Jackson v. Hooker

FIFTH DIVISION
January 29, 2010
No. 1-08-3042
ANTHONY JACKSON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
KENDALL HOOKER, ) Honorable
) Elizabeth M.
Defendant-Appellant. ) Budzinski,
) Judge Presiding.
JUSTICE HOWSE delivered the opinion of the court:
Plaintiff Anthony Jackson filed a complaint for damages
against defendant Kendall Hooker for injuries stemming from
defendant’s operation of an automobile. The trial court granted
plaintiff’s motion for default after defendant failed to answer
plaintiff’s complaint. Following a prove-up hearing, the trial
court entered judgment in plaintiff’s favor and awarded $700,000
in damages. On appeal, defendant contends the trial court abused
its discretion in granting plaintiff’s petition for relief from
the court’s sua sponte dismissal of plaintiff’s complaint for
want of prosecution. Defendant also contends the trial court
erred in denying his motion to vacate the default judgment.
For the reasons that follow, we affirm the trial court’s
order vacating the dismissal for want of prosecution. We reverse
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the court’s order denying defendant’s motion to vacate the
default judgment entered against him and remand for further
proceedings consistent with this opinion.
BACKGROUND
On January 11, 2007, plaintiff filed a two-count complaint
against defendant, alleging negligence and battery. Plaintiff
alleged that on June 29, 2006, defendant and a third party “began
an altercation.” While plaintiff’s arm was inside the rear
driver-side window of defendant’s vehicle, defendant rolled up
the window and trapped plaintiff’s arm between the window and the
door frame. Plaintiff was outside the vehicle. Defendant then
drove away with plaintiff’s arm still trapped. When defendant
stopped the vehicle, plaintiff’s arm was violently pulled out,
which caused him to fall from the vehicle and strike his head on
the street. Plaintiff alleged he suffered closed-head injuries
and extensive injuries to his shoulder as a result of the
incident.
On August 1, 2007, defendant was personally served with
process. Several prior attempts to serve defendant at his home
address had been unsuccessful due to “no contact.” Plaintiff
notified defendant’s insurer, GEICO, of the pending lawsuit on
August 7, 2007. On August 27, 2007, GEICO informed plaintiff’s
counsel that it would not be providing defendant any coverage or
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defense for the lawsuit.
On September 26, 2007, plaintiff filed a motion for default
judgment based on defendant’s failure to answer the complaint or
otherwise plead in accordance with Illinois Supreme Court Rule
18(b) (210 Ill. 2d R. 18(b)). An undated certificate of service
attached to the motion for default was served by mail to
defendant’s address. The trial court granted the motion for
default on October 5, 2007. Neither defendant nor his insurer
attended the default hearing. A prove-up hearing was scheduled
for November 9, 2007.
After neither plaintiff nor his counsel appeared at the
November 9 prove-up hearing, the trial court sua sponte dismissed
the cause for want of prosecution. On March 12, 2008, plaintiff
filed a motion to vacate dismissal for want of prosecution. A
certificate of service attached to the motion indicated defendant
could not be served with notice because plaintiff did not have
defendant’s current address. On March 19, 2008, the trial court
denied plaintiff’s motion to vacate without prejudice with leave
to refile the motion under section 2-1401 of the Illinois Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2008)).
On March 27, 2008, plaintiff filed a petition for relief
from dismissal for want of prosecution under section 2-1401. The
trial court granted the petition for relief and set the matter
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for a prove-up hearing on June 9, 2008. On April 20, 2008,
defendant was personally served with notice of the prove-up
hearing. On June 9, 2008, plaintiff appeared at the prove-up
hearing and presented testimony regarding his injuries and
medical bills. Neither defendant nor his insurer appeared. The
trial court entered judgment in plaintiff’s favor and awarded
$700,000.
On July 9, 2008, defendant filed a motion to vacate the
default judgment entered on June 9, 2008. On August 7, 2008,
defendant filed a brief in support of his motion to vacate the
prove-up judgment. The trial court denied defendant’s motion on
October 7, 2008. Defendant appeals.
