R&J Construction Supply Co. v. Adamusik
70 N.E.3d 266
Ill. App. Ct.2017Background
- R&J Construction obtained a default judgment of $9,395.84 (plus costs) against Gregory Adamusik (d/b/a United Masonry & Tuckpointing) in 2008 and revived it in June 2015.
- Plaintiff served a third-party citation to discover assets (CDA) on Edmar Corporation on July 2, 2015 seeking assets of Adamusik allegedly held by Edmar; Edmar did not respond by the return date and a conditional judgment issued July 24, 2015.
- Plaintiff served a summons to confirm the conditional judgment; Edmar again failed to appear and a final judgment was entered August 25, 2015 for the amount of the Adamusik judgment.
- Plaintiff later served Edmar with a direct citation; by the citation return date Edmar retained counsel and filed a section 2-1401 petition to vacate, arguing the third-party citation was improper because Edmar had no relationship with Adamusik and the citation itself was defective.
- The trial court granted Edmar’s 2-1401 petition, vacated the conditional and final judgments, and dismissed the citation; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff had a sufficient evidentiary basis to issue a third-party citation to Edmar | Plaintiff relied on observed Edmar trucks with Adamusik’s name, overlapping business types and use of a domain name (masonrytuckpointing.com) as indicia linking Edmar to Adamusik | Edmar (via affidavit) stated it never knew or worked with Adamusik and did not hold his assets; no evidence linked Edmar to debtor | Court: Plaintiff lacked a reasonable basis; issuance was improper and citation was defective, so vacatur was proper |
| Whether the facial defects in the citation/summons justified vacatur | Plaintiff contended the citation was sufficient despite informal indicia | Edmar pointed to citation blanks that asked Edmar for the debtor’s assets (debtor name omitted/misstated), making the forms deceptive/defective | Court: Defects on the face of the citation/summons supported vacatur; documents were materially flawed |
| Whether Edmar exercised due diligence in seeking relief under section 2-1401 | Plaintiff implied delay by Edmar in responding to postjudgment proceedings | Edmar’s counsel appeared within 30 days, sought time to investigate, and promptly filed a 2-1401 petition after learning facts | Court: Even if due diligence were close, Edmar acted promptly; equitable relief appropriate and 2-1401 petition properly granted |
Key Cases Cited
- Ericksen v. Rush-Presbyterian-St. Luke’s Medical Center, 289 Ill. App. 3d 159 (1997) (describing citation to discover assets procedure)
- Schak v. Blom, 334 Ill. App. 3d 129 (2002) (third-party citation requires some record evidence that respondent possesses debtor’s assets)
- Smith v. Airoom, Inc., 114 Ill. 2d 209 (1986) (elements for section 2-1401 relief: meritorious defense and due diligence)
- People v. Vincent, 226 Ill. 2d 1 (2007) (section 2-1401 rulings reviewed de novo)
- Rockford Financial Systems, Inc. v. Borgetti, 403 Ill. App. 3d 321 (2010) (two-tiered section 2-1401 analysis and standards)