Lancaster v. United Parcel Service, Inc.

2023 IL App (2d) 220368-U

• Court: Appellate Court of Illinois
• Decided: November 13, 2023
• Docket: 2-22-0368
• Status: Unpublished

Opinion

2023 IL App (2d) 220368-U No. 2-22-0368 Order filed November 13, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

JUDE J. LANCASTER ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 22-SC-834 ) ) Honorable UNITED PARCEL SERVICE, INC., ) Joseph R. Waldeck ) and Christopher B. Morozin, Defendant-Appellee. ) Judges, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court. Presiding Justice McLaren and Justice Kennedy concurred in the judgment.

ORDER

¶1 Held: The circuit court did not abuse its discretion in vacating the default judgment.

¶2 Plaintiff, Jude J. Lancaster, proceeding pro se, appeals orders of the circuit court of Lake

County vacating the default judgment order entered in his favor against defendant United Parcel

Service, Inc. (UPS), as well as the judgment entered after a bench trial in favor of UPS. We affirm.

¶3 I. BACKGROUND

¶4 On March 14, 2022, plaintiff filed a pro se small claims complaint against UPS, alleging it

lost a package that contained a cashier’s check that plaintiff sent to Volkswagen Credit, Inc. in 2023 IL App (2d) 220368-U

order to purchase the vehicle that he was leasing. Plaintiff alleged that he intended to purchase the

vehicle so that he could resell it to CarMax, which had made him an online offer to purchase it.

Plaintiff sought $8241.74 in damages, which included a fee that he paid to obtain a lost instrument

surety bond, a reduction in CarMax’s written offer to purchase the vehicle due to the delay

occasioned by the loss of the check, and $4500 to compensate plaintiff for his time “trying to

remedy the situation.”

¶5 On April 21, 2022, UPS failed to appear in court when the case was called, and the trial

court entered a default judgment in the amount of $4066.74 in favor of plaintiff. 1

¶6 That same day, UPS employee Robert J. Gilbert, a non-attorney, filed an appearance on

behalf of UPS and a motion to vacate the default judgment pursuant to section 2-1301(e) of the

Code of Civil Procedure (Code) (735 ILCS 5/2-1301(e) (West 2022)). Gilbert stated in the motion

that he, on behalf of UPS, wished to vacate the default judgment because the “case was not

presented due to an emergency.”

¶7 On May 12, 2022, the court held a hearing on the motion, which was presided over by the

Honorable Joseph R. Waldeck. Plaintiff argued that Gilbert could not defend UPS because he did

not meet the criteria set forth in section 2-416 of the Code (735 ILCS 5/2-416 (West 2022)), which

allows certain corporate employees to defend the corporation in small claims proceedings. The

court questioned Gilbert regarding his employment at UPS, and Gilbert stated that he was a

1 The judgment consisted of an award of $3741.74 plus $325 in court costs. Because

plaintiff sought $8241.74 in damages but was awarded $3741.74, we reasonably presume that the

trial court disallowed plaintiff’s request for $4500 for the time he spent “trying to remedy the

situation.”

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“security investigator.” The court agreed with plaintiff that Gilbert was not authorized to defend

UPS under section 2-416, continued the motion to vacate to June 23, 2022, and ordered UPS to

appear through an attorney.

¶8 On June 6, 2022, plaintiff filed a motion to strike the motion to vacate. Plaintiff reiterated

the arguments he made at the May 12, 2022, hearing. Specifically, plaintiff argued that Gilbert

was not authorized to defend the small claims action on behalf of UPS because he was neither an

attorney nor employed by UPS as an officer, director, manager, department manager, or

supervisor, as contemplated in section 2-416 of the Code. Rather, Gilbert was a “security

investigator,” which plaintiff argued “did not fit these qualifications.” Plaintiff argued that because

the circuit court concluded that section 2-416 did not authorize Gilbert to defend UPS, Gilbert’s

appearance and motion to vacate the default judgment were “invalid as a matter of law.” Plaintiff

reasoned that, therefore, “the actual defendant, UPS, never filed a [timely] motion to vacate” and

the default judgment “automatically went final on 5/21/2022.” Plaintiff also asserted that the court

“no longer ha[d] jurisdiction to set aside the default judgment.”

