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Bradley Dovalina v. John P. Conley

May 3, 2012

BRADLEY DOVALINA,
PLAINTIFF-APPELLANT,
v.
JOHN P. CONLEY, DEFENDANT-APPELLEE
(CARL MARUAA AND JUDY DROZD, DEFENDANTS).



Appeal from the Circuit Court of Cook County No. 06 L 66019 Honorable Robert J. Clifford, Judge Presiding.

The opinion of the court was delivered by: Justice Palmer

JUSTICE PALMER delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Howse concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Bradley Dovalina won a default judgment in his personal injury action against defendant John Conley for $128,101.20. The court reduced the judgment to $50,000 for plaintiff's failure to attach an Illinois Supreme Court Rule 222(b) (eff. July 1, 2006) affidavit of damages to his complaint. Plaintiff argues the court erred in reducing the judgment because (1) Rule 222 did not apply to plaintiff's complaint and case; (2) the court had the authority to enter a judgment in excess of $50,000; (3) the judgment in excess of $50,000 was not void; and (4) defendant's motion to modify the judgment was untimely. We reverse and remand with instructions.

¶ 2 Background

¶ 3 On March 24, 2006, plaintiff filed a verified three-count personal injury action in the law division of the circuit court of Cook County sixth municipal district against defendant, Carl Maruaa and Judy Drozd. He sought damages "in an amount in excess of $50,000" from each of the three defendants. On November 12, 2006, the court entered a default judgment against defendant in the amount of $128,101.20. It also entered a judgment in favor of Drozd and granted plaintiff's motion to voluntarily dismiss Maruaa. Only the default judgment against defendant is at issue here.

¶ 4 On December 21, 2006, the court vacated the default judgment on defendant's motion and granted him leave to answer or otherwise plead. Defendant filed an unverified answer. On April 6, 2007, the court struck the unverified answer and ordered defendant to file a verified answer by April 27, 2007. When defendant failed to do so, the court reinstated the $128,101.20 default judgment on May 3, 2007.

¶ 5 On October 13, 2009, defendant filed a petition to vacate or modify the default judgment pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)).*fn1 Defendant claimed that Supreme Court Rule 222(b) required that plaintiff attach to his initial pleading an "affidavit that the total money damages sought does or does not exceed $50,000" (Ill. S. Ct. 222(b) (eff. July 1, 2006)) and, where no affidavit is filed, the recovery amount is limited to $50,000.*fn2 Plaintiff had not attached a Rule 222(b) affidavit to his complaint. Defendant argued that the $128,101.20 judgment against him was, therefore, excessive, beyond the court's authority and void under Rule 222. Defendant requested that the court vacate the judgment. In the alternative, he requested that the court reduce the judgment to $50,000. He asserted that, because the judgment against him was void, it could be attacked at any time.

¶ 6 Plaintiff responded that the petition should be denied because it was untimely, it did not meet the requirements of section 2-1401 and the default judgment was neither void nor excessive. On January 4, 2010, the court granted defendant's petition "on the basis that the judgment is void." It reduced the judgment against defendant to $50,000 plus costs.

¶ 7 On September 21, 2010, the court denied plaintiff's posttrial motion to reconsider. It held that the filing of a Rule 222(b) affidavit with the initial pleading is mandatory and plaintiff's failure to attach a Rule 222(b) affidavit to his initial pleading rendered the portion of the default judgment in excess of $50,000 void. The court noted that, although defendant filed his section 2-1401 petition beyond the statutory two-year time limitation on such actions, this deadline did not apply because defendant brought his petition on voidness grounds. Plaintiff filed his timely notice of appeal from the court's orders on October 20, 2010.

¶ 8 Analysis

¶ 9 Plaintiff argues that the court erred in granting defendant's section 2-1401 petition and reducing the judgment because (1) Rule 222 did not apply to his complaint and case; (2) the court had the authority to enter a judgment in excess of $50,000 in the absence of a Rule 222(b) affidavit; (3) the judgment in excess of $50,000 was not void; and (4) defendant's section 2-1401 petition to modify the judgment was untimely.

¶ 10 Section 2-1401 authorizes a party to seek relief from a final judgment, such as a default judgment, when brought more than 30 days after judgment has been entered. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 101 (2002). A section 2-1401 petition must be filed no later than two years after entry of the order of judgment and set forth a meritorious defense or claim, due diligence in presenting that defense or claim to the circuit court and due diligence in filing the petition. Protein Partners, LLP v. Lincoln Provision, Inc., 407 Ill. App. 3d 709, 715 (2010).

ΒΆ 11 As plaintiff points out, defendant's section 2-1401 petition was untimely. Defendant filed his section 2-1401 petition on October 13, 2009, more than two years after entry of the May 3, 2007, order reinstating the default judgment. He did not assert any basis for excusing his untimely filing, let alone assert a meritorious defense or claim or due diligence of any kind. Instead, defendant asserted that he was ...


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