Tuna v. Airbus

Digitally signed by

Reporter of Decisions

Reason: I attest to

Illinois Official Reports the accuracy and

integrity of this

document

Appellate Court Date: 2017.09.11

13:18:20 -05'00'

Tuna v. Airbus, S.A.S., 2017 IL App (1st) 153645

Appellate Court FUZZY TUNA and JENAYA McKAY, Plaintiffs-Appellants, v.

Caption AIRBUS, S.A.S., a Corporation, and NORTHROP GRUMMAN

GUIDANCE and ELECTRONICS COMPANY, INC., Defendants-

Appellees.

District & No. First District, Third Division

Docket No. 1-15-3645

Filed June 21, 2017

Decision Under Appeal from the Circuit Court of Cook County, Nos. 09-L-11795,

Review 10-L-5420, 10-L-11315, 10-L-11317, 13-L-12191; the Hon. James N.

O’Hara, Judge, presiding.

Judgment Affirmed.

Counsel on Floyd A. Wisner and Alexandra M. Wisner, of Wisner Law Firm,

Appeal P.C., of Geneva, for appellants.

Stanley V. Boychuck and Catherine Basque Weiler, of Swanson

Martin & Bell, LLP, of Chicago, Thad T. Dameris (pro hac vice) and

Christopher M. Odell (pro hac vice), of Arnold & Porter, LLP, of

Houston, Texas, and David J. Weiner (pro hac vice), of Arnold &

Porter, LLP, of Washington, D.C., for appellee Airbus, S.A.S.

Michael J. Merlo, Linda J. Schneider, and Donald G. Machalinski, of

Merlo, Kanofsky Gregg & Machalinski, Ltd., of Chicago, for other

appellee.

Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.

Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in

the judgment and opinion.

OPINION

¶1 This matter arises from injuries sustained by plaintiffs Fuzzy Tuna and Jenaya McKay

when an aircraft designed by defendant Airbus, S.A.S., and operated by Qantas Airways,

experienced two sudden pitch-down movements on October 7, 2008. Defendant Northrop

Grumman Guidance and Electronics Company, Inc., designed the aircraft’s air data inertial

reference unit. Although plaintiffs are flight attendants from New Zealand, the aircraft was

over the Pacific Ocean when the incident occurred.

¶2 Several individuals’ negligence and products liability actions were consolidated in the

circuit court of Cook County.1 While defendants argued that New Zealand law precluded

compensatory damages, defendants did not contest liability. In contrast, plaintiffs argued that

New Zealand law permitted courts outside of New Zealand to award its citizens compensatory

damages and that, absent a meaningful difference in the laws of the two jurisdictions, Illinois

law applied. Agreeing with defendants’ position, the circuit court entered summary judgment

in their favor, albeit with acknowledged equivocation. Eventually, plaintiffs filed a petition to

vacate the summary judgment order pursuant to section 2-1401 of the Illinois Code of Civil

Procedure (735 ILCS 5/2-1401 (West 2014)), arguing that new evidence supported their

position that New Zealand law did not preclude compensatory damages in this case. The circuit

court denied that petition without an evidentiary hearing. We now affirm the judgment.

¶3 I. BACKGROUND

¶4 A. Underlying Proceeding

¶5 As indicated, defendants filed a “Motion for Application of New Zealand Law and

Summary Judgment” in the underlying action. 2 The motion alleged that while Illinois

permitted recovery for a wide array of damages, New Zealand’s no fault system of

compensation barred damage claims for personal injuries. Thus, a conflict existed between the

laws of those jurisdictions. Additionally, New Zealand law, rather than Illinois law, governed

1

This case apparently found its way to the circuit court of Cook County because Motorola, Inc., an

Illinois resident, was originally a defendant in this case. The claims against Motorola, Inc., and other

parties named as defendants were later dismissed. Similarly, claims other than those filed by plaintiffs

Tuna and McKay were ultimately dismissed.

2

In accordance with an agreement between the parties, our record on appeal does not include the

entire record in the underlying action.

-2-

damages because New Zealand had the most significant relationship with this case.

Specifically, plaintiffs lived there, received treatment there, and received compensation for

injuries and lost earnings under the New Zealand Accident Compensation Act 2001 (NZACA).

