Jackson v. Hooker

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Jackson v. Hooker

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-3042 Rel

Case Date: 01/29/2010

Preview:FIFTH DIVISION January 29, 2010

No. 1-08-3042 ANTHONY JACKSON, Plaintiff-Appellee, v. KENDALL HOOKER, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

Honorable Elizabeth M. Budzinski, Judge Presiding.

JUSTICE HOWSE delivered the opinion of the court: Plaintiff Anthony Jackson filed a complaint for damages against defendant Kendall Hooker for injuries stemming from defendant's operation of an automobile. The trial court granted

plaintiff's motion for default after defendant failed to answer plaintiff's complaint. Following a prove-up hearing, the trial

court entered judgment in plaintiff's favor and awarded $700,000 in damages. On appeal, defendant contends the trial court abused

its discretion in granting plaintiff's petition for relief from the court's sua sponte dismissal of plaintiff's complaint for want of prosecution. Defendant also contends the trial court

erred in denying his motion to vacate the default judgment. For the reasons that follow, we affirm the trial court's order vacating the dismissal for want of prosecution. We reverse

1-08-3042 the court's order denying defendant's motion to vacate the default judgment entered against him and remand for further proceedings consistent with this opinion. BACKGROUND On January 11, 2007, plaintiff filed a two-count complaint against defendant, alleging negligence and battery. Plaintiff

alleged that on June 29, 2006, defendant and a third party "began an altercation." While plaintiff's arm was inside the rear

driver-side window of defendant's vehicle, defendant rolled up the window and trapped plaintiff's arm between the window and the door frame. Plaintiff was outside the vehicle. Defendant then When defendant

drove away with plaintiff's arm still trapped.

stopped the vehicle, plaintiff's arm was violently pulled out, which caused him to fall from the vehicle and strike his head on the street. Plaintiff alleged he suffered closed-head injuries

and extensive injuries to his shoulder as a result of the incident. On August 1, 2007, defendant was personally served with process. Several prior attempts to serve defendant at his home Plaintiff

address had been unsuccessful due to "no contact."

notified defendant's insurer, GEICO, of the pending lawsuit on August 7, 2007. On August 27, 2007, GEICO informed plaintiff's

counsel that it would not be providing defendant any coverage or

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1-08-3042 defense for the lawsuit. On September 26, 2007, plaintiff filed a motion for default judgment based on defendant's failure to answer the complaint or otherwise plead in accordance with Illinois Supreme Court Rule 18(b) (210 Ill. 2d R. 18(b)). An undated certificate of service

attached to the motion for default was served by mail to defendant's address. The trial court granted the motion for Neither defendant nor his insurer A prove-up hearing was scheduled

default on October 5, 2007. attended the default hearing. for November 9, 2007.

After neither plaintiff nor his counsel appeared at the November 9 prove-up hearing, the trial court sua sponte dismissed the cause for want of prosecution. On March 12, 2008, plaintiff A

filed a motion to vacate dismissal for want of prosecution.

certificate of service attached to the motion indicated defendant could not be served with notice because plaintiff did not have defendant's current address. On March 19, 2008, the trial court

denied plaintiff's motion to vacate without prejudice with leave to refile the motion under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)). On March 27, 2008, plaintiff filed a petition for relief from dismissal for want of prosecution under section 2-1401. trial court granted the petition for relief and set the matter The

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1-08-3042 for a prove-up hearing on June 9, 2008. On April 20, 2008,

defendant was personally served with notice of the prove-up hearing. On June 9, 2008, plaintiff appeared at the prove-up

hearing and presented testimony regarding his injuries and medical bills. Neither defendant nor his insurer appeared. The

trial court entered judgment in plaintiff's favor and awarded $700,000. On July 9, 2008, defendant filed a motion to vacate the default judgment entered on June 9, 2008. On August 7, 2008,

defendant filed a brief in support of his motion to vacate the prove-up judgment. October 7, 2008. The trial court denied defendant's motion on Defendant appeals. ANALYSIS I. Dismissal for Want of Prosecution Defendant contends the trial court abused its discretion by granting plaintiff's motion to vacate the dismissal for want of prosecution (DWP). Specifically, defendant contends the trial

court erred in granting plaintiff's section 2-1401 petition to vacate the dismissal because the petition failed to satisfy section 2-1401's stringent pleading requirements. Initially, plaintiff counters defendant waived any issues regarding the sufficiency of plaintiff's section 2-1401 petition, or the trial court's subsequent reinstatement of the case, by

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1-08-3042 failing to raise the issues during the proceedings below or in the notice of appeal. The record reflects defendant never sought to challenge the trial court's decision to vacate the DWP during the proceedings below. appeal. Nor did defendant raise the issue in his notice of "It is axiomatic that questions not raised in the trial

court are waived and may not be raised for the first time on appeal." Shell Oil Co. v. Department of Revenue, 95 Ill. 2d 541,

550, 449 N.E.2d 65 (1983); McKinnon v. Yellow Cab Co., 31 Ill. App. 3d 316, 318, 333 N.E.2d 659 (1975) ("The remaining arguments of defendants

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