Appeal from the Circuit Court of Cook County. 93 M1 23438 Honorable Glynn Elliott, Judge Presiding. Appeal from the Circuit Court of Cook County. 97 L 11244 Honorable Loretta C. Douglas, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Zwick
This consolidated appeal arises from a traffic accident which occurred on November 14, 1991. In the liability action, which is not the subject of the current appeal, plaintiff Chicago Motor Club, on behalf of two of its insureds, brought suit against Betty Robinson. Safeway Insurance Company (Safeway), which had issued a policy of insurance to Robinson, initially refused to defend her.
Robinson filed a pro se appearance and answer January 3, 1994. Robinson subsequently retained attorney Steven Grady of the Chicago Volunteer Legal Services Foundation who filed an appearance, amended answer and affirmative defenses. Grady also filed, on April 18, 1994, a declaratory judgment action for Robinson against Safeway and an insurance agency, Thomas & Associates Insurance, Co. (Thomas & Associates). Although Robinson's policy was dated November 19, 1991, five days after the accident, Robinson claimed that she had procured her policy through Thomas & Associates on November 12, 1991, and that she was covered by Safeway under a binder issued by Thomas & Associates.
Safeway subsequently retained attorney I. R. Strizak to defend Robinson in the Chicago Motor Club case. By letter of May 9, 1994, Strizak informed Robinson that "it is my understanding that Safeway Insurance Company, in fact, is extending you coverage and they will pay my fees as an attorney." Strizak entered his appearance on April 26, 1994 and acted as attorney for Robinson for the remainder of the liability action.
Grady subsequently filed a motion to withdraw and have Strizak substituted as attorney for Robinson. He also filed a petition to withdraw from the declaratory judgment suit citing his "complete lack of communication" with Robinson which resulted in his inability to effectively represent her. Robinson thereafter represented herself in the declaratory judgment action, which was ultimately dismissed for want of prosecution on March 13, 1995.
Strizak pursued discovery on Robinson's behalf in the liability action. However, on November 22, 1994, he failed to appear at a trial call, and the court found Robinson in default, setting the matter for prove-up on January 9, 1995. No motion to set aside the default was filed prior to the prove-up. On January 9, 1995, Strizak appeared, but the court entered a default judgment against Robinson in the amount of $25,000.
On January 25, 1995, Strizak filed a section 2-1401 motion on Robinson's behalf to vacate the default judgment entered January 9, 1995. The motion was noticed for February 13, 1995. However, on February 14, 1995, all pending motions were stricken. On February 15, 1995, Strizak filed an identical motion to vacate the default. Hearing on that motion was set on February 27, 1995, and continued until April 3, 1995. Strizak did not appear on April 3, 1995, but Robinson appeared personally. The docket entry states that "[d]efendant will attempt to seek additional counsel," and the motion to vacate was continued to April 24, 1995. By letter dated April 4, 1995, Strizak advised Robinson that he expected to be able to set aside the judgment entered on January 9, 1995. He also informed her that he would not withdraw as her attorney.
On April 24, 1995, Robinson again appeared in court for the hearing on the motion to vacate the default, but Strizak again failed to appear. The judge issued a rule to show cause against Strizak and reset the motion to May 15, 1995. On May 15, 1995, Strizak appeared with Robinson and the 2-1401 motion was set for June 12, 1995. That hearing date was continued on motion of Strizak until June 22, 1995, and then until July 7, 1995. On July 7, 1995, the motion was stricken. No appearances are shown in the record on appeal for Robinson or Strizak on that court date.
In December of 1996, Chicago Motor Club sought to enforce its $25,000 judgment by a citation to discover assets filed against Safeway as the purported insurer of Robinson. Robinson was notified by letter. Contested hearings were held with Robinson intervening and appearing pro se. Robinson answered ready for trial on the citation on March 13, 1997. Safeway then presented evidence that the policy of insurance had been issued to Robinson on November 19, 1991, and that Robinson's accident had occurred on November 14, 1991. Safeway did not inform the court that it retained attorney Strizak to represent Robinson in the liability action or that Strizak had represented to Robinson that Safeway was extending coverage to her. Chicago Motor Club did not present any evidence but stated that it would rely upon the case presented by Robinson. Robinson then sought a continuance to obtain an attorney, which the court granted, giving her until April 24, 1997. The court marked this continuance "final".
Attorney Brenda Marcus appeared on behalf of Robinson on April 24, 1997. The trial judge was not available, however, and the trial on the citation claim was continued until May 1, 1997, by agreement of the parties.
The parties disagree as to what transpired at the next court date, on May 1, 1997. The certified bystanders report which was drafted by counsel for Safeway indicates that Chicago Motor Club elected to adopt Robinson's evidence, and attorney Marcus called Robinson as a witness. After numerous objections to her questions were sustained, Marcus stated that she had inadequate time to prepare. The bystanders report then states that Marcus informed the court that she "would not proceed further with the trial." The court subsequently entered judgment in favor of Safeway.
Robinson challenges the Bystander's Report and asserts that Marcus objected to the trial proceedings on May 1, 1997, informing the court that she had inadequate time to prepare her client's case. Robinson's Objections and Proposed Additions to the Bystanders Report, which is included in the record and was filed with the court on December 23, 1997, states she informed the court on May 1, 1997, that she could not familiarize herself with the case in the short period of time provided, and that discovery was needed to prepare a defense, particularly with regard to issues of agency, estoppel and waiver. Robinson also asserted in her objections to the Bystander's Report that she asked the court to have these issues briefed and that she be given additional time to locate a court file which was not available to her. Counsel for Safeway then argued that Robinson had not filed any affirmative defenses in the case and urged the court to rule on the testimony presented. According to Robinson, the court then entered judgment against her and in favor of Safeway.
On May 12, 1997, Robinson filed "Affirmative Defenses" to the citation, alleging waiver and estoppel by Safeway. Robinson subsequently filed her post-trial motion on May 30, 1997, and her amended post-trial motion on December 29, 1997. These were denied January 22, 1998. In denying Robinson's proposed amendments to the Bystander's Report on that same day, the court stated simply that Robinson's proposed additions did not "add to the facts already certified concerning the trial of the Citation" and that "the objections and proposed additions did not change the facts supporting the ruling." Robinson subsequently filed a timely notice of appeal (No. 1-98-0628).
In a separate action in the circuit court, filed on September 27, 1997, Robinson brought claims against Safeway sounding in contract and tort relating to Safeway's alleged undertaking of the defense of the liability action, and its conduct at the citation proceedings. Safeway denied that Thomas & Associates was its agent and asserted the affirmative defense that, in any event, it would not have issued the insurance policy to Robinson had it been given timely information ...