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Dovalina v. Conley

Court of Appeals of Illinois, First District, Fifth Division

May 3, 2013

BRADLEY DOVALINA, Plaintiff-Appellant,
v.
JOHN P. CONLEY, Defendant-Appellee (Carl Maruaa and Judy Drozd, Defendants).

Held [*]

The grant of defendant’s petition under section 2-1401 of the Code of Civil Procedure to reduce the default judgment obtained by plaintiff to $50, 000 due to plaintiff’s failure to attach to the complaint an affidavit pursuant to Supreme Court Rule 222(b) that he did or did not seek damages in excess of $50, 000 was reversed and the cause was remanded with directions to reinstate the original judgment for $128, 101.20, since plaintiff had a reasonable expectation that any judgment would not be capped at $50, 000, the complaint gave notice that damages in excess of $50, 000 were sought, Rule 222 did not apply, defendant had no reasonable expectation that Rule 222 did apply, and no harm resulted from the absence of the Rule 222 affidavit.

Appeal from the Circuit Court of Cook County, No. 06-L-66019; the Hon. Robert J. Clifford, Judge, presiding.

John E. Partelow, of Law Offices of John E. Partelow, of Chicago, for appellant.

Kevin P. Gosewisch, of Kevin P. Gosewisch P.C., of Chicago, for appellee.

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

OPINION

PALMER JUSTICE

¶ 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)).[1] 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. R. 222(b) (eff. July 1, 2006)) and, where no affidavit is filed, the recovery amount is limited to $50, 000.[2] 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.

ΒΆ 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 ...


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