Molden v. Reid

Decision Date21 June 1990
Docket NumberNo. 1-88-3123,1-88-3123
Citation146 Ill.Dec. 276,558 N.E.2d 239,200 Ill.App.3d 495
Parties, 146 Ill.Dec. 276 John P. MOLDEN, Plaintiff-Appellee, v. Zaddock J.B. REID, Michael D. Campbell, Baldwin S. Barnes, and Fitz J. Ogilvie, Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Fitz Ogilvie and Peter M. Barron, Northbrook, for defendants-appellants.

John P. Molden, Stanley L. Hill & Associates, P.C., Chicago, for plaintiff-appellee (Lawrence E. Sommers, of counsel).

Justice LINN delivered the opinion of the court:

Defendant, Fitz J. Ogilvie, appeals from the trial court's denial of his section 2-1401 petition (Ill.Rev.Stat.1987, ch. 110, par. 2-1401) to vacate an ex parte judgment. He contends that the trial court abused its discretion in denying the petition because he met the requirements for post-judgment relief, equitable considerations also warranted post-judgment relief, the trial court should have treated the allegations of the section 2-1401 petition as uncontroverted, the trial court should have held an evidentiary hearing on the section 2-1401 petition and the trial court improperly awarded attorney fees and punitive damages to plaintiff.

On September 27, 1985, plaintiff, John P. Molden, filed a two-count complaint against Fitz J. Ogilvie and three other defendants, Zaddock J.B. Reid, Michael D. Campbell and Baldwin S. Barnes, jointly and severally. Only Ogilvie was served with summons, and the other defendants therefore are not involved in this appeal.

The gist of the complaint was that defendants fraudulently induced plaintiff to invest in a bankrupt business, gave him an $11,500 promissory note and failed to pay on the note. Plaintiff alleged that defendants misrepresented the financial condition and purpose of the business, the amount of the return on plaintiff's investment, the use to which his investment would be put and the risk involved. Count I was based upon common law fraud, and count II was based upon the Illinois Consumer Fraud and Deceptive Business Practices Act. (Ill.Rev.Stat.1985, ch. 121 1/2, pars. 261 et seq.) In both counts, plaintiff requested compensatory damages in the amount of $11,500, court costs and attorney fees. In count I, he also requested punitive damages in the amount of $100,000.

The sheriff of Cook County secured substitute service on Ogilvie on October 5, 1985, and an appearance and an answer were filed on his behalf on November 1, 1985, by attorney Brian Pedersen of 326 North Michigan Avenue in Chicago. The answer, but not the appearance, discloses that Pedersen worked for Hyatt Legal Services. The answer consisted of general denials of some of the allegations, and demands for strict proof of the remaining allegations.

Brian Pedersen apparently left Hyatt Legal Services in 1986. Another Hyatt attorney, David N. Schaffer, then assumed responsibility for the case at bar. When the case was presented on the April 7, 1986, progress call, an order was entered placing it on the trial call. The order was signed "Hyatt/Schaffer" with the same office address that Pedersen previously had provided.

Schaffer, however, failed to appear for the September 28, 1987, trial call, and Judge Lester D. Foreman accordingly assigned the case to Judge Louis J. Giliberto for prove-up in December. (The September 28 order is not in the record on appeal.) At the prove-up, the trial court found defendant liable for common law fraud, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill.Rev.Stat.1987, ch. 121 1/2, pars. 261 et seq.) and failure to pay on the promissory note. On December 22, 1987, the trial court entered an ex parte judgment in favor of plaintiff and against Ogilvie, and ordered Ogilvie to pay to plaintiff $50,000 in punitive damages, $11,500 in compensatory damages plus post-judgment interest at a rate of 9%, court costs, and $2,500 in attorney fees. The judgment reflects that an "Order of Default" was entered. Ogilvie, however, had filed an answer. Therefore, the judgment was not a default judgment; rather, it resulted from ex parte proceedings. See Fabian v. Norman (1985), 138 Ill.App.3d 507, 512, 93 Ill.Dec. 234, 486 N.E.2d 335; Ryan v. Bening (1978), 66 Ill.App.3d 127, 131, 22 Ill.Dec. 873, 383 N.E.2d 681; Dils v. City of Chicago (1978), 62 Ill.App.3d 474, 479-80, 19 Ill.Dec. 255, 378 N.E.2d 1130.

On January 21, 1988, plaintiff filed a citation to discover assets and scheduled a hearing for February 11, 1988. On February 11, Schaffer filed an appearance for Ogilvie in the supplementary proceedings.

On April 11, 1988, Schaffer filed a petition pursuant to section 2- 1401 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1401) to vacate the orders entered on September 28 and December 22, 1987. He also filed Ogilvie's supporting affidavit. The section 2-1401 petition reflected that Schaffer's address still was 326 North Michigan Avenue in Chicago. An order entered on September 1, 1988, reflects that Schaffer had a new address at 6835 North Lincoln Avenue in Lincolnwood, Illinois.