ANALYSIS
I. Dismissal for Want of Prosecution
Defendant contends the trial court abused its discretion by
granting plaintiff’s motion to vacate the dismissal for want of
prosecution (DWP). Specifically, defendant contends the trial
court erred in granting plaintiff’s section 2-1401 petition to
vacate the dismissal because the petition failed to satisfy
section 2-1401's stringent pleading requirements.
Initially, plaintiff counters defendant waived any issues
regarding the sufficiency of plaintiff’s section 2-1401 petition,
or the trial court’s subsequent reinstatement of the case, by
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failing to raise the issues during the proceedings below or in
the notice of appeal.
The record reflects defendant never sought to challenge the
trial court’s decision to vacate the DWP during the proceedings
below. Nor did defendant raise the issue in his notice of
appeal. “It is axiomatic that questions not raised in the trial
court are waived and may not be raised for the first time on
appeal.” Shell Oil Co. v. Department of Revenue, 95 Ill. 2d 541,
550, 449 N.E.2d 65 (1983); McKinnon v. Yellow Cab Co., 31 Ill.
App. 3d 316, 318, 333 N.E.2d 659 (1975) (“The remaining arguments
of defendants–that the service of plaintiffs’ [petition to
vacate] was improper; that the petition did not bear plaintiff’s
signatures; and that the petition did not allege that plaintiffs
had a meritorious cause of action–were not raised in the trial
court, and therefore are considered waived”).
Waiver aside, we find the trial court did not abuse its
discretion in vacating the dismissal order. In reaching our
conclusion, we note we may affirm the trial court’s decision on
any ground substantiated by the record, regardless of the trial
court’s actual reasoning in reaching the decision. City of
Chicago v. Holland, 206 Ill. 2d 480, 492, 795 N.E.2d 240 (2003).
Our supreme court has recognized that if a plaintiff’s
action is dismissed for want of prosecution (DWP), the plaintiff
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has the option, under section 13-217 of the Code of Civil
Procedure, to refile the action within one year of the entry of
the DWP order or within the remaining period of limitations,
whichever is greater. 735 ILCS 5/13-217 (West 2008); S.C.
Vaughan Oil Co. v. Caldwell, Trout & Alexander, 181 Ill. 2d 489,
497 (1998). A DWP becomes a final order only when the section
13-217 period for refiling the action expires. S.C. Vaughan Oil
Co., 181 Ill. 2d at 502; Flores v. Dugan, 91 Ill. 2d 108, 114,
435 N.E.2d 480 (1982); Progressive Universal Insurance Co. v.
Hallman, 331 Ill. App. 3d 64, 67, 770 N.E.2d 717 (2002).
Accordingly, a DWP remains an unappealable interlocutory order
until plaintiff’s option to refile expires. S.C. Vaughan Oil
Co., 181 Ill. 2d at 507; Hallman, 331 Ill. App. 3d at 67, citing
Sunderland v. Portes, 324 Ill. App. 3d 105, 113, 753 N.E.2d 1251
(2001).
Section 2-1301(e) of the Code provides “[t]he court may in
its discretion, before final order or judgment, set aside any
default.” 735 ILCS 5/2-1301(e) (West 2008); Illinois Bone &
Joint Institute v. Kime, No. 1-08-2739, slip op. at 4 (December
18, 2009).
In light of S.C. Vaughan Oil Co. and Kime, we find plaintiff
was not required to file a section 2-1401 petition in order for
the trial court to vacate the DWP in this case. Although
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plaintiff filed his motion to vacate more than 30 days after the
trial court entered the DWP, the motion was filed well within the
period for refiling an action under section 13-217 of the Code.
A DWP only becomes a final order when the section 13-217 period
for refiling the action expires. S.C. Vaughan Oil Co., 181 Ill.
2d at 502; Flores, 91 Ill. 2d at 114; Kime, slip op. at 13.
