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Johnson v. Wal-Mart Stores

August 28, 2001

NANCY J. JOHNSON, PLAINTIFF-APPELLEE
v.
WAL-MART STORES, INC., DEFENDANT-APPELLANT



Appeal from the Circuit Court of White County. No. 99-L-2 Honorable Thomas H. Sutton, Judge, presiding

The opinion of the court was delivered by: Presiding Justice Chapman

This is an appeal from an order granting a default judgment and awarding $204,497.23 in damages. The issues for review are whether the trial court erred in failing to vacate the default judgment because the plaintiff did not provide the defendant with immediate notice pursuant to section 2-1302(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1302(a) (West 2000)), whether the trial court erred in failing to vacate the default judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2000)), whether the trial court's award of damages was against the manifest weight of the evidence, whether the trial court erred in failing to vacate the assessment of damages because the defendant was not given notice of the hearing on damages, and whether the court erred in assessing damages because the defendant was not provided notice of the plaintiff's waiver of a jury. We affirm.

I. FACTS

On February 4, 1999, Nancy J. Johnson (plaintiff) filed a complaint against Wal-Mart Stores, Inc. (defendant), seeking damages against defendant for personal injuries she incurred on defendant's premises in Carmi, Illinois. Plaintiff demanded a jury trial. On February 18, 1999, the sheriff of Sangamon County, Illinois, served the summons and a copy of the complaint on defendant's registered agent.

Over six months later, on October 12, 1999, plaintiff sought a default judgment against defendant because defendant had neither filed an answer nor entered an appearance in the case. In her motion for default judgment, plaintiff provided an itemization of her expenses, court costs, and the amount sought for pain and suffering. A letter from plaintiff's orthopedic surgeon, Dr. Robert Meyers, was attached to the motion for default judgment and described plaintiff's injury, past treatment, and prognosis for the future. An itemization of plaintiff's out-of-pocket expenses was also attached to the motion. At the time of the hearing, defendant had not entered its appearance or otherwise filed a responsive pleading to plaintiff's complaint. No notice was sent to defendant prior to the date or time for the hearing.

After testimony at the hearing on the motion, the court entered a default judgment in favor of plaintiff on October 12, 1999. The court awarded plaintiff out-of-pocket expenses of $44,351.43, future expenses of $10,000, pain and suffering calculated at $150,000, and costs of $145.80. On November 23, 1999, plaintiff wrote defendant's legal department to inquire about the payment of the judgment.

On December 27, 1999, defendant filed a motion to vacate and set aside default judgment pursuant to section 2-1305 of the Code (735 ILCS 5/2-1305 (West 1998)), which was denied on April 10, 1999. Defendant filed a timely appeal.

II. ANALYSIS

Defendant argues that the trial court erred in failing to vacate the default judgment because plaintiff disregarded the requirement of providing immediate notice pursuant to section 2-1302(a) and defendant was thus deprived of the opportunity to move to vacate the judgment under section 2-1301 (735 ILCS 5/2-1301 (West 2000)). Defendant alleges that plaintiff secured the judgment with unclean hands and that fundamental fairness requires that the default judgment be vacated. Plaintiff argues that because defendant had not entered an appearance by the time of the entry of the default, no notice was required.

Section 2-1302(a) provides:

"Upon the entry of an order of default, the attorney for the moving party shall immediately give notice thereof to each party who has appeared, against whom the order was entered, or such party's attorney of record. However, the failure of the attorney to give the notice does not impair the force, validity[,] or effect of the order." (Emphasis added.) 735 ILCS 5/2-1302(a) (West 2000).

A lack of notice alone does not invalidate a default. The Illinois Supreme Court has held that the failure to provide a defendant with notice of the entry of a default order does not by itself invalidate the default. Kaput v. Hoey, 124 Ill. 2d 370, 379, 530 N.E.2d 230, 234 (1988). An alleged failure to notify a defendant of the entry of a default judgment will not render such a judgment void. La Rabida Children's Hospital & Research Center v. Harrison, 263 Ill. App. 3d 790, 635 N.E.2d 575 (1994). The purpose of the statute is to alleviate the injustice that would result if a default is entered without notice to a party who has appeared. Carlstedt v. Kaufmann, 119 Ill. App. 2d 322, 327, 256 N.E.2d 146, 148 (1970). It is to alert a party so that he can act within the time provided for by law and move to set aside a default. Carlstedt, 119 Ill. App. 2d at 326-27, 256 N.E.2d at 148.

In the instant case defendant had not filed a responsive pleading even though over six months had elapsed since an answer from defendant was due. Defendant did not enter an appearance, nor was there an attorney of record for defendant at the time the default judgment was entered. Under these facts we cannot, and do not, find that the trial court either erred or abused its discretion in failing to vacate the default judgment against defendant for the lack of notice provided to defendant by plaintiff.

Defendant also argues that the trial court abused its discretion in denying its motion to vacate the default judgment pursuant to section 2-1401. Section 2-1401 provides a statutory procedure for vacating a final judgment after 30 days from its entry. To be entitled to relief under section 2-1401, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim, (2) due diligence in presenting this defense or claim to the circuit court in the original action, and (3) due diligence in filing the section 2-1401 petition for relief. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386 (1986). The quantum of proof necessary to sustain a section 2-1401 petition is a preponderance of the evidence. Smith, 114 Ill. 2d at 221, 499 N.E.2d at 1386. A section 2-1401(a) petition must be supported by affidavit or other showing of matters not contained in the record. 735 ILCS 5/2-1401(b) (West 2000); Cruz v. Columbus-Cuneo-Cabrini Medical Center, 264 Ill. App. 3d 633, 639, 636 N.E.2d 908, 911 (1994). The question of whether a section 2-1401 petition should be granted lies within the sound discretion of the circuit court, depending upon the facts and equities presented. Smith, 114 Ill. 2d at 221, 499 N.E.2d at 1386. A court of review is justified in disturbing the judgment of the circuit court only if it finds that the ...


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