Furthermore, plaintiffs and their employers had contributed financially to the New Zealand

Accident Compensation Corporation (ACC), the governmental entity responsible for

administering the NZACA. In contrast, Illinois had no relationship to plaintiffs’ claims.

Because New Zealand law precluded plaintiffs from recovering further damages, defendants

argued they were entitled to summary judgment. In support, defendants provided a declaration

on New Zealand law prepared by two New Zealand attorneys: Rosemary Tobin and Elsabe

Schoeman.

¶6 According to the declaration, New Zealanders gave up the right to sue for personal injury

damages in exchange for receiving benefits without consideration of fault. The NZACA did

not eliminate the availability of a common law action or exemplary damages, but did eliminate

compensatory damages.3 Section 317(1) of the NZACA states as follows:

“No person may bring proceedings independently of this Act, whether under any

rule of law or any enactment, in any court in New Zealand, for damages arising directly

or indirectly out of—

(a) personal injury covered by this Act; or

(b) personal injury covered by the former acts.” (Emphasis added.) New

Zealand Accident Compensation Act 2001 § 317(1)(a), (b) (eff. Sept. 19, 2001).

Defendants’ experts also cited Australian case law, finding that section 317’s reference to New

Zealand courts merely reflected that New Zealand lacked authority to dictate to courts of

foreign jurisdictions. The declaration concluded that plaintiffs were entitled to benefits under

the NZACA and, in turn, were precluded from seeking compensatory damages in court.

¶7 In response, plaintiffs argued that defendants failed to demonstrate a conflict in laws

existed. Specifically, section 317, by its own terms, did not apply to a legal action which was

commenced outside of New Zealand with respect to an accident outside of New Zealand.

Conversely, section 321 of the NZACA actually contemplated that proceedings for damages

would be brought outside of New Zealand. Thus, there was no conflict between New Zealand

and Illinois law. In support of their position, plaintiffs attached a declaration of New Zealand

attorneys David John Goddard and Bruce Andrew Corkill, who found as follows:

“[I]t is clear as a matter of New Zealand law that s 317 does not prevent a common law

claim before an overseas court by a person who suffers personal injury sustained in an

air accident outside New Zealand, where the claim relates to conduct by one or more

defendants outside New Zealand. Indeed in some circumstances a person who suffers

such an injury, and who is entitled to cover under the Act by virtue of their residence in

New Zealand, may be required to pursue common law proceedings outside New

Zealand.”

More specifically, a New Zealand court interpreting the statute would consider its language in

conjunction with other factors. Although a New Zealand court could find that section 317

would be undermined by double recovery in an overseas court, section 321 allowed the ACC to

recover paid benefits from an award of damages. As a result, the NZACA would be advanced

3

Plaintiffs’ pleadings apparently did not seek exemplary damages.

-3-

by allowing claims for compensatory damages to be pursued outside of New Zealand. While

plaintiffs’ experts doubted that an appellate court in New Zealand would employ an

exclusively text-driven approach, such court would nonetheless find compensatory damages

were available from defendants outside of New Zealand who had not financially contributed to

New Zealand’s accident compensation scheme.4

¶8 In reply, defendants attached a supplementary declaration from their experts, confirming

their “original view that section 317 applies in a foreign court when New Zealand law is the

lex causae.” See Black’s Law Dictionary (10th ed. 2014) (defining “lex causae” as “[t]he legal

system that governs a dispute”).

¶9 On October 9, 2014, the circuit court granted defendants’ motion to apply New Zealand

law and entered summary judgment in their favor. The court also found there was no just

reason to delay enforcement or appeal pursuant to Illinois Supreme Court Rule 304(a) (eff.

Feb. 26, 2010). 5 Plaintiffs filed a timely notice of appeal on November 6, 2014

(No. 1-14-3460).

¶ 10 B. Appeal From Summary Judgment Order

¶ 11 On April 2, 2015, while plaintiffs’ interlocutory appeal was pending, the court vacated the

summary judgment order sua sponte and requested additional briefing on the choice-of-law

issue. Four days later, plaintiffs moved in the circuit court to voluntarily dismiss their appeal

pursuant to Illinois Supreme Court Rule 309 (eff. Feb. 1, 1981) (permitting the circuit court to

dismiss an appeal before the record has been filed on appeal).

