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Juszczyk v. Flores

September 11, 2002

MARTA JUSZCZYK, PLAINTIFF-APPELLANT,
v.
ELENA FLORES, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 98 L 8136 Honorable John Laurie, Judge Presiding.

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

UNPUBLISHED

OPINION UPON DENIAL OF REHEARING

This action arose from a two-car accident. On July 13, 1998, plaintiff Marta Juszczyk filed a negligence action against defendant Elena Flores to recover for injuries and damages she sustained in a two-car collision that occurred on August 10, 1997, at the intersection of Humboldt Boulevard and Augusta Boulevard in Chicago, Illinois. On April 8, 1999, defendant was served with an alias summons and complaint.

On May 19, 1999, a notice of arbitration hearing was mailed from the Arbitration Center *fn1 , setting the arbitration hearing for August 3, 1999. On June 1, 1999, the trial court granted defendant's motion to vacate any and all defaults and for leave to file an appearance, answer, and jury demand. On June 2, 1999, the law firm of Thomas L. Burdelik & Associates filed an appearance on behalf of defendant along with interrogatories, a notice to produce, and a request for production. The firm also filed an answer on behalf of defendant, in which defendant admitted negligence but denied that the negligence was a direct or proximate cause of plaintiff's injuries or damages.

On June 28, 1999, plaintiff's counsel sent defendant's counsel evidentiary documents for the August 3, 1999, arbitration hearing pursuant to Illinois Supreme Court Rule 90(c). 145 Ill. 2d R. 90(c). The Rule 90(c) material did not indicate the date the arbitration hearing would be held. On August 3, 1999, the arbitration hearing was conducted. Plaintiff and her counsel both appeared at the arbitration hearing and participated in the hearing. However, neither defendant nor her counsel was present at the arbitration hearing. The arbitration panel subsequently awarded plaintiff $20,000, plus costs. On September 16, 1999, the trial court entered judgment on the arbitration award.

On October 22, 1999, plaintiff filed a motion for award of costs. On November 15, 1999, a hearing was held on plaintiff's motion for costs. Defense counsel appeared at the hearing and argued the motion. The trial court subsequently ruled that plaintiff was entitled to $520 as costs, pursuant to the judgment on the arbitration award. On December 16, 1999, plaintiff's counsel sent a letter to defense counsel seeking payment of the arbitration award and costs. On December 27, 1999, plaintiff's counsel faxed a copy of the arbitration award to defense counsel.

On January 4, 2000, defendant filed a petition to vacate the arbitration judgment pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 1998)), on the ground that defendant never received notice of the arbitration hearing or the September 16, 1999, judgment order. On February 9, 2000, a hearing was held on defendant's petition. The trial court granted defendant's section 2-1401 petition, finding that under Ratkovich v. Hamilton, 267 Ill. App. 3d 908, 642 N.E.2d 834 (1994), the arbitration judgment was void and subject to vacatur because defendant did not receive 60 days' written notice of the arbitration hearing as required by Supreme Court Rule 88 (134 Ill. 2d R. 88). On appeal, plaintiff contends that the trial court erred in granting defendant's section 2-1401 petition. For the reasons that follow, we reverse and remand.

ANALYSIS

I. Trial Court's Application of Ratkovich

In Ratkovich v. Hamilton, 267 Ill. App. 3d 908, 642 N.E.2d 834 (1994), a defendant was permitted to intervene in the case after Supreme Court Rule 88 *fn2 notices of the arbitration hearing were sent to the original parties, but none issued to the intervening defendant, who subsequently failed to appear. The Ratkovich court, applying both Supreme Court Rule 88 (134 Ill. 2d R. 88) and Supreme Court Rule 91(a) *fn3 (145 Ill. 2d R. 91(a)), held that where a party fails to receive 60 days' written notice of an arbitration hearing, any awards that issue are void. Ratkovich, 267 Ill. App. 3d at 914. In reaching this decision, the Ratkovich court analogized to the holding in Vortanz v. Elmhurst Memorial Hospital, 179 Ill. App. 3d 584, 589-90, 534 N.E.2d 625 (1989), which held that a trial court's order dismissing a plaintiff's complaint with prejudice was void, because plaintiff had received no notice that defendants would be presenting a motion to dismiss.

However, Vortanz and the appellate court decision that Vortanz relied on for its holding regarding void judgments (Maras v. Bertholdt, 126 Ill. App. 3d 876, 467 N.E.2d 599 (1984)) have both been called into question. See Mortimer v. River Oaks Toyota, Inc., 278 Ill. App. 3d 597, 602, 663 N.E.2d 113 (1996) (stating that the Vortanz and Maras decisions, which hold that an order entered without notice to a party is "void," are both questionable in light of Illinois Supreme Court decisions holding that only orders entered by a court lacking personal or subject-matter jurisdiction are "void"). Both Illinois Appellate and Supreme Court case law have consistently held that a judgment or order is void where it is entered by a court or agency lacking personal jurisdiction, subject-matter jurisdiction, or the inherent power to enter the particular judgment or order, or where the judgment or order is procured by fraud. See, e.g., Johnston v. City of Bloomington, 77 Ill. 2d 108, 112, 395 N.E.2d 549 (1979); People v. Davis, 156 Ill. 2d 149, 155, 619 N.E.2d 750 (1993) (stating that whether a judgment is void or voidable presents a question of jurisdiction); In re Marriage of Mitchell, 181 Ill. 2d 169, 174-75, 692 N.E.2d 281 (1998); Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 530-31, 759 N.E.2d 509 (2001); Siddens v. Industrial Comm'n, 304 Ill. App. 3d 506, 511, 711 N.E.2d 18 (1999); LaSalle National Trust, N.A. v. Lamet, 328 Ill. App. 3d 729, 731-32, 767 N.E.2d 464 (2002).

Based on the reasoning applied in City of Bloomington, Davis, In re Marriage of Mitchell, Steinbrecher, Siddens and LaSalle National Trust, the arbitration judgment in the instant case was not void, since the trial court had personal jurisdiction over defendant and subject-matter jurisdiction, *fn4 where defendant was served with a summons and complaint. See People v. Rainey, 325 Ill. App. 3d 573, 581, 758 N.E.2d 492 (2001) (stating that in a civil suit a trial court obtains personal jurisdiction when an action is filed and proper summons is served on defendant); CPM Productions, Inc. v. Mobb Deep, Inc., 318 Ill. App. 3d 369, 373-74, 742 N.E.2d 393 (2000) (noting that subject-matter jurisdiction refers to a court's power to entertain and determine the general question presented by the case and to grant the particular relief requested). In the present case, the arbitration judgment was voidable, not void. A voidable judgment is a judgment entered erroneously by a court having jurisdiction. In re Marriage of Mitchell, 181 Ill. 2d at 174; LaSalle National Trust, 328 Ill. App. 3d at 732.

Here, the trial court had jurisdiction over the parties and over the mandatory arbitration. In exercising this jurisdiction, however, the trial court entered a judgment on the arbitration award that was in error, because defendant had failed to receive 60 days' written notice of the arbitration hearing as required by Supreme Court Rule 88. The trial court's error in entering the judgment, however, did not divest the court of the jurisdiction or authority to enter the judgment on the arbitration award. In re Marriage of Mitchell, 181 Ill. 2d at 175. Therefore, the trial court's judgment on the arbitration award was voidable rather than void. Accordingly, we decline to adopt the holding in Ratkovich ...


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