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West Bend Mutual Insurance Company v. 3RC Mechanical and Contracting Services, LLC

Court of Appeals of Illinois, First District, Fourth Division

March 20, 2014

WEST BEND MUTUAL INSURANCE COMPANY, as Subrogee of ACS RENTAL PROPERTIES, LLC, Plaintiff-Appellant,
v.
3RC MECHANICAL AND CONTRACTING SERVICES, LLC, Defendant-Appellee

Page 457

Appeal from the Circuit Court of Cook County. No. 10 L 12360. The Honorable Michael R. Panter, Judge Presiding.

Affirmed.

SYLLABUS

Defendant's petition under section 2-1401 of the Code of Civil Procedure to vacate plaintiff's default judgment against defendant met the liberal standards for vacature, and, therefore, where defendant was understandably unaware of the action giving rise to the default judgment due to numerous mistakes, there was no abuse of discretion in the trial court's decision to grant defendant's petition, especially when there was no basis for allowing plaintiff to benefit from a large default judgment when defendant had a meritorious defense and no substantial evidence to the contrary was presented by plaintiff.

Robert Ostojic and Alexander W. Ross, both of Leahy, Eisenberg & Fraenkel, Ltd., of Chicago, for appellant.

Robert Marc Chemers, Richard M. Waris, Thomas V.P. Draths, and Philip G. Brandt, all of Pretzel & Stouffer, Chtrd., of Chicago, for appellee.

JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Epstein concurred in the judgment and opinion.

OPINION

LAVIN, JUSTICE.

Page 458

[¶1] This appeal arises from the trial court's order vacating a default judgment entered against defendant 3RC Mechanical and Contracting Services, LLC, pursuant to defendant's petition filed under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). On appeal, plaintiff West Bend Mutual Insurance Company, as subrogee of ACS Rental Properties, LLC (ACS), contends that the trial court erred in vacating the judgment because defendant had sufficient notice of the underlying lawsuit while also arguing that the negligence of defendant's registered agent, attorneys, and insurer did not excuse its inaction. We affirm.

[¶2] BACKGROUND

[¶3] On August 3, 2010, defendant filed chapter 7 bankruptcy proceedings with the United States Bankruptcy Court, Northern District of Illinois, naming the co-managing partner Frank Cassano as the debtor contact and listing a Joliet mailing address (Joliet address). Cassano replaced defendant's former registered agent and attorney, Brian Kocis, who maintained an office in Naperville, Illinois (Naperville address). We note that throughout the lawsuit plaintiff continuously served notices and motions on defendant in the care of Kocis at the Naperville address rather than to Cassano, who was the contact. In addition, defendant maintained a business address at its facility in suburban Alsip (Alsip address).

[¶4] On October 28, 2010, plaintiff filed a two-count complaint against defendant in the circuit court of Cook County (Cook County action) alleging negligence and breach of contract claims. Specifically, plaintiff contended that ACS entered into an oral agreement in which defendant agreed to lift a house owned by ACS to allow construction of a new concrete foundation in exchange for $15,000. The house allegedly fell during the lifting project, causing extensive damage. We note that no written contract has yet been produced. On November 5, 2010, the DuPage County sheriff served Kocis ...


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