¶ 12 In response, defendants argued that the April 2, 2015, order was void because plaintiffs had

already filed a notice of appeal, divesting the circuit court of jurisdiction. Defendants stated,

“[i]f Plaintiffs voluntarily dismiss their appeal, they cannot then file a post-judgment motion to

vacate, nor can the Court grant such relief.” Additionally, plaintiffs would not be able to satisfy

the requirements of section 2-1401 and the revestment doctrine would not restore the circuit

court’s jurisdiction. Furthermore, plaintiffs would not be able to file a second notice of appeal

from the summary judgment order. “For these reasons, Defendants wish the Court to be fully

advised in the premises before granting Plaintiffs’ motion to voluntarily dismiss the appeal.

Defendants do not oppose Plaintiffs’ motion but will oppose any extra-jurisdictional efforts to

vacate or modify the October 9 Order.”

¶ 13 On June 11, 2015, the circuit court dismissed plaintiffs’ appeal pursuant to Rule 309. The

court realized that it lacked jurisdiction on April 2, 2015, but urged petitioners to file a section

2-1401 petition. Although Rule 309 requires that the court clerk forward a copy of the

dismissal order to the reviewing court (Ill. S. Ct. R. 309 (eff. Feb. 1, 1981)), it appears that the

order was not forwarded, as this court purported to dismiss the same appeal for want of

prosecution two months later.

4

We also note that the declaration contradicted the response’s assertion that the NZACA

extinguished the common law tort action.

5

At that time, other individuals’ claims were still pending.

-4-

¶ 14 C. Section 2-1401 Proceedings

¶ 15 Meanwhile, plaintiffs’ attorney Floyd Wisner, through his referring counsel in Australia,

procured a letter purporting to set forth the ACC’s position on actions in foreign courts. The

ACC wrote the letter to Wisner’s referring counsel on February 11, 2015, and, ultimately,

referring counsel forwarded it to Wisner. The letter, authored by the ACC’s legal clerk, Aric

Shakur, stated, “[w]e can confirm that the Act does not prevent New Zealanders from bringing

civil claims for personal injury in overseas courts. This includes those who are receiving cover

from the [ACC].” The letter similarly stated that while section 317(a) of the NZACA barred

claimants from commencing actions for personal injury damages covered by the NZACA

within New Zealand courts, the NZACA did not prevent claimants from commencing such

legal actions overseas. Furthermore, the NZACA empowered the ACC “to recover repayment

of the client’s entitlement should they receive damages or settlement.”

¶ 16 On June 26, 2015, plaintiffs filed a section 2-1401 petition to vacate the summary

judgment order, all the while maintaining that the court had jurisdiction to vacate that order on

April 2, 2015. Additionally, the ACC’s letter and the court’s April 2, 2015, order constituted

new evidence in support of their petition. Plaintiffs argued that this new evidence would have

affected the court’s summary judgment order. Although plaintiffs exercised due diligence to

obtain a statement from the ACC, they did not receive one until after the summary judgment

order was entered. Once received, plaintiffs “had to consider whether to pursue the merits of

their appeal without the letter from the ACC or to dismiss the appeal and file a motion pursuant

to § 2-1401. While plaintiffs were considering their options, this Court entered its Order on

April 2, 2015.” Plaintiffs attached to their motion the order entered on April 2, 2015, the

ACC’s letter, and an affidavit submitted by Wisner.

¶ 17 Upon the circuit court’s request, Wisner filed a supplemental affidavit, expounding his

efforts to contact the ACC. Within two weeks of defendants’ summary judgment motion,

Wisner personally called the ACC three times to inquire about the NZACA’s application to

this case, but his messages were not returned. In February 2014, Wisner’s referring counsel

sent two letters to the ACC, seeking an acknowledgment of this action and inquiring whether

the ACC would seek recovery of the ACC’s payments to plaintiffs from any award they

received in the present action. A week later, the ACC sent referring counsel a letter declining to

determine whether it would recover payments from any Illinois judgment until plaintiffs

actually received funds as a result. The ACC’s letter was sent to Wisner three days later but he

was unable to reach the letter’s signatory by phone.

