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Kulikowski v. Larson

May 17, 1999

LINDA A. KULIKOWSKI, PLAINTIFF-APPELLEE,
v.
BERNARD A. LARSON, DEFENDANT, AND CHARLES A. JENKINS, INDIVIDUALLY, AND D/B/A JEN CHAR LOUNGE, AND FIRST MIDWEST BANK/ILLINOIS, AS TRUSTEE UNDER TRUST AGREEMENT DATED APRIL 28, 1977, AND KNOWN AS TRUST NO. 2541, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 94--L--12868 Honorable William R. Penn Judge, Presiding.

The opinion of the court was delivered by: Justice Slater

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Defendants, Charles A. Jenkins (Jenkins) and First Midwest Bank of Illinois (First Midwest), appeal from the trial court's denial of their petition to vacate judgment pursuant to section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 1996)). On appeal, defendants contend that equitable considerations of substantial Justice and fairness required the trial court to relax or excuse the diligence requirement of section 2--1401 and grant their petition to vacate. For the reasons that follow, we affirm in part and vacate in part.

On September 21, 1994, plaintiff, Linda A. Kulikowski, filed a complaint against Bernard A. Larson, Jenkins, and First Midwest. In her complaint, plaintiff alleged that, on the evening of October 30, 1993, she had dinner with Larson. After dinner, plaintiff accompanied Larson to the Jen Char Lounge, a local tavern. Over the next several hours, Larson consumed a large amount of alcohol and became intoxicated. Plaintiff and Larson left the tavern and walked to Larson's automobile. Larson had parked the vehicle facing a wall. Larson started the vehicle's engine. Plaintiff then crossed in front of the vehicle on her way to the passenger side door. While she was crossing, the car lurched forward, pinned plaintiff against the wall, and crushed her right leg.

In count I of her complaint, plaintiff alleged that her injuries were a proximate result of Larson's negligence. In count II of her complaint, plaintiff alleged that Jenkins and First Midwest were liable to her under the provisions of the Dramshop Act (235 ILCS 5/6--21 (West 1992)) because they had caused Larson's intoxication. Plaintiff asked the court to enter a judgment finding Jenkins liable for $30,000 as compensation for her personal injury and $40,000 for her loss of means of support. Plaintiff asked that First Midwest be held liable in the same amounts for the same injuries.

Larson settled with plaintiff. Jenkins and First Midwest failed to answer the complaint. On December 12, 1995, plaintiff moved for, and was granted, a default judgment. On March 28, 1996, without notice to defendants, a hearing was held to prove-up the damages of the default judgment. That same day, the trial court entered an order finding Jenkins liable to plaintiff for $70,000 in damages and First Midwest liable in the same amount. Plaintiff notified defendants of this judgment in a letter dated January 20, 1997.

On March 30, 1998, Jenkins and First Midwest filed a petition to vacate the judgment. In their petition, defendants contended that: (1) neither of them is a party that can be held liable under the Dramshop Act; (2) plaintiff's complicity in Larson's intoxication would bar any recovery; (3) the Dramshop Act does not permit plaintiff to claim her own lost wages as loss of means of support; and (4) principles of substantial Justice and equity require that any lack of diligence be excused because the default judgment is unfair, unjust, and unconscionable. On this last point, defendants argued that the default judgment is unconscionable because: (1) the judgment itself is unjust; and (2) plaintiff's delay in providing defendants with notice of the entry of the judgment casts "a cloud on the proceedings."

Attached to the petition were several supporting documents. Among these documents was a land trust agreement for the premises of the Jen Char Lounge. Under the agreement, First Midwest was the land trustee and Jenkins was the sole beneficiary of the trust. Only Jenkins had the right to manage and control the premises. Also attached to the petition were state and county licenses authorizing Jen-Char, Inc., to sell alcoholic beverages on the premises of the Jen Char Lounge.

The trial court entered a written order denying defendants' petition. In its order, the court found that defendants "may have meritorious defenses to [p]laintiff's complaint and the amount of [damages]." However, the court ruled that defendants had failed to exercise the diligence necessary to maintain a section 2--1401 petition.

On appeal, defendants contend that equitable considerations of substantial Justice and fairness required the trial court to relax or excuse the diligence requirement of section 2--1401 and grant their petition to vacate.

Section 2--1401 of the Code of Civil Procedure provides a mechanism to vacate a final judgment after 30 days, but no later than two years, from its entry. 735 ILCS 5/2--1401(a),(c) (West 1996). In order to obtain relief under this section, the petitioner must show the following by a preponderance of the evidence: (1) the existence of a meritorious claim or defense; (2) due diligence in defending the original action in the trial court; and (3) due diligence in pursuing the section 2--1401 petition. Smith v. Airoom, 114 Ill. 2d 209, 499 N.E.2d 1381 (1986). However, the trial court may relax or excuse the exercise of diligence when necessary to provide relief from an unfair, unjust, or unconscionable judgment. Community 1st Credit Union v. Boswell, 302 Ill. App. 3d 739, 706 N.E.2d 520 (1999). A reviewing court will not disturb a trial court's decision to deny a section 2--1401 petition absent an abuse of discretion. Community 1st Credit Union, 302 Ill. App. 3d 739, 706 N.E.2d 520.

JUDGMENT AGAINST FIRST MIDWEST

First Midwest contends that it is not a party subject to liability under the Dramshop Act (the Act) (235 ILCS 5/6--21 (West 1992)). Specifically, First Midwest maintains that, as the land trustee for the premises of the Jen Char Lounge, it held nothing more than the naked legal title to the premises and could not be held liable as an "owner" under the Act.

In addition to sellers of alcoholic beverages, the Act imposes liability on any person owning, renting, leasing or permitting the occupation of any building or premises with knowledge that alcohol will be sold there. 235 ILCS 5/6--21(a) (West 1992). However, such liability will not attach unless the person holding an ownership interest in the premises has a meaningful degree of control over the premises or involvement in the selling of alcohol there. Wendt v. Myers, 59 Ill. 2d 246, 319 N.E.2d 777 (1974). A land trustee who holds nothing more than the naked legal ...


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