Flisk v. Central Area Park District

560 N.E.2d 1160, 203 Ill. App. 3d 253, 148 Ill. Dec. 563, 1990 Ill. App. LEXIS 1416
CourtAppellate Court of Illinois
DecidedSeptember 18, 1990
Docket1-89-0443
StatusPublished
Cited by12 cases

This text of 560 N.E.2d 1160 (Flisk v. Central Area Park District) 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
Flisk v. Central Area Park District, 560 N.E.2d 1160, 203 Ill. App. 3d 253, 148 Ill. Dec. 563, 1990 Ill. App. LEXIS 1416 (Ill. Ct. App. 1990).

Opinion

JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs charge that defendants wrongfully terminated their employment as police officers and seek both equitable relief and damages. After a default judgment was entered in favor of plaintiffs, defendants filed a petition to vacate pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401), which itself was subsequently dismissed for want of prosecution. However, the trial judge granted a second section 2 — 1401 petition filed by defendants approximately six months later. Plaintiffs appeal from this ruling. We reverse.

On June 30, 1987, plaintiffs filed a complaint seeking declaratory relief, an injunction, and damages from the Central Area Park District (Park District) and its board of commissioners, alleging that they had been wrongfully dismissed from their positions as part-time police officers for the Village of Maywood. 1 On July 1, 1987, the parties appeared in court to argue plaintiffs’ motion for a temporary restraining order. Defendants were represented at that hearing by attorney Robert Grundin, who did not file an appearance at that time. After denying the plaintiffs’ motion, the court ordered defendants to file an appearance and to answer or otherwise plead within 15 days. Defendants were served with the complaint on July 11 and 13.

On August 24, 1987, plaintiffs filed a notice of motion and motion indicating that they would seek a default judgment on September 8, 1987, on the ground that none of the defendants had filed an appearance or pleading of any kind. The certificate of service indicates that the notice of motion and the motion were mailed to defendants on that same date. The motion was granted on September 9, 1987, to which date the matter had been continued. On November 4, 1987, defendants Sharp, Dabney, and Wade, this time represented by attorney Luther Spence, filed a petition to vacate the default judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401), alleging that Grundin had resigned without notice, that defendants did not learn of the resignation until after the rendition of the default judgment, and that they did not receive a copy of the judgment until the middle of October, two days after a prove up hearing on damages. Accompanying affidavits executed by the petitioners stated that Spence was hired on or about October 6, 1987, and that defendants had no knowledge of plaintiffs’ employment status with the Park District.

An amended petition filed on November 9, 1987, read together with the accompanying affidavits, alleged that plaintiffs did not have an employment contract with the Park District, and that this constituted a meritorious defense. The petition also asserted that the Park District “was without funds to retain representation to do a thorough investigation until on or about Oct. 15, 1987,” and that defendants did not receive a copy of the judgment order until October 15, after a prove up hearing had been held. Neither the amended petition nor the accompanying affidavits mentioned anything as to when defendants first learned of Grundin’s resignation. An order was entered on March 31, 1988, dismissing the amended petition for want of prosecution.

Defendants once more retained new counsel in June 1988, and a new section 2 — 1401 petition was filed on October 11, 1988, on behalf of the Park District and defendants Sharp, Dabney, and Wade. The petition alleged in substance that attorneys Grundin and Spence mishandled the case, that defendants should not be penalized for their attorneys’ incompetence, and that failure to grant the petition would lead to an unjust result. Contrary to explicit statements contained in the affidavits accompanying the original November 4, 1987, petition, it was conceded in the October 11, 1988, petition that Spence was first hired by the Park District “on or about” September 15, 1987, six days after the default order was entered. These allegations were repeated in affidavits signed by the defendants. A number of defenses, alleged to be meritorious, were set forth, including the absence of a valid employment contract with plaintiffs and that one of the plaintiffs had submitted a letter of resignation.

On November 30, 1988, defendants’ petition to vacate the default judgment was granted. After plaintiffs’ motion to vacate the November 30,1988, order was denied, this appeal followed.

The petitioner in a section 2 — 1401 proceeding is required to demonstrate by a preponderance of the evidence (1) 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. (In re Petition of Village of Kildeer (1988), 124 Ill. 2d 533, 530 N.E.2d 491; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381; Duded, Inc. v. Shred Pax Corp. (1990), 196 Ill. App. 3d 720, 554 N.E.2d 1002.) In reviewing the grant of a section 2— 1401 petition to vacate a judgment, reversal is proper only if the petitioner can show an abuse of discretion. Airoom, 114 Ill. 2d 209, 499 N.E.2d 1381.

The Airoom decision instructs us that “[d]ue diligence requires the section 2 — 1401 petitioner to have a reasonable excuse for failing to act within the appropriate time.” (114 Ill. 2d at 222, 499 N.E.2d at 1386.) We first observe that there was a clear lack of due diligence in defendants’ contesting the underlying action in the trial court. The record contains an affidavit signed by plaintiff Louden Flisk on December 19, 1988, in connection with plaintiffs’ motion to reconsider the November 30, 1988, order. The affidavit, which has not been controverted by defendants, attaches, as a part thereof, a July 2, 1987, letter from Robert Grundin to David Sharp and the board of commissioners stating that Grundin was resigning as attorney for the district effective immediately. It is also undisputed that defendants were properly served with the complaint and were aware of the pendency of the lawsuit. Further, the record indicates defendants hired attorney Spence within 30 days of the entry of the default judgment and were therefore certainly in a position to file a timely and appropriate motion for relief. Even if we were to assume arguendo that defendants did not learn of Grundin’s resignation until after the entry of the default judgment, to find due diligence on these facts would be to ignore numerous Illinois decisions holding that it is the duty of all litigants to follow the progress of litigation to which they are a party, and that the misdeeds of their attorney do not excuse them from this obligation. E.g., Dudek, Inc. v. Shred Pax Corp. (1990), 196 Ill. App. 3d 720, 554 N.E.2d 1002; Dassion v. Homan (1987), 161 Ill. App. 3d 141, 514 N.E.2d 41, appeal denied (1988), 118 Ill. 2d 542, 520 N.E.2d 384; American Reserve Corp. v. Holland (1980), 80 Ill. App.

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Bluebook (online)
560 N.E.2d 1160, 203 Ill. App. 3d 253, 148 Ill. Dec. 563, 1990 Ill. App. LEXIS 1416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flisk-v-central-area-park-district-illappct-1990.