¶ 18 Approximately one month after the summary judgment order was entered, the New

Zealand Herald published an article related to this specific litigation. When asked to comment

on this case, ACC Minister Nikki Kaye stated that the NZACA did not prevent New

Zealanders from taking legal action overseas. Plaintiff Tuna brought the article to Wisner’s

attention, leading Wisner to seek confirmation of the ACC’s position. Referring counsel

sought a formal letter in support of Minister Kaye’s statement. Following email

correspondence in January 2015, the ACC finally responded the next month. Wisner attached

to his supplemental affidavit the aforementioned news article and correspondence.

¶ 19 Defendants responded that plaintiffs’ allegations were insufficient and the supporting

exhibits would not have altered the judgment. Specifically, the ACC’s letter was cumulative

and did not show a connection between plaintiffs’ claims and Illinois. The letter was also

nonbinding because it was signed by a legal clerk instead of a solicitor. Additionally, a

-5-

supplementary declaration from defendants’ experts stated that the letter did not conflict with

or alter their original opinion, was silent on the choice-of-law matter, and failed to specifically

address whether section 317 applies when New Zealand law is the lex causae. The experts

further stated that legal clerks are not licensed attorneys in New Zealand.

¶ 20 In reply, plaintiffs argued that the ACC was an unbiased source and its letter was not

cumulative. Additionally, the letter supported their position, regardless of whether it was

authored by a legal clerk. Furthermore, although the ACC’s letter merely referred to bringing

actions in other jurisdictions, the letter implicitly contemplated a right to obtain damages

because no one would bring an action outside New Zealand if damages were unavailable.

¶ 21 At a hearing on November 12, 2015, the circuit court initially stated that it was entering an

order granting plaintiffs’ petition. Subsequent discussions revealed, however, that the court

had not seen the most recent expert declaration provided by defendants. Accordingly, the court

entered a continuance instead.

¶ 22 Two weeks later, the circuit court denied plaintiffs’ petition. The court found that Wisner

established due diligence in obtaining the ACC’s letter, but the most recent declaration of

defendants’ experts showed it would be improper to vacate the summary judgment order. The

court gave “substantial weight” to the declarations of defendants’ experts, who believed the

ACC letter was consistent with their initial opinion. Additionally, the court noted that New

Zealand would not recognize the legal clerk who wrote the ACC’s letter as an expert. “This

Court, in its sound discretion, finds that the ACC letter does not constitute ‘new evidence’ such

that Petitioners would endure an unfair, unjust or inequitable dismissal.”

¶ 23 II. ANALYSIS

¶ 24 On appeal, plaintiffs assert that the circuit court erroneously denied their petition to vacate

the summary judgment order pursuant to section 2-1401, arguing that it set forth new evidence

supporting a meritorious defense. Specifically, they contend that the ACC’s letter supports

their interpretation of the NZACA and, in turn, their assertion that Illinois law applies to the

matter of damages. While arguments based on the ACC’s letter are properly before us, the

parties’ briefs compel us to specify what is not. This appeal is not a vehicle to raise every

argument that could have been raised in plaintiffs’ prior appeal from the summary judgment

order, as that judgment became final when plaintiffs decided to dismiss their appeal.

¶ 25 It is well settled that the filing of a notice of appeal divests the circuit court of jurisdiction.

Dragon Construction, Inc. v. Parkway Bank & Trust, 287 Ill. App. 3d 29, 34-35 (1997). Thus,

the circuit court lacked jurisdiction to vacate the summary judgment order on April 2, 2015, as

an appeal was already pending. Additionally, defendants’ counsel specifically warned of the

consequences of dismissing their appeal, but plaintiffs did not heed that warning.

¶ 26 In the underlying action, the circuit court entered a Rule 304(a) finding with the summary

judgment order. Where a party fails to file a notice of appeal within 30 days of a finding

pursuant to Rule 304(a), the judgment becomes final and prevents litigants from challenging

that judgment in an appeal from a later order. Koenig & Strey GMAC Real Estate v. Renaissant

1000 South Michigan I, LP, 2016 IL App (1st) 161783, ¶¶ 22-23; City National Bank of

Murphysboro v. Vancloostere, 230 Ill. App. 3d 723, 724-25 (1992) (finding that the

defendants’ contention was not before the reviewing court where the issue was subject to an

earlier order entered with a Rule 304(a) finding but the defendants did not file a notice of

appeal from that order). Here, plaintiffs initially filed a timely notice of appeal, but they

-6-

voluntarily dismissed it. When an appeal is dismissed under Rule 309, it is as though a notice

of appeal was never filed. Bernstein & Grazian, P.C. v. Grazian & Volpe, P.C., 402 Ill. App.

