2022 IL App (1st) 210416-U FIRST DISTRICT, FIRST DIVISION September 6, 2022
No. 1-21-0416
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
DANIEL WOOD, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 2019 CH 04723 ) LYFT, INC., ) Honorable ) Michael T. Mullen, Defendant-Appellant, ) Judge Presiding. v. ) ) ) ZURICH NORTH AMERICA, ) ) Defendant. ) _________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court. Justices Pucinski and Walker concurred in the judgment.
ORDER
¶1 Held: Circuit court’s judgment reversed. In a declaratory judgment action, the trial court erred in granting the plaintiff’s pro se motion to vacate two agreed orders to dismiss the action with prejudice.
¶2 For the reasons that follow, we reverse the circuit court’s judgment.
¶3 BACKGROUND
¶4 On April 12, 2019, plaintiff Daniel Wood filed a declaratory judgment action against
defendants Lyft, Inc. (“Lyft”) and Marsh Risk & Insurance Services. According to the complaint, No. 1-21-0416
plaintiff was in a car accident with an uninsured driver while working as a driver for Lyft. Plaintiff
alleged that Lyft’s “automobile insurance policy,” under which he sought coverage, violated the
minimum liability insurance requirement as set forth in section 12-707.01(b)(3) of the Illinois
Vehicle Code.
¶5 Plaintiff filed an amended complaint on June 12, 2019, adding an allegation that the
liability insurance requirements of the Transportation Network Providers Act (625 ILCS 57 et seq)
are “in direct conflict” with the requirements of section 12-707.01(b)(3) of the Illinois Vehicle
Code. Plaintiff filed a second amended complaint on October 7, 2019, substituting defendant
Zurich North America for defendant Marsh Risk & Insurance Services.
¶6 Lyft filed a motion to dismiss the second amended complaint and for sanctions on
November 4, 2019, arguing that sanctions were warranted because plaintiff’s counsel admitted
“the meritless nature of the complaint” but refused to voluntarily dismiss the action. Plaintiff
responded that there was a “good faith basis” to pursue the claim “based on the plain language of
the applicable policy that was in effect at the time of the accident.” The trial court granted Lyft’s
motion to dismiss, without prejudice, on September 8, 2020, giving plaintiff “one last opportunity
to file a further amended complaint.” Lyft’s motion for sanctions was entered and continued.
¶7 Plaintiff’s third amended complaint was filed on September 29, 2020. On October 26,
2020, Steven Levin, a member of the law firm representing plaintiff, advised Lyft’s attorney that
plaintiff’s original attorney, Bryan Flangel, had left the firm. Jeffrey Deutschman filed an
additional appearance on plaintiff’s behalf.
¶8 On November 3, 2020, Levin phoned Lyft’s counsel to “broker a deal” and offered to
dismiss the action against Lyft with prejudice in exchange for withdrawing its motion for
sanctions. On November 4, 2020, Levin contacted Lyft’s counsel again and requested agreement
on an order to “dismiss Lyft with prejudice.” Lyft’s Motion to Dismiss the Third Amended
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Complaint and For Additional Sanctions was filed the same day.
¶9 On November 5, 2020, an agreed order to dismiss the action against Lyft with prejudice
was entered. Plaintiff’s complaint against Zurich and Lyft’s two motions for sanctions remained
pending.
¶ 10 On November 25, 2020, plaintiff filed a response to Lyft’s motion for additional sanctions,
conceding that after consulting with Levin and Deutschman, he “voluntarily agreed to dismiss
[Lyft] with prejudice” based upon Lyft’s agreement to dismiss the sanctions motions. In an
affidavit attached to his response, plaintiff clarified that his original counsel “misled” him into
bringing the complaint against Lyft, but he “agreed to a dismissal of the case against Lyft ***
[o]nce properly informed of the law” by Levin and Deutschman in October, 2020.
¶ 11 On December 7, 2020, the court entered an “Agreed Order of Dismissal of Entire Case”
with prejudice. The order also provided that “all pending motions for sanctions filed by [Lyft] are
withdrawn.”
¶ 12 On January 6, 2021, plaintiff filed a pro se motion to vacate the December 7, 2020 agreed
order of dismissal. Plaintiff alleged he “was never informed of the legal significance of the term
with prejudice,” and would not “have agreed to a dismissal of that type” if he had been “informed
of what that term meant.”
¶ 13 Lyft responded that “consent orders are not subject to review or vacatur by a court because
consent orders do not represent the judgment of a court.” Lyft also relied on plaintiff’s sworn
statement that he had agreed to the dismissal only after being “properly informed of the law” by
his attorneys.
¶ 14 On March 15, 2021, the circuit court granted plaintiff’s motion to vacate, as follows: “The
agreed Orders of Dismissal entered on November 5, 2020, and December 7, 2020 are vacated, both
are modified to strike the phrase ‘with prejudice,’ and both shall be deemed entered as of the date
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of the first order, November 5, 2020.” Plaintiff was also granted leave to reinstate the action by
November 5, 2021.
