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12/21/88 Allstates Tool Corporation v. Arachnid

December 21, 1988

ALLSTATES TOOL CORPORATION, PLAINTIFF AND COUNTERDEFENDANT AND JUDGMENT DEBTOR-APPELLEE

v.

ARACHNID, INC., DEFENDANT AND COUNTERPLAINTIFF AND JUDGMENT CREDITOR-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

532 N.E.2d 505, 177 Ill. App. 3d 573, 126 Ill. Dec. 820 1988.IL.1850

Appeal from the Circuit Court of Cook County; the Hon. Jacques F. Heilingoetter and the Hon. William A. Kelly, Judges, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant/counterplaintiff, Arachnid, Inc. (Arachnid), appeals from an order of the trial court which: (1) vacated a dismissal for want of prosecution against plaintiff/counterdefendant, Allstates Tool Corporation (Allstates), on its complaint; and (2) vacated a default judgment entered against Allstates on Arachnid's counterclaim. On appeal defendant asserts that the trial court improperly proceeded sua sponte in vacating the default judgment and dismissal for want of prosecution more than 3 1/2 years after final judgment was entered in the cause. Further, defendant asserts that the trial court failed to meet the requirements of section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401) in entering the order.

For the reasons stated below, we reverse the judgment of the circuit court and remand the matter to the trial court.

The record indicates the following. On December 23, 1981, plaintiff filed its complaint against defendant to recover the unpaid balance of the purchase price of certain goods. Arachnid filed an answer and counterclaim, asserting that the goods were nonconforming and seeking damages for breaches of warranties. Allstates failed to appear for a scheduled pretrial conference on December 23, 1983. On that date, Judge William Kelly entered an order dismissing Allstates' complaint for want of prosecution and entering a default judgment against Allstates on Arachnid's counterclaim. Judge Kelly ordered the matter sent to an assignment Judge for a prove up of damages on the counterclaim. After a hearing on January 30, 1984, Judge Jacques Heilingoetter entered an order in favor of Arachnid and against Allstates, on the prove up of the counterclaim, in the amount of $45,061.23.

Allstates filed a petition to vacate the judgment. After a hearing on May 30, 1984, Judge Heilingoetter denied the petition. On June 21, 1984, Allstates filed a motion for rehearing. After a hearing on July 12, 1984, Judge Heilingoetter vacated the default order on the issue of damages only and returned the matter to the trial call for a hearing on damages only. On July 27, 1984, Judge Heilingoetter entered a nunc pro tunc order which corrected a clerical error in the order of July 12, 1984. There is no objection in the instant appeal to the clerical correction.

On July 30, 1984, Arachnid filed a notice of appeal from the order of July 12, 1984, and the corrected order of July 27, 1984. Also on July 30, 1984, Judge Kelly entered an order which reinstated the cause, vacated the default on the counterclaim, and set the matter for pretrial. Arachnid then filed a motion to strike Judge Kelly's order. On October 26, 1984, Allstates filed a motion in this appellate court for leave to supplement the record on appeal by including Judge Kelly's July 30, 1984, order. This court granted Allstates' motion to supplement and denied Arachnid's motion to strike the supplementation.

This court heard oral argument on Arachnid's appeal on October 30, 1985. An order pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23) disposing of the appeal was filed on March 19, 1986. Upon the denial of Arachnid's petition for rehearing, a supplemental Rule 23 order was issued on July 9, 1986. This court held that the entry of Judge Kelly's order on July 30, 1984, rendered moot the issues raised on appeal. The order held that the issue of the propriety of Judge Kelly's order was not properly before this court. Arachnid's appellate brief failed to contest the propriety of Judge Kelly's order, and Arachnid's notice of appeal failed to mention Judge Kelly's order. Further, Arachnid's assertion that Judge Kelly's order was entered after the notice of appeal was filed was not supported by the record. This court accordingly dismissed defendant's appeal.

On June 16, 1987, Arachnid filed in the trial court a motion to vacate Judge Kelly's order of July 30, 1984, as void, and an affidavit of counsel Julie Rosner. Rosner's affidavit indicates that counsel for Arachnid had received two separate notices of Allstates' motion to vacate. The notices of motion specified that a hearing on the motion was scheduled for 2 p.m. on July 30, 1984, before Judge Sorrentino. Rosner appeared in Judge Sorrentino's courtroom at 2 p.m. on July 30, 1984, but could not locate counsel for Allstates. The motion call record book indicated no such motion set by Allstates for that time. Rosner was unable to reach Allstates' counsel by telephone. Later that afternoon, counsel for Allstates telephoned Rosner and informed her that Judge Kelly had granted the motion ex parte that afternoon. Rosner went to Judge Kelly's courtroom on July 31, 1984, and Judge Kelly indicated he entered the ex parte order after a hearing at 2 p.m. on July 30, 1984.

Allstates filed a brief in opposition to the motion to vacate and an affidavit of counsel Sheila Murphy. The affidavit indicates that Murphy was informed by an associate of her co-counsel that the motion to vacate had been set on Judge Sorrentino's call for July 30, 1984. Murphy sat through Judge Sorrentino's motion call on that date. When the matter was called, Murphy approached the bench and handed Judge Sorrentino the motion. Judge Sorrentino asked why the case was before him. Murphy responded that she had been informed that Judge Kelly was ill. Judge Sorrentino stated that Judge Kelly was sitting and that the matter should be heard by Judge Kelly. Murphy then appeared before Judge Kelly. As Arachnid indicates, Murphy's affidavit fails to attach a copy of the motion. The affidavit states that the written motion Murphy presented to Judge Sorrentino on July 30, 1984, could not be located and apparently was kept by the Judge.

On July 8, 1987, Arachnid filed a reply memorandum and supplemental affidavit of Julie Rosner. The affidavit indicates that Rosner sat through the motion call in courtroom 2005 (apparently Judge Sorrentino's courtroom) from around 2 p.m. to around 4 p.m. on July 30, 1984, but ...


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