3d 961, 969 (2010). Accordingly, the summary judgment order became final because plaintiffs

did not appeal from that judgment within 30 days of its entry.

¶ 27 Contrary to plaintiffs’ assertion, we further note it is well settled that litigants may

simultaneously pursue an appeal and a section 2-1401 petition. See People v. Partee, 125 Ill.

2d 24, 35 (1988) (observing that “[s]ince a collateral attack upon a judgment is a case separate

and apart from the case in which the judgment has been attacked, *** the availability or

pendency of a direct appeal will not affect the ripeness of a claim for *** post-judgment

relief”). The two routes are parallel. Cruz v. Columbus-Cuneo-Cabrini Medical Center, 264 Ill.

App. 3d 633, 642 (1994). Thus, we reject any suggestion that plaintiffs were required to choose

between pursuing their interlocutory appeal and filing a section 2-1401 petition.

¶ 28 We also reject plaintiffs’ contention that dismissal of their appeal revested the circuit court

with jurisdiction. The briefs on appeal have discussed two distinct legal concepts which,

regrettably, both speak to a court being “revested” with jurisdiction. First, under the

revestment doctrine, the circuit court is revested with jurisdiction where both parties support

setting aside the judgment. People v. Bailey, 2014 IL 115459, ¶ 25. That mutual consent is

clearly not present here, making that doctrine inapplicable. Second, plaintiffs note certain case

law where the circuit court was deemed to have been revested with jurisdiction upon the

dismissal of an appeal pursuant to Rule 309. See Rickard v. Pozdal, 31 Ill. App. 3d 542, 543-46

(1975) (where the circuit court dismissed the appeal, it was “revested” with jurisdiction to

vacate the judgment within 30 days of the original order); see also Bernstein & Grazian, P.C.,

402 Ill. App. 3d at 969-70 (finding, after an appeal was dismissed under Rule 309, that the

circuit court, rather than the appellate court, had jurisdiction over a motion to vacate the order

dismissing the appeal). That being said, it does follow that a dismissal under Rule 309 revests

the circuit court with jurisdiction to substantively alter a final judgment more than 30 days after

its entry. See In re Marriage of Allen, 343 Ill. App. 3d 410, 412 (2003) (observing that the

court loses jurisdiction to amend its judgment more than 30 days from entry). Because the

summary judgment order and Rule 304(a) finding were entered more than 30 days before

plaintiffs dismissed their appeal, that judgment became final.

¶ 29 As stated, we may consider contentions related to the ACC’s letter, i.e., the new evidence

forming the basis of plaintiffs’ section 2-1401 petition. The ACC’s letter has no bearing,

however, on plaintiffs’ arguments regarding depecage and Illinois public policy, which are not

before us.6 See Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 161 (2007) (defining

depecage as “the process of cutting up a case into individual issues, each subject to a separate

choice-of-law analysis”). Consideration of those contentions would transform this proceeding

from the appeal of a section 2-1401 disposition into an improper second appeal from the

summary judgment order. Having separated the pertinent wheat from the irrelevant chaff, we

turn to section 2-1401.

6

As will later discuss, the circuit court’s April 2, 2015, order vacating the summary judgment order

has no bearing on the interpretation of the NZACA or the choice-of-law issue.

-7-

¶ 30 Section 2-1401

¶ 31 Section 2-1401 constitutes a comprehensive procedure for authorizing a circuit court to

vacate or modify final orders or judgments in criminal and civil proceedings more than 30 days

after their entry. Warren County Soil & Water Conservation District v. Walters, 2015 IL

117783, ¶ 31; Smith v. Airoom, Inc., 114 Ill. 2d 209, 220 (1986). Additionally, a section 2-1401

petition can raise either factual or legal challenges to a final order. Warren County, 2015 IL

117783, ¶ 31. With respect to factual challenges, the purpose of such petitions is to inform the

court of factual matters which were not known at the time of judgment but that would have

affected the judgment had they been known. Lubbers v. Norfolk & Western Ry. Co., 105 Ill. 2d

201, 210 (1984). Furthermore, the cumulative nature of newly discovered evidence will not

always lead to the denial of relief under section 2-1401. Compare id. at 213 (rejecting the

respondents’ contention that cumulative evidence could not be the basis for relief where the

new evidence, when combined with the old, could show a cause of action) and Ostendorf v.

