APPEAL from the Circuit Court of Du Page County; the Hon.
ROBERT COX, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 14, 1982.
The defendant, Reliable Welding Co., appeals from an ex parte judgment against it for $6,867.50 in favor of the plaintiff, Albert S. Teitelbaum, and dismissal of defendant's counterclaim, and the trial court's order denying its motion to vacate that judgment. The defendant raises three issues on appeal: (1) that the trial court erred in refusing to grant defendant a continuance of the trial date and in entering judgment against it; (2) that the court below erred in denying defendant's motion to vacate the judgment; and (3) that the trial court improperly denied its motion to transfer venue in this cause from Du Page County to Cook County.
On August 14, 1979, the plaintiff filed a complaint against defendant in which he alleged that he had performed certain drafting services for the defendant in connection with the construction of two buildings on Wacker Drive in Chicago; that the defendant owed him $13,107 for the services performed but had only made payments in the amount of $6,239.50; and that the defendant was still indebted to him in the sum of $6,867.50.
Defendant, which was served with summons on August 21, 1979, entered its appearance on September 6, 1979. Approximately three weeks later, on September 28, 1979, defendant filed a motion to transfer the cause from Du Page County to Cook County, where it maintained venue was proper. Subsequently, the hearing on the motion to transfer venue was continued on three occasions apparently by agreement of the parties, until March 14, 1980. On March 14 the plaintiff was granted leave to substitute attorneys, and the venue question was further continued until April 8, 1980. Then, on April 8 the hearing concerning the venue issue was continued for a fifth time. On that occasion, counsel for the plaintiff represented to the court that defense counsel wished to continue the hearing on the transfer of venue matter and that he had no objection to a short continuance. Accordingly, the court continued the matter to May 2, 1980. On May 2, the defendant apparently entered a tardy appearance after the court had passed the venue matter and after counsel for the plaintiff had departed the courthouse. The motion to transfer venue was again continued, this time until May 23, 1980. On that date the court conducted a full hearing on the motion to transfer venue, denied the motion, and gave the defendant 35 days to answer or otherwise plead. The record on appeal, however, does not include a transcript or bystander's report of the May 23, 1980, hearing.
On July 10, 1980, the plaintiff moved for and obtained an order of default against defendant for its failure to file an answer or otherwise plead within the 35-day limit which the court had earlier set, and the cause was continued to July 30, 1980, for a prove-up on the issue of the plaintiff's damages. In the interim, on July 16, 1980, new counsel filed a motion in which it sought: (1) to vacate the default judgment; (2) leave to file a substitution of attorneys; (3) leave to file its answer instanter; and (4) leave to file a counterclaim within 28 days. The court granted the motion in all respects on July 16.
In its answer, defendant denied that plaintiff had successfully performed the architectural services it had requested in that plaintiff failed to complete the project. In its counterclaim, defendant alleged that plaintiff negligently and wrongfully failed to provide architectural drawings in accordance with the specified structural design requirements; that as a result of this failure, defendant fabricated materials in dimensions not appropriate for the construction project; and as a consequence of the "misfabrication," defendant had to expend over $28,311.38 to correct the defects which plaintiff caused.
Plaintiff sent notice to defendant on January 22, 1981, that he would appear in court on January 28, 1981, and move for a definite trial date. On January 28, the court set the matter for trial at 1:30 p.m. on May 8, 1981. It is not disputed that defendant's attorney was thereafter notified of this trial date. It also should be noted that prior to this date interrogatories and requests for admissions of facts were filed and answered, documents requested, and a bill of particulars filed and answered.