¶9 Plaintiff, Gilbert, and counsel for UPS appeared at the June 23, 2022, hearing, which was

presided over by the Honorable Christopher B. Morozin. The court inquired as to Judge Waldeck’s

order indicating that the matter was set for status on appearance of an attorney. Gilbert notified

the court that he was late to court on the day the default judgment was entered, and that his position

at UPS was that of a “supervisor/manager.” The court advised the parties of Illinois Supreme

Court Rule 282(b) (eff. July 1, 2018), read it aloud in open court, and concluded that Gilbert was

authorized to appear on behalf of UPS. Counsel filed an appearance on behalf of UPS and was

permitted to adopt the motion to vacate that Gilbert had filed. After hearing oral argument, the

court observed that motions to vacate that are filed within 30 days of the entry of a default

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judgment, such as the case here, are to be liberally construed. It then granted the motion and

vacated the default judgment, which implicitly denied plaintiff’s motion to strike.

¶ 10 On September 1, 2022, plaintiff filed a motion to reconsider. He argued that, because

Judge Waldeck agreed during the May 12, 2022, hearing that Gilbert was not authorized to appear

on behalf of UPS under section 2-416 of the Code, that determination “should have remained

binding and controlled subsequent proceedings in this action” under the law-of-the-case doctrine.

He also asserted that UPS improperly “relitigated the issue of Mr. Gilbert’s fitness to appear.”

¶ 11 On September 7, 2022, the trial court denied plaintiff’s motion to reconsider, 2 and trial

commenced immediately thereafter. Plaintiff testified that he sent the subject package through

Mail Drop Shoppe, which is an authorized shipper for UPS that is located in Fox Lake, Illinois.

Plaintiff further testified that UPS lost his package, which contained a certified check intended for

Volkswagen Credit, Inc. Plaintiff conceded that he did not declare a value in excess of $100 for

the package, that he read the “2022 UPS Tariff/Terms & Conditions of Service” (Terms &

Conditions) before shipping the package, and that Mail Drop Shoppe, rather than plaintiff, was the

“Shipper” under the Terms & Conditions. He also testified that Mail Drop Shoppe did not declare

a value for the package prior to shipping it, and that UPS issued a claim payment to Mail Drop

Shoppe for $100.

¶ 12 Gilbert testified that he was a security investigator for UPS, which was “a management

position,” and he was familiar with the Terms & Conditions, which was admitted into evidence.

Gilbert was likewise familiar with the lost package, that Mail Drop Shoppe was the Shipper, and

2 The bystander’s report included in the record on appeal does not explain why the court

denied the motion to reconsider.

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that the Shipper did not declare a value for the package. Gilbert conceded that UPS accepted the

package from Mail Drop Shoppe, and that authorized shippers for UPS such as Mail Drop Shoppe

were required to accept the Terms & Conditions because they were non-negotiable.

¶ 13 Plaintiff argued during closing argument that, even though his transaction was with an

authorized shipper, UPS bore responsibility because it lost the package, and that UPS was “hiding

behind terms of service that no one reads.” UPS argued in closing that plaintiff failed to satisfy

his burden of proof and had not proved any claim against UPS. It reasoned that plaintiff lacked

standing because Mail Drop Shoppe was the Shipper, that plaintiff did not pay UPS for any

services, and that plaintiff had not entered into any contract with UPS. It also argued that, under

the Terms & Conditions, plaintiff’s contract was with Mail Drop Shoppe, as the shipping partner.

¶ 14 The circuit court entered judgment in favor of UPS, finding that there was no contract

between plaintiff and UPS and that, even if there were such a contract, plaintiff testified that he

was aware of the limitations on UPS’s liability as set forth in the Terms & Conditions. Further,

the court found that plaintiff’s proffered evidence regarding damages was “speculative and

unreliable.”

