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Solomon v. Arlington Park Race Track Corp.

OPINION FILED OCTOBER 16, 1979.

PAUL D. SOLOMON, PLAINTIFF-APPELLANT,

v.

ARLINGTON PARK/WASHINGTON PARK RACE TRACK CORPORATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL P. COMAN, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of Cook County granting defendant's petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72) to vacate a default judgment that had been entered by the trial court. Plaintiff's primary contention on appeal is that defendant's petition was insufficient to warrant section 72 relief because defendant's failure to appear and defend resulted from its own negligence.

On November 23, 1976, plaintiff, Paul D. Solomon, filed a complaint against defendant, Arlington Park/Washington Park Race Track Corporation, charging defendant with false arrest, trespass, and unlawful search and seizure in violation of the United States and Illinois constitutions. Defendant operates a thoroughbred horse racing track known as Arlington Park, located in Arlington Heights, Illinois. Plaintiff was employed as a groom at the track; with his wife and child, plaintiff resided on the grounds of the track in an apartment which he rented from defendant. The complaint alleged that on July 28, 1976, several of defendant's security guards burst into plaintiff's room and proceeded to search it. They discovered a large quantity of prescription drugs, some for which there were prescriptions and some which plaintiff alleged had been dispensed by a doctor without prescriptions, as well as some over-the-counter medicines. Plaintiff alleged that defendant's agents unlawfully seized the medicine, arrested defendant, and caused him to be imprisoned and charged with a felony. Plaintiff alleged that the evidence seized was ultimately suppressed and returned to him and that the charge against him was dismissed. Plaintiff claimed that as a result of defendant's unlawful actions, he was caused to hire an attorney and was so damaged in his personal and professional reputation that he was unable and possibly would continue to be unable to find employment in the horse-racing business, wherefore plaintiff sought damages in excess of $15,000.

On November 30, 1976, defendant was served with summons and a copy of the complaint at its place of business in Arlington Heights. Service was effectuated upon Sheldon N. Robbins, defendant's treasurer and assistant secretary, who serves as agent for the defendant corporation in accepting service of process and receiving all other legal documents addressed to defendant. When defendant failed to file its appearance or answer within 30 days, on January 3, 1977, plaintiff's attorney mailed a notice of motion to defendant at the same address where defendant had been served with process and which defendant gives as its address. The notice stated that on January 10, 1977, plaintiff would appear before Judge Giliberto in the circuit court and "move the Court to default the defendant and to set this cause for prove-up on damages." Plaintiff's attorney stated on oath that he served the notice by mailing it.

On January 10, 1977, on the date and in the courtroom specified in the notice, an order of default was entered by Judge Giliberto. The order provided:

"Order of Default. On motion of plaintiff: The Court finds that defendant was duly served with Summons and Complaint and was duly served with Notice of Motion. Defendant has failed to appear. It is ordered that the defendant ARLINGTON PARK/WASHINGTON PARK RACE TRACK CORPORATION is in default and the complaint is confessed against him [sic]. It is further ordered that this cause be and the same is hereby transferred to Judge P.A. Sorrentino, instanter, for prove-up."

Judge Sorrentino then set the cause "for prove-up on January 19, 1977 at 10:00 a.m. without further notice." Notice of the prove-up appeared in the Chicago Daily Law Bulletin on January 18, 1977. On January 19, Judge Sorrentino ordered the cause assigned to Judge Higgins for trial. On the same day, a jury was empaneled and plaintiff offered proof of his damages. The jury returned a verdict in favor of plaintiff in the sum of $50,000. Notice of the entry of judgment on the verdict appeared the next day in the Chicago Daily Law Bulletin.

Plaintiff did not procure execution of the judgment within 30 days, nor had any attempt to do so been made when, on May 11, 1977, defendant filed its petition to vacate the default judgment pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). In its petition and supporting affidavits, defendant acknowledged that summons had been served on Robbins, defendant's agent for service of process. The procedure Robbins normally follows is to forward suit papers to defendant's accounting department, which prepares a chronological record of all lawsuits involving defendant and which then forwards the papers to defendant's legal counsel. However, in the instant case, according to defendant, an unintentional deviation from this procedure occurred. Somewhere in transit from Robbins to the accounting department, the summons and complaint were misfiled with documents relating to a wholly different matter. As a result, the lawsuit was not included in the record of cases prepared by defendant's accounting department and therefore the accounting department never had occasion to confirm, in accordance with its normal procedure, that counsel ever received the summons and complaint. An accounting department employee discovered the documents in April of 1977, while reviewing the unrelated documents among which they had been misfiled. After it was determined that the documents had not been forwarded to defendant's counsel, they were so forwarded. A few weeks later, defendant filed its section 72 petition.