International Harvester Co., 89 Ill. 2d 273, 284 (1982) (observing in a products liability case

that “several similar opinions may add up to a design defect”), with Malek v. Lederle

Laboratories, 152 Ill. App. 3d 493, 502 (1987) (finding that cumulative evidence of an

inconclusive nature would not have prevented the judgment from being entered). A petition

must set forth allegations that would show (1) a meritorious defense or claim, (2) due diligence

in presenting that defense or claim, and (3) due diligence in filing the petition for relief,

although a court may relax due diligence standards in light of equitable considerations. Warren

County, 2015 IL 117783, ¶¶ 35, 37, 47, 51.

¶ 32 An action under section 2-1401 constitutes a civil proceeding subject to the usual rules of

civil practice. Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 23; Ostendorf, 89 Ill. 2d at 279.

Thus, section 2-1401 petitions are fundamentally complaints that invite responsive pleadings.

People v. Vincent, 226 Ill. 2d 1, 8 (2007). Following the filing of a section 2-1401 petition, the

circuit court may (1) dismiss the petition, (2) grant or deny the petition solely on the pleadings

or enter summary judgment, or (3) grant or deny the petition following an evidentiary hearing.

Id. at 9. Additionally, a petition should not be dismissed unless it is clear that the petitioner

could never prove any set of facts entitling him to relief. Lubbers, 105 Ill. 2d at 210; Ostendorf,

89 Ill. 2d at 280. If a petition survives dismissal, summary judgment considerations apply.

Vincent, 226 Ill. 2d at 9. Summary judgment is inappropriate, however, where a material issue

of fact exists. Id. In that instance, an evidentiary hearing is appropriate. Compare Warren

County, 2015 IL 117783, ¶ 51 (stating that court “should” hold a full evidentiary hearing when

the respondent challenges the facts supporting the petition), and Forest Preserve of Cook

County v. Chicago Title & Trust Co., 2015 IL App (1st) 131925, ¶ 86 (reviewing the circuit

court’s decision not to hold an evidentiary hearing for an abuse of discretion), with Vincent,

226 Ill. 2d at 9 (stating that the court is “required” to hold an evidentiary hearing when a

material issue of fact exists), and Ostendorf, 89 Ill. 2d at 286 (stating that the court “must” hold

an evidentiary hearing when the petition’s central facts are in dispute). Ultimately, the

petitioner has the burden of proving his case by a preponderance of the evidence in order to

obtain relief. See Airoom, 114 Ill. 2d at 223.

¶ 33 Our supreme court has identified two considerations that dictate the standard of review to

be applied with respect to a section 2-1401 petition: (1) the procedural disposition of the

petition (Vincent, 226 Ill. 2d at 14-18) and (2) the nature of the challenge presented in the

petition (Warren County, 2015 IL 117783, ¶ 31). With respect to the first consideration,

-8-

Vincent determined that dismissals and judgments on the pleadings were subject to de novo

review, as applying an abuse of discretion standard would be inconsistent with the usual rules

of civil practice. Vincent, 226 Ill. 2d at 14-16. In addition, Vincent, which involved a petition

challenging a judgment as void, did not decide the appropriate standard of review to be applied

following an evidentiary hearing. Id. at 16-17. Nonetheless, Vincent made certain comments

placing doubt on the availability of equitable relief and, in turn, whether the abuse of discretion

standard applied to factual issues raised in a section 2-1401 petition (id.). Nine years later, the

supreme court resolved such doubts in Warren County.