¶ 15 Plaintiff timely filed a notice of appeal.

¶ 16 II. ANALYSIS

¶ 17 Plaintiff argues on appeal that the circuit court erred in vacating the default judgment

because Gilbert was not authorized to defend UPS under Section 2-416 of the Code and because

Judge Morozin “incorrectly overruled” Judge Waldeck’s earlier order. Additionally, plaintiff

argues that the court’s judgment following trial in favor of UPS was erroneous because it ignored

UPS’s obligations as a bailee. We address each issue in turn.

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¶ 18 Plaintiff first asserts that Gilbert was unauthorized to file an appearance or motion to vacate

the default judgment under section 2-416 of the Code, which provides:

“[a] corporation may prosecute as plaintiff or defend as defendant any small claims

proceeding in any court of this State through any officer, director, manager, department

manager or supervisor of the corporation, as though such corporation were appearing in its

proper person. *** For purposes of this Section, the term ‘officer’ means the president,

vice-president, registered agent or other person vested with the responsibility of managing

the affairs of the corporation.” 735 ILCS 5/2-416 (West 2022).

¶ 19 Plaintiff overlooks that section 2-416 was held unconstitutional in Adair Architects, Inc. v.

Bruggeman, 346 Ill. App. 3d 523, 525-26, because it directly and irreconcilably conflicts with a

supreme court rule pertaining to a matter squarely within the supreme court’s authority. Supreme

Court Rule 282, which provides the procedure by which a corporation may appear in small claims

court, provides:

“No corporation may appear as claimant, assignee, subrogee or counterclaimant in

a small claims proceeding, unless represented by counsel. When the amount claimed does

not exceed the jurisdictional limit for small claims, a corporation may defend as defendant

any small claims proceeding in any court of this State through any officer, director,

manager, department manager or supervisor of the corporation, as though such corporation

were appearing in its proper person. For the purposes of this rule, the term ‘officer’ means

the president, vice-president, registered agent or other person vested with the responsibility

of managing the affairs of the corporation.”

The irreconcilable conflict between these two authorities, although not expressly identified by the

court in Adair, is that section 2-416 of the Code authorizes a corporation to prosecute as plaintiff

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in small claims proceedings through any of the officers or employees listed, whereas Rule 282(b)

expressly prohibits that same conduct. The conflict was resolved in Adair, which held that Rule

282(b) prevails over section 2-416. Adair, 346 Ill. App. 3d at 525.

¶ 20 Here, of course, Gilbert filed a defensive pleading on behalf of UPS, as defendant in

plaintiff’s small claims action, and we note that the language regarding the authority of certain

corporate officers and employees to defend in small claims proceedings on behalf of the

corporation is virtually identical between both authorities. Nevertheless, we take this opportunity

to emphasize that Rule 282(b), and not section 2-416, provides the appropriate framework to

review plaintiff’s argument, as Judge Morozin recognized.

¶ 21 Again, Rule 282(b) provides that a corporation may defend as defendant in any small

claims proceeding in any Illinois court “through any officer, director, manager, department

manager or supervisor of the corporation.” (Emphasis added.) Plaintiff describes Gilbert as “a

private citizen with no standing in this matter” and asserts that Gilbert’s on-line LinkedIn profile

“suggests that [he] is a traditional, run-of-the-mill employee.” Aside from the fact no material

from Gilbert’s LinkedIn profile is contained in the record and therefore must be disregarded (Oruta

v. B.E.W. and Continental, 2016 IL App (1st) 152735, ¶ 32), the uncontroverted evidence before

the circuit court was that Gilbert, as a “security investigator,” held a management position with

UPS. During the June 23, 2022, hearing, Gilbert apprised the court that his position at UPS was

that of a “supervisor/manager,” and he testified at trial that his position was a management

position. This testimony was unrebutted, and the evidence therefore amply supports Judge

Morozin’s ruling that Gilbert was permitted under Rule 282(b) to file an appearance and motion

to vacate on behalf of UPS.

