the expungement of a vacated order does not expunge other orders entered or pleadings in the case. See Dils v. City of Chicago, 62 Ill.App.3d 474, 481-82 (1978) (vacating $200,000 of a $250,000 judgment as void, but leaving $50,000 of the $250,000.00 default judgment on a complaint intact). Therefore, because the complaint and inchoate judgments of liability still remain on the record, plaintiff may seek to amend his complaint to include LaSalle and Bank One in the ad damnum clause, and the compensatory relief sought from the defendants may still be adjudicated at the trial level. An order is not final if the “order left plaintiff free to plead over.” Jursich v. Arlington Heights Federal Savings & Loan Ass'n, 110 Ill.App.3d 847, 850 (1982). See also Skrypek v. Mazzocchi, 227 Ill.App.3d 1, 7 (1992) (holding that a default judgment becomes a final order after damages are set, thereby fixing the rights of the parties); Stotlar Drug Co. v. Marlow, 239 Ill.App.3d 726, 728 (1993) (holding an order of default was not final where it resolved only the question of liability and the case was continued for proof on the issue of damages). As such, we find the order vacating the default judgment in this case may not be properly characterized as a final, appealable order.

Further, we reject Cook's contention that we should treat the order granting the banks' petition to render the judgment void as an order disposing of a new action that is directly appealable. “It is axiomatic that an appellate court may only hear appeals from final judgments, unless an exception specified by the supreme court rules apply. Ill. Const.1970, art. VI, § 6; 155 Ill.2d R. 301; Saddle Signs, Inc. v. Adrian, 272 Ill.App.3d 132, 650 N.E.2d 245 (1995); Bezan v. Chrysler Motors Corp., 263 Ill.App.3d 858, 636 N.E.2d 1079 (1994).” Ferguson v. Bill Berger & Associates, Inc., 302 Ill.App.3d 61, 68 (1998). While it is true that this court has construed a motion to expunge a void order as being “akin to the institution of a new action” (JoJan, 307 Ill.App.3d at 504), the supreme court has not provided a rule, like Rule 304(b)(3), that specifically confers appellate jurisdiction in such cases. Consequently, the appealability of such orders is still controlled by the finality requirements of Rules 301 and 303. “Generally, an appellant's strict compliance with the rules is necessary before the jurisdiction of this court will attach.” JoJan, 307 Ill.App.3d at 503. Again, because plaintiff cannot meet those finality requirements, his argument fails.

Alternative to his position that the banks' motion to expunge a void order should be treated similar to a section 2-1401 petition, plaintiff also argues that it actually is a section 2-1401 petition and, therefore, is directly appealable under Rule 304(b)(3). As previously stated, this rule allows for the direct appeal of “[a] judgment or order granting or denying any of the relief prayed in a petition under section 2-1401 of the Code of Civil Procedure.” 155 Ill.2d R. 304(b)(3). Initially, we note that both defendants withdrew the section 2-1401 portions of their petitions before the court ruled on their legal sufficiency. Consequently, for all intents and purposes, the defendant banks never expressly invoked the provisions of section 2-1401.

However, even if we were to construe defendant's petitions as such, section 2-1401 states that a petition for relief from judgment under that section must be filed within two years after entry of the judgment being challenged. In Sarkissian, the court determined that because the defendant was attacking a judgment that was more that seven years old, it could not have even proceeded under section 2-1401. Sarkissian, slip op. at 1. Likewise, the defendant banks in this case filed their first motion to vacate the June 26, 1997, judgment on October 1, 1999-more than two months after the two-year statutory maximum. Based on this precedent, we find that because section 2-1401 could not be used as a basis for defendant's petition, Rule 304(b)(3) cannot confer jurisdiction upon this court either.

