dissenting:
I respectfully dissent and would reverse and remand.
Is there any difference between summary dismissal of a petition as “frivolous or patently without merit” under the Post-Conviction Hearing Act and dismissal for failure to state a cause of action under section 2 — 615 of the Code of Civil Procedure? In civil cases, will we now routinely see cases summarily dismissed as frivolous and without merit? I suggest that section 2 — 615 dismissals are much more limited than “summary dismissals,” and that the supreme court in Vincent did not simply engage in semantics, allowing “summary dismissals” just under another name.
In Vincent, the supreme court rejected the argument that special rules should be applied in ruling on section 2 — 1401 petitions in criminal cases. “This court has consistently held that proceedings under section 2 — 1401 are subject to the usual rules of civil practice.” Vincent, 226 Ill. 2d at 8, 871 N.E.2d at 23. In particular, the court rejected the argument that a section 2 — 1401 petition could be dismissed under the provisions of the Post-Conviction Hearing Act, which allows summary dismissal on the basis that “the petition is frivolous or is patently without merit.” 725 ILCS 5/122 — 2.1(a)(2) (West 2004). “ ‘Summary dismissals’ are not recognized under the Code of Civil Procedure in general or section 2 — 1401 in particular.” Vincent, 226 Ill. 2d at 11, 871 N.E.2d at 24. Exceptions should not be created “based solely on the criminal-defendant status of the petitioner [citation] or on arbitrary notions of docket control [citation].” Vincent, 226 Ill. 2d at 14, 871 N.E.2d at 26.
Under civil practice rules, a section 2 — 1401 petition may be challenged by a motion to dismiss for its failure to state a cause of action. Vincent, 226 Ill. 2d at 8, 871 N.E.2d at 23. Judgment on the pleadings may also be appropriate. See 735 ILCS 5/2 — 615(e) (West 2004) (“Any party may seasonably move for judgment on the pleadings”). Judgment on the pleadings is often entered in favor of a plaintiff if the answer admits or fails to adequately deny any essential allegation of the plaintiffs cause of action. 3 R Michael, Illinois Practice §27.2, at 493-94 (1989) (Civil Procedure Before Trial). “[J]udgment on the pleadings in favor of a defendant who has never filed an answer *** is the ‘functional equivalent of dismissing the complaint for failure to state a cause of action.’ ” Vincent, 226 Ill. 2d at 10, 871 N.E.2d at 24, quoting Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 932, 684 N.E.2d 872, 877 (1997). “Case law has long recognized that such a judgment, whether it be characterized as a judgment on the pleadings or a dismissal, can be entered by the court notwithstanding the absence of a responsive pleading.” Vincent, 226 Ill. 2d at 10, 871 N.E.2d at 24; cf. Fed. R. Civ. P. 12(c) (28 U.S.C. app. Fed. R Civ. P 12(c) (2000)) (after the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings).
“A motion for judgment on the pleadings is sometimes used instead of the proper motion in order to attempt to give the determination the finality that a judgment implies.” 3 R Michael, Illinois Practice §27.2, at 495 (1989) (Civil Procedure Before Trial). “The difficulty is that there appear to be cases where the use of the motion for judgment on the pleadings, instead of a motion to strike and dismiss, has resulted in the loss of the plaintiffs right to seek leave to amend after the complaint was held to be defective.” 3 R. Michael, Illinois Practice §27.2, at 496 (1989) (Civil Procedure Before Trial).
Vincent held that a section 2 — 1401 petition may be dismissed sua sponte, in both civil and criminal cases, and that adequate procedural safeguards exist to prevent erroneous sua sponte terminations. A section 2 — 1401 petitioner whose petition has been disposed of by the court sua sponte may file a motion for rehearing and may have the right to amend the petition. Vincent, 226 Ill. 2d at 13, 871 N.E.2d at 25. The decision of the trial court must be reviewed de novo in the appellate court. Vincent, 226 Ill. 2d at 18, 871 N.E.2d at 28.
Motions to dismiss with prejudice under section 2 — 615 are granted cautiously. In civil cases, a pleading need only assert a legally recognized cause of action and plead facts that bring the particular case within that cause of action. A motion to dismiss is granted on the pleadings, not on the underlying facts. The question presented by a section 2 — 615 motion is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348, 798 N.E.2d 724, 733 (2003) (facts alleged were sufficient to raise a duty). No complaint is bad in substance which reasonably informs the defendant of the nature of the claim that he or she is called upon to meet. Chandler, 207 Ill. 2d at 348, 798 N.E.2d at 733. “[A] motion to dismiss should not be granted unless it clearly appears that no set of facts could ever be proved that would entitle the plaintiff[s] to recover.” Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 280, 433 N.E.2d 253, 256 (1982).
The trial court here entered a three-page written order, finding that defendant’s claims were totally lacking in merit. Ryburn III, 362 Ill. App. 3d at 877, 841 N.E.2d at 1018. The trial court, however, did not determine that the allegations of the section 2 — 1401 petition were insufficient, as a matter of law, to state a claim. Vincent, 226 Ill. 2d at 10, 871 N.E.2d at 24. Instead, the trial court applied the summary dismissal approach of the Post-Conviction Hearing Act, finding that the petition was “frivolous and without merit.” Ryburn III, 362 Ill. App. 3d at 874, 841 N.E.2d at 1016; 725 ILCS 5/122 — 2.1(a)(2) (West 2004). The majority does not attempt to justify the dismissal on the basis that the allegations here could never state a legal basis for the relief requested. The allegations of ineffective assistance in failing to object to the imposition of fines, failure to consult with defendant, and failure to argue that consecutive sentences were improper at least appear to allege a cause of action, however weak on the merits. Defendant was unaware that he was entitled to file a motion for rehearing or a motion to amend his petition.
Whatever we do in this case can be done in any civil case. It is important that we carefully follow the rules of civil procedure. We should not allow special rules, developed to address a problem in the criminal law system, to affect the handling of civil cases.