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Warren County Soil and Water Conservation District v. Walters

Court of Appeals of Illinois, Third District

April 29, 2014

WARREN COUNTY SOIL AND WATER CONSERVATION DISTRICT, Plaintiff-Appellee,
v.
STEVE WALTERS, individually, STEVE WALTERS LOGGING & EXPORT, INC., and ROBERT O'DELL d/b/a ROBERT O'DELL LOGGING, Defendants-Appellants

Appeal from the Circuit Court of the 9th Judicial Circuit, Warren County, Illinois. Circuit No. 09-L-13. The Honorable Dwayne Morrison, Judge, presiding.

Affirmed.

SYLLABUS

Based on defendants' failure to act with due diligence in presenting a meritorious defense to plaintiff's action alleging that defendants cut timber that belonged to plaintiff, the trial court's denial of defendants' petition under section 2-1401 of the Code of Civil Procedure to vacate the default judgment entered for plaintiff was affirmed by the appellate court, especially when the record showed that although defendants retained counsel, they neglected to follow the progress of their own case for a substantial period of time during which their counsel did not respond to notices and did not present a known meritorious defense to the complaint, and despite defendants' implication in their petition to vacate that plaintiff's counsel acted improperly by not alerting defendants to their counsel's neglect, there was no indication that plaintiff or its counsel did anything improper.

Christopher H. Sokn (argued), of Kingery Durree Wakeman & O'Donnell, Associates, of Peoria, for appellants.

Jeffrey W. DeJoode (argued), of March, McMillan, DeJoode & Duvall, P.C., of Macomb, for appellee.

JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justice Carter concurred in the judgment and opinion. Justice Holdridge dissented, with opinion.

OPINION

WRIGHT, JUSTICE

Page 589

[¶1] On June 22, 2011, the trial court entered a default judgment against defendants, Steve Walters, Steve Walters Logging and Export, Inc., and Robert O'Dell, d/b/a Robert O'Dell Logging, for the alleged wrongful cutting of timber belonging to plaintiff, Warren County Soil and Water Conservation District. At the time of the 2011 default judgment, defendants were represented by counsel who failed to appear on their behalf. The trial court denied defendants' subsequent petition to vacate the default judgment, filed by new counsel pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2012)), after finding defendants had not demonstrated due diligence in the original action due to the negligence of defendants' original trial counsel. On appeal, defendants assert the trial court should have exercised the equitable powers of the court, in the interests of justice, rather than attribute the lack of diligence of their original attorney to these defendants, contrary to well-established case law. We affirm.

[¶2] BACKGROUND

[¶3] On October 29, 2009, plaintiff Warren County Soil and Water Conservation District filed a five-count complaint against defendants contending defendants wrongfully removed approximately 54 trees, worth $17,229.95, from plaintiff's property. In the respective counts, plaintiff asserted defendants: (1) violated the Wrongful Tree Cutting Act (740 ILCS 185/0.01 et seq. (West 2008)) warranting treble damages (740 ILCS 185/2 (West 2008)); (2) committed trespass upon plaintiff's property; (3) committed an act of conversion by withholding plaintiff's property; (4) owed plaintiff $17,229.95 based on the theory of

Page 590

quantum meruit ; and (5) acted negligently by cutting trees on plaintiff's property without plaintiff's permission.

[¶4] Before the filing of this complaint, Jeffrey Walters, Iowa counsel for Steve Walters Logging, Inc., attempted to settle the matter. When he was unsuccessful, Jeffrey located attorney Christopher Tichenor to represent defendants in the pending litigation. The record indicates defendants retained Tichenor in November 2010. Thereafter, on January 7, 2011, Tichenor filed a written appearance on behalf of all defendants.

[¶5] However, Tichenor did not file an answer to the complaint or appear for the case management conference scheduled for April 18, 2011. On that date, the court entered an order instructing defendants to file an answer to the complaint by May 3, 2011. Tichenor did not file an answer on May 3, 2011, or thereafter, as ordered.

[¶6] On May 16, 2011, plaintiff filed a motion for default judgment. Plaintiff provided Tichenor with a copy of the motion along with notice of the scheduled hearing on plaintiff's motion for default judgment set for June 22, 2011. Tichenor did not respond to the motion for default judgment within the next 30 days. Further, neither Tichenor nor his clients appeared before the court on June 22, 2011.

[¶7] On June 22, 2011, the court granted plaintiff's motion for default judgment by allowing treble damages in the amount of $51,689.85 for count I, and $17,229.95 each for counts II through V.[1] On June 23, 2011, plaintiff's counsel sent a copy of the order of default judgment to Tichenor, by mail, addressed to his law office at 327 East Jackson Street, Macomb, Illinois.

[¶8] One month later, on July 22, 2011, Tichenor filed a motion to set aside the default judgment pursuant to section 2-1301(e) of the Code (735 ILCS 5/2-1301(e) (West 2008)), but did not request a hearing date with respect to this motion. On September 19, 2011, plaintiff's counsel scheduled Tichenor's motion to set aside the default judgment for a hearing before the court on October 24, 2011, one week after a scheduled case management conference set for October 17, 2011. Plaintiff's counsel sent notice of the motion hearing to Tichenor by mail.

[¶9] On October 17, 2011, Tichenor failed to appear for a scheduled case management conference. The next week, Tichenor failed to appear before the court, on October 24, 2011, for the hearing on his motion to set aside the default judgment. On that date, the court denied defendants' motion to set aside the default judgment and entered a written order with findings on October 31, 2011.

[¶10] The court's October 31, 2011, order found defendants failed to appear in person or by counsel at the October 17, 2011, case management conference, despite " being sent appropriate notice of said case management conference." The court also stated defendants failed to schedule their own motion to set aside the default judgment for a hearing and failed to appear at the hearing on defendants' motion to set aside the default judgment scheduled by plaintiff.

[¶11] Plaintiff's attorney filed a " Citation to Discover Assets," on August 22, 2012. On August 29, 2012, the court entered a written order sua sponte removing Tichenor as defendants' attorney. The court's order, dated August 29, 2012, states " the Illinois Attorney Registration and Disciplinary

Page 591

Commission [(ARDC)] website indicate[d] that Christopher L. Tichenor [was] not authorized to practice law" on that date.[2]

[¶12] The court's August 29, 2012, order also documented that Tichenor had not appeared on defendants' behalf for approximately one year, although he continued to be served with notices of the hearings in this action during that time. The court's order directed defendants to " retain other counsel or file with the clerk of the court, within 21 days after order herein, a " supplementary appearance" so that they could receive notices and " other papers" about the case. According to the record, the court sent ...


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