Elder v. Bryant

755 N.E.2d 515, 324 Ill. App. 3d 526, 258 Ill. Dec. 132
CourtAppellate Court of Illinois
DecidedAugust 28, 2001
Docket4 — 00—1096
StatusPublished
Cited by44 cases

This text of 755 N.E.2d 515 (Elder v. Bryant) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elder v. Bryant, 755 N.E.2d 515, 324 Ill. App. 3d 526, 258 Ill. Dec. 132 (Ill. Ct. App. 2001).

Opinion

JUSTICE MYERSCOUGH

delivered the opinion of the court:

In April 2000, plaintiff, Ada E Elder, filed a complaint against defendants, Thomas G. Bryant and Schnucks Markets, Inc., a Missouri corporation licensed to do business in Illinois (Schnucks) (collectively defendants), alleging that Bryant, an employee of Schnucks, drove a semi truck into her vehicle while she was driving and caused her personal injuries. Plaintiff served defendants with the summons and complaint and entered into negotiations with defendants’ insurer, St. Paul Fire & Marine Insurance Company (St. Paul), through its claims representative, Carol Reindl. Defendants did not retain an attorney or enter an appearance in the case.

In June 2000, plaintiffs attorney served Reindl with a settlement demand letter, stating that, if no settlement had been reached, he requested Reindl to retain counsel and file responsive pleadings on or before July 28, 2000. Defendants failed to contact plaintiff, retain counsel, or file responsive pleadings.

In August 2000, plaintiff filed a motion for default judgment. In September 2000, the trial court granted plaintiffs motion in chambers without notice to any party and set the case for a hearing on damages. At the October 11, 2000, hearing, the trial court awarded plaintiff $43,754.44, plus costs of suit, followed by a written judgment filed October 17, 2000. On November 3, 2000, defendants filed a timely motion to vacate the October 2000 damages award under section 2 — 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1401 (West 2000)). The trial court denied defendants’ motion.

On appeal, defendants argue that the trial court erred in (1) entering the default judgment against them, (2) denying their section 2 — 1401 motion, and (3) denying them due process by entering judgment against them without notice. We affirm.

I. BACKGROUND

In April 2000, plaintiff filed a complaint against defendants, alleging that Bryant, an employee of Schnucks, drove a semi truck into her vehicle while she was driving and caused her personal injuries. Plaintiff served defendants with summons and complaint on April 20, 2000. Plaintiffs attorney also entered into negotiations with St. Paul’s through Reindl. During these negotiations, the parties agreed that St. Paul’s would not obtain counsel in anticipation of settling the dispute without litigation. At the request of Reindl, plaintiff delayed prosecution of the case until Reindl had an opportunity to respond to the settlement demand.

In June 2000, plaintiff submitted a settlement demand to Reindl. Reindl never responded. Plaintiffs attorney sent Reindl a letter dated July 12, 2000, stating that, because Reindl never responded to his previous letter, he requested her to retain counsel and to file responsive pleadings on or before July 28, 2000, if no settlement had been reached by that time. Reindl failed to arrange for counsel and never contacted plaintiffs attorney during this time period. In addition to his written correspondence, plaintiffs counsel left telephone and voice-mail messages for Reindl reminding her that she had failed to either respond to the settlement offer or obtain counsel. Reindl did not respond.

In August 2000, without further notice to defendants, plaintiff filed a motion for default judgment. In September 2000, the trial court granted plaintiffs motion and set the case for a prove-up hearing regarding damages. Although the trial court ordered plaintiffs attorney to provide notice to defendants of the prove-up hearing, plaintiffs counsel failed to provide defendants such notice. However, plaintiffs attorney failed to give notice pursuant to the trial court’s order because plaintiffs attorney never received a copy of the docket entry requiring him to give notice. The record contains no indication that the clerk sent the trial court’s docket entry to plaintiffs attorney.

On October 11, 2000, the trial court conducted the hearing. On October 17, 2000, the trial court entered a written judgment against defendants in the amount of $43,753.55 plus costs of suit.

Later in October 2000, Reindl referred this case to outside counsel. Immediately upon taking the case, defendants’ counsel learned of the default judgment and damages award entered against defendants. On November 3, 2000, defendants’ counsel filed a timely section 2 — 1401 motion to vacate the October 17, 2000, damages award. On November 28, 2000, the trial court denied defendants’ motion. This appeal followed.

•1 We note that, on appeal, defendants attempt to supplement the record by appending to their brief various letters from plaintiffs attorney to Reindl not otherwise submitted to the trial court. We cannot and have not considered this information. See Cottrill v. Russell, 253 Ill. App. 3d 934, 939, 625 N.E.2d 888, 891 (1993) (“Attachments to briefs not otherwise of record are not properly before a reviewing court and cannot be used to supplement the record”).

I. ANALYSIS

•2 Section 2 — 1401 provides a comprehensive method for petitioning for relief from judgments, orders, and decrees more than 30 days after their entry. Kaput v. Hoey, 124 Ill. 2d 370, 377-78, 530 N.E.2d 230, 233 (1988). To obtain relief under section 2 — 1401, a party must show the existence of a meritorious defense to the judgment and the exercise of due diligence in presenting the defense, both in the underlying action and in the section 2 — 1401 proceeding. Kaput, 124 Ill. 2d at 378, 530 N.E.2d at 233. Accordingly, a section 2 — 1401 petitioner is not entitled to relief unless he establishes that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not presented to the trial court. Kaput, 124 Ill. 2d at 378, 530 N.E.2d at 233. The decision whether to grant or deny a section 2 — 1401 petition is reserved to the discretion of the trial court and will not be disturbed absent an abuse of discretion. Kaput, 124 Ill. 2d at 378, 530 N.E.2d at 234.

A. Motion To Vacate Default Judgment
1. Forfeiture

•3 Defendants first argue that the trial court erred in denying their section 2 — 1401 motion to vacate the default judgment because plaintiff failed to give defendants notice that the trial court had entered a default judgment. Plaintiff argues that defendants forfeited this issue by failing to contest the default judgment before the trial court. We agree with plaintiff.

“It is well established that matters not presented to or ruled upon by the trial court may not be raised for the first time on appeal.” Smith v. Airoom, Inc., 114 Ill. 2d 209, 229, 499 N.E.2d 1381, 1390 (1986); Shell Oil Co. v. Department of Revenue, 95 Ill. 2d 541, 550, 449 N.E.2d 65, 69 (1983).

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Cite This Page — Counsel Stack

Bluebook (online)
755 N.E.2d 515, 324 Ill. App. 3d 526, 258 Ill. Dec. 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elder-v-bryant-illappct-2001.