Because the DWP was still interlocutory–-not final–-in
nature until the refiling period expired, section 2-1401 was
inapplicable when plaintiff filed his motion to vacate and could
not form the basis for vacating the DWP here. See S.C. Vaughan
Oil Co., 181 Ill. 2d at 508; Kime, slip op. at 4. However, the
trial court retained jurisdiction over plaintiff’s cause of
action and had the authority to vacate the dismissal under
section 2-1301(e) of the Code. See Hallman, 331 Ill. App. 3d at
68, citing 735 ILCS 5/2-1301(e) (West 2000) (“because the time
for refiling under section 13-217 had not expired, the trial
court retained jurisdiction to vacate the DWP and to enter the
default judgment. Accordingly, the decision to grant plaintiff’s
motion rested within the trial court’s discretion”).
We find the trial court did not abuse its discretion in
vacating the DWP in this case.
II. Default Judgment
Defendant contends the trial court erred in denying his
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motion to vacate the default judgment. Specifically, defendant
contends the trial court erred in determining his motion to
vacate was governed by section 2-1401 of the Code.
The question at issue here requires us to determine when the
default judgment was actually entered in this case.
The trial court initially granted plaintiff’s motion for
default on October 5, 2007. A prove-up hearing was scheduled for
November 9, 2007. After neither plaintiff nor his counsel
appeared at the November 9 prove-up hearing, the trial court sua
sponte dismissed the cause for want of prosecution. When the
dismissal for want of prosecution was vacated by the trial court,
a new prove-up hearing was scheduled for June 9, 2008. Following
the June 9 prove-up hearing, the trial court entered judgment in
plaintiff’s favor and awarded $700,000 in damages.
On July 9, 2008, defendant filed a motion to vacate the
prove-up judgment, pursuant to section 2-1301(e) of the Code.
Defendant filed a brief in support of his motion to vacate on
August 7, 2008. In determining defendant’s motion to vacate
should be evaluated under section 2-1401, not section 2-1301(e),
the court noted that even if it did vacate the prove-up judgment,
“the [October 5, 2007,] default judgment would still stand and
you would just have a new prove-up hearing. So that doesn’t give
you the relief that you’re seeking.” Because defendant had not
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filed a motion to vacate the default order under section 2-
1301(e) within 30 days of its entry on October 5, 2007, the trial
court determined defendant’s motion to vacate the default should
be considered under section 2-1401. The court then denied the
motion, finding defendant had not met the section 2-1401 standard
for vacating a default judgment.
In support of his contention that section 2-1401 was the
appropriate standard, plaintiff relies on this court’s decision
in Gruss v. Beverley, 201 Ill. App. 3d 502, 559 N.E.2d 135
(1990). In Gruss, the trial court entered an order of default
against the defendants on October 26, 1988. A prove-up hearing
was set for November 18, 1988. After neither defendants nor
their counsel appeared at the prove-up, the trial court entered
judgment in the plaintiff’s favor. On November 23 the defendants
filed a motion to vacate the October 26 order of default. On
December 27 the defendants filed an amended motion to vacate the
November 18 default judgment. After the plaintiff argued the
December 27 amended motion to vacate was brought more than 30
days after the November 18 default judgment, the trial court said
it would treat the amended motion to vacate as a section 2-1401
petition. Gruss, 201 Ill. App. 3d at 504.
In finding the trial court did not abuse its discretion in
treating the amended December 27 motion as a section 2-1401
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petition, this court noted no explanation was offered for the
time lapse between the entry of the judgment on November 18 and
the filing of the amended motion to vacate default and judgment
on December 27. Gruss, 201 Ill. App. 3d at 507. The court noted
that although the defendant clearly knew about the entry of the
November 18 judgment, the amended motion to vacate the judgment
was not filed within 30 days of its entry. Gruss, 201 Ill. App.