In plaintiff's motion to cite additional authority, he proposes that the recent case of People v. Harvey, No. 89522 (June 21, 2001) holds that a motion filed by a party to vacate a judgment as void should be construed as a motion brought pursuant to section 2-1401, even if it is not designated as such or is brought beyond the two-year statute of limitations of that section. Accordingly, he claims that any order involving motions seeking to declare a judgment void are appealable under Supreme Court Rule 304(b)(3), which allows for the direct appeal of “[a] judgment or order granting or denying any of the relief prayed in a petition under section 2-1401 of the Code of Civil Procedure.” 155 Ill.2d R. 304(b)(3).

As plaintiff himself notes, however, such an interpretation is in direct contrast to the court's decision in Sarkissian, where it expressly found that a motion brought to render a prior judgment void that was filed beyond the two-year statute of limitations could not be construed as a section 2-1401 motion. Sarkissian, slip op. at 1. Harvey, we note, does not alter that opinion. Rather, the court simply stated that “section 2-1401's limitations period may be waived by the opposing party. People v. Ross, 191 Ill.App.3d 1046, 1053 (1989).” Harvey, slip op. at 2. Given that “the State * * * conceded that section 2-1401's two-year limitations period [was] inapplicable” (Harvey, slip op. at 2), and that “it [had] not attempted to invoke that deadline as a barrier to defendant's petition.” (Harvey, slip op. at 2), the court proceeded to address the defendant's claim on the merits. The court did not, however, express an opinion as to whether it construed defendant's motion as a section 2-1401 petition, or how it exercised its appellate jurisdiction.

Because the rule laid out in Sarkissian has not been changed, the court's opinion in Harvey does nothing to alter our opinion in this case. In fact, we find a portion of Justice McMorrow's special concurrence confirms our holding: “[D]epending upon the underlying basis for the claim of voidness, the judgment entered may, or may not, be a final and appealable order. In this * * * class of cases, if the motion to vacate a void judgment is not viewed or utilized as a section 2-1401 motion, there is no vehicle for finding appellate jurisdiction. While [the supreme] court might exercise its supervisory authority to gain jurisdiction, the appellate court cannot. See Ill. Const.1970, art. VI, § 16.” Harvey, slip op. at 7 (McMorrow, J., specially concurring, joined by Freeman, J.).

Barring the possibility of obtaining jurisdiction under Rules 301 and 303 or Rule 304(b)(3), the only remaining alternative, given the present facts, is Rule 304(a). As noted, however, that rule provides that no appeal may be taken from a final judgment as to one or more but fewer than all the parties to an action unless the trial court has made an express written finding that there is no just reason for delaying the enforcement or appeal of its order. 155 Ill.2d R. 304(a). Without such a finding, the trial court's order is not appealable until all of the claims have been resolved. 155 Ill.2d R. 304(a); Lampe v. Pawlarczyk, 314 Ill.App.3d 455, 470 (2000). As no such special finding exists here, Rule 304(a) is also incapable of providing this court with jurisdiction.

In view of the foregoing, we grant LaSalle and Bank One's joint motion to dismiss plaintiff's appeal for lack of jurisdiction. Accordingly, we do not consider the merits of plaintiff's appeal.

Appeal dismissed.

When this case was originally before this court, I concurred in the majority opinion. Cook v. Burnette, No. 1-00-1289 (1st Dist. May 25, 2001). Following the filing of a petition for rehearing, upon reflection, I must withdraw my former concurrence and dissent from the opinion of the majority for the reasons set forth below.

When the underlying complaint was filed, it named Emma Burnette, LaSalle and Bank One, but only prayed for relief against Burnette. As the majority pointed out, LaSalle and Bank One failed to answer or appear, which resulted in a default judgment of $800,000 being jointly and severally entered against them. (Slip Op. at 1). LaSalle and Bank One seek to have this appeal dismissed, claiming the order appealed from was not final and appealable. The majority agrees with this contention, while I do not.

