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Cook v. Burnette

June 26, 2003

NATHANIEL COOK, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF MARY HOLIDAY, DECEASED, PLAINTIFF-APPELLANT,
v.
EMMA BURNETTE, DEFENDANT (TALMAN HOME FEDERAL SAVINGS AND LOAN ASS'N, AND FIRST NATIONAL BANK OF CHICAGO DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County. No. 95 L 16626 Honorable James M. Varga, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

The present case arises from an order vacating an $800,000 default judgment against defendants Talman Home Federal Savings and Loan Association (FSB predecessor to LaSalle Talman Bank, FSB, predecessor to LaSalle Bank, hereinafter LaSalle) and First National Bank of Chicago, now doing business as Bank One (Bank One). It originates from a wrongful death and survival action brought by plaintiff-appellant Nathaniel Cook, the special administrator of the estate of Mary Holiday, alleging damages sustained when she died in a house fire. The complaint named as defendants Emma Burnette, LaSalle, and Bank One, but only prayed for relief against Burnette, who is not a subject of this appeal. Both LaSalle and Bank One (collectively, the banks) did not appear or file answers to the complaint, and a default judgment for $800,000 was jointly and severally entered against them. Subsequently, LaSalle and Bank One petitioned the court to vacate the default judgment as being void. The trial court ruled that because there was no prayer for relief in the plaintiff's complaint as against LaSalle and Bank One (in the ad damnum clause), the default judgment entered against them was void. However, the court did not dismiss the complaint at law.

After the $800,000 judgment was deemed to be void, the banks filed for an involuntary dismissal of the complaint, and plaintiff filed his notice of appeal. The banks then filed a motion with this court to dismiss the appeal on the grounds that the orders vacating the default judgment was not a final and appealable order. This court denied the motion to dismiss the appeal on the ground that an order granting a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)) is appealable as of right. Both banks then filed a motion to reconsider on the grounds that their section 2-1401 petitions had been withdrawn. This court granted the motion to reconsider the motion to dismiss the appeal, which was taken with this case. For the reasons that follow, we affirm. *fn1

On November 28, 1995, Cook filed a complaint for wrongful death and survival against defendants Burnette, LaSalle, and Bank One. He alleged that the defendants negligently maintained and controlled certain real property in the City of Chicago. As a result of these negligent acts or omissions, a fire occurred which caused the death of Mary Holiday. Throughout the complaint, several allegations were made regarding the defendants' joint liability for Mary Holiday's death. However, in the prayer for relief, compensation was sought from only Ms. Burnette.

LaSalle was served with the summons and complaint on December 1, 1995, which LaSalle then forwarded to its parent company, ABN AMRO North America, Inc. Subsequently, the complaint and summons were misplaced. On May 16, 1997, the trial court entered an order defaulting LaSalle for a failure to answer or appear in this cause. LaSalle admits receiving a copy of that default order, but it did not file a responsive pleading to the complaint or a motion to vacate the order at that time and did not retain an attorney to appear on its behalf.

With regard to Bank One, it was individually served a summons and the complaint on December 7, 1995. Based on its business practices, it asserts, it tendered its defense of the action to LaSalle and the City of Chicago *fn2 . However, due to the passage of time, the destruction of documents and movement of personnel, Bank One was unable to locate any documents that confirmed its tender of its defense to LaSalle or the city. As with LaSalle, Bank One was defaulted on May 16, 1997, and also received a copy of the order.

The third defendant, Burnette, was served with an alias summons and complaint on June 27, 1996. On May 16, 1997, the court entered a default order against Burnette as well.

Finally, on June 26, 1997 -the date the court set the cause for prove-up- the trial court entered a default judgment against all defendants, jointly and severally in the amount of $800,000, for failing to appear.

On October 1, 1999, LaSalle filed a motion to vacate the default under section 2-1401 of the Code of Civil Procedure. The motion alleged that Cook fraudulently concealed the grounds for relief; that once the default judgment was entered, LaSalle acted with due diligence in bringing the motion; and that LaSalle had a meritorious defense to Cook's claim in that LaSalle held only a mortgagee's interest in the property at issue. The motion was subsequently stricken, at LaSalle's request, and on November 22, 1999, LaSalle was granted leave to file an amended motion.

On December 17, 1999, LaSalle filed an amended motion to vacate the default judgment. That motion was based on the fact that the default judgment entered against it on June 26, 1997, was void ab initio. It argued that Cook's failure to include LaSalle in the complaint's prayer for relief was a fatal flaw that rendered the judgment against LaSalle void; however, it did not use section 2-1401 as a basis for its argument. In addition to filing the amended motion to vacate the judgment, LaSalle also filed a section 2-619 motion, under the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)), to dismiss Cook's complaint alleging that it had no interest in the subject property and, therefore, no duty to inspect or maintain that property.

Earlier, on September 19, 1999, Bank One filed its own section 2-1401 petition to vacate as well. There, Bank One also argued that because Cook had fraudulently concealed the entry of the default judgment, its petition was timely even though the two-year limitations period of section 2-1401 had expired. Bank One also claimed that it had a meritorious defense because it only had an interest as trustee of an assigned mortgage in the property.

On November 22, 1999, Bank One filed an amended two-count petition to vacate the judgment. The first count alleged that the June 26, 1997, judgment was void for not complying with Supreme Court Rule 105 (134 Ill. 2d R. 105) because the prayer section of the complaint did not request monetary or any other relief from Bank One. If Cook wished to obtain relief from Bank One other than that indicated in the prayer, it argued, he needed to amend his complaint. Further, it alleged that the complaint did not state a cognizable claim against Bank One, a mortgagee of the property. The second count requested that the judgment be vacated pursuant to section 2-1401.

Cook then filed motions to dismiss Bank One's and LaSalle's amended petitions pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1998)). However, before Judge Fleischman could rule upon these motions, he passed away. Consequently, the motions were transferred to Judge Varga, who heard them on March 16, 2000. On that date, Bank One moved instanter that the court deny Cook's motion against it on the grounds that the default judgment was void. Furthermore, it requested that it be allowed to withdraw count II, the section 2-1401 portion of its petition, and that the court grant count I of its amended petition to vacate the default judgment as void.

After extensive argument, the trial court granted both LaSalle's and Bank One's motions to vacate the default judgment of June 26, 1997. It reasoned that because Cook's complaint at law did not pray for any relief against LaSalle and Bank One, the default judgment entered against those defendants was void. The court also permitted Bank One to withdraw its section 2-1401 petition (count II) and did not rule on the legal sufficiency of that count. As previously stated, the court already allowed LaSalle to strike its initial section 2-1401 petition on November 22, 1999, and to file an amended petition that had no reference to section 2-1401.

On April 11, 2000, LaSalle filed a motion for involuntary dismissal of the complaint. On April 13, 2000, Cook filed his appeal of the trial court's grant of the defendant banks' amended petitions to vacate. On April 14, 2000, Bank One filed its own motion for involuntary dismissal of the complaint. The LaSalle and Bank One motions for involuntary dismissal were fully briefed and assigned to hearing before the trial court; however, the court placed the action on the stay calendar pending this appeal.

Bank One and LaSalle filed a joint motion with this court to dismiss the appeal on the grounds that the March 16, 2000, orders were not final and appealable orders. On July 6, 2000, this court denied their motion to dismiss the appeal on the grounds that "this court has jurisdiction over the appeal pursuant to Illinois Supreme Court Rule 304(b)(3)." Both Bank One and LaSalle filed motions to reconsider the dismissal of the appeal on the basis that the section 2-1401 portions of their amended petitions had been withdrawn, and thus, the trial court did not grant any relief under ...


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