Gonzalez v. PROFILE SANDING EQUIPMENT INC., No. 1-01-2812

• Citation: 333 Ill. App.3d 680,267 Ill.Dec. 295,776 N.E.2d 667
• Decision Date: 16 August 2002
• Docket Number: No. 1-01-3500., No. 1-01-2812
• Parties: Jaime GONZALEZ, a/k/a Carlos Ruiz, Plaintiff-Appellee, v. PROFILE SANDING EQUIPMENT, INC., Defendant-Appellant. Jaime Gonzalez, a/k/a Carlos Ruiz, Plaintiff-Appellant, v. Profile Sanding Equipment, Inc., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

776 N.E.2d 667

333 Ill. App.3d 680

267 Ill.Dec. 295

Jaime GONZALEZ, a/k/a Carlos Ruiz, Plaintiff-Appellee, v. PROFILE SANDING EQUIPMENT, INC., Defendant-Appellant. Jaime Gonzalez, a/k/a Carlos Ruiz, Plaintiff-Appellant, v. Profile Sanding Equipment, Inc., Defendant-Appellee.

Nos. 1-01-2812, 1-01-3500.

Appellate Court of Illinois, First District, Fifth Division.

August 16, 2002.

Mullen & Minella, Chicago (J. Christopher Mullen, Suzanne H. Dvorak, of counsel), for Plaintiff-Appellee/Plaintiff-Appellant Gonzalez.

Freeborn & Peters, Chicago (Daniel J. Voelker, Robert J. Hall, of counsel), for Defendant-Appellant/Defendant-Appellee Profile.

Justice GREIMAN delivered the opinion of the court:

This appeal involves the entry of a default judgment for $1.2 million in a personal injury lawsuit filed by the plaintiff, Jaime Gonzalez, against defendant, Profile Sanding & Equipment, Inc. Plaintiff filed this lawsuit seeking damages for the loss of his dominant thumb, which allegedly occurred as a result of defendant's negligence in selling and manufacturing a piece of sanding equipment. The complaint was filed on March 19, 1997, and on January 30, 2001, a default judgment was entered against the defendant while the defendant was not represented by counsel. In attempting to vacate this default judgment, the defendant filed a petition under section 2-1301 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-1301 (West 2000)). Finding that it lacked jurisdiction, the trial court denied that petition. After that, the defendant filed a petition pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2000)). After the parties submitted their respective pleadings, the trial court denied that petition as well. Defendant now appeals the court's denial of defendant's section 2-1401 petition in appellate court case number X-XX-XXXX.

Following judgment, the plaintiff initiated a supplementary proceeding pursuant to section 2-1402 of the Code (735 ILCS 5/2-1402 (West 2000)) in the form of citations to discover the assets of the defendant. During the course of those proceedings, the plaintiff filed a motion pursuant to section 2-1402 of the Code (735 ILCS 5/2-1402 (West 2000)) for a turnover of assets. That motion requested that, to satisfy the underlying judgment, the trial court deliver to the plaintiff the asset of the potential cause of action of the defendant against its attorneys based on the attorneys' alleged misconduct in the underlying trial. That motion was denied by the trial court on August 22, 2001, and plaintiff now appeals that decision in appellate court case number X-XX-XXXX. On April 2, 2002, this court consolidated the appeals, and for the reasons that follow, we affirm.

On September 23, 1996, the plaintiff and his cousin were employed by Chicago Audio Group, Inc. (Chicago Audio), a company that manufactures speaker stands. According to the allegations in the complaint, the defendant designed, manufactured, and sold to Chicago Audio a wood cutting and sanding machine known as a Profilematic. The Profilematic requires two employees to operate it. One of the employees, known as the "feeder," inserts wood into the sander while the second employee, known as the "unloader," is responsible for unloading the finished product from the Profilematic and placing the materials on a cart. Plaintiff usually operated as the unloader while his cousin usually operated as the feeder. At the time of the injury, however, plaintiff was feeding wood into the machine when his thumb became caught in the conveyor belt and was cut off.

The time line of events, as evidenced by the record, was as follows:

• March 19, 1997: Plaintiff filed his product liability action.

• April 2, 1997: Plaintiff obtained service on the defendant.

• July 21, 1997: Plaintiff filed his first motion for default judgment against the defendant, which was granted and transferred for a prove-up.

• August 4, 1997: At the prove-up hearing, counsel appeared on behalf of the defendant and moved to vacate the default judgment, which was allowed. Thereafter, the case was transferred back to the motion court.

• August 22, 1997: While being represented by Seyfarth, Shaw, Fairweather & Geraldson,¹ the defendant filed its appearance and answer 11 days after the deadline the trial court had set.