A void judgment may be defined as one in which the rendering court lacked subject matter jurisdiction, lacked personal jurisdiction or acted in a manner inconsistent with due process of law. Eckel v. MacNeal, 256 Ill.App.3d 292, 296 (1993). A void judgment, order or decree will be reversed on appeal whenever it is brought before a reviewing court by any means possible in a particular case. Eckel, 256 Ill.App.3d at 296; citing Moffat Coal Co. v. Industrial Commission, 397 Ill. 196, 201 (1947). This court has repeatedly held that a void judgment may be attacked at any time, in any court, either directly or collaterally. Eckel, 256 Ill.App.3d at 296; citing Evans v. Corporate Services, 207 Ill.App.3d 297, 301 (1990). However, that is not so as to a judgment which is merely voidable. In Re Marriage of Mitchell, 181 Ill.2d 169 (1998). The question whether a judgment is void or voidable depends on whether the court entering the challenged order possessed jurisdiction over the parties and the subject matter. Mitchell, 181 Ill.2d at 174-75; citing People v. Davis, 156 Ill.2d 149, 155 (1993). If jurisdiction is lacking, any subsequent judgment of the court is rendered void and may be attacked collaterally. Mitchell, 181 Ill.2d at 174-75; citing Davis, 156 Ill.2d at 155. “Judgments entered in a civil proceeding may be collaterally attacked as void only where there is a total want of jurisdiction in the court which entered the judgment, either as to the subject matter or as to the parties.” Mitchell, 181 Ill.2d at 174-75; citing Johnston v. City of Bloomington, 77 Ill.2d 108, 112 (1979). A voidable judgment, however, is one entered erroneously by a court having jurisdiction and is not subject to collateral attack. Mitchell, 181 Ill.2d at 174-75; citing Davis, 156 Ill.2d at 155-56.

It has been almost seven years since the filing of Cook's original lawsuit and almost four years since the entry of judgment against Bank One and LaSalle. The trial court did not have jurisdiction to rule on the merits of the amended petitions to vacate the judgment since they were filed more than two years after the entry of the judgment. The amended petitions to vacate did not dispute the trial court's personal or subject matter jurisdiction. As a result, the trial court lacked jurisdiction to vacate the defaults.

I now believe that all of the issues were decided below and that this court has jurisdiction based on an appeal from such a final order. The majority, in considering the recent decision of Sarkissian v. Chicago Board of Education, No. 88530 (January 29, 2001), recognized that “․ the character of an order depends on the circumstances of each case.” Sarkissian, Slip Op. at 5. The majority has suggested that “because the complaint and inchoate judgments still remain on record, plaintiff may seek to amend his complaint to include LaSalle and Bank One in the ad damnum clause, and the compensatory relief sought from the banks may still be adjudicated at the trial level.” Slip Op. at 12. It was on this basis that the majority concluded there are still issues waiting to be decided. While the majority is correct in its assessment of what could happen should Cook decide to plead over, there is no affirmative obligation to do so. In fact, the orders of the trial court from which this appeal stems do not contain any language granting Cook leave to plead over. The majority opinion, therefore, fails to account for Cook's other choice, that his appeal is tantamount to a decision to stand on his complaint as it is currently drafted. It is the only way to preserve issues related to the current complaint. “A party who files an amended complaint waives any objection to the court's ruling on prior complaints.” Boatmen's National Bank v. Direct Lines, Inc., 167 Ill.2d 88, 99 (1995). “A party desiring to preserve for review the dismissal of claims contained in a former complaint has only two choices: she may either stand on the dismissed counts and challenge the ruling at the appellate level prior to filing an amended complaint, or reallege the dismissed counts in subsequent complaints.” Doe v. Roe, 289 Ill.App.3d 116, 120 (1997); citing DuPage Aviation Corp., Flight Services, Inc. v. DuPage Airport Authority, 229 Ill.App.3d 793, 800 (1992). Because the banks sat on their collective hands under the current complaint, thereby exhausting certain post-judgment possibilities, they must accept the consequences of their failure to act. Since Cook has stood on his current complaint, something he has every right to do, the orders flowing from that are final. I believe he should have had the opportunity to have his appeal heard on the merits by this court under Supreme Court Rule 301 (155 Ill.2d R. 301).

GREIMAN, Justice.