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¶ 22 In his next identified argument on appeal, plaintiff points to the law-of-the-case doctrine

and collateral estoppel (issue preclusion) to argue that Judge Morozin “incorrectly overruled” and

“ignored [Judge Waldeck’s] prior ruling” that Gilbert was not authorized to defend UPS. Plaintiff

emphasizes that, at the May 12, 2022, hearing, Judge Waldeck agreed with plaintiff’s argument

that Gilbert did not fit the criteria in section 2-416 of the Code, issued an order continuing the

motion to vacate, and required UPS to appear through an attorney. Then, at the June 23, 2022,

hearing, Judge Morozin determined that Gilbert was authorized to appear on UPS’s behalf under

Rule 282(b) on the basis that Gilbert occupied a supervisory or management position at UPS. In

plaintiff’s view, the “[l]ack of continuity of personnel at the trial court level should not make prior

rulings irrelevant.”

¶ 23 We reject these arguments because neither the law-of-the-case doctrine nor collateral

estoppel have any application here. “[T]he law-of-the-case doctrine generally bars relitigation of

an issue previously decided in the same case.” People ex rel. Madigan v. Illinois Commerce

Comm’n, 2012 Ill App (2d) 100024, ¶ 31. Under the law-of-the-case doctrine, questions of law

that were decided in a previous appeal of the case are binding on the trial court on remand and the

appellate court in subsequent appeals. Norris v. National Union Fire Insurance Co. of Pittsburgh,

368 Ill. App. 3d 576, 580 (2006); Marsaw v. Richards, 368 Ill. App. 3d 418, 425 (2006). “A

prerequisite to the application of this doctrine is that there has been a prior appeal.” In re Marriage

of Carstens, 2018 IL App (2d) 170183, ¶ 23. The law-of-the-case doctrine plainly does not apply

because there was no prior appeal in this case and Judge Waldeck’s order is not an order of the

appellate court.

¶ 24 Issue preclusion likewise has no applicability. Collateral estoppel, or issue preclusion, bars

relitigation of issues decided in a prior action between the same parties. It requires that: (1) the

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issue decided in the prior proceeding is identical to the one in the suit in question, (2) the prior

adjudication was a final judgment rendered on the merits, and (3) the party against whom the

estoppel is asserted either was a party or was in privity with a party to the prior adjudication.

Wakehouse v. Goodyear Tire & Rubber Co., 353 Ill. App. 3d 346, 351 (2004). “Additionally, the

party sought to be bound must actually have litigated the issue in the first suit and a decision on

the issue must have been necessary to the judgment in the first litigation.” American Family

Mutual Insurance Co., v. Savickas, 193 Ill. 2d 378, 387 (2000).

¶ 25 Plaintiff argues that the parties were barred, under the equitable doctrine of collateral

estoppel, from relitigating the issue of whether Gilbert was authorized to appear on behalf of UPS

because that issue was decided in plaintiff’s favor by Judge Waldeck on May 12, 2022. The

argument fails because the May 12, 2022, order was not a final judgment. A final judgment is a

determination by the court on the issues presented by the pleadings which ascertains and fixes

absolutely and finally the rights of the parties in the lawsuit. Ally Financial Inc. v. Pira, 2017 IL

App (2d) 170213, ¶ 22. A judgment is final if it determines the litigation on the merits so that, if

affirmed, the only thing remaining is to proceed with the execution of the judgment. In re

J’America B., 346 Ill. App. 3d 1034, 1043 (2004). By no stretch of the imagination can the May

12, 2022, order be viewed as a final judgment on the merits, and plaintiff’s reliance on issue

preclusion as a basis to reverse the order of June 23, 2022, denying plaintiff’s motion to strike

UPS’s motion necessarily must fail. Moreover, because the May 12, 2022, order was interlocutory,

it was subject to revision at any time before entry of a final judgment. See Ill. S. Ct. R. 304(a)

(eff. Mar. 8, 2016) (providing that, absent an express written finding in an interlocutory order that

there is no just reason for delaying either enforcement or appeal or both, the order is subject to

revision at any time prior to final disposition of the case).