On May 6, 1981, counsel for the defendant, Michael P. McClelland, of Kusper & Raucci, Chartered, telephoned counsel for the plaintiff, William F. Linkul, to inform Linkul that he was unable to be in court in Du Page County on May 8, 1981, because he had been ordered by the Cook County Circuit Court to act as an arbitrator in another matter. McClelland told Linkul that the attorney in the law firm who had been handling defendant's case had left the law firm, and on May 6, the firm realized that the matter was coming to trial and he was reassigned to the case. McClelland asked Linkul to inform the court of these circumstances and request a continuance. Linkul replied that he would so inform the court, but he would also answer ready for trial on behalf of the plaintiff. On May 6, McClelland also contacted by telephone the secretary of the judge who was handling the case to inform her of the same circumstances. He requested that she relate this to the judge and inform the judge that he, McClelland, would not appear for trial on May 8, 1981.
On May 8, 1981, counsel for plaintiff appeared for the scheduled trial date, whereas neither defendant nor his counsel appeared. At that time Linkul advised the court of the telephone call from McClelland. Linkul also informed the court that he had told McClelland he would convey the substance of McClelland's remarks to the court but that he would answer ready for trial on behalf of the plaintiff and that he believed McClelland was risking the entry of a default judgment by not appearing on May 8 because the Du Page County court does not take as casual an approach to continuing cases as McClelland may be used to in Cook County. When plaintiff answered ready for trial, the court entered an order of default against defendant. After a prove-up of plaintiff's case and testimony concerning his damages, the court entered judgment in his favor and against defendant in the sum of $6,867.50 and dismissed with prejudice defendant's counterclaim.
Subsequently, on May 29, 1981, defendant filed an unverified motion to vacate the default judgment. An identical, verified motion was filed on June 9, 1981. This verified motion signed by Attorney McClelland, stated in pertinent part that the attorney previously responsible for handling this case was no longer employed by the law firm; that due to inadvertence, the case was not assigned to him until May 6, 1981, two days prior to the trial; that he was assigned to act as an independent arbitrator in the case of Thompson v. Coronet Insurance Co. and that he was scheduled to conduct the arbitration hearing in that case at the law firm's office on May 8, the same day of the trial in the present case; that on May 6 he informed counsel for the plaintiff of the prior legal conflict and his inability to proceed to the trial; that he called the trial judge's office on May 7 and related to the judge's secretary the "misassignment" of the case in the law firm's office, the fact that he was previously engaged on May 8, that counsel for plaintiff had been informed and had no objection to a continuance, and in response to her informing him that someone would have to appear before the judge on May 8 and request the continuance, informed her that the plaintiff's attorney had agreed to do so; and that the cause cannot be tried until plaintiff's deposition has been conducted. Plaintiff filed an objection to the motion which was accompanied by an affidavit of his attorney and a memorandum of law. The affidavit by Attorney Linkul inter alia stated that from January 28, 1981, to the trial date no depositions were requested by defendant; that he informed Attorney McClelland that Rule 231(f) was strictly adhered to in Du Page County and the chances were good that the matter would proceed to trial on May 8; that contrary to McClelland's affidavit, he did not state he had no objection to a continuance, but would respond, if asked by the court, "ready for trial"; and that he told McClelland that if no one appeared for defendant, the court would default defendant and might proceed to prove up damages. Defendant then filed a response to plaintiff's objection. On July 15, 1981, the court entered a written memorandum of decision in which it denied defendant's motion to vacate the default judgment. In its memorandum of decision denying the defendant's motion to vacate the default judgment, the trial court stated that it found no authority for presenting motions for continuance by means of the telephone or through opposing counsel and that, consequently, the defendant had not presented the court with an appropriate motion for a continuance. A week later, on July 22, 1981, the court entered an order in accordance with its written memorandum of decision. Thereafter, the court denied another motion filed by defendant which sought to set aside the order of July 22 and for rehearing on defendant's original motion to vacate the judgment.
The defendant's first contention on appeal is that, contrary to the trial court's conclusion, its communication with the plaintiff's attorney, Linkul, and Linkul's subsequent explanation to the court on the day of trial that defense counsel was presently engaged in an arbitration hearing, as well as the defendant's May 7 telephone call to and conversation with the judge's secretary, constituted a motion for a continuance, the denial of which was an abuse of discretion.
• 1-3 Section 59 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 59) provides in part:
"§ 59. Extension of time and continuances. On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the ...