Warren Cnty. Soil & Water Conservation Dist. v. Steve Walters, Individually, Steve Walters Logging & Export, Inc.

• Decision Date: 29 April 2014
• Docket Number: No. 3–13–0087.,3–13–0087.
• Court: United States Appellate Court of Illinois
• Parties: WARREN COUNTY SOIL AND WATER CONSERVATION DISTRICT, Plaintiff–Appellee, v. Steve WALTERS, individually, Steve Walters Logging & Export, Inc., and Robert O'Dell d/b/a Robert O'Dell Logging, Defendants–Appellants.

2014 IL App (3d) 130087

9 N.E.3d 588

380 Ill.Dec. 917

WARREN COUNTY SOIL AND WATER CONSERVATION DISTRICT, Plaintiff–Appellee,

v.Steve WALTERS, individually, Steve Walters Logging & Export, Inc., and Robert O'Dell d/b/a Robert O'Dell Logging, Defendants–Appellants.

No. 3–13–0087.

Appellate Court of Illinois,

Third District.

April 29, 2014.

Christopher H. Sokn (argued), of Kingery Durree Wakeman & O'Donnell, Associates, of Peoria, for appellants.

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

OPINION

Justice WRIGHT delivered the judgment of the court, with opinion.

¶ 1 On June 22, 2011, the trial court entered a default judgment against defendants, Steve Walters, Steve Walters Logging and Export, Inc., and Robert O'Dell, d/b/a Robert O'Dell Logging, for the alleged wrongful cutting of timber belonging to plaintiff, Warren County Soil and Water Conservation District. At the time of the 2011 default judgment, defendants were represented by counsel who failed to appear on their behalf. The trial court denied defendants' subsequent petition to vacate the default judgment, filed by new counsel pursuant to section 2–1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2–1401 (West 2012)), after finding defendants had not demonstrated due diligence in the original action due to the negligence of defendants' original trial counsel. On appeal, defendants assert the trial court should have exercised the equitable powers of the court, in the interests of justice, rather than attribute the lack of diligence of their original attorney to these defendants, contrary to well-established case law. We affirm.

¶ 2 BACKGROUND

¶ 3 On October 29, 2009, plaintiff Warren County Soil and Water Conservation District filed a five-count complaint against defendants contending defendants wrongfully removed approximately 54 trees, worth $17,229.95, from plaintiff's property. In the respective counts, plaintiff asserted defendants: (1) violated the Wrongful Tree Cutting Act (740 ILCS 185/0.01 et seq. (West 2008)) warranting treble damages (740 ILCS 185/2 (West 2008)); (2) committed trespass upon plaintiff's property; (3) committed an act of conversion by withholding plaintiff's property; (4) owed plaintiff $17,229.95 based on the theory of quantum meruit; and (5) acted negligently by cutting trees on plaintiff's property without plaintiff's permission.

¶ 4 Before the filing of this complaint, Jeffrey Walters, Iowa counsel for Steve Walters Logging, Inc., attempted to settle the matter. When he was unsuccessful, Jeffrey located attorney Christopher Tichenor to represent defendants in the pending litigation. The record indicates defendants retained Tichenor in November 2010. Thereafter, on January 7, 2011, Tichenor filed a written appearance on behalf of all defendants.

¶ 5 However, Tichenor did not file an answer to the complaint or appear for the case management conference scheduled for April 18, 2011. On that date, the court entered an order instructing defendants to file an answer to the complaint by May 3, 2011. Tichenor did not file an answer on May 3, 2011, or thereafter, as ordered.

¶ 6 On May 16, 2011, plaintiff filed a motion for default judgment. Plaintiff provided Tichenor with a copy of the motion along with notice of the scheduled hearing on plaintiff's motion for default judgment set for June 22, 2011. Tichenor did not respond to the motion for default judgment within the next 30 days. Further, neither Tichenor nor his clients appeared before the court on June 22, 2011.

¶ 7 On June 22, 2011, the court granted plaintiff's motion for default judgment by allowing treble damages in the amount of $51,689.85 for count I, and $17,229.95 each for counts II through V.¹ On June 23, 2011, plaintiff's counsel sent a copy of the order of default judgment to Tichenor, by mail, addressed to his law office at 327 East Jackson Street, Macomb, Illinois.

¶ 8 One month later, on July 22, 2011, Tichenor filed a motion to set aside the default judgment pursuant to section 2–1301(e) of the Code (735 ILCS 5/2–1301(e) (West 2008)), but did not request a hearing date with respect to this motion. On September 19, 2011, plaintiff's counsel scheduled Tichenor's motion to set aside the default judgment for a hearing before the court on October 24, 2011, one week after a scheduled case management conference set for October 17, 2011. Plaintiff's counsel sent notice of the motion hearing to Tichenor by mail.

