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Kevin Blazyk v. Daman Express

December 17, 2010

KEVIN BLAZYK,
PLAINTIFF-APPELLANT,
v.
DAMAN EXPRESS, INC., AND DEX LOGISTICS, INC.,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 09--L--883

The opinion of the court was delivered by: Honorable Paul Noland, Judge, Presiding.

JUSTICE HUDSON delivered the opinion of the court:

Kevin Blazyk is the plaintiff in a breach-of-contract action; Daman Express, Inc., and Dex Logistics, Inc., are the defendants. Blazyk sought and received a default judgment against the two, but, on their petition, the court later granted relief from the judgment--relief that could have been available only under section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 2008)). Blazyk has appealed and now argues that the petition was inadequate to state a claim for relief under section 2--1401. Because the petition was simply a generic description of the elements of a section 2--1401 claim and lacked any allegations of facts, we agree that it was inadequate. The procedure that the court followed in granting the petition was also improper. We therefore reverse the grant of relief and remand the cause.

Blazyk filed his complaint on July 15, 2009. As of December 8, 2009, neither Daman nor Dex had appeared, and the court entered a default judgment against them.

On January 20, 2010, 43 days later, the two defendants jointly filed what they called a "Motion to Vacate Default Judgment." It is a brief document; we quote all but the caption, the conventional first paragraph, and the attorney information at the end:

"1. Defendant's [sic] counsel was [sic] retained until January 11, 2010.

2. The Defendant has a meritorious defense.

3. Defendant has been diligent in bringing this motion.

6. [sic] That defendant's counsel's failure to appear was not intentional nor intended to disregard the authority of this tribunal.

7. In the interest of justice this default judgment must be vacated and the matter reinstated.

WHEREFORE, plaintiff [sic] prays that this court will enter an order setting aside and vacating any default judgments and allowing for the Defendant's counsel to file an appearance instanter and for such further relief as the court deems necessary."

The "Notice of Motion" (which did not state how or when defense counsel served the paper on Blazyk) set a hearing for January 25, 2010. On January 27, 2010, the court heard briefly from counsel and granted relief forthwith:

"THE COURT: You are moving to vacate the default and appear and file a ...


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