¶ 34 In Warren County, the court found that “the nature of the challenge presented in a section

2-1401 petition is critical because it dictates the proper standard of review.” Warren County,

2015 IL 117783, ¶ 31. Specifically, a section 2-1401 petition can present either factual or legal

challenges. Id. When a section 2-1401 petition presents a fact-dependent challenge, the circuit

court’s ultimate decision is reviewed for an abuse of discretion. Id. ¶ 51. In addition, the court

found that Vincent’s statements prohibiting equitable considerations were limited to purely

legal issues. Id. ¶ 47. Although Warren County also stated that Vincent “must be viewed in its

narrow context of a section 2-1401 petition that raises a purely legal challenge to a judgment

by alleging that it is void” (id.), we do not find that the court intended to limit Vincent to legal

issues based on a void judgment or to retreat from Vincent’s determination that the dismissal or

denial of a petition without an evidentiary hearing is subject to de novo review. But see Harris

Bank N.A. v. Harris, 2015 IL App (1st) 133017, ¶¶ 39, 60 (applying an abuse of discretion

standard where no evidentiary hearing was held); Forest Preserve District v. Chicago Title &

Trust Co., 2015 IL App (1st) 131925, ¶¶ 70, 84 (same). To apply an abuse of discretion

standard to a judgment on the pleadings would contradict the long held view that section

2-1401 proceedings are subject to the usual rules of civil practice. Vincent, 226 Ill. 2d at 7-8,

11; Ostendorf, 89 Ill. 2d at 279; see also Pielet v. Pielet, 2012 IL 112064, ¶ 30 (reviewing

summary judgment de novo); Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 23

(reviewing dismissal of a complaint de novo). Accordingly, we consider the nature of the

challenge presented as well as the procedural disposition of plaintiffs’ petition.

¶ 35 Here, plaintiffs purported to raise a choice-of-law issue, which generally constitutes a legal

matter. Hussein v. L.A. Fitness International, LLC, 2013 IL App (1st) 121426, ¶ 11. In this

instance, however, that choice-of-law issue depends on the interpretation of foreign law.

Courts may take judicial notice of the laws of other jurisdictions within the United States. 735

ILCS 5/8-1003 (West 2014). The law of a foreign country, however, is not subject to judicial

notice. 735 ILCS 5/8-1007 (West 2014). Instead, “the laws of foreign counties must be pled

and proven as any other fact.” Bangaly v. Baggiani, 2014 IL App (1st) 123760, ¶ 145; see also

Atwood Vacuum Machine Co. v. Continental Casualty Co. of Chicago, 107 Ill. App. 2d 248,

263-65 (1969) (stating that expert testimony is appropriate where parties dispute the meaning

of foreign law). Thus, the defense raised in the section 2-1401 petition carried the potential for

factual determinations.

¶ 36 Notwithstanding the nature of the challenge presented, the section 2-1401 petition was

denied without an evidentiary hearing, based on the written declaration of defendants’ experts

that (1) the content of the ACC letter did not support plaintiffs’ position and (2) even if it did,

the signatory was a mere legal clerk, unqualified to opine on such matters. Essentially,

defendants sought, and received, judgment on the pleadings. We also find that the competing

documents presented in support of and against section 2-1401 relief smack of summary

-9-

judgment proceedings. Accordingly, we must determine de novo whether any genuine issue of

material fact exists in terms of whether the ACC’s letter supports a meritorious defense that

would have prevented the circuit court from entering summary judgment on the underlying

claim. Wells Fargo Bank, N.A. v. McCondichie, 2017 IL App (5th) 153576, ¶ 10. Contrary to

the suggestion of the parties and the circuit court, the section 2-1401 petition did not present a

discretionary matter at this juncture. See Westfield Insurance Co. v. West Van Buren, LLC,

2016 IL App (1st) 140862, ¶ 11 (observing that we are not bound by the circuit court’s

reasoning on de novo review).

¶ 37 A court must determine whether a conflict of law exists before applying choice-of-law

analysis, as Illinois law applies in the absence of a conflict. Universal Underwriters Insurance

Co. v. LKQ Smart Parts, Inc., 2011 IL App (1st) 101723, ¶¶ 46-47.7 We note that defendants

overlook the significance of this first step. Where a conflict does exist, the objective of the

choice-of-law process is to apply the law of the jurisdiction that has the most significant

relationship with the parties and the particular issue in the dispute. Townsend, 227 Ill. 2d at

160. Furthermore, while a party seeking a choice-of-law determination initially has the burden

of showing that such a conflict exists (Bridgeview Health Care Center, Ltd. v. State Farm Fire

& Casualty Co., 2014 IL 116389, ¶ 14), a section 2-1401 petitioner has the burden of showing

his entitlement to relief (In re Marriage of Lyman, 2015 IL App (1st) 132832, ¶ 56).