¶ 9 On October 17, 2011, Tichenor failed to appear for a scheduled case management conference. The next week, Tichenor failed to appear before the court, on October 24, 2011, for the hearing on his motion to set aside the default judgment. On that date, the court denied defendants' motion to set aside the default judgment and entered a written order with findings on October 31, 2011.

¶ 10 The court's October 31, 2011, order found defendants failed to appear in person or by counsel at the October 17, 2011, case management conference, despite “being sent appropriate notice of said case management conference.” The court also stated defendants failed to schedule their own motion to set aside the default judgment for a hearing and failed to appear at the hearing on defendants' motion to set aside the default judgment scheduled by plaintiff.

¶ 11 Plaintiff's attorney filed a “Citation to Discover Assets,” on August 22, 2012. On August 29, 2012, the court entered a written order sua sponte removing Tichenor as defendants' attorney. The court's order, dated August 29, 2012, states “the Illinois Attorney Registration and Disciplinary Commission [ (ARDC) ] website indicate[d] that Christopher L. Tichenor [was] not authorized to practice law” on that date.²

¶ 12 The court's August 29, 2012, order also documented that Tichenor had not appeared on defendants' behalf for approximately one year, although he continued to be served with notices of the hearings in this action during that time. The court's order directed defendants to “retain other counsel or file with the clerk of the court, within 21 days after order herein, a “supplementary appearance” so that they could receive notices and “other papers” about the case. According to the record, the court sent a notice of this order to each individual defendant, including Steve Walters and Roger O'Dell.

¶ 13 On October 24, 2012, attorney Christopher Sokn, newly retained counsel representing all defendants, appeared on behalf of defendants by filing a petition for relief from judgment, pursuant to section 2–1401 of the Code (735 ILCS 5/2–1401 (West 2012)). Section IV of defendants' section 2–1401 petition alleged defendants were not responsible for the negligence of counsel and stated:

“Tichenor totally failed in his sworn duties—he took a $2,000 retainer, did essentially no legitimate work, failed to notify his clients of any of the proceedings, disappeared with the retainer money, and was disbarred. When plaintiff called up the default judgment, it did so with full knowledge that Tichenor had disappeared, yet did not notify Petitioners or their Iowa counsel (despite Plaintiff having corresponded and negotiated with Petitioner's Iowa counsel for months prior).”

Defense counsel supported the section 2–1401 petition with affidavits from Steve Walters, Jeffrey Walters, and Roger O'Dell.

¶ 14 The affidavit of Steve Walters averred that, after defendants retained Tichenor, it was “[u]nbeknownst” to Steve that Tichenor failed to answer the complaint and failed to schedule or attend the hearing on his own motion to vacate the default judgment as arranged by plaintiff's counsel. Steve further averred he did not know of the default judgment until he received the August 29, 2012, order from the court removing Tichenor as their attorney of record. He also stated he had “since learned from the Illinois Supreme Court that Christopher Tichenor was disbarred and ha[d] no malpractice insurance coverage.” An additional affidavit from Roger O'Dell contained similar statements regarding Tichenor's inaction and compromised law license.

¶ 15 The affidavit submitted by Jeffrey Walters also contained similar statements regarding Tichenor's inaction on defendants' case. Jeffrey averred he had “since learned from the Illinois Supreme Court that Christopher Tichenor ha[d] no law license and ha[d] no malpractice insurance coverage.”

¶ 16 On January 10, 2013, plaintiff filed a response to defendants' section 2–1401 petition. In the response, plaintiff first asserted the general propositions of law that a litigant is bound by the mistakes of his counsel, a party has a duty to follow the progress of his own case, and a section 2–1401 petition cannot be used to relieve a party of his counsel's negligence. Plaintiff also argued the supreme court case of People v. Vincent, 226 Ill.2d 1, 312 Ill.Dec. 617, 871 N.E.2d 17 (2007), which held that relief pursuant to section 2–1401 was no longer purely discretionary. Third, plaintiff asserted the case of R.M. Lucas Co. v. Peoples Gas Light & Coke Co., 2011 IL App (1st) 102955, 357 Ill.Dec. 321, 963 N.E.2d 274, controlled in the case at bar as it also involved an instance where the appellate court affirmed the trial court's denial of a section 2–1401 petition challenging the dismissal of the party's complaint due to the negligence of that party's attorney. Defendants did not file a written response to this filing.

¶ 17 The parties appeared before the court on January 15, 2013, to argue defendants' section 2–1401 petition. Neither party presented evidence to the court. The court took the matter under advisement.

¶ 18 On January 22, 2013, the court issued a written order denying defendants' section 2–1401 petition to vacate the default judgment. The court found defendants established the existence of a meritorious defense and similarly established new counsel exercised due diligence after the entry of the default judgment by filing the ...