The section 2-1401 petition and Ogilvie's affidavit asserted that Ogilvie had a valid defense because he was not an agent of Reid and did not engage in any scheme to defraud plaintiff. Ogilvie asserted further that he had diligently presented his defense in the original action because he had filed an appearance and an answer and had attended a deposition. He alleged further that he had diligently filed his petition to vacate because he contacted his attorney as soon as he received the citation summons, and his attorney then investigated the judgment, procured a computer print-out of the docket history of the case and called plaintiff's lawyer. Finally, he claimed that the circumstances surrounding the ex parte judgment were unfair, unjust and unconscionable. He alleged that at the prove-up plaintiff's attorney concealed the fact that defendant had filed an appearance in the case. He alleged further that plaintiff's attorney had violated section 2-1302 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1302) by concealing the orders of September 28 and December 22, which cast a cloud over the proceedings.

Several exhibits were attached to the section 2-1401 petition, including a copy of a computer print-out of the docket history of the case. The print-out disclosed in part as follows:

"09/22/87 Sorrentino, P.A.

Case Set On Assignment Call

09/28/87 Foreman, Lester D.

Advance Or Reset On Call

* * * * * *

12/22/87 Giliberto, Louis J.

Judgment For Plaintiff."

A handwritten word which looks like the word "default" appears next to the entry for September 28, 1987.

Plaintiff filed a response to the section 2-1401 petition. The response did not include a counteraffidavit. Judge Giliberto, who previously had presided over the ex parte prove-up, held a hearing on the petition on September 16, 1988. At the hearing, the trial court observed that the petition to vacate and supporting affidavit consisted of conclusions and lies. The court stressed that no facts were alleged to support the existence of a meritorious defense or the exercise of diligence. Furthermore, the trial court specifically characterized as a "lie" Schaffer's assertion that plaintiff's attorney had concealed defendant's appearance from the court at the prove-up. The court affirmatively stated that it had seen defendant's appearance in the court file at the time of the prove-up. The trial court also indicated that plaintiff's attorney could not be accused of having concealed the existence of the judgment because it was a matter of public record.

The trial court repeatedly asked Schaffer to state facts in support of the allegations in the section 2-1401 petition and supporting affidavit, but he was unable to do so. Instead, he told the court that Brian Pedersen had worked in a different branch office of Hyatt Legal Services, and he stated that that office might have received notice. Schaffer admitted that his firm had made a mistake in missing the September 28, 1987, trial call. Schaffer admitted further that he had failed to check the Chicago Daily Law Bulletin to determine when the case would be called for trial, that he had made no notation concerning the trial call and that his calendar contained only a "tickler" to check the case in February 1988.

When the trial court asked Schaffer where Ogilvie was, Schaffer replied that Ogilvie was not present in court for the hearing on the section 2-1401 petition because no evidentiary hearing was necessary. At the conclusion of the hearing, the trial court denied Ogilvie's section 2-1401 petition to vacate, and he has appealed.

Section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1401) provides the procedure for vacating a judgment after 30 days from the date of entry of the judgment. (See Kaput v. Hoey (1988), 124 Ill.2d 370, 377-78, 125 Ill.Dec. 202, 530 N.E.2d 230; Galligan v. Washington (1987), 163 Ill.App.3d 701, 707, 114 Ill.Dec. 739, 516 N.E.2d 894.) A section 2-1401 petition is addressed to the sound discretion and equitable powers of the trial court. (Smith v. Airoom, Inc. (1986), 114 Ill.2d 209, 221, 102 Ill.Dec. 368, 499 N.E.2d 1381.) The trial court's judgment may be set aside on appeal only in the event of an abuse of that discretion. (Smith v. Airoom, Inc.; Galligan v. Washington.) A litigant must demonstrate four elements in order to qualify for relief under section 2-1401: (1) a meritorious claim or defense, (2) due diligence in presenting it in the original action, (3) due diligence in presenting the section 2-1401 petition and (4) the trial court's misapprehension of the claim, defense or facts, through no fault or negligence of the litigant. Gayton v. Levi (1986), 146 Ill.App.3d 142, 148, 99 Ill.Dec. 953, 496 N.E.2d 1045; see also Kaput v. Hoey, 124 Ill.2d at 378, 125 Ill.Dec. 202, 530 N.E.2d 230.

Section 2-1401 "is not to be utilized in...

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  • City of Joliet v. Szayna
    • United States
    • United States Appellate Court of Illinois
    • October 27, 2016
    ...claim or amount, a defendant nonetheless has the right to be heard on the matter of damages." Molden v. Reid, 200 Ill.App.3d 495, 502, 146 Ill.Dec. 276, 558 N.E.2d 239 (1990) (quoting Elfman v. Evanston Bus Co., 27 Ill.2d 609, 614, 190 N.E.2d 348 (1963) ).¶ 57 We acknowledge defendant (who ......
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    • December 27, 1993
    ...Obviously, if a litigant cannot win, there is no point in vacating a prior judgment. Nonetheless, in Molden v. Reid (1990), 200 Ill.App.3d 495, 146 Ill.Dec. 276, 558 N.E.2d 239, this court, relying on Elfman, dispensed with the proof requirements of section 2-1401 altogether in vacating a p......
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    • March 17, 1995
    ...was his subjective opinion. Such a general conclusion should not be considered so all conclusive. (See Molden v. Reid (1990), 200 Ill.App.3d 495, 146 Ill.Dec. 276, 558 N.E.2d 239 (bare conclusions of law and general denial did not amount to a meritorious defense in a petition for post-judgm......
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