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¶ 26 These issues aside, we would be remiss if we did not mention that Judge Waldeck did not

strike Gilbert’s appearance and motion to vacate during the May 12, 2022, hearing,

notwithstanding his apparent agreement with plaintiff that Gilbert was not authorized under section

2-416 to defend UPS. If he had, UPS would have been apprised of the court’s view that Gilbert’s

appearance and motion were inadequate, and it would have had an opportunity to remedy that

deficiency by engaging a licensed attorney to file an appearance and motion to vacate within the

30-day window following entry of the default judgment. Rather, the court took a Solomonic

approach by continuing the motion and requiring UPS to appear through an attorney at the June

23, 2022, court date. Consistent with that order, UPS appeared that day through counsel, and

counsel was permitted to file an appearance, adopt the motion to vacate, and argue its merits. UPS

was thereafter represented by a licensed attorney at every stage of the proceedings. Under these

circumstances, it would be manifestly unfair to reinstate the default judgment, as plaintiff requests.

¶ 27 We also cannot say that the circuit court wrongly granted UPS’s motion to vacate. Section

2-1301 of the Code provides that “[t]he court may in its discretion, before final order or judgment,

set aside any default, and may on motion filed within 30 days after entry thereof set aside any final

order or judgment upon any terms and conditions that shall be reasonable.” 735 ILCS 5/2-1301(e)

(West 2022). Courts are encouraged to liberally grant requests to vacate defaults under this

section. Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469, ¶ 16. The moving party need not

show a meritorious defense and a reasonable excuse for failing to timely assert such defense. Id.

Rather, the overriding consideration is “whether or not substantial justice is being done between

the litigants and whether it is reasonable, under the circumstances, to compel the other party to go

to trial on the merits.” Id. The entry of a default judgment is a drastic remedy that should be used

only as a last resort, and the law prefers that controversies be determined on the merits. In re Haley

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D., 2011 IL 110886, ¶ 69. The decision to grant or deny a motion to vacate under section 2-1301

is within the sound discretion of the trial court, and we will not reverse the court’s ruling absent

an abuse of that discretion or a denial of substantial justice. Glover v. Fitch, 2015 IL App (1st)

130827, ¶ 29. A trial court abuses its discretion only where no reasonable person would take the

view adopted by the trial court, meaning that it acted “arbitrarily or ignored recognized principles

of law.” Id.

¶ 28 Here, the circuit court entered a default judgment on April 21, 2022, after UPS failed to

appear for a preliminary hearing. The bystander’s report from the June 23, 2022, hearing confirms

that Gilbert reported to the court that he did not appear on time for the preliminary hearing because

he “was late and appeared after the default was entered.” Gilbert filed his appearance and motion

to vacate on behalf of UPS mere hours after the default judgment was entered. UPS thereafter

appeared through licensed counsel at the June 23, 2023, hearing, who was permitted by the court

to adopt the motion to vacate and argued its merits. Apart from the arguments we have already

addressed, plaintiff makes no argument that the court improvidently granted UPS’s motion to

vacate. We find no abuse of discretion.

¶ 29 As a final matter, plaintiff argues that the circuit court’s ruling ignores UPS’s obligations

as a bailee of the packages it receives—regardless of whether it receives the packages via a third-

party agent or directly from a customer. He asserts that UPS, as the bailee, was obligated to

exercise reasonable care to safeguard the package and that UPS breached its obligations by failing

to deliver it to its intended recipient.

¶ 30 UPS responds that plaintiff forfeited the issue of bailee liability because he did not provide

any allegations, evidence, or argument relating to this theory in the circuit court, and that plaintiff

forfeited the argument for the additional reason that he failed to cite relevant authority in violation

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of Rule 341(h)(7) (eff. Oct. 1, 2020). Forfeiture aside, UPS maintains that the issue fails on its

merits because plaintiff had no contract with UPS and, even if he did, its liability would be limited

to $100 under the Terms & Conditions because neither plaintiff nor Mail Drop Shoppe declared a

value for the package in excess of $100.