3d at 507. The court held that “[i]f defendants’ motion had been
filed by December 18, the provisions of section 2-1301 would have
permitted the court to vacate the judgment on such terms and
conditions as it elected to impose.” Gruss, 201 Ill. App. 3d at
507. Because defendants’ motion was filed 10 days after the
expiration of the 30-day period, however, it was properly
considered under section 2-1401. Gruss, 201 Ill. App. 3d at 507.
More recently, this court has recognized an order of default
is not a final judgment because it does not dispose of the case
and determine the rights of the parties. Fidelity National Title
Insurance Co. of New York v. Westhaven Properties Partnership,
386 Ill. App. 3d 201, 211, 898 N.E.2d 1051 (2007). Instead, “an
order of default is simply an interlocutory order that precludes
the defaulting party from making any additional defenses to
liability but in itself determines no rights or remedies.”
Fidelity National Title Insurance, 386 Ill. App. 3d at 211.
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Supreme Court Rule 304(a) provides “any judgment that adjudicates
fewer than all the claims or the rights and liabilities of fewer
than all the parties *** is subject to revision at any time
before the entry of a judgment adjudicating all the claims,
rights, and liabilities of all the parties.” 210 Ill. 2d R.
304(a).
The default judgment is the specific act that terminates the
litigation and decides the dispute. Wilson v. Teloptic Cable
Construction Co., 314 Ill. App. 3d 107, 111, 731 N.E.2d 899
(2000). “It is final if it grants the plaintiff relief and
either resolves the case entirely or is final as to one party or
cause of action and is certified in accord with the requirements
of Supreme Court Rule 304(a).” Wilson, 314 Ill. App. 3d at 111-
12. A default judgment is comprised of two factors: “(1) a
finding of the issues for the plaintiff; and (2) an assessment of
damages.” Wilson, 314 Ill. App. 3d at 112. “Section 2-1301(e)
is available to seek relief from any nonfinal order of default or
from a final default judgment within 30 days of its entry.”
(Emphasis in original). Stotlar Drug Co. v. Marlow, 239 Ill.
App. 3d 726, 728, 607 N.E.2d 346 (1993).
Applying the above factors to the present case, it is clear
the October 5, 2007, order granting plaintiff’s motion for
default constituted only an interlocutory order of default, not a
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final default judgment for the purposes of section 2-1301(e) of
the Code. The final and appealable default judgment in this case
was entered following the prove-up hearing on June 9, 2008, when
the trial court found in plaintiff’s favor and awarded $700,000
in damages. See Wilson, 314 Ill. App. 3d at 112.
Defendant had the right to seek relief under section 2-
1301(e) from any nonfinal order of default entered in the case or
from a final default judgment within 30 days of its entry. See
Stotlar, 239 Ill. App. 3d at 729. Nothing in section 2-1301(e)
suggests defendant was required to file two motions in order for
the trial court to properly vacate the order of default and
default judgment. Therefore, a section 2-1301(e) motion to
vacate the default should have been considered timely up to 30
days after the final default judgment was entered on June 9,
2008. See 735 ILCS 5/2-1301(e) (West 2008); Washington Mutual
Bank, F.A. v. Archer Bank, 385 Ill. App. 3d 427, 432, 895 N.E.2d
677 (2008).
Defendant filed his request to vacate the default judgment
entered in this case on July 9, 2008, within the 30-day window
following entry of the final judgment. Accordingly, we find the
trial court erred in determining defendant’s motion to vacate
should be evaluated under section 2-1401, not section 2-1301(e).
See 735 ILCS 5/2-1301(e) (West 2008); Stotlar, 239 Ill. App. 3d
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at 729.
Because the trial court did not evaluate defendant’s motion
to vacate under the standards for a section 2-1301(e) motion, we
find it necessary to remand the matter for reconsideration under
those standards. See Washington Mutual Bank, F.A., 385 Ill. App.
3d at 432.
CONCLUSION
We affirm in part, reverse in part, and remand the matter
for further proceedings consistent with this opinion.
Affirmed in part and reversed in part; cause remanded.
TOOMIN, P.J., and SMITH, J., concur.
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