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Eric Parker and Lynlee Muehring v. Michael Murdock

September 13, 2011

ERIC PARKER AND LYNLEE MUEHRING,
PLAINTIFFS-APPELLANTS,
v.
MICHAEL MURDOCK,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County The Honorable Pamela Hill Veal, Judge Presiding. No. 04 MI 115518

The opinion of the court was delivered by: Justice Harris

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Connors concurred in the judgment and opinion.

OPINION

¶ 1 In this case we are called upon to determine whether a petition to vacate brought under section 2-1401 of the Illinois Code of Civil Procedure (Code) was filed outside the two-year time frame allowed for such relief, in violation of section 2-1401© (735 ILCS 5/2-1401© (West 2008)). Plaintiffs, Eric Parker and Lynlee Muehring, obtained a judgment against defendant, Michael Murdock, on October 13, 2004. The circuit court granted defendant's section 2-1401 petition, filed on January 18, 2007, to vacate the October 13, 2004 judgment. We hold that defendant's section 2-1401 petition was not timely filed because it was filed outside the two-year statutory limitation for seeking relief from a judgment. Therefore, the circuit court order granting defendant's section 2-1401 petition is void and must be vacated by this court.

¶ 2JURISDICTION

¶ 3 On January 25, 2010, plaintiffs filed their motion to vacate the trial court's order granting defendant's request to vacate the judgment entered against defendant, arguing it was void pursuant to section 2-1401(f) of the Code. 735 ILCS 5/2-1401 (West 2008). On May 12, 2010, the circuit court denied plaintiffs' motion. Plaintiffs timely filed their notice of appeal on June 10, 2010. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 304(b)(3), governing appeals from judgments or orders granting or denying relief as requested in a section 2-1401 petition. Ill. S. Ct. R. 304(b)(3) (eff. Feb. 26, 2010); see also Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 102 (2002) ("a circuit court's ruling on [a section 2-1401 petition] is deemed a final order and provision has been made for immediate review of these orders in Supreme Court Rule 304(b)(3)").

¶ 4 BACKGROUND

¶ 5 Plaintiffs entered into a lease for an apartment owned by defendant in 2001. In 2002, plaintiffs filed a complaint against defendant alleging several violations of the Chicago Residential Landlords and Tenants Ordinance. Chicago Municipal Code § 5-12-010 et seq. (added Sept. 8, 1986). On October 13, 2004, plaintiffs obtained an ex parte default judgment against defendant in the amount of $14,433.70, which included attorney fees of $750.

¶ 6 On October 13, 2006, defendant filed a petition pursuant to section 2-1401 of the Code seeking relief from the October 13, 2004, judgment against him. In his petition, defendant alleged that his attorney did not inform him of the judgment, claiming he only learned of it in late October of 2004. Defendant alleged that when he learned of the judgment against him, he turned the case over to his attorney with the understanding that his attorney would move to vacate the judgment. Defendant's attorney failed to do so. Defendant claimed that he was seeking redress against his attorney for legal malpractice in a separate action. Defendant attached to his petition his own affidavit attesting to the facts he alleges in his petition, as well as a copy of the judgment entered on October 23, 2004.

¶ 7 The circuit court entered and continued the matter of defendant's section 2-1401 petition until November 29, 2006, in courtroom 1106. On November 29, 2006, the court continued the case until December 20, 2006, to be heard in courtroom 1110. On January 5, 2007, defendant filed a motion to reset his section 2-1401 petition on the court calender. The notice of motion indicated that the motion would be heard before Judge Gorman in courtroom 1110 on January 18, 2007. Defendant, in his motion to reset his petition, alleged that the case had been set for status on December 20, 2006, but that on that date, plaintiff's counsel informed defendant that the matter was not set on the court's December 20, 2006, calender and needed to be "re-spindled." According to defendant's motion, "Plaintiff's counsel agreed to appear to request time to respond on December 20, 2006."

¶ 8 The next two orders in the record were both entered on January 18, 2007. One order transferred the matter to courtroom 1106. The other order, this time entered by Judge Veal, granted defendant's section 2-1401 petition and indicated that only defendant was present in court that day.

¶ 9 On January 24, 2007, plaintiffs moved pursuant to section 2-1301(e) of the Code to vacate the January 18, 2007, order granting defendant's section 2-1401 petition. 735 ILCS 5/2- 1301(e) (West 2008). In their motion, plaintiffs alleged that the parties had agreed that on December 20, 2006, plaintiffs would appear and seek time to respond to defendant's section 2-1401 petition, but that the matter was not on the court's call that day. On January 18, 2007, plaintiffs' counsel appeared in courtroom 1110, but was informed that Judge Gorman recused herself and that the matter had been transferred to courtroom 1106 for reassignment. Plaintiffs' counsel alleged that in courtroom 1106, he spoke to a clerk, who indicated that he had no knowledge of the cause being transferred. Plaintiff's counsel alleged that he did not know that the case had been reassigned to courtroom 1102. Plaintiffs alleged further that they believed that they would be allowed time to respond to defendant's section 2-1401 petition and that they had "valid objections to [d]efendant's 2-1401 petition which should be heard by the [c]court."

¶ 10 On February 28, 2007, the circuit court denied plaintiffs' motion to vacate defendant's section 2-1401 petition. In its order, the circuit court also indicated that it was denying plaintiffs' request to file further pleadings to defendant's section 2-1401 petition. The circuit court allowed defendant 21 days to answer plaintiffs' complaint and file a counterclaim. The parties were also given leave to initiate discovery.

ΒΆ 11 On January 25, 2010, plaintiffs filed another motion to vacate the circuit court's order of January 18, 2007, granting defendant's section 2-1401 petition. Unlike their first motion to vacate, which they filed pursuant to section 2-1301(e) of the Code, this time plaintiffs filed their motion pursuant to section 2-1401(f) of the Code alleging that the order of January 18, 2007, granting defendant's section 2-1401 petition was void because defendant failed to file his section 2-1401 petition to vacate within two years of the judgment. Plaintiffs alleged that the judgment vacated by defendant's section 2-1401 petition was entered on October 13, 2004. Defendant did not file his section 2-1401 petition until October 13, 2006. Plaintiffs relied upon this court's decision in Irving v. Irving,209 Ill. App. 318 (1918), to argue that in computing time by calender year "the calender should be examined and the day numerically corresponding to that day *** is determined and the calender year expires on that day, less one day." According to plaintiffs' computation, in order for defendant's section 2-1401 petition to be timely filed it should have been filed on October 12, 2006, not ...


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