• September 9, 1997: Trial court issued a case management order requiring written discovery to be completed by December 23,1997.

• December 8, 1997: Plaintiff propounded his written discovery to the defendant.

• April 7, 1998: Defendant failed to appear for a case management conference. Order of court required the defendant to appear at the next status call or be defaulted.

• May 22, 1998: Plaintiff and defendant failed to appear at case management call and the case was dismissed for want of prosecution. Plaintiff moved to vacate that dismissal on the basis of unintentional mistake, and that motion was granted on June 3,1998.

• June 3, 1998: Order of court again required the defendant to appear at next case management conference on June 17,1998.

• June 17, 1998: Defendant again failed to appear and, as of that time, had not responded to plaintiff's written discovery request. Order of court granted default judgment and transferred the case for prove-up.

• July 13, 1999: Plaintiff brought a motion to assign the case to the proveup call after, apparently, no date was ever assigned for a prove-up. Order of July 26, 1999, assigns the case for proveup to August 17,1999.

• July 28, 1999: Prior to prove-up, the plaintiff brought a motion to amend the complaint due to the name change of the plaintiff. That motion was granted, and the court ordered the plaintiff to reserve the defendant with the newly filed complaint. The court also vacated the default judgment.

• September 24, 1999: Plaintiff served summons on the defendant.

• December 8, 1999: Plaintiff again brought a motion for default judgment based on the defendant's failure to appear or answer the amended complaint. Now represented by Schwartz & Freeman, defendant was allowed to file its appearance on that date. The court's order required the defendant to answer or plead by January 5, 2000, and set the trial date of December 7, 2000.

• December 20, 1999: Defendant filed its answer to the amended complaint.

• January 10, 2000: Plaintiff again propounded his written discovery to the defendant.

• May 26, 2000: Plaintiff again brought a motion for default judgment when defendant again failed to participate in discovery. Based on the history of the case, the court denied the motion for default judgment, but barred the defendant from presenting any evidence at trial.

• September 8, 2000: Counsel for the defendant was allowed to withdraw, and no substitution was made.

• December 6, 2000: Case was continued for trial on January 18, 2001.

• December 13, 2000: Plaintiff filed and served a request to admit to the defendant, which was never answered.

• January 15, 2001: Plaintiff served notice of his waiver of his jury demand on the defendant.

• January 16, 2001: Plaintiff took the evidence deposition of his engineering expert, Joseph Leane, with notice to the defendant. Defendant, however, declined to participate.

• January 18, 2001: Defendant failed to appear on trial date. Plaintiff, however, was engaged in another trial and requested a short continuance. The trial date was continued to January 28, 2001.

• January 30, 2001: Case assigned for trial, and defendant failed to appear. Trial court defaulted the defendant and conducted a prove-up which resulted in a judgment entered in the plaintiff's favor.

• March 2, 2001: Thirty-one days after judgment had been entered, now represented by Freeborn & Peters, defendant filed a petition to vacate the judgment under section 2-1301. However, counsel for defendant did not file an appearance in the matter until March 14, 2001.

• April 16, 2001: Trial court denied the defendant's section 2-1301 petition to vacate due to a lack of jurisdiction. The court allowed a briefing of whether the defendant could demonstrate that it had meritorious defenses in order to determine if there was a just reason to vacate the default judgment. Specifically, the court entertained defendant's contention that defendant had intended to file its section 2-1301 petition earlier but for the inattentive conduct of the court's staff. However, the court denied the petition.

• May 2, 2001: Defendant filed a petition to vacate the judgment pursuant to section 2-1401.

• June 22, 2001: After hearing the evidence defendant presented, trial court denied defendant's section 2-1401 petition.

• July 13, 2001: Defendant filed its notice of appeal of the June 22, 2001, order.

Following the judgment, the plaintiff initiated citation proceedings in the same action to discover the assets of the defendant to satisfy the judgment. In those proceedings, plaintiff brought a motion for turnover, which requested that the trial court deliver to the plaintiff the judgment of the asset of the potential cause of action of defendant against its attorneys based on its attorneys' alleged misconduct in the underlying action. That motion was denied in a written ruling where the trial court held, in pertinent part:

"Plaintiff argues that the commercialization concerns surrounding assignments are not present in the instant case since the authorization he seeks only occurs after court intervention pursuant to [section 2-1401(c)(6) ]. That provision allows judgment creditors to maintain actions against persons indebted to the judgment debtor only `upon proof satisfactory to the court.' The negative implications of the attorney-client relationship are, however, still very present in the relief that plaintiff seeks. In fact, the instant motion seeks authorization to bring a legal malpractice claim on behalf of a satisfied client. Plaintiff would likely receive no cooperation from defendant in prosecuting a claim. Additionally, defendant's

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