Domingo v. Guarino

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Domingo v. Guarino

State: Illinois

Court: 2nd District Appellate

Docket No: 2-09-0852 Rel

Case Date: 06/25/2010

Preview:No. 2-09-0852 Filed: 6-25-10 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ CLARENCE DOMINGO, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellee, ) ) v. ) No. 07--L--913 ) VITO GUARINO, ) ) Defendant-Appellant ) Honorable ) Hollis L. Webster, (Mario Columbia, Defendant). ) Judge, Presiding. ______________________________________________________________________________ JUSTICE BOWMAN delivered the opinion of the court: In 2002, plaintiff, Clarence Domingo, entered into a written contract to purchase a home that would be built by defendant, Vito Guarino. Based on plaintiff's dissatisfaction with defendant's construction of the home, plaintiff filed suit. After a series of pleadings, plaintiff voluntarily dismissed his suit and later filed a virtually identical complaint. Defendant failed to respond to this refiled complaint. The court then entered a default judgment against defendant on July 29, 2008, which defendant petitioned to vacate under section 2--1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 2008)). The trial court denied defendant's petition to vacate, and defendant appeals. We affirm. The July 29, 2008, default judgment awarded plaintiff $158,215 on count I for breach of contract and $50,000 in punitive damages on count II for consumer fraud. On August 28, 2008,

No. 2--09--0852 defendant moved to vacate the July 29, 2008, judgment.1 Defendant maintained that he first received notice of the refiled case when he received a copy of the July 29, 2008, order on August 4, 2008. As a result, he retained attorney Sam Amirante and requested leave to vacate the judgment. Attached to the motion was defendant's affidavit, in which he averred that he had sent a copy of the July 29, 2008, judgment to his attorney at the time (Michele Rocawich); that she was traveling abroad and unable to defend him; and that upon learning this, he retained attorney Amirante to defend him. The court denied defendant's section 2--1301 motion to vacate on December 10, 2008. On May 21, 2009, defendant, now represented by attorney Rocawich, filed a section 2--1401 petition to vacate the July 29, 2008, default judgment. In support of his petition, defendant attached numerous exhibits and stated as follows. Plaintiff filed his original two-count complaint on October 29, 2003. Count I alleged breach of contract and count II alleged consumer fraud. After filing a first amended complaint on February 25, 2004, plaintiff filed a second amended complaint on June 30, 2004, that added a third count alleging fraudulent misrepresentation. Defendant moved to dismiss counts II and III with prejudice under the theory that the factual allegations did not support a cause of action for fraud but merely a cause of action for breach of contract. (When these complaints were filed, it appears that defendant and his codefendant, Mario Columbia, were both represented by attorney Patrick Loftus). The trial court granted defendant's motion to dismiss counts II and III on November 4, 2004. (The order did not specify whether counts II and III were dismissed with or without prejudice, but the parties agree that it was without prejudice.)

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Though the motion does not reference section 2--1301 of the Code (735 ILCS 5/2--1301

(West 2008)), both parties treat it as a motion under that provision of the Code. -2-

No. 2--09--0852 Defendant's section 2--1401 petition went on to state that plaintiff's counsel subsequently withdrew and that plaintiff's new attorney filed a third amended complaint on January 27, 2005. The third amended complaint again alleged breach of contract (count I) and two counts based on fraud (counts II and III). On March 17, 2005, defendant responded with another motion to dismiss the fraud claims (counts II and III) pursuant to section 2--619.1 of the Code (735 ILCS 5/2--619.1 (West 2004)). In his motion to dismiss, defendant pointed out that he had filed an answer to count I and that the court had previously granted his motion to dismiss counts II and III of the second amended complaint, in part because the facts alleged by plaintiff were more akin to a breach-of-contract claim. Defendant maintained that plaintiff had not alleged any new facts that would support reversal of the court's previous order dismissing counts II and III, and he again requested the court to dismiss counts II and III with prejudice. According to defendant, on April 12, 2005, the court granted his motion to dismiss counts II and III "for 'failing to state a cause of action,' " because plaintiff, with knowledge of the defects in the construction of the residence, had closed on the property. 2 In his section 2--1401 petition, defendant pointed out that on June 21, 2005, plaintiff filed a motion to reconsider the April 12, 2005, ruling. In this motion to reconsider, plaintiff stated that "[o]n April 12, 2005, this court granted" defendant's motion to dismiss counts II and III. Plaintiff further stated that the "court's ruling, although not entirely clear *** appears to be that Counts II and III fail to state a cause of action," since plaintiff, "with knowledge of defects in the construction of the residence, had closed on the property." Plaintiff argued that the court had misapprehended the facts and the law. In the alternative, plaintiff argued that there was no authority for the court's April

