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Pineschi v. Rock River Water Reclamation District

March 09, 2004

KENNETH PINESCHI, PLAINTIFF-APPELLEE,
v.
ROCK RIVER WATER RECLAMATION DISTRICT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 02-AR-584 Honorable Timothy R. Gill, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

PUBLISHED

Defendant, the Rock River Water Reclamation District, appeals the trial court's denial of its action under section 2--1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--1401 (West 2000)) to vacate a default judgment in favor of plaintiff, Kenneth Pineschi. We affirm.

On June 27, 2002, plaintiff filed a six-count complaint alleging the following. Plaintiff owns a house and lot at 6263 Vicksburg Road in Rockford's Vicksburg subdivision. On July 7, 2001, defendant's agents performed maintenance on the subdivision's sewer system. The work altered the flow of water and caused black water and fecal matter to back up onto plaintiff's lot and into the basement of his home. As a result of the flooding, plaintiff and his family had to evacuate their home for several days and spent $11,168.22 on alternative housing and repairing the damage. The complaint sought this amount plus attorney fees and costs.

The complaint advanced six theories of recovery. Count I alleged that defendant was negligent in cleaning out the sewer from the higher-pitched north manhole to the lower-pitched south manhole and in failing to guard against the flooding. Count II sounded in trespass. Count III claimed that defendant created a nuisance and asked the trial court to enjoin defendant from discharging materials onto plaintiff's property. Count IV sought damages under section 19 of the Metropolitan Water Reclamation District Act (the Act) (70 ILCS 2605/19 (West 2000)). Counts V and VI alleged a taking of plaintiff's property and sought compensation under, respectively, the fifth amendment to the federal constitution (U.S. Const., amend. V) and article I, section 15, of the state constitution (Ill. Const. 1970, art. I, §15).

A summons signed June 27, 2002, informed defendant that it was required to answer the complaint by July 23, 2002, or a default judgment would enter against it. The return of service stated that a deputy sheriff served the "Sanitation District of Rockford a/k/a Rock River Water Reclamation Dist" by delivering a copy of the complaint and summons to Eileen Loney, defendant's agent, at 9:40 a.m. on July 1, 2002, at 3333 Kishwaukee Street. The return described Loney as a 52-year-old white female.

Defendant did not answer the complaint by July 23, 2002. On August 1, 2002, after a hearing, the trial court awarded plaintiff a default judgment of $12,523.25. We note that the record contains no transcript of the hearing. On August 23, 2002, plaintiff mailed defendant a copy of the judgment.

On September 18, 2002, defendant filed its "Motion to Vacate Default Judgment." The motion to vacate asserted that the trial court lacked jurisdiction to enter the judgment because defendant was not properly served. Alternatively, the motion sought discretionary relief under section 2--1401 of the Code. Attached to the motion were the affidavits of Eileen Loney and Kirk Gullikson.

Loney's affidavit, signed September 16, 2002, stated as follows. Defendant is a separate municipal corporation and is "not formally known as the Sanitary or Sanitary District of Rockford." As defendant's executive services coordinator, Loney accepts service of mortgage foreclosures and summonses on defendant. Her office is located at 3333 Kishwaukee Street in Rockford. She is a Caucasian female and was born on July 11, 1938. Loney did not recall receiving a summons or complaint on July 1, 2002, in this case. A check of defendant's computer records did not reveal that a summons or complaint had been received. Under standard office procedure, had Loney received such a document, it would have been "put on the computer" and forwarded to defendant's claims company. Loney did recall that, at the end of August 2002, she received a copy of the August 1, 2002, judgment and forwarded it to the claims company.

Gullikson's affidavit stated as follows. He is a machine operator for defendant. On the morning of July 7, 2001, Gullikson and Lee Smith went to plaintiff's home "due to a complaint of a sewer main back up." The sewer was serviced by a street manhole north of the house, and the sewer main ran from there south to a manhole within a park area. The development was new and the street had not yet been paved. Plaintiff complained that he had "water around the floor drain." Gullikson inspected the north manhole and discovered that water had accumulated, meaning that the line was blocked downstream. After checking the manhole in the park south of plaintiff's property, Gullikson saw that the line there had minimal water flow and no accumulated water. Gullikson concluded that the block in the sewer main line was between the two manholes.

Gullikson's affidavit further stated that the standard procedure to clear the type of block he found was to use a "Vactor water jet" from a manhole that the "Vactor truck" can reach. Because only the north manhole was so accessible, Gullikson used it and inserted the water jet nozzle into the sewer main. Clearing the main sewer line with the water jet was the "proper technology" for this type of task, and Gullikson would use it again under the same circumstances. Defendant's only alternative would have been to excavate the line, dig up the sewer, and physically replace it.

After checking to see how much of the hose had been inserted into the sewer main, Gullikson activated the water jet. The water in the manhole receded, showing that the main had been cleared. However, plaintiff complained that more water had entered his basement during the operation. Gullikson and Smith went to plaintiff's basement. There was some water, but it was "draining down the floor drain as it should have, indicating that the line had been cleaned successfully." Gullikson reexamined the south manhole and saw what looked like pieces of drywall or plaster. He concluded that someone had introduced construction debris, causing the sewer main to become blocked.

After receiving the parties' written arguments, the trial court denied defendant's motion to vacate the default judgment. Defendant timely appealed. On appeal, defendant does not now assert that the default judgment is void for lack of proper service. Instead, defendant maintains that the trial court abused its discretion when it refused to vacate the default judgment. Defendant relies on several considerations that, in its view, entitle it to relief under section 2--1401 of the Code. These are that (1) doubts remain that defendant was properly served with the summons and complaint; (2) defendant established a meritorious defense to each of the complaint's theories of recovery; (3) the Act's provision for awarding attorney fees must be strictly construed, casting doubt on the trial court's fee award; and (4) plaintiff did not give defendant fair or timely notice that the default judgment had been entered. We shall discuss these contentions in the context of analyzing whether defendant met the prerequisites for section 2--1401 relief.

Plaintiff has moved to strike defendant's third argument, relating to the construction of the Act's provision for attorney fees. Plaintiff asserts that this argument was never raised at the trial level and may not be raised for the first time here. Defendant filed an objection to plaintiff's motion to strike, and we ordered the motion and objection taken with the case. We now deny the motion, as defendant's argument relates to the general issue of whether ...


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