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Warren Cnty. Soil & Water Conservation Dist. v. Walters

Supreme Court of Illinois

May 21, 2015

STEVE M. WALTERS et al., Appellants

Appellate court judgment reversed. Circuit court judgment reversed. Cause remanded.

Christopher H. Sokn, of Kingery Durree Wakeman & O'Donnell, Assoc., of Peoria, for appellants.

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

Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.


Page 1100


[¶1] This appeal requires us to determine whether our decision in People v. Vincent, 226 Ill.2d 1, 15-16, 871 N.E.2d 17, 312 Ill.Dec. 617 (2007), should be interpreted as eliminating the circuit court's discretion to consider equity when ruling on a petition seeking relief from a final judgment or order under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). Here, the circuit court of Warren County denied a section 2-1401 petition seeking to vacate a default judgment. Despite expressing its opinion that equity favored vacating the judgment, the court believed it was constrained by authority interpreting Vincent to eliminate equitable considerations in section 2-1401 proceedings. A majority of the appellate court affirmed. 2014 IL App. (3d) 130087, ¶ 43, 380 Ill.Dec. 917, 9 N.E.3d 588.

[¶2] For the reasons that follow, we reverse the judgments of the appellate court and the circuit court. We remand the cause to the circuit court for further proceedings consistent with this opinion.


[¶4] Defendant Steve M. Walters is a buyer of timber in Illinois who operates defendant Steve Walters Logging & Export, Inc., an Iowa corporation. In 2005, Walters executed a contract with Martha Biederbeck to log about 54 trees from property she owned in Warren County, Illinois, for approximately $16,000. At the time, Biederbeck was a resident of the

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State of Washington. Defendant Robert O'Dell is a resident of Ellsworth, Iowa, who operates Robert O'Dell Logging, a sole proprietorship. Robert O'Dell Logging hauled a load of harvested trees from Biederbeck's property to a local sawmill. Although not entirely clear in the record, it appears that at some point after defendants harvested the trees, plaintiff, Warren County Soil and Water Conservation District, came to believe that plaintiff owned the property where the trees were harvested under the Biederbeck contract.

[¶5] Consequently, on October 29, 2009, plaintiff filed a five-count complaint in the circuit court of Warren County against defendants, individually, their businesses, and Biederbeck.[1] Plaintiff valued the trees removed from the property at over $17,000. In the complaint, plaintiff alleged that defendants: (1) violated the Wrongful Tree Cutting Act (740 ILCS 185/0.01 et seq. (West 2008)), entitling plaintiff to treble damages exceeding $51,000; (2) committed trespass upon plaintiff's property; (3) committed an act of conversion by withholding plaintiff's property; (4) owed plaintiff over $17,000 based on the theory of quantum meruit ; and (5) acted negligently by cutting trees on plaintiff's property without plaintiff's permission.

[¶6] On August 25, 2010, Biederbeck, represented by counsel Richard Whitman, answered plaintiff's complaint. Biederbeck admitted that she entered into a logging contract with Walters that authorized him to harvest trees from her Illinois property. Biederbeck denied knowledge of whether defendants removed trees from plaintiff's property. Biederbeck also denied knowledge of defendants trespassing on plaintiff's property during their logging activities. Thus, Biederbeck denied knowledge of whether she was paid for trees that were improperly harvested from plaintiff's property.

[¶7] On January 7, 2011, attorney Christopher L. Tichenor filed a written appearance on behalf of defendants. Tichenor, however, did not file an answer to plaintiff's complaint.

[¶8] At a scheduled case management conference on April 18, 2011, plaintiff, Biederbeck, and their respective counsel appeared. Neither defendants nor Tichenor appeared. Following the conference, the circuit court entered an order directing defendants to answer plaintiff's complaint by May 3, 2011. Defendants did not timely answer plaintiff's complaint.

[¶9] On May 16, 2011, plaintiff filed a motion for default judgment against defendants, noting they had not answered the complaint and had not filed any pleadings. Defendants did not timely respond to plaintiff's motion for default judgment.

[¶10] At the June 22, 2011, hearing on plaintiff's motion for default judgment, defendants and Tichenor again failed to appear. Following the hearing, the court granted plaintiff's motion for default judgment against defendants. The court awarded plaintiff damages in the amount of $51,689.85 for count I and $17,229.95 for counts II through V.

[¶11] A month later, on July 22, 2011, defendants, through their attorney Tichenor, filed a motion to set aside the default judgment under section 2-1301(e) of the Code (735 ILCS 5/2-1301(e) (West 2008)). In that motion, defendants represented that after the complaint was filed in October 2009 until November 2010, they were represented by an Iowa attorney, Jeffrey Walters, who attempted to negotiate a settlement

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among all the parties. Defendants alleged that all parties negotiated in good faith and attempted to resolve the controversy. Defendants obtained Illinois counsel, Tichenor, after the settlement negotiations failed. Defendants represented that Tichenor sent plaintiff a draft answer to the complaint but failed to get the proper signatures. Explaining the subsequent delay and failures to appear, defendants stated that a member of Tichenor's family was terminally ill and passed away in May 2011. During this time, Tichenor spent " an extensive amount of time away from his office." Defendants requested that the court enter an order vacating the default judgment but did not request a hearing on the matter.

[¶12] On October 3, 2011, plaintiff filed a response to defendants' motion to set aside the default judgment. Plaintiff generally admitted defendants' allegations about the initial settlement negotiations and also admitted that Tichenor sent a copy of an unsigned draft answer to plaintiff's counsel. Plaintiff, however, did not have sufficient knowledge to admit or deny the allegations pertaining to defendants' explanations for their delay and failure to appear. Plaintiff additionally observed that defendants had not yet provided a signed answer to the complaint or complied with the court's prior discovery orders.

[¶13] On October 17, 2011, Tichenor and defendants failed to appear for a scheduled case management conference. On October 24, 2011, Tichenor and defendants failed to appear for the scheduled hearing on their motion to vacate the default judgment.

[¶14] On October 31, 2011, the circuit court entered an order denying defendants' motion to vacate the default judgment. In its order, the court found that defendants failed to set the motion to vacate for a hearing, failed to cooperate with the other parties, failed to appear at a duly noticed hearing on the motion, and failed to appear either in person or by counsel at the case management conference. The court further found that plaintiff's counsel had made a good faith attempt to locate and notify defendants of progress in the litigation.

[¶15] Almost a year later, on August 22, 2012, plaintiff filed a citation to discover assets. On August 29, 2012, the circuit court entered a sua sponte order removing Tichenor as defendants' attorney. The order indicated that " the Illinois Attorney Registration and Disciplinary Commission website indicates that Christopher L. Tichenor is not authorized to practice law." The order documented that Tichenor had not withdrawn from defendants' case and repeatedly failed to appear in court on behalf of defendants for approximately one year. The court also directed defendants to obtain new counsel. The court sent notice to the parties' respective counsel and to each individually named defendant.

[¶16] On September 20, 2012, the circuit court issued a turnover order to the Illinois Department of Natural Resources for a $25,000 bond executed on behalf of defendant Steve Walters Logging & Export, Inc. to be applied to the default judgment against defendants.

[¶17] On October 24, 2012, defendants, represented by their new counsel Christopher Sokn, filed a petition for relief from judgment under section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2012)). In the petition, defendants blamed the delays on Tichenor, describing him as having " totally failed in his sworn duties." Defendants alleged that Tichenor received a $2,000 retainer but essentially performed no substantive work. Tichenor never appeared to defend the ...

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