Juszczyk v. FloresJuszczyk v. Flores
Presiding Justice HALL delivered the opinion of the court:
This action arose from a two-car accident. On July 13, 1998, plaintiff Marta Juszczyk filed a negligence action against defendant Elena Flores to recover for injuries and damages she sustained in a two car collision that occurred on August 10, 1997, at the intersection of Humboldt Boulevard and Augusta Boulevard in Chicago, Illinois. On April 8, 1999, defendant was served with an aliаs summons and complaint.
On May 19, 1999, a notice of arbitration hearing was mailed from the Arbitration Center1, setting the arbitration hearing for August 3, 1999. On June 1, 1999, the trial court granted defendant‘s motion to vacate any and all defaults and for leave to file an apрearance, answer, and jury demand. On June 2, 1999, the law firm of Thomas L. Burdelik & Associates filed an appearance on behalf of defendant along with interrogatories, a notice to produce, and a request for production. The firm also filed an answer on behalf of defendant, in which defendant admitted negligence but denied that the negligence was a direct or proximate cause of plaintiff‘s injuries or damages.
On June 28, 1999, plaintiff‘s counsel sent defendant‘s counsel evidentiary documents for the August 3, 1999, arbitration hearing pursuant to
On October 22, 1999, plaintiff filed a motion for award of costs. On November 15, 1999, a hearing was held on plaintiff‘s motion for costs. Defense counsel appeared at the hearing and argued the motion. The trial court subsequently ruled that plaintiff was entitled to $520 as costs, pursuant to the judgment on the arbitration award. On December 16, 1999, plaintiff‘s counsel sent a letter to defense counsel seeking payment of the arbitration award and costs. On December 27, 1999, plaintiff‘s counsel faxed a copy of thе arbitration award to defense counsel.
On January 4, 2000, defendant filed a petition to vacate the arbitration judgment pursuant to
ANALYSIS
I. Trial Court‘s Application of Ratkovich
In Ratkovich v. Hamilton, 267 Ill. App.3d 908, 204 Ill.Dec. 933, 642 N.E.2d 834 (1994), a defendant was permitted to intervene in the case after
However, Vortanz and the appellate court decision that Vortanz relied on for its holding regarding void judgments (Maras v. Bertholdt, 126 Ill.App.3d 876, 81 Ill.Dec. 728, 467 N.E.2d 599 (1984)) have both been called into question. See Mortimer v. River Oaks Toyota, Inc., 278 Ill. App.3d 597, 602, 215 Ill.Dec. 363, 663 N.E.2d 113 (1996) (stating that the Vortanz and Maras decisions, which hold that an order entered without notice to a party is “void,” are both questionable in light of Illinois Supreme Court decisions holding that only orders entered by a court lacking personal or subject-matter jurisdiction are “void“). Both Illinois Appеllate and Supreme Court case law have consistently held that a judgment or order is void where it is entered by a court or agency lacking personal jurisdiction, subject-matter jurisdiction, or the inherent power to enter the particular judgment оr order, or where the judgment or order is procured by fraud. See, e.g., Johnston v. City of Bloomington, 77 Ill.2d 108, 112, 32 Ill.Dec. 319, 395 N.E.2d 549 (1979); People v. Davis, 156 Ill.2d 149, 155, 189 Ill.Dec. 49, 619 N.E.2d 750 (1993) (stating that whether a judgment is void or voidable presents a question of jurisdiction); In re Marriage of Mitchell, 181 Ill.2d 169, 174-75, 229 Ill.Dec. 508, 692 N.E.2d 281 (1998); Steinbrecher v. Steinbrecher, 197 Ill.2d 514, 530-31, 259 Ill.Dec. 729, 759 N.E.2d 509 (2001); Siddens v. Industrial Comm‘n, 304 Ill.App.3d 506, 511, 238 Ill.Dec. 205, 711 N.E.2d 18 (1999); LaSalle National Trust, N.A. v. Larnet, 328 Ill.App.3d 729, 731-32, 263 Ill.Dec. 13, 767 N.E.2d 464 (2002).
Based on the reasoning applied in City of Bloomington, Davis, In re Marriage of Mitchell, Steinbrecher, Siddens and LaSalle National Trust, the arbitration judgment in the instant case was not void, since the trial court had personal jurisdiction over defendant and subject-matter jurisdiction,4 where defendant was served with a summons and complaint. See People v. Rainey, 325 Ill.App.3d 573, 581, 259 Ill.Dec. 369, 758 N.E.2d 492 (2001) (stating that in a civil suit a trial court obtains personal jurisdiction when an action is filed and proper summons is served on defendant); CPM Productions, Inc. v. Mobb Deep, Inc., 318 Ill.App.3d 369, 373-74, 252 Ill.Dec. 143, 742 N.E.2d 393 (2000) (noting that subject-matter jurisdiction refers to a court‘s power to entertain and determine the general question presented by the case and to grant the particular relief requested). In the present case, the arbitration judgment was voidable, not void. A voidable judgment is a judgment entered erroneously by a court having jurisdiction. In re Marriage of Mitchell, 181 Ill.2d at 174, 229 Ill.Dec. 508, 692 N.E.2d 281; LaSalle National Trust, 328 Ill. App.3d at 732, 263 Ill.Dec. 13, 767 N.E.2d 464.