¶ 31 It is true that plaintiff did not specifically argue that a “bailment” was created between the

parties following the authorized transfer of the package (the bailed item) from Mail Drop Shoppe,

as bailee, to UPS. Rather, plaintiff argued at trial that UPS accepted the package from Mail Drop

Shoppe and that, even though plaintiff transacted only with Mail Drop Shoppe, UPS should be

held responsible because it is the entity that lost the package. Under Illinois law, a bailment is the

delivery of property for some purpose upon a contract, express or implied, that after the purpose

has been fulfilled, the property shall be redelivered to the bailor, or otherwise dealt with according

to his directions, or kept until he reclaims it. Wausau Insurance Co. v. All Chicagoland Moving

& Storage Co., 333 Ill. App. 3d 1116, 1121 (2002). A comparison of the argument plaintiff

articulated at trial with the contention he identifies on appeal confirms that, despite his failure

below to apply the appropriate legal terminology on the issue of bailment, his trial arguments

articulated the gravamen of a cause of action based on a bailment theory against UPS. See

Tannenbaum v. Fleming, 234 Ill. App. 3d 1041, 1043 (1992) (observing that small claims have

relaxed standards intended to allow litigants with minimal legal experience to present their

grievances to the court via an expeditious, simplified, and inexpensive procedure).

¶ 32 Nevertheless, simply raising a contention, without argument or citation to authority, is

insufficient to avoid forfeiture. Enbridge Pipeline (Illinois), LLC v. Hoke, 2019 IL App (4th)

150544-B, ¶ 43. In his brief, plaintiff cites Wausau Insurance Co., 333 Ill. App. 3d at 1121, only

for general propositions of law concerning the definition of a bailment. He then concludes, without

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citation to authority or providing meaningful argument, that UPS was the bailee and that it “should

be [held] responsible.” He makes no argument that he somehow stepped into the shoes of the

Shipper under the Terms & Conditions or that his transaction with Mail Drop Shoppe resulted in

either an express or implied agreement to create a bailment between UPS and plaintiff. Supreme

Court Rule 341(h)(7) requires that an appellant’s brief contain “[a]rgument, which shall contain

the contentions of the appellant and the reasons therefore, with citation of the authorities and the

pages of the record relied on.” The purpose of the rules is to require a party before a reviewing

court to present clear and orderly arguments so that the court can properly ascertain and dispose

of the issues involved. Zadrozny v. City Colleges of Chicago, 220 Ill. App. 3d 290, 292 (1991).

Moreover, “[c]itations to authority that set forth only general propositions of law and do not

address the issues presented do not constitute relevant authority for purposes of Rule 341(h)(7).”

Robinson v. Point One Toyota, Evanston, 2012 IL App (1st) 111889, ¶ 54.

¶ 33 Plaintiff does purport to analogize the facts of this case to what he cites as “Thompson v.

Hott and UPS Corporate Headquarters, Case No. SCSC171077 (District Court for Linn County,

Iowa, Nov. 10, 2008).” However, neither the citation provided by plaintiff, nor our own search

yielded any relevant results, and plaintiff failed to attach the case to his appellate brief. Even if

plaintiff had cited the case properly and the facts were analogous, the case would be persuasive

authority, at best. See Wood v. Evergreen Condominium Ass’n, 2021 IL App (1st) 200687, ¶ 54

(noting that cases from foreign jurisdictions are not binding on the Illinois appellate court). In any

event, it appears that the case plaintiff attempted to cite was rendered by a county-level trial court

in Iowa (rather than the Iowa Court of Appeals or Iowa Supreme Court), which would only further

diminish whatever persuasive value the case may have had. Accordingly, plaintiff’s argument is

little more than a bare contention, unsupported by meaningful argument or citation to pertinent

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authority, which is insufficient under Rule 341(h)(7). In light of plaintiff’s failure to comply with

Rule 341(h)(7), we conclude that plaintiff has forfeited this issue on appeal.

¶ 34 III. CONCLUSION

¶ 35 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 36 Affirmed.

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