2

The April 12, 2005, order does not appear in the record. Regardless, defendant admits that

the April 12, 2005, order dismissed counts II and III without prejudice. -3-

No. 2--09--0852 12, 2005, ruling, and he requested that the court identify a question of law for interlocutory appeal under Supreme Court Rule 308 (155 Ill. 2d R. 308). On June 21, 2005, the court denied plaintiff's motion to reconsider the April 12, 2005, ruling, and it denied his request for a Rule 308 finding. Defendant was given time to file an answer to count I of plaintiff's third amended complaint. Defendant's section 2--1401 petition further stated that, "left with only a breach of contract claim," plaintiff then filed a motion for voluntary dismissal on May 8, 2006, which the court granted on May 17, 2006. The May 17, 2006, order stated that "this matter is voluntarily dismissed without prejudice." Based on the above, defendant argued that for three years, he "vigorously, timely and successfully defended" against plaintiff's claims, which the court "repeatedly dismissed." However, on July 18, 2006, in an effort to forum shop, plaintiff refiled in Cook County the third amended complaint, including the dismissed counts II and III, as a "new complaint." The record shows that codefendant Columbia moved to transfer the case back to Du Page County, based on improper venue. The Cook County circuit court granted this motion, and the matter was transferred back to Du Page County. Upon transfer, however, the case was not assigned to the original trial court judge, Judge John Elsner, but was assigned to Judge Hollis Webster. According to defendant, plaintiff failed to notify the court that his complaint was the same third amended complaint in which Judge Elsner had dismissed the two fraud counts. In support of his section 2--1401 petition, defendant argued that on counts II and III he had a meritorious defense, which was the trial court's previous dismissal of plaintiff's fraud claims. With respect to count I, defendant argued that he presented a meritorious defense when he answered that claim on March 2, 2004. In order to demonstrate due diligence, defendant made the following

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No. 2--09--0852 argument. For three years, attorney Loftus successfully defended him; in the instant matter, plaintiff did not serve attorney Loftus but, rather, served defendant personally; unbeknownst to defendant, attorney Loftus was being investigated for misconduct; sometime in 2007, attorney Loftus left Chicago for Arizona; and attorney Loftus was disbarred in May 2008. Defendant maintained that he did not appear in court regarding the instant matter because he believed that attorney Loftus was representing him. When defendant subsequently learned that a default judgment had been entered against him, he contacted another attorney who, he learned, was traveling abroad (attorney Rocawich), so he hired yet another attorney, Amirante. On August 28, 2008, attorney Amirante filed a timely section 2--1301 motion to vacate the July 29, 2008, default judgment. Attorney Amirante did not know the history of the case, however. Specifically, he did not know that plaintiff had refiled his third amended complaint and that the trial court had previously granted three motions to dismiss the two fraud counts. According to defendant, plaintiff disingenuously argued in his October 6, 2008, response that defendant's motion to vacate should be denied because defendant chose to ignore the proceedings against him and avoid appearing in court. As a result, plaintiff tried to "perpetrate a scam" on the court by refiling his third amended complaint, with two dismissed counts, as a "new complaint." Despite plaintiff's conduct, defendant argued, the court improperly denied defendant's motion to vacate, based on his failing to defend the matter. Defendant concluded in his section 2--1401 petition that the July 29, 2008, default judgment improperly awarded punitive damages on count II, because that count had been dismissed years earlier and thus was not justiciable. Whereas the proper recourse for plaintiff was to appeal the April 12, 2005, order, defendant argued, plaintiff instead went forum shopping. Because counts II and III of the third amended complaint had previously been dismissed, defendant argued that the court

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No. 2--09--0852 lacked subject matter jurisdiction over count II and that the only claim properly before the court was count I, which alleged breach of contract. On June 18, 2009, plaintiff filed a response to defendant's section 2--1401 petition to vacate the default judgment. In his response, plaintiff argued that the court was aware of the "prior litigation," based on pleadings relating to codefendant Columbia. In particular, plaintiff argued, Judge Webster had denied codefendant Columbia's motion to reassign the case to Judge Elsner. In addition, plaintiff pointed out that Judge Webster had denied codefendant Columbia's motion to dismiss count II alleging consumer fraud but had granted his motion to dismiss count III alleging common-law fraud. The transcript of that hearing shows that Judge Webster was aware that, "long ