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07/13/89 Wilkin Insulation Company, v. Bill Holtz

July 13, 1989

WILKIN INSULATION COMPANY, PLAINTIFF

v.

BILL HOLTZ, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE (STEVEN EDELSON ET AL., THIRD-PARTY, DEFENDANTS-APPELLANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

542 N.E.2d 157, 186 Ill. App. 3d 151, 134 Ill. Dec. 157 1989.IL.1093

Appeal from the Circuit Court of Cook County; the Hon. Gerald S. Murphy, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JOHNSON and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Third-party defendant Edelson (defendant) appeals from the trial court's entry of a default judgment against him and in favor of third-party plaintiff Holtz (plaintiff) in the amount of $9,398.41.

The chronology of relevant events culminating in the trial court's judgment are summarized for review as follows. On December 5, 1985, Wilkin Insulation Company (Wilkin), which is not party to this appeal, filed a breach of contract action against plaintiff to recover $675 for insulation materials Wilkin supplied to plaintiff for use at a building owned by defendant on West Schubert Avenue in Chicago. On January 21, 1986, plaintiff filed his answer and affirmative defenses to Wilkin's complaint and a third-party complaint against defendant alleging that Edelson had failed to pay $5,234.56 for materials and labor provided by plaintiff in connection with the insulation of the building. Edelson was served with the complaint on February 10, 1986. On March 20, following defendant's failure to answer within the required time, plaintiff filed a motion for default judgment against defendant. After a hearing on April 4, at which defendant appeared through counsel, the trial court denied plaintiff's motion, granted defendant an additional 14 days to answer and set the matter for trial on May 30.

On May 28, defendant filed motions to transfer venue and compel discovery which were noticed for hearing on May 30, the scheduled trial date. In his motion defendant requested, inter alia, that plaintiff be ordered to submit to a deposition and that he (defendant) be given an additional 28 days thereafter to file his answer and a possible counterclaim. On May 30, the trial court denied defendant's motions to transfer venue and compel discovery but granted him an additional 28 days to answer plaintiff's complaint. On that same day, upon defendant's settlement with Wilkin for the $675 sought in Wilkin's complaint, Wilkin's action against plaintiff was dismissed.

On June 30, the trial court sua sponte entered a default judgment against defendant for failure to answer or otherwise respond to plaintiff's complaint, and set a proveup hearing for July 28, 1986. On that date, defendant filed a motion to strike and dismiss the complaint. This motion was continued to August 15, on which date the trial court vacated the default judgment entered on June 30 and dismissed plaintiff's complaint without prejudice.

On October 31, plaintiff filed a verified, first-amended complaint against defendant on theories of breach of contract, unjust enrichment and fraud. Counts I and II sought recovery of $4,163.85 for work done on the Schubert Avenue property, and counts III and IV sought $5,234.56 for services rendered in connection with another parcel of property located on Ravenswood Avenue. On November 19, defendant filed a motion to strike the first-amended complaint, to which plaintiff responded on December 5. Following a hearing on December 12, the trial court denied defendant's motion to strike, ordered him to answer the complaint by January 16, 1987, and set the matter for pretrial conference on January 30, 1987. On December 17, defendant filed a notice of deposition to depose plaintiff on December 24 and a set of interrogatories. On December 29, without notice to plaintiff, defendant filed an unsigned, unverified "answer" to the first-amended complaint. On January 28, 1987, plaintiff filed his second motion for default judgment against defendant. At the January 30 hearing thereon, the trial court, on defendant's request, extended the time for defendant to answer or otherwise plead to March 2, 1987.

In the course of the discovery proceedings over the next several weeks, the parties each filed motions for sanctions against the other. As a result of defendant's failure to file an answer by March 2, as ordered by the trial court, plaintiff filed his third motion for default judgment. On March 6, without notice, defendant filed an "Answer to the Motion for Default and a Motion to Extend Time to File Answer and Countercomplaint." The trial court denied defendant's motion and, over his objection, granted plaintiff's motion for default judgment for the full amount sought in the complaint.

On March 12, defendant filed a motion to vacate the default judgment and for leave to file an "amended answer and counterclaim" within 14 days. On April 22, the trial court vacated the default judgment and allowed defendant to substitute as an answer a signed, verified copy of the one filed on December 29, 1986, in which he denied the allegations in plaintiff's complaint and stated as an affirmative defense that the contract alleged therein was between the owners of the Ravenswood Avenue property and All American Construction Company (All American), a corporation in which he was an officer and shareholder.

On May 6, 1987, an agreed order was entered allowing plaintiff to file a second-amended third-party complaint adding All American as a third-party defendant, giving defendant and All American 21 days to file their answer and any counterclaims and providing for the completion of depositions at the courthouse in Niles, Illinois, at 10 a.m. on June 17. On June 5, plaintiff filed a fourth motion for default judgment against defendant for failure to answer his second-amended complaint within the time prescribed by the agreed order. On June 8, defendant and All American filed their answer to the complaint and All American also filed a counterclaim against plaintiff. On June 9, the trial Judge continued plaintiff's June 5 motion for default judgment until the afternoon of June 17, following the completion of the scheduled depositions.

Defendant filed his counterclaim on June 12. He did not, however, appear for the deposition on June 17. At the hearing later that day, the trial court ordered defendant to pay plaintiff's costs in connection with the deposition, granted plaintiff's motion to strike All American's counterclaim and granted plaintiff's motion for default judgment against defendant in the amount of $9,398.41 plus costs. The trial court also scheduled a hearing on the parties' earlier-filed motions for sanctions for August 12. On January 27, 1988, the parties entered into and filed an ...


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