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07/13/87 John Kaput, v. William L. Hoey

July 13, 1987

JOHN KAPUT, PLAINTIFF-APPELLEE

v.

WILLIAM L. HOEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

512 N.E.2d 1269, 159 Ill. App. 3d 800, 111 Ill. Dec. 632 1987.IL.980

Appeal from the Circuit Court of Cook County; the Hon. Louis J. Giliberto, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. MANNING, J., concurs. JUSTICE CAMPBELL, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

This is an appeal from an order entered by the circuit court of Cook County denying defendant's petition to vacate a default judgment entered on January 23, 1983. An appeal is also taken from the amount of damages awarded plaintiff. For the following reasons, we affirm.

On August 12, 1980, plaintiff John Kaput filed a complaint against defendant William Hoey seeking damages "in excess of $15,000" for injuries sustained when he allegedly fell on ice near defendant's apartment building at 1308 North Greenview in Chicago. After defendant was served a copy of the complaint, he appeared pro se on September 8, 1980, but did not file an answer or otherwise plead to the complaint.

On December 6, 1982, plaintiff moved for a default judgment and to assign the cause for prove-up of damages. The motion was granted by Judge Thomas O'Brien on January 28, 1983, and the cause transferred to Judge P. A. Sorrentino. On May 14, 1984, Judge Philip Fleischman both set the cause for prove-up and, in a separate order, dismissed it for want of prosecution. On June 1, 1984, upon motion, the order of dismissal was vacated and costs for same were waived; the cause was reinstated and set for trial on June 12, 1984. On June 12, 1984, the cause was assigned to Judge Giliberto for prove-up, and plaintiff was subsequently awarded a judgment in the amount of $29,500 plus costs.

On June 11, 1986, Judge Giliberto signed a memorandum of judgment after which an original and two subsequent alias citations to discover assets were issued. Upon service of an alias, defendant appeared by counsel on October 7, 1985. On November 6, 1985, he filed a petition under section 2-1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401), to vacate the default judgment entered against him. The petition alleged that defendant was not informed of any of the proceedings mentioned above until after August 19, 1985, when he received an alias citation to discover assets. The petition further alleged that defendant had a meritorious defense to plaintiff's claim in that he "[had] information that plaintiff fell on a public walkway and not on a walkway under the control of the defendant, that plaintiff was contributorily negligent in causing his injuries and that defendant [ sic ] was not injured to the extent claimed." In support of the petition, defendant provided an affidavit in which defendant attested to the truth of the matters set forth in his petition.

At the hearing on his petition, defendant testified that between 1980, after plaintiff filed his complaint, and 1985, he "didn't hear a word" regarding the proceedings in question. He also stated that during that period, he was away from his residence at 3035 Knollwood in Glenview on three occasions due to marital difficulties, but he was uncertain as to the specific dates. With respect to his meritorious defense, defendant's testimony regarding his conversation with an unidentified woman who allegedly witnessed plaintiff's fall was prohibited on the ground it was hearsay.

After considering the above testimony, the trial court denied defendant's section 2 -- 1401 petition, reasoning that the petition lacked specificity and well-pleaded facts, and that defendant failed to produce evidence of a meritorious defense. After expressing doubts concerning defendant's credibility, the court also noted that defendant frustrated notice by refusing to claim certified mail from plaintiff's counsel on at least two occasions in 1981. It is from these rulings as well as the damages awarded plaintiff that defendant appeals.

Section 2-1401 of the Illinois Code of Civil Procedure provides the method for obtaining relief from final orders, judgments, and decrees after the expiration of 30 days from the date of entry. (Falcon Manufacturing Co. v. Nationwide Brokers, Inc. (1984), 123 Ill. App. 3d 496, 462 N.E.2d 562; Ill. Rev. Stat. 1983, ch. 110, par. 2-1401.) To warrant relief under section 2-1401, the petitioner must demonstrate the existence of a meritorious defense and the exercise of due diligence in presenting that defense and in filing the section 2-1401 petition. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381; Sterne v. Forrest (1986), 145 Ill. App. 3d 268, 495 N.E.2d 1304; Carroll Service Co. v. Schneider (1986), 144 Ill. App. 3d 38, 494 N.E.2d 253.) In considering such petition, the court should determine whether a party has wilfully disregarded the process of the court or is so indifferent to it that the party is chargeable with culpable negligence. (Verson Allsteel Press Co. v. Mackworth Rees, Division of Avis Industrial, Inc. (1981), 99 Ill. App. 3d 789, 426 N.E.2d 241.) Whether section 2-1401 relief should be granted lies within the discretion of the trial court, and upon appeal, the court of review may only determine whether the trial court abused that discretion. Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill. App. 3d 714, 471 N.E.2d 221.

Defendant initially contends that the trial court abused its discretion in not vacating the default judgment because plaintiff failed to notify defendant of the proceedings following his pro se appearance, defendant relied on misinformation from a circuit court clerk, plaintiff delayed the institution of proceedings, and defendant is entitled to his day in court. Under the circumstances of this case, each of these contentions is without merit.

With respect to the issue of notice of plaintiff's motion for default, when defendant filed his pro se appearance on September 8, 1980, he submitted a Knollwood address in Glenview, Illinois. Defense counsel conceded at the section 2 -- 1401 petition hearing that "we don't dispute the fact that the notice was sent to the address that they had currently for the defendant, we don't dispute the fact that they returned the service showing that they mailed it to that address." Moreover, the court's computerized printout of the case reveals that a notice ...


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