¶ 15 ANALYSIS
¶ 16 Initially, we note that plaintiff failed to file a brief on appeal. This court ordered the case
taken on Lyft’s brief only, and we are deciding the merits of the appeal without the benefit of an
appellee brief. Selective Insurance Co. v. Urbina, 371 Ill. App. 3d 27, 29 (2007) (“Where the
record is simple and the claimed error is such that the court can easily decide it without the aid of
an appellee’s brief, a reviewing court will decide the merits of the appeal.”).
¶ 17 Plaintiff’s pro se motion to vacate the agreed orders of dismissal was the functional
equivalent of a section 2-1401 motion, a statutory procedure by which judgments may be vacated
after 30 days if certain conditions are established. 735 ILCS 5/2-1401(a) (West 2020). The purpose
of such a motion is “to bring before the trial court facts not appearing on the record which if known
to the court at the time judgment was entered would have prevented its entry.” Burchett v. Goncher,
235 Ill. App. 3d 1091, 1098 (1991). The motion is a collateral attack on the order or judgement
challenged. Id.
¶ 18 “An agreed order, also termed a consent order or a consent decree [citation], is not an
adjudication of the parties’ rights but, rather, a record of their private, contractual agreement.” In
re Marriage of Roselth, 389 Ill. App. 3d 969, 971 (2009). Once entered, such an order generally
cannot be amended or varied without the consent of each party. In re M.M.D., 213 Ill. 2d 105, 114
(2004). Absent consent, an agreed order can only be amended or set aside “upon a showing that
the order resulted from fraudulent misrepresentation, coercion, incompetence of one of the parties,
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2022 IL App (1st) 210416-U FIRST DISTRICT, FIRST DIVISION September 6, 2022
No. 1-21-0416
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
DANIEL WOOD, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 2019 CH 04723 ) LYFT, INC., ) Honorable ) Michael T. Mullen, Defendant-Appellant, ) Judge Presiding. v. ) ) ) ZURICH NORTH AMERICA, ) ) Defendant. ) _________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court. Justices Pucinski and Walker concurred in the judgment.
ORDER
¶1 Held: Circuit court’s judgment reversed. In a declaratory judgment action, the trial court erred in granting the plaintiff’s pro se motion to vacate two agreed orders to dismiss the action with prejudice.
¶2 For the reasons that follow, we reverse the circuit court’s judgment.
¶3 BACKGROUND
¶4 On April 12, 2019, plaintiff Daniel Wood filed a declaratory judgment action against
defendants Lyft, Inc. (“Lyft”) and Marsh Risk & Insurance Services. According to the complaint, No. 1-21-0416
plaintiff was in a car accident with an uninsured driver while working as a driver for Lyft. Plaintiff
alleged that Lyft’s “automobile insurance policy,” under which he sought coverage, violated the
minimum liability insurance requirement as set forth in section 12-707.01(b)(3) of the Illinois
Vehicle Code.
¶5 Plaintiff filed an amended complaint on June 12, 2019, adding an allegation that the
liability insurance requirements of the Transportation Network Providers Act (625 ILCS 57 et seq)
are “in direct conflict” with the requirements of section 12-707.01(b)(3) of the Illinois Vehicle
Code. Plaintiff filed a second amended complaint on October 7, 2019, substituting defendant
Zurich North America for defendant Marsh Risk & Insurance Services.
¶6 Lyft filed a motion to dismiss the second amended complaint and for sanctions on
November 4, 2019, arguing that sanctions were warranted because plaintiff’s counsel admitted
“the meritless nature of the complaint” but refused to voluntarily dismiss the action. Plaintiff
responded that there was a “good faith basis” to pursue the claim “based on the plain language of
the applicable policy that was in effect at the time of the accident.” The trial court granted Lyft’s
motion to dismiss, without prejudice, on September 8, 2020, giving plaintiff “one last opportunity
to file a further amended complaint.” Lyft’s motion for sanctions was entered and continued.
¶7 Plaintiff’s third amended complaint was filed on September 29, 2020. On October 26,
2020, Steven Levin, a member of the law firm representing plaintiff, advised Lyft’s attorney that
plaintiff’s original attorney, Bryan Flangel, had left the firm. Jeffrey Deutschman filed an
additional appearance on plaintiff’s behalf.
¶8 On November 3, 2020, Levin phoned Lyft’s counsel to “broker a deal” and offered to
dismiss the action against Lyft with prejudice in exchange for withdrawing its motion for
sanctions. On November 4, 2020, Levin contacted Lyft’s counsel again and requested agreement
on an order to “dismiss Lyft with prejudice.” Lyft’s Motion to Dismiss the Third Amended
-2- No. 1-21-0416
Complaint and For Additional Sanctions was filed the same day.
