B-G Associates, Inc. v. Giron

Decision Date16 January 1990
Docket NumberNo. 1-89-0345,B-G,1-89-0345
Citation194 Ill.App.3d 52,550 N.E.2d 1080,141 Ill.Dec. 34
Parties, 141 Ill.Dec. 34 ASSOCIATES, INC., Plaintiff-Appellant, v. Faustino GIRON and Maria Giron d/b/a Treo's Pizza, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Jody Ann Lowenthal, Chicago, of counsel, for plaintiff-appellant.

No attorney on record for defendants-appellees.

Justice HARTMAN delivered the opinion of the court:

Plaintiff B-G Associates, Inc., an Illinois corporation which provides services in heating, air conditioning, and ventilation, brought an action to recover damages for an alleged breach of contract against Faustino and Maria Giron (jointly, defendants). A default judgment entered for plaintiff and against defendants subsequently was vacated by the circuit court. From that order, plaintiff appeals, and questions whether the circuit court had jurisdiction to vacate the default judgment. Defendants, the appellees in this appeal, have not filed a brief in response; nevertheless, this court elects to consider the appeal on its merits. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

According to the first amended complaint, defendant Maria Giron (Maria) is the owner of a business known as Treo's Pizza, which is not a corporation; defendant Faustino Giron (Faustino) is the manager of and doing business as Treo's Pizza, and is an authorized agent of Maria; Faustino requested and was provided goods and services from plaintiff in the amount of $4,332.21; and, despite Faustino's repeated promises to pay, no payments were made, leaving an outstanding balance of $4,332.21.

The procedural history of the case is complex and must be set out in some detail. On December 15, 1987, the circuit court 1) found Maria in default, having failed to appear, answer, or otherwise plead; 2) entered judgment for plaintiff and against Maria for $4,332.21 plus costs; and 3) dismissed Faustino without prejudice, based on his answer to plaintiff's interrogatory that Maria was the "100%" owner of Treo's Pizza. Thereafter, the circuit court, on February 26, 1988, vacated the default judgment entered December 15, 1987 against Maria, and granted plaintiff leave to add Faustino as an additional party defendant.

Plaintiff, on May 3, 1988, filed a motion pursuant to section 2-611 (Ill.Rev.Stat.1987, ch. 110, par. 2-611) of the Code of Civil Procedure (Code), seeking sanctions against defendants. Plaintiff's motion alleged certain interrogatories regarding ownership of the restaurant were answered untruthfully by defendants. On July 5, 1988, plaintiff filed a second section 2-611 motion for sanctions against defendants and their attorney, J. William Stefan. This second request reiterated the grounds raised in the May 3 motion, and asserted the following additional reasons: defendants' answer to the amended complaint subsequently was contradicted by Stefan and defendants; spurious defenses were raised; and, Stefan initiated various pre-trial procedures, including an unwarranted motion for a protective order, with the sole intent to delay and hinder the case. Plaintiff also suggested that Stefan made no independent investigation of the facts he presented and verified in defendants' answers to both the complaint and amended complaint.

On August 16, 1988 the parties entered into an "agreed order," not signed by any party or attorney, which reflected the following: on or before November 16, 1988, Maria and Faustino agreed to pay plaintiff a total of $2,500, payable in three equal monthly installments; upon payment of the full $2,500, the cause and all pending motions would be dismissed; and, the matter was set for status on December 6, 1988. Defendants at no time questioned the status of this order as "agreed."

On September 26, 1988, plaintiff filed a motion for judgment, asserting that defendants had not made any payments as of that date in violation of the August 16 order. Plaintiff's attorney certified that she served notice of the motion by mailing a copy to defendants' attorney through regular mail on September 26. The hearing on plaintiff's motion for judgment was held October 3, 1988, but neither defendants nor their attorney appeared. The circuit court ordered as follows: 1) the order of August 16, 1988 was vacated; 2) judgment was entered for plaintiff against both defendants in the amount of $4,332.21 plus costs; 3) plaintiff's pending section 2-611 motions were set for hearing to be held December 6, 1988.

Eighteen days later, on October 21, 1988, pursuant to section 2-1301 of the Code (Ill.Rev.Stat.1987, ch. 110, par. 2-1301), defendants brought a motion to vacate the October 3, 1988 default judgment, asserting that they were naturalized citizens of Mexican ancestry "and did not comprehend that payments were required on certain dates"; further, they were "ready, willing and able" to pay the $2,500 previously agreed to, in full by cashier's or certified check. The matter was set for hearing on October 31, 1988.