¶ 38 According to the ACC’s letter, the NZACA does not prevent New Zealanders from

bringing civil claims for personal injury in overseas courts. Additionally, plaintiffs contend

that the ACC’s letter supports an inference that the ACC interprets the NZACA as allowing

compensatory damages outside of New Zealand, as no litigant would bring an action if

damages were unavailable. See Falge v. Lindoo Installations, Inc., 2017 IL App (2d) 160242,

¶ 13 (finding that a genuine issue of material fact exists where undisputed facts are subject to

different inferences). We will assume for purposes of this appeal that plaintiffs’ inference is

reasonable and that the ACC’s letter, if considered by the circuit court, could lead the court to

conclude that no conflict of law exists, leaving Illinois law in control of damages. See id.

(stating that courts must construe evidence in the light most favorable to the nonmovant at the

summary judgment stage). Nonetheless, the ACC’s letter would not have affected the

summary judgment order entered in the underlying proceeding.

¶ 39 Here, the ACC’s letter was signed by legal clerk Aric Shakur. Defendants have maintained

that in New Zealand, legal clerks are not attorneys and, thus, the individual who authored the

ACC’s letter would not have been qualified to provide an expert opinion on the interpretation

of the NZACA. See Bangaly, 2014 IL App (1st) 123760, ¶ 165 (observing that attorneys are

permitted to opine regarding the interpretation of foreign laws). Plaintiffs, apparently relying

on Shakur’s direction to contact Luke Hawes-Gandar with further questions, now assert that

“the letter clearly was written by Luke Hawes-Gandar who an internet search reveals to be a

solicitor, a licensed attorney, with the New Zealand ACC.” We decline plaintiffs’ invitation to

speculate as to matters outside the record. See Keener v. City of Herrin, 235 Ill. 2d 338, 346

(2009). Because the circuit court could not consider the opinion of a legal clerk from New

7

We note that the relationship between the NZACA and choice-of-law analysis is somewhat

circular. The NZACA cannot apply to bar compensatory damages unless New Zealand law prevails in

choice-of-law analysis. Yet, New Zealand law cannot prevail in choice-of-law analysis unless the

NZACA bars compensatory damages in this case and, thus, creates a conflict between laws.

- 10 -

Zealand, the ACC’s letter would not have affected the court’s choice-of-law analysis or the

resulting summary judgment order. Accordingly, plaintiffs’ petition did not demonstrate a

meritorious defense. See Lyons Lumber & Building Center, Inc. v. 7722 North Ashland, LLC,

2016 IL App (3d) 140487, ¶ 22 (defense is meritorious under section 2-1401 where, if

believed, it would warrant relief).

¶ 40 Finally, we reject plaintiffs’ assertion that the invalid order purporting to vacate the circuit

court’s summary judgment order constituted new evidence supporting a meritorious defense.

At a hearing on October 15, 2015, defense counsel stated that the only new evidence plaintiffs

relied on was the ACC’s letter. Plaintiffs’ counsel did not correct that statement and at all times

emphasized only the ACC’s letter. Accordingly, plaintiffs abandoned this assertion.

Additionally, the invalid order does not constitute a factual matter that would have affected the

judgment had it been known. See Lubbers, 105 Ill. 2d at 210. The only fact to be derived from

the invalid order is that the court equivocated in applying choice-of-law analysis. The order

itself, however, does not constituted evidence on the interpretation of New Zealand law.

Accordingly, that order does not entitle plaintiffs to relief.

¶ 41 III. CONCLUSION

¶ 42 Having carefully reviewed the record and the parties’ arguments, we find the circuit court

properly dismissed plaintiffs’ petition, as they failed to present new evidence that would have

prevented the circuit court from entering the underlying summary judgment order. In light of

our determination, we need not consider defendants’ contentions with respect to due diligence.

¶ 43 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 44 Affirmed.

- 11 -