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Braglia v. Cephus

OPINION FILED JULY 29, 1986.

DAVID BRAGLIA, PLAINTIFF-APPELLANT,

v.

SAMPSON CEPHUS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Walter J. Kowalski, Judge, presiding.

PRESIDING JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Plaintiff, David Braglia, brought this action seeking to recover damages for injuries sustained in a motor-vehicle accident on March 10, 1979. On July 31, 1984, the motion judge entered an order of default against the defendants for failure to answer the first amended complaint. The default order was vacated by the trial court on March 11, 1985, and the matter proceeded to trial on all issues. After trial, the jury returned a verdict in favor of plaintiff and against defendants. It found that plaintiff sustained damages in the sum of $400,000 and that plaintiff's own comparative fault was 81.25%. Plaintiff's recoverable damages were assessed at $75,000. Plaintiff filed this timely appeal.

Plaintiff's principal assignment of error is that the trial court wrongfully vacated the default order previously entered by the motion judge. Plaintiff also contends that the jury's finding that plaintiff was 81.25% comparatively negligent is against the manifest weight of the evidence, and that the trial court erred in refusing to admit into evidence a statement made by a deceased defendant to his insurance carrier.

Plaintiff's first amended complaint was filed on August 17, 1983. Except for the addition of the Illinois vehicle code citations to specific allegations of negligence or wilful and wanton misconduct, it was substantially identical to the original complaint. The defendants had an answer on file to the original complaint, which can be characterized as a stock defendant's answer denying the essential allegations of the complaint.

Defendants failed to answer the first amended complaint within the 28 days provided for in the August 17, 1983, order. On May 31, 1984, plaintiff moved for a default against the defendants for failure to answer. A hearing was held on July 3, 1984, before Judge Brian Duff. Although the defense attorney's failure to plead in a timely manner was improper, he moved to have the original answer stand as the answer to the first amended complaint. Judge Duff denied the request, entered a default order against the defendants, and ordered that the case be set for a prove-up of plaintiff's damages. Defendants' motion to vacate the default was denied on October 30, 1984.

On November 29, 1984, additional counsel entered their appearance for defendants. In addition to filing a timely notice of appeal from Judge Duff's order of default, they filed motions before Judge Edwin Berman of the law division for leave to file an answer instanter and to vacate the default. He transferred the motions to Judge Duff. On December 18, 1984, defendants filed a motion before the presiding judge of the law division suggesting the death of defendant Shelly and to vacate the default. These motions were also transferred to Judge Duff.

Recognizing that the default order was not appealable, the defendants withdrew their notice of appeal. On February 7, 1985, a hearing was held before Judge Duff, who again refused to vacate the default order. On March 11, 1985, the matter was set for prove-up before Judge Walter Kowalski.

On motion of defendants, Judge Kowalski vacated the default order and allowed defendants to file their answer to the first amended complaint. It was essentially identical to the original answer but also contained an affirmative defense of comparative negligence. The court offered plaintiff additional time to prepare, which was declined, and the case proceeded to trial.

I

• 1 Judge Duff's default entered on July 3, 1984, was an interlocutory order because it did not "terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial curt is only to proceed with the execution of the judgment." (Richichi v. City of Chicago (1964), 49 Ill. App.2d 320, 324, 199 N.E.2d 652, appeal denied (1964), 30 Ill.2d 627.) There must be a finding of damages before a default order becomes a final judgment. (Bruno Benedetti & Sons, Inc. v. O'Malley (1984), 124 Ill. App.3d 500, 503, 464 N.E.2d 292, appeal denied (1984), 101 Ill.2d 563.) The law is clear that interlocutory orders can be modified or vacated at any time prior to judgment, and it is permissible to have the same motion considered more than one time prior to judgment. Towns v. Yellow Cab Co. (1978), 73 Ill.2d 113, 121, 382 N.E.2d 1217.

• 2 The default order in this case is subject to section 2-1301(e) of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1301(e).) A motion to set aside a default is not a motion under section 2-1401, which governs relief from final judgments. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401.) Therefore, there is no requirement that the motion on its face show due diligence or a meritorious defense. Ruggiero v. Attore (1977), 51 Ill. App.3d 139, 143, 366 N.E.2d 470, appeal denied (1977), 66 Ill.2d 642.

Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill. App.2d 102, 108-09, 167 N.E.2d 799, appeal dismissed (1960), 19 Ill.2d 626, the leading case interpreting the forerunner to section 2-1301(e), held: "The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. * * * The entering of a default is one of the most drastic actions a court may take to punish for disobedience of its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits." (Emphasis added.)

As previously noted, an answer was filed to the original complaint. The first amended complaint was essentially identical except for the addition of statutory citations regarding the Illinois Vehicle Code. The defendants' request to adopt the original answer as their answer to the amended complaint put the plaintiff on notice that there was no change in the theory of the defense.

• 3 When plaintiff instituted this action in 1979, Illinois did not recognize the doctrine of comparative negligence. In 1981, while this case was pending, the Illinois Supreme Court held that comparative negligence shall apply to all trials commencing on June 8, 1981, or thereafter. (Alvis v. Ribar (1981), 85 Ill.2d 1, 28, 421 N.E.2d 886.) All litigants, including the parties to this case, were put on notice that the doctrine of comparative negligence would be applied to their trials. This trial commenced on March 13, 1985. At that time, a defendant was not required to plead comparative negligence as an affirmative defense. As of September 20, 1985, however, defendants would have been required to plead comparative negligence as an affirmative defense because of an amendment to section 2-613(d) of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-613(d).) Plaintiff had no reason to believe that the defendants would not invoke the ...


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