Defendant's petition then stated that defendant never received a copy of plaintiff's notice of motion, with which the affidavit of Robbins, defendant's agent for receiving legal documents, was in accord. The petition also stated that notice of the proveup was never given or received, and that "under the circumstances set forth below" the jury's verdict of $50,000 was "grossly excessive." Defendant's petition then set forth facts, accompanied by affidavits, going toward the existence of a defense on the merits. The petition and affidavits essentially alleged that one of defendant's security guards was on patrol when he saw two persons leaving plaintiff's room, at which time he detected the odor of marijuana. He approached the two and saw them pass a container, which, upon inspection, he found to contain marijuana. He contacted his superiors; after placing the person in possession of the container in custody, some of the officers entered plaintiff's room. Plaintiff allegedly admitted that marijuana had been smoked in the room, but he denied that he had anything illegal and he allegedly authorized a search of his room. The officers found various items used in smoking marijuana, as well as a large shopping bag filled with numerous pills and drugs, many of which were marked "prescription only." When plaintiff said that he did not have prescriptions for all the drugs, including some narcotics, defendant's officers arrested him. They then contacted the authorities and plaintiff, with the shopping bag, was transported to the police station and charged with possession of a controlled substance. The petition ended by stating that neither the arrest, the search, nor the seizure was unlawful, violated any of plaintiff's constitutional rights, or gave rise to any cause of action alleged in the complaint.

Although plaintiff did not file an opposing pleading, he did file various memoranda in opposition to defendant's petition, along with supporting affidavits containing testimony given before the Illinois Racing Board as well as averments by plaintiff's attorney as to the facts relating to service and notice, set out above. However, the chief factual dispute was raised by plaintiff's affidavit to the effect that representatives of defendant contacted him directly on three separate occasions after he filed the instant lawsuit on November 23, 1976. Plaintiff first alleged that in early December of 1976, while he was working as a salesman at an automobile dealer, he was approached by a man ostensibly interested in buying a car. The man then told plaintiff that he was from Arlington Park Race Track and that if plaintiff dropped his lawsuit, he could come back to the race track to work, but if he did not, he would not be able to work on any track anywhere. Plaintiff said he would think it over and discuss it with his wife.

Plaintiff next averred that a few weeks after the ex parte trial and judgment in his favor, another man apparently interested in purchasing a car revealed himself as a representative of defendant. The man told him that if plaintiff would sign some papers to drop the judgment, defendant would get him a trainer's license. Plaintiff again said he would discuss it with his wife. Plaintiff's affidavit then stated that sometime near the end of June 1977, someone from defendant contacted him and asked what he had decided to do about the offer, and plaintiff said that he was going to persist in court. Plaintiff's affidavit also stated that the drug charge against him was stricken for no probable cause and on motion of the State's Attorney.

In response, defendant filed another affidavit by its agent, Robbins, averring that he made inquiries of appropriate personnel and that to his knowledge, no employee or agent on behalf of defendant contacted plaintiff regarding his action, nor was any employee or agent authorized to do so. Robbins stated that until the misfiling of the summons and complaint was discovered, no one other than himself, upon whom service was made, had or could have had any knowledge of the lawsuit or the subsequent hearing assessing damages. The trial court entered an order granting defendant's petition to vacate plaintiff's judgment and giving defendant leave to plead to the complaint, from which order plaintiff appeals.

• 1 Although plaintiff filed no pleading in response to defendant's petition, plaintiff did file affidavits and memoranda of law in opposition, and defendant has never argued that plaintiff waived his opportunity to challenge the petition. Defendant does point out that, as we have noted, the chief factual dispute raised by the affidavits related to defendant's alleged extra-judicial contacts with plaintiff, a question which the trial court must have resolved in defendant's favor. In any event, this matter aside, and the absence of a responsive pleading notwithstanding, defendant's section 72 petition remains open to attack on the ground that it fails to state a claim upon which relief can be granted and is therefore insufficient as a matter of law. Norvell v. Howard (1979), 72 Ill. App.3d 698, 391 N.E.2d 101; M.L.C. Corp. v. Pallas (1978), 59 Ill. App.3d 504, 375 N.E.2d 560.

Plaintiff's challenge is precisely upon this basis. Citing the well-known rule that section 72 "`is not intended to relieve a party of the consequences of his own mistake or negligence'" (Esczuk v. Chicago Transit Authority (1968), 39 Ill.2d 464, 467, 236 N.E.2d 719, quoting Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 505, 165 N.E.2d 294), plaintiff contends that defendant's petition was insufficient as a matter of law because on its face it amounts to an admission of negligence on the part of defendant. In addition to the cases cited above, plaintiff relies on various cases in which petitions were held inadequate to justify section 72 relief. (See Diacou v. Palos State Bank (1976), 65 Ill.2d 304, 357 N.E.2d 518; Summit Electric Co. v. Mayrent (1977), 54 Ill. App.3d 173, 369 N.E.2d 319; King v. Equity Mortgage Corp. (1977), 52 Ill. App.3d 141, 367 N.E.2d 268; Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App.3d 667, 360 N.E.2d 1355; Hogan & Farwell, Inc. v. Meitz (1976), 45 Ill. App.3d 216, 359 N.E.2d 740; Bartolini v. Popovitz (1969), 108 Ill. App.2d 89, 246 N.E.2d 834.) Of these, the closest case is King v. Equity Mortgage Corp., in which the petitioner claimed that its failure to appear in response to two notices was due to "a change of personnel and clerical error * * *." In reversing an order granting the section 72 petition, the court stated that the petitioner's recital appeared to be an admission of negligence, rather than a matter of excusable error, and the court held that the petitioner had failed to meet its burden of alleging facts justifying relief. 52 Ill. App.3d 141, 142; see also Swindle v. Hearst (1976), 44 Ill. App.3d 605, 358 N.E.2d 1258 (affirming a denial of a motion to vacate under section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 50(5)) over a defendant's claim ...


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