¶9 On November 5, 2020, an agreed order to dismiss the action against Lyft with prejudice
was entered. Plaintiff’s complaint against Zurich and Lyft’s two motions for sanctions remained
pending.
¶ 10 On November 25, 2020, plaintiff filed a response to Lyft’s motion for additional sanctions,
conceding that after consulting with Levin and Deutschman, he “voluntarily agreed to dismiss
[Lyft] with prejudice” based upon Lyft’s agreement to dismiss the sanctions motions. In an
affidavit attached to his response, plaintiff clarified that his original counsel “misled” him into
bringing the complaint against Lyft, but he “agreed to a dismissal of the case against Lyft ***
[o]nce properly informed of the law” by Levin and Deutschman in October, 2020.
¶ 11 On December 7, 2020, the court entered an “Agreed Order of Dismissal of Entire Case”
with prejudice. The order also provided that “all pending motions for sanctions filed by [Lyft] are
withdrawn.”
¶ 12 On January 6, 2021, plaintiff filed a pro se motion to vacate the December 7, 2020 agreed
order of dismissal. Plaintiff alleged he “was never informed of the legal significance of the term
with prejudice,” and would not “have agreed to a dismissal of that type” if he had been “informed
of what that term meant.”
¶ 13 Lyft responded that “consent orders are not subject to review or vacatur by a court because
consent orders do not represent the judgment of a court.” Lyft also relied on plaintiff’s sworn
statement that he had agreed to the dismissal only after being “properly informed of the law” by
his attorneys.
¶ 14 On March 15, 2021, the circuit court granted plaintiff’s motion to vacate, as follows: “The
agreed Orders of Dismissal entered on November 5, 2020, and December 7, 2020 are vacated, both
are modified to strike the phrase ‘with prejudice,’ and both shall be deemed entered as of the date
-3- No. 1-21-0416
of the first order, November 5, 2020.” Plaintiff was also granted leave to reinstate the action by
November 5, 2021.
¶ 15 ANALYSIS
¶ 16 Initially, we note that plaintiff failed to file a brief on appeal. This court ordered the case
taken on Lyft’s brief only, and we are deciding the merits of the appeal without the benefit of an
appellee brief. Selective Insurance Co. v. Urbina, 371 Ill. App. 3d 27, 29 (2007) (“Where the
record is simple and the claimed error is such that the court can easily decide it without the aid of
an appellee’s brief, a reviewing court will decide the merits of the appeal.”).
¶ 17 Plaintiff’s pro se motion to vacate the agreed orders of dismissal was the functional
equivalent of a section 2-1401 motion, a statutory procedure by which judgments may be vacated
after 30 days if certain conditions are established. 735 ILCS 5/2-1401(a) (West 2020). The purpose
of such a motion is “to bring before the trial court facts not appearing on the record which if known
to the court at the time judgment was entered would have prevented its entry.” Burchett v. Goncher,
235 Ill. App. 3d 1091, 1098 (1991). The motion is a collateral attack on the order or judgement
challenged. Id.
¶ 18 “An agreed order, also termed a consent order or a consent decree [citation], is not an
adjudication of the parties’ rights but, rather, a record of their private, contractual agreement.” In
re Marriage of Roselth, 389 Ill. App. 3d 969, 971 (2009). Once entered, such an order generally
cannot be amended or varied without the consent of each party. In re M.M.D., 213 Ill. 2d 105, 114
(2004). Absent consent, an agreed order can only be amended or set aside “upon a showing that
the order resulted from fraudulent misrepresentation, coercion, incompetence of one of the parties,
gross disparity in the position or capacity of the parties, or newly discovered evidence.” Matter of
Haber, 99 Ill. App. 3d 306, 309 (1981).
-4- No. 1-21-0416
¶ 19 Plaintiff’s justification for requesting that the agreed orders of dismissal be vacated in this
case is not among those enumerated above. Plaintiff alleges that he “was never informed of [the]
legal significance of the term with prejudice,” even though this language appeared on the face of
both orders, neither plaintiff nor his attorneys objected to the terms of either order, and the orders
were purportedly drafted by plaintiff’s attorney. See Filosa v. Pecora, 28 Ill. App. 3d 123, (1974)
(A consent decree, like a contract, “cannot be set aside on the ground that it is fraudulent where
the alleged fraudulent provision appears on the face of the contract so that it was equally open to
the knowledge of both parties.”). Plaintiff’s own pleadings clearly establish that he “authorized the
dismissal of the entire case,” and “granted his counsel authority to dismiss the case vs. Lyft, Inc.
with prejudice.” (Emphasis added)
¶ 20 Under these circumstances, we find that the court erred in vacating the agreed orders of
dismissal. Accordingly, the court order of March 15, 2021, vacating the November 5, 2020, and
December 7, 2020, orders of dismissal, is reversed, and the dismissal orders are reinstated.
¶ 21 CONCLUSION
¶ 22 For these reasons, we reverse the judgment of the circuit court of Cook County.
¶ 23 Reversed.
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