Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elder v. Bryant

August 28, 2001

ADA F. ELDER, PLAINTIFF-APPELLEE
v.
THOMAS G. BRYANT AND SCHNUCKS MARKETS, INC., A MISSOURI CORPORATION LICENSED TO DO BUSINESS IN ILLINOIS, DEFENDANTS-APPELLANTS



Appeal from Circuit Court of Macon County No. 00L44 Honorable James A. Hendrian, Judge Presiding

The opinion of the court was delivered by: Justice Myerscough

In April 2000, plaintiff, Ada F. Elder, filed a complaint against defendants, Thomas G. Bryant and Schnucks Markets, Inc., a Missouri corporation licensed to do business in Illinois (Schnucks) (collectively defendants), alleging that Bryant, an employee of Schnucks, drove a semi truck into her vehicle while she was driving and caused her personal injuries. Plaintiff served defendants with the summons and complaint and entered into negotiations with defendants' insurer, St. Paul Fire & Marine Insurance Company (St. Paul), through its claims representative, Carol Reindl. Defendants did not retain an attorney or enter an appearance in the case.

In June 2000, plaintiff's attorney served Reindl with a settlement demand letter, stating that, if no settlement had been reached, he requested Reindl to retain counsel and file responsive pleadings on or before July 28, 2000. Defendants failed to contact plaintiff, retain counsel, or file responsive pleadings.

In August 2000, plaintiff filed a motion for default judgment. In September 2000, the trial court granted plaintiff's motion in chambers without notice to any party and set the case for a hearing on damages. At the October 11, 2000, hearing, the trial court awarded plaintiff $43,754.44, plus costs of suit, followed by a written judgment filed October 17, 2000. On November 3, 2000, defendants filed a timely motion to vacate the October 2000 damages award under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2000)). The trial court denied defendants' motion.

On appeal, defendants argue that the trial court erred in (1) entering the default judgment against them, (2) denying their section 2-1401 motion, and (3) denying them due process by entering judgment against them without notice. We affirm.

I. BACKGROUND

In April 2000, plaintiff filed a complaint against defendants, alleging that Bryant, an employee of Schnucks, drove a semi truck into her vehicle while she was driving and caused her personal injuries. Plaintiff served defendants with summons and complaint on April 20, 2000. Plaintiff's attorney also entered into negotiations with St. Paul's through Reindl. During these negotiations, the parties agreed that St. Paul's would not obtain counsel in anticipation of settling the dispute without litigation. At the request of Reindl, plaintiff delayed prosecution of the case until Reindl had an opportunity to respond to the settlement demand.

In June 2000, plaintiff submitted a settlement demand to Reindl. Reindl never responded. Plaintiff's attorney sent Reindl a letter dated July 12, 2000, stating that, because Reindl never responded to his previous letter, he requested her to retain counsel and to file responsive pleadings on or before July 28, 2000, if no settlement had been reached by that time. Reindl failed to arrange for counsel and never contacted plaintiff's attorney during this time period. In addition to his written correspondence, plaintiff's counsel left telephone and voice-mail messages for Reindl reminding her that she had failed to either respond to the settlement offer or obtain counsel. Reindl did not respond.

In August 2000, without further notice to defendants, plaintiff filed a motion for default judgment. In September 2000, the trial court granted plaintiff's motion and set the case for a prove-up hearing regarding damages. Although the trial court ordered plaintiff's attorney to provide notice to defendants of the prove-up hearing, plaintiff's counsel failed to provide defendants such notice. However, plaintiff's attorney failed to give notice pursuant to the trial court's order because plaintiff's attorney never received a copy of the docket entry requiring him to give notice. The record contains no indication that the clerk sent the trial court's docket entry to plaintiff's attorney.

On October 11, 2000, the trial court conducted the hearing. On October 17, 2000, the trial court entered a written judgment against defendants in the amount of $43,753.55 plus costs of suit.

Later in October 2000, Reindl referred this case to outside counsel. Immediately upon taking the case, defendants' counsel learned of the default judgment and damages award entered against defendants. On November 3, 2000, defendants' counsel filed a timely section 2-1401 motion to vacate the October 17, 2000, damages award. On November 28, 2000, the trial court denied defendants' motion. This appeal followed.

We note that, on appeal, defendants attempt to supplement the record by appending to their brief various letters from plaintiff's attorney to Reindl not otherwise submitted to the trial court. We cannot and have not considered this information. See Cottrill v. Russell, 253 Ill. App. 3d 934, 939, 625 N.E.2d 888, 891 (1993) ("Attachments to briefs not otherwise of record are not properly before a reviewing court and cannot be used to supplement the record").

I. ANALYSIS

Section 2-1401 provides a comprehensive method for petitioning for relief from judgments, orders, and decrees more than 30 days after their entry. Kaput v. Hoey, 124 Ill. 2d 370, 377-78, 530 N.E.2d 230, 233 (1988). To obtain relief under section 2-1401, a party must show the existence of a meritorious defense to the judgment and the exercise of due diligence in presenting the defense, both in the underlying action and in the section 2-1401 proceeding. Kaput, 124 Ill. 2d at 378, 530 N.E.2d at 233. Accordingly, a section 2-1401 petitioner is not entitled to relief unless he establishes that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not presented to the trial court. Kaput, 124 Ill. 2d at 378, 530 N.E.2d at 233. The decision ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.