At the October 31 hearing, however, defendants' attorney again failed to appear. As a result, defendants' section 2-1301 motion to vacate was stricken with prejudice.

On October 31, 1988, defendants filed another section 2-1301 motion to vacate the default judgment, and set the matter for hearing on that same day. Thereafter, on November 3, 1988, according to a "revised" notice of motion, defendants filed yet another motion to vacate the default judgment, and set the matter for hearing on November 7, 1988. Defendants' second section 2-1301 motion, filed on November 7, asserted exactly the same grounds for vacatur of the default as did their previous section 2-1301 motion which was stricken with prejudice. The revised notice of motion filed November 3 suggests plaintiff was served notice by regular mail; however, the proof of service by mail was neither signed by the certifying attorney nor notarized. Plaintiff denies having been provided with notice of the November 7 hearing.

In any event, on November 7, neither plaintiff nor its attorney were present in court. The circuit court then vacated the default judgment entered against defendant on October 3, "based upon payment of the sum of $2,500 by defendant's [sic] to plaintiff." Further, the court dismissed with prejudice plaintiff's cause of action "and all pending motions." According to plaintiff, no copy of this November 7 order was mailed or given to it or its attorney. The docket sheet further reflects that, on November 7, defendants left a check for $2,500 with the court clerk.

Plaintiff apparently did not learn of the November 7 proceedings until it appeared in court on December 6, 1988 for hearing on its section 2-611 motions (as scheduled in the October 3, 1988 order). In an order, the court acknowledged that no funds were tendered to plaintiff in payment of the October 3, 1988 judgment and further, that no motion was pending on November 7, the "alleged motion having been stricken with prejudice"; it then set plaintiff's two section 2-611 motions for hearing on December 19, 1988. In response, defendants filed a motion to strike or dismiss the section 2-611 motions as untimely, asserting that the November 7, 1988 order dismissed with prejudice plaintiff's cause of action and all pending motions, and had become final since not vacated within 30 days.

After continuances, the matter was heard on January 4, 1989. The circuit court therein denied plaintiff's section 2-611 motions, 1 and made a finding pursuant to Illinois Supreme Court Rule 304(a). (107 Ill.2d R. 304(a).) According to the docket sheet, however, a "check" was "given in open court" on that date. The order dated January 4, 1989 makes no mention of any acceptance or rejection by plaintiff of the check, nor does the court indicate whether it considered plaintiff's entire cause dismissed or some portion thereof still pending. Plaintiff appealed on February 3, 1989, and asks that the November 7, 1988 order vacating the judgment of October 3 1988 be declared void for lack of jurisdiction of the circuit court.

In deciphering the tangled procedural posture of this case, several principles are germane. According to section 2-1301(e) of the Code (Ill.Rev.Stat.1987, ch. 110, par. 2-1301(e)):

"The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable."

This section (formerly, Ill.Rev.Stat.1979, ch. 110, par. 50(5)) contemplates only one such post-trial motion attacking a final order or judgment. (Drafz v. Parke, Davis & Co. (1980), 80 Ill.App.3d 540, 542, 36 Ill.Dec. 95, 400 N.E.2d 515, aff'd sub nom. Sears v. Sears (1981), 85 Ill.2d 253, 52 Ill.Dec. 608, 422 N.E.2d 610; Rose v. Centralia Township High School District No. 200 (1978), 59 Ill.App.3d 606, 607, 16 Ill.Dec. 932, 375 N.E.2d 1039.) The circuit courts, therefore, have no authority to hear successive post-judgment motions, even where each is filed within 30 days after denial of the previous motion (Dulin, Thienpont, Potthast & Snyder, Ltd. v. Packaging Personified, Inc. (1980), 89 Ill.App.3d 647, 649, 44 Ill.Dec. 807, 411 N.E.2d 1173; Drafz, 80 Ill.App.3d at 542, 36 Ill.Dec. 95, 400 N.E.2d 515; see also Deckard v. Joiner (1970), 44 Ill.2d 412, 418, 255 N.E.2d 900), or where both are filed within 30 days of the court's final judgment, but the second only after the first post-judgment motion was denied. See Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill.App.3d 227, 529 N.E.2d 718.

The rationale underlying these decisions was expressed by our supreme court in Sears v. Sears (1981), 85 Ill.2d 253, 259, 52 Ill.Dec. 608, 422 N.E.2d 610:

"There is no provision in the [Code] or the supreme court rules which permits a losing litigant to return to the trial court...

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