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Miller v. Balfour

February 26, 1999

JOHN W. MILLER, PLAINTIFF-APPELLANT,
v.
ROBERT L. BALFOUR, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Rapp delivered the opinion of the court:

Appeal from the Circuit Court of Kane County. No. 96--L--0311

Honorable Timothy Q. Sheldon, Judge, Presiding.

Plaintiff, John W. Miller, appeals from an order entered April 13, 1998, granting the petition of defendant, Robert L. Balfour, to vacate a summary judgment order pursuant to section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 1996)). The summary judgment order granted plaintiff's petition to register a clerk's default judgment from the State of California. The decision of the trial court granting defendant's motion to vacate the summary judgment order found that the California judgment was void because it violated California law and, therefore, was not entitled to full faith and credit in the State of Illinois. On appeal, plaintiff argues that the doctrine of res judicata barred defendant from attacking the validity of the California judgment and that the trial court erred in finding that the California judgment was void. We affirm.

The facts presented are gleaned from affidavits and sworn pleadings, as there was no evidence taken. Both parties to this appeal are attorneys, plaintiff in California and defendant in Illinois. The issues created in this appeal began late in 1989 when plaintiff from California contacted defendant in Illinois seeking a financial relationship to purchase certain real estate in California to develop and resell for profit. Based upon plaintiff's solicitations, defendant sent $150,000 by wire. According to defendant, plaintiff executed a promissory note to defendant for $112,500, representing 50% of defendant's investment and a preferred return on investment. The trial court record indicates that no formal written agreement was ever entered into by these attorneys defining their relationship or responsibilities to each other in this apparent business transaction. Whatever the exact arrangement was, it failed as a successful investment.

On September 15, 1994, plaintiff filed a lawsuit in the Superior Court of the State of California, Ventura County. The complaint contained four counts: count I for breach of contract; count II for breach of partnership; count III for declaratory relief; and count IV for contribution. Each count sought damages of $400,000. Defendant was served with summons in Illinois on December 2, 1994. The California summons indicated that defendant had 30 days to file a written response. Although the summons was issued on September 15, 1994, it was not delivered to the sheriff of Kane County, Illinois, for service until November 16, 1994.

During this period of time, plaintiff sent a letter to defendant seeking a settlement where both parties would agree that neither owed the other any money. An agreement was enclosed that was already signed by plaintiff and dated November 3, 1994. On November 20, 1994, defendant purportedly signed, dated, and sent the settlement agreement back to plaintiff with a cover letter stating, "If you do not follow through and dismiss with prejudice I will proceed accordingly on the assumption you wish to continue your fraudulent conduct." Plaintiff, by affidavit, denies ever receiving the settlement agreement.

On December 5, 1994, plaintiff purportedly sent defendant a facsimile transmission cover sheet with the following message:

"We have nothing to discuss regarding the lawsuit. Please sign the settlement agreement and return it to me and cancel the 'note' and I will dismiss the lawsuit. I don't want to have any claim against me now or in the future from you saying I owe you any money for anything or from someone else claiming I owe money on the 'note'."

On January 3, 1995, defendant, as indicated by his affidavit, transmitted via facsimile an answer and counterclaim to the clerk of the California court. Apparently, the court clerk did not accept the documents for filing because the documents lacked a proof of mailing. Defendant claims he was never informed of the rejection of his responsive pleadings.

On January 24, 1995, plaintiff obtained a default judgment, entered by the clerk of the court, against defendant in the amount of $400,000 in damages, $41,972.60 in interest, and $204 in recoverable costs. The default judgment does not indicate on which claim it was entered, and the judgment was never presented to a Judge for approval. Defendant denies receiving notice of plaintiff's intent to obtain a default judgment. California law apparently does not require the plaintiff to send the defendant notice that a default judgment has been entered.

On July 17, 1996, plaintiff filed a petition for registration of foreign judgment in Kane County, Illinois. In that petition, plaintiff sought to register the California default judgment against defendant. A certified copy of that default judgment was attached to the petition.

On August 16, 1996, defendant filed an objection to plaintiff's petition for registration of foreign judgment. Among other allegations, defendant set out the history of the proceedings recited above and challenged the personal jurisdiction of the California court. In his objection, defendant, under oath, reiterated his contact with the California court clerk on the proper procedures for filing his answer and counterclaim. Defendant states that he filed those documents and served copies on plaintiff's counsel. Defendant further stated that he was contacted by plaintiff's insurance carrier regarding the counterclaim.

The trial court allowed the parties to respond to each other's briefs and arguments. Plaintiff then filed a motion for summary judgment and scheduled it for hearing on December 2, 1996. On that date, the court gave defendant until January 15, 1997, to file his response to the motion for summary judgment. On January 28, 1997, the hearing on the motion for summary judgment was rescheduled for March 4, 1997. The order indicates that both defendant and plaintiff's counsel were present in court.

On March 4, 1997, plaintiff appeared and argued his motion for summary judgment. Neither defendant nor his counsel appeared. The court granted summary judgment and allowed the registration of the California judgment pursuant to the Uniform Foreign Money-Judgments Recognition Act (735 ILCS 5/12--618 et seq. (West 1996)). The order entered on that date stated that the judgment ...


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