Conclusory allegations of fraud on the court are insufficient to show that an order is void
The individual defendant was dismissed from the case with prejudice in October, 2007. The plaintiff filed an amended complaint that included the individual defendant. On November 20, 2007, the trial court entered an order directing the plaintiff to remove the individual defendant from the caption and pleadings and also finding, pursuant to Illinois Supreme Court 304(a), that there was no just reason to delay the enforcement or appeal of the October 2007 order. The plaintiff did not appeal at that time.
In March, 2012, the plaintiff moved the trial court to vacate the October, 2007, order dismissing the individual defendant. The plaintiff argued that the order was void because the individual defendant and the other defendants engaged in conduct “tantamount to fraud, deception, and collusion” relating, in part, to the nature of the dismissed defendant’s relationship with the other defendants. The trial court vacated the October, 2007, order and the defendant appealed that ruling.
Ordinarily, the plaintiff would have been required to either appeal the October, 2007, order or move to vacate it under 735 ILCS 5/2-1301(e) no later than 30 days after the trial court made its Rule 304(a) finding. Failing that, the plaintiff would have had to proceed under 735 ILCS 5/2-1401 no later than November of 2009.
Even though the plaintiff did none of those things, his motion to vacate the October, 2007, was nonetheless timely because he asserted that the order was void. A void order may be attacked at any time. If the order was void, the time limitations applicable to other sorts of challenges would not limit the plaintiff’s ability to have the order vacated. Thus, the appellate court found that both it and the trial court had the jurisdiction “to consider the limited question of whether the October, 2007, order was void.”
Unfortunately for the plaintiff, it was not. The appellate court observed that it was unquestioned that the trial court had both subject matter jurisdiction of the case and personal jurisdiction of the defendant when it entered the October, 2007, order. The plaintiff, however, argued that the order was void due to the deceptive conduct of the individual defendant and the other defendants “which deprived the trial court of the opportunity to review and correct any errors that had been made as a result of the trial court’s mistake as to law and facts.” According to the court, the plaintiff’s filings contained nothing more than “conclusory allegations of fraud” that “fail to state any facts to support those allegations.”
Even if the plaintiff had presented a more solid factual case to support his claims of fraud, it seems unlikely that it would have been enough to justify vacating the October, 2007, order based lack of jurisdiction. An order is void for lack of jurisdiction only if the court is entirely without the inherent authority to enter the order in question, unusually because it lacks subject matter jurisdiction or personal jurisdiction or both. Here, it appears that the most the plaintiff could allege was that the court was wrong on the facts or the law or both, based upon having been misled by the defendants’ conduct. But an order that is merely wrong – even if it is wrong because of the intentional conduct of one of the parties – is not necessarily void. Further, as the appellate court noted, although some opinions have “thrown . . . in” (the court’s language, not mine), the phrase “fraud on the court” together with other grounds for considering a judgment void, “the case law is not at all clear that a fraud on the court which does not affect jurisdiction renders the judgment void.”
Because the October, 2007, order was not void, the appellate court found that the trial court had no jurisdiction to vacate that order four and a half years after it was entered.
McCarthy v. Pointer, 2013 IL App (1st) 121688.