Halle v. Robertson

• Decision Date: 04 October 1991
• Docket Number: No. 2-91-0001,2-91-0001
• Citation: 579 N.E.2d 1243,162 Ill.Dec. 429,219 Ill.App.3d 564
• Parties: , 162 Ill.Dec. 429 Wendy HALLE, Indiv. and as Mother and Next Friend of Kristin Halle, Plaintiff-Appellant, v. Joseph S. ROBERTSON, Defendant-Appellee (Farmers Insurance Group of Companies, Garnishee-Defendant).
• Court: United States Appellate Court of Illinois

Page 1243

579 N.E.2d 1243

219 Ill.App.3d 564, 162 Ill.Dec. 429

Wendy HALLE, Indiv. and as Mother and Next Friend of Kristin Halle, Plaintiff-Appellant, v. Joseph S. ROBERTSON, Defendant-Appellee (Farmers Insurance Group of Companies, Garnishee-Defendant).

No. 2-91-0001.

Appellate Court of Illinois Second District.

Oct. 4, 1991.

Wilson & Lanto, A Professional Corp., Paul R. Wilson, Jr., Rantoul, for Wendy Halle, et al.

Dennis J. Cotter, Querrey & Harrow, Ltd., Waukegan, for Farmers Ins. Group of Companies.

Hinshaw & Culbertson, Chicago, D. Kendall Griffith, Bruce L. Carmen, Stephen R. Swofford, Michael F. Henrick, for Joseph S. Robertson.

Justice McLAREN delivered the opinion of the court:

Plaintiff appeals from an order granting defendant's petition to vacate a default judgment pursuant to section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1401). Plaintiff contends that the trial court abused its discretion in granting the requested relief. We disagree and affirm.

On March 15, 1990, Wendy Halle, individually and as mother and next friend of Kristin Halle (plaintiff), filed a complaint against Joseph S. Robertson (defendant). In her complaint, plaintiff alleged that on July 4, 1988, defendant negligently operated his motorcycle and collided with plaintiff's automobile on the Amstutz Expressway in Waukegan, Illinois. Plaintiff sought recovery for personal injuries to herself and her daughter, Kristin, who was a passenger at the time. In addition, plaintiff sought to recover property and punitive damages.

On April 12, 1990, the Lake County sheriff allegedly served defendant by substitute service. Defendant's mother received the summons. Defendant then tendered the complaint to his liability insurer, Illinois Farmers Insurance Company (Farmers). Farmers is a group of insurance companies. Mid Century Insurance Carrier, located in Rolling Meadows, is a member of this group and is the carrier of Mr. Robertson's policy.

During a phone conversation on June 28, 1990, defendant's counsel told plaintiff's counsel that an appearance would be made as soon as proper service of process could be verified.

On July 19, 1990, during the special progress call, plaintiff obtained an order of default against defendant on the ground that defendant failed to appear or plead within the proper time. The trial court set the case for a jury trial prove up of damages on August 3, 1990. Plaintiff's counsel admits that he was aware defendant's counsel might file a special and limited appearance to contest service. Plaintiff's counsel also admits that on the date the default was obtained he saw defendant's counsel in the courtroom. Counsel further admits knowledge of defense counsel's possible involvement with the case, but denies having knowledge of defense counsel's intentions with respect to the case on the day of the special progress call. The court was not informed of defense counsel's involvement in the case.

At the jury trial prove up on August 3, 1990, again in the absence of defense counsel, plaintiff obtained a verdict for $148,240. This award included damages for personal injuries sustained by both Wendy and Kristin Halle, damages to property owned by Wendy Halle, and punitive damages for defendant's wilful and wanton conduct. Plaintiff sent a "notice of default" to defendant 31 full days after the jury verdict.

On August 15, 1990, the circuit clerk issued a garnishment citation against Farmers. The citation stated that Farmers was indebted to plaintiff in the full amount of plaintiff's judgment. Plaintiff delivered the garnishment to the Kane County sheriff 21 full days after it was issued. The next day, the garnishment was served on the Farmers Insurance Group in Aurora, Illinois. On October 16, 1990, a conditional judgment by default was taken against Farmers because Farmers failed to answer the garnishment.

On October 26, 1990, Robertson filed a petition for relief from the default judgment, and on November 5, Farmers moved to vacate the conditional judgment and garnishment. The court granted Robertson's petition and vacated the default judgment, finding that (1) defendant had a "meritorious defense to the claim for punitive damages and a meritorious defense to the amount of [compensatory damages]," (2) defendant acted with due diligence in filing the section 2-1401 petition for relief, and (3) principles of equity justified a decision vacating the default judgment as to the liability for actual damages. Farmers' petition to vacate the conditional judgment was also granted.

The trial court made several important findings with respect to the events described above. First, in connection with the proceedings surrounding the default hearing, the court found that it was not advised that there had been any discussions between the parties' counsels. The court also found that it was not told defense counsel was in court on the date the default was entered and that it was not apprised of defense counsel's involvement in the case.

Next, in connection with the jury trial prove up, the court found that there was an incorrect recitation of evidence regarding the posted speed limit, that there was a request for damages for which plaintiff had already received compensation, and that inadmissible evidence of a contingent fee arrangement was presented to the jury.

Finally, the court found that plaintiff failed to notify defendant of the entry of the default judgment in a timely manner, that plaintiff failed to place the garnishment summons for service in a timely manner and that plaintiff failed to conform to section 2-604.1 (Ill.Rev.Stat.1991, ch. 110, par. 2-604.1) with respect to the proper procedures for pleading punitive damages in actions based on negligence.

A section 2-1401 petition is initially addressed to the sound discretion of the trial court. Its decision on the matter should be reversed only in the case of an abuse of discretion. (Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill.App.3d 714, 718, 83 Ill.Dec. 922, 471 N.E.2d 221.) The court below exercised its discretion and ruled that the vacation of the default judgment was justified when considered in light of the actions of plaintiff's counsel along with the due diligence of the defendant. Based on case law and principles of equity, we agree.

The general rule is that a section 2-1401 petition for relief must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition. Smith v. Airoom, Inc. (1986), 114 Ill.2d 209, 221, 102 Ill.Dec. 368, 499 N.E.2d 1381.

Plaintiff argues that defendant failed to meet these requirements in its section 2-1401 petition. First, plaintiff argues that defendant failed to plead a meritorious defense. A meritorious defense is one which, if believed by the trier of fact, would defeat plaintiff's claim. Cunningham v. Miller's General Insurance Co. (1989), 188 Ill.App.3d 689, 135 Ill.Dec. 945, 544 N.E.2d 441.

Defendant's petition for section 2-1401 relief sets out several meritorious defenses. For example, it denies negligence on the part of defendant, by disputing the speed limit alleged by plaintiff and disputing the alleged speed of defendant. The petition also denies wilful and wanton conduct on the part of defendant and alleges that damages awarded were well beyond those properly proved.

These defenses were buttressed by affidavits that provided factual support. The defenses are not mere conclusions that defendant is not liable, but, rather, they are allegations of relevant facts that could support a judgment in defendant's favor. (People v. Smith (1989), 188 Ill.App.3d 387, 393, 135 Ill.Dec. 917, 544 N.E.2d 413.) If these defenses were believed by the trier of fact, they would serve to defeat the plaintiff's claim in its entirety. Therefore, the court acted within its discretion when it held that defendant had a meritorious defense to the claim for punitive damages and a meritorious defense to the amount of damages overall.

Plaintiff next argues that defendant failed to exercise due diligence in defending its cause in the trial court. According to our supreme court, due diligence requires a reasonable excuse for failing to act within the appropriate time. A party relying on section 2-1401 must show that he failed to appear because of an excusable mistake and not because of his own fault or negligence. In determining the reasonableness of the excuse offered by the...