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Tomm's Redemption, Inc. v. Park

September 18, 2002

TOMM'S REDEMPTION, INC., PLAINTIFF-APPELLEE,
v.
JAE PARK, D/B/A ROYAL BILLIARDS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable James F. Henry, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson

UNPUBLISHED

This case poses the question of how long a party to an illicit contract can wait before asking a court to declare the contract void and unenforceable.

Defendant Jae Park, d/b/a Royal Billiards, appeals from a circuit court judgment granting a motion by plaintiff Tomm's Redemption, Inc., to dismiss defendant's petition to vacate a default judgment. The default judgment was entered on plaintiff's lawsuit against defendant for breach of contract. Defendant contends on appeal the court erred in granting plaintiff's motion. He gives two reasons: the default judgment was void because it was based on an illegal gambling contract, and plaintiff fraudulently concealed from the court the illegal nature of the contract.

We reverse the trial court's judgment and remand for further proceedings.

FACTS

Plaintiff filed a complaint on August 4, 1999, alleging defendant entered into a contract with plaintiff on February 2, 1999. The contract specified plaintiff would provide, maintain, and service "coin operated devices" on the business premises of defendant for five years from the date of installation of the machines. Defendant terminated the contract in July 1999, 235 weeks before the contract was to expire. In the event of breach, the contract required defendant to pay liquidated damages of $500 for each remaining week of the contract plus costs and reasonable attorney fees. Plaintiff alleged defendant refused to pay liquidated damages in the amount of $117,500.

Defendant was personally served with process on September 16, 1999. Plaintiff filed a motion for default judgment on December 3, 1999, alleging defendant failed to file his appearance or respond to the complaint and requesting damages in the amount of $118,100. The circuit court entered an order for default judgment in that amount the same day.

On January 28, 2000, plaintiff filed a Citation to Discover Assets, which was mailed to defendant on February 1, 2000. A receipt was returned with defendant's signature.

On March 7, 2000, defendant failed to appear in court, and the matter was continued. Defendant appeared in court on April 20, 2000, pursuant to the Citation and represented that he had retained an attorney. The record does not show defendant or his lawyer ever filed an appearance or answer in this case.

Defendant filed for bankruptcy on April 6, 2000, but the bankruptcy proceeding was dismissed on May 31, 2000. The Citation proceeding was placed on the bankruptcy calendar, then removed after dismissal of the bankruptcy proceeding.

On October 17, 2000, defendant was personally served a second time with the Citation to Discover Assets. Defendant failed to appear in court on October 31, 2000, and was held in contempt of court on November 30, 2000, for failing to appear.

On January 23, 2001, defendant was served with a Notice of Real Estate Levy Sale, a Judgment Certificate, a Direction to Levy on Real Estate, a Commissioner's Appraisal for Execution Sale, an Oath of Commissioners to Appraise Homestead, and a Summons of Commissioners to Appraise Homestead. Defendant was again held in contempt of court on February 22, 2001, for failing to appear. Notice of the sale of defendant's residence was published in the Chicago Daily Law Bulletin on February 15, 2001, and March 1, 2001, and the residence was sold pursuant to Sheriff's sale on April 4, 2001. We were informed at oral argument that it was the plaintiff who bought defendant's residence. The Citation proceeding was dismissed on June 27, 2001.

Defendant filed an "Emergency Petition to Vacate Void Judgment and Set Aside Judicial Levy Sale," on October 4, 2001, the day his right of redemption regarding the judicial levy sale was due to expire. ...


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