Here, the trial court had jurisdiction over the parties and over the mandatory arbitration. In exercising this jurisdiction, however, the trial court entered a judgment on the arbitration award that was in error, because defendant had failed to receive 60 days’ written notice of the arbitration hearing as required by
Generally, a voidable judgment is not subject to collateral attack. In re Marriage of Mitchell, 181 Ill.2d at 174, 229 Ill.Dec. 508, 692 N.E.2d 281. A collateral attack on a judgment is an attempt to impeach the judgment in an action other than that in which the judgment was rendered. Buford v. Chief Park District Police, 18 Ill.2d 265, 271, 164 N.E.2d 57 (1960); Jo Jan Corp. v. Brent, 182 Ill. App.3d 70, 73, 130 Ill.Dec. 627, 537 N.E.2d 956 (1989) (stating that an application to vacate a judgment within 30 days of entry is a direct attack, and if made after the expiration of 30 days, it is a collateral attack). Howevеr, a party can collaterally attack a voidable judgment by demonstrating, through a section 2-1401 petition, that
II. Section 2-1401 Petition
In order to obtain relief under
In the instant case, the record indicates that the trial court‘s decision to grant defendant‘s section 2-1401 petition was not based on the court‘s determination that defendant had proven the three elements of her section 2-1401 petition but, rather, on the court‘s conclusion that the arbitration judgment was void under Ratkovich. However, as we have previously stated, we believe that the judgment entered on the arbitration award was voidable, not void. Consequently, we believe that the trial court erred in granting defendant‘s section 2-1401 petition to vacate the arbitration judgment, because defendant failed to show due diligence in filing her section 2-1401 petition.
Defense counsel, in her section 2-1401 petition and in a supporting affidavit, stated that she did not learn of the arbitration judgment until she reviewed the November 15, 1999, order sometime in December 1999. The record shows, however, that defense counsel actually received notice of the arbitration judgment on or about October 24,1999, after receiving plaintiff‘s petition for costs, which referred to the arbitration judgment. On November 15, 1999, defense counsel appeared at the hearing on plaintiff‘s petition for costs and argued against the petition, while never raising the issue of improper notice or objecting to the arbitration judgment. The trial court subsequently ruled that plaintiff was entitled to $520 as costs. On December 16, 1999, plaintiff‘s counsel sent defense counsel a letter seeking payment of the arbitration award and costs. Then, on January 4, 2000, aрproximately 2½ months after learning of the arbitration judgment, defense counsel filed her section 2-1401 petition, arguing lack of notice of the arbitration hearing. The above chronology clearly shows that defense counsel did not pursue section 2-1401 relief with due diligence.
The burden was upon defendant to allege facts proving by a preponderance of the evidence that she exercised due diligence in seeking relief under section 2-1401. Here, defendant fails to explain the
Section 2-1401 relief will not be granted unless a party shows that through no fault or negligence of his or her own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Airoom, Inc., 114 Ill.2d at 222, 102 Ill.Dec. 368, 499 N.E.2d 1381. “The court must be satisfied that the alleged new matter was not known to the petitioner and could not have been discovered, produced or used by him with the exercise of reasonable diligence upon the fоrmer trial.” J.B. Inderrieden Co. v. Gill, 373 Ill. 180, 182, 25 N.E.2d 796 (1940). In the present case, defendant received notice of the arbitration judgment on or about October 24, 1999. Therefore, when defendant appeared on November 15, 1999, to contest the award of costs, defendant could havе raised the issue of improper notice at that time, since this issue was either known to defendant or could have been discovered by defendant through the exercise of reasonable diligence.
Reviewing courts have upheld trial court findings оf a lack of due diligence in filing a section 2-1401 petition where the petitioner delayed for a similar period of time. See, e.g., Westphall v. Trailers, Campers, Campgrounds, Inc., 76 Ill.App.3d 205, 208-09, 30 Ill.Dec. 86, 392 N.E.2d 741 (1979) (delay of approximately two months); Department of Public Works & Buildings v. O‘Hare International Bank, 44 Ill.App.3d 934, 937, 3 Ill.Dec. 623, 358 N.E.2d 1308 (1976) (delay of slightly more than three months); Diacou v. Palos State Bank, 65 Ill.2d 304, 312, 2 Ill.Dec. 351, 357 N.E.2d 518 (1976) (delay of three months). As previously stated, under the circumstances of this case, it is clеar that defense counsel did not pursue section 2-1401 relief with due diligence. Because we have determined that the trial court erred in granting defendant‘s section 2-1401 petition to vacate the arbitration judgment, we need not consider plaintiff‘s alternative argument that defendant consented to the judgment and waived relief under
Accordingly, for the reasons set forth above, the judgment of the circuit court of Cоok County is reversed and this cause remanded for further proceedings.
Reversed and remanded.
CERDA and WOLFSON, JJ., concur.