concurring in part and dissenting in part:
I agree that the appellate court should not have dismissed this appeal for lack of jurisdiction. Contrary to the majority, however, I would not remand for further proceedings. The judgment of the circuit court granting plaintiffs’ petition to reinstate under section 2 — 1401 of the Code of Civil Procedure (735 ILCS 5/2— 1401 (West 1992)) should be reversed outright.
Relief is available under section 2 — 1401 only from final orders and judgments. If an order is not final, section 2 — 1401 is inapplicable and cannot be the basis for setting aside that order. The predicate for plaintiffs’ section 2 — 1401 petition in this case was an order dismissing their case for want of prosecution (the DWP order). Our court has previously held, however, that an order dismissing a case for want of prosecution is not final. Flores v. Dugan, 91 Ill. 2d 108 (1982); Wold v. Bull Valley Management Co., 96 Ill. 2d 110 (1983). Although Flores and Wold addressed finality in the context of Supreme Court Rule 301, the concept of finality is the same there as it is in the context of a section 2 — 1401 petition.
My colleagues try to escape the holding in Flores by construing that case to mean only that a DWP order is not final during the period for refiling provided by section 13 — 217 of the Code of Civil Procedure (735 ILCS 5/13 — 217 (West 1992)). Under their interpretation, once the refiling period expires without a new action having been commenced, the previously nonfinal, interlocutory DWP order is automatically transformed into an order that is final.
The problem with this analysis is that there is nothing in Flores to support it. The focus in Flores was the character of the DWP order at the time the order was entered. Subsequent events were irrelevant. Even though the plaintiffs in that case did not, in fact, refile within the period provided by the predecessor provision to section 13 — 217 (see Flores, 91 Ill. 2d at 115), that did not affect the court’s conclusion. For the purposes of determining finality of the DWP order, the only thing that mattered was that plaintiffs could have refiled had they chosen to do so. Their subsequent failure to act did not transform the DWP order into a final order once the statutory refiling period had passed.
My colleagues claim that their approach will advance the interests of certainty and finality in litigation. I think the opposite is true. In ruling as they have, my colleagues have made the finality of an order a fluid and changeable property.
Our court recently rejected the notion that a final order could be rendered nonfinal by subsequent conduct of the parties. Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496 (1997). We should likewise reject the notion that the action or inaction of a party could render an otherwise nonfinal order final. That is especially so where, as here, no further action has been taken by the trial court that would trigger the change.
The majority is right that its approach will not be prejudicial to plaintiffs. Under the majority’s view, plaintiffs have full power to control the process. They can now either refile under section 13 — 217 or wait and initiate a petition under section 2 — 1401.
What the majority fails to appreciate is the effect its decision will have on defendants. If a DWP order remained nonfinal, as it should under Flores, defendants’ exposure to future litigation would be subject to a definite endpoint. Once section 13 — 217’s refiling period had passed, the matter would be closed, and plaintiffs would have no further recourse. Under the majority’s view, however, expiration of section 13 — 217’s refiling period opens an entirely new window of opportunity for plaintiffs to pull defendants back in the litigation. As soon as the clock runs out under section 13 — 217, the majority allows it to restart under section 2 — 1401. All the while defendants are left to wait and wonder. Where is the certainty and finality in that?
Flores should be controlling here, and it is fatal to plaintiffs’ petition under section 2 — 1401. Because the DWP order was not final and did not become final, that order was not a proper subject for relief under section 2 — 1401. To the extent that Robinson v. Commonwealth Edison Co., 238 Ill. App. 3d 436 (1992), Howard Ecker & Co. v. Terracom Development Group, Inc., 116 Ill. App. 3d 918 (1983), and Yorke v. Stineway Drug Co., 110 Ill. App. 3d 1009 (1982), support a contrary conclusion, they should be overruled.
There are no alternative grounds to sustain the circuit court’s judgment. Plaintiffs’ petition should therefore be denied as a matter of law. Under these circumstances there is no need to remand to the circuit court for further proceedings.
For the foregoing reasons, I would reverse the judgment of the appellate court dismissing the appeal for lack of jurisdiction and would reverse the judgment of the circuit court granting plaintiffs’ motion to reinstate.
JUSTICES HEIPLE and NICKELS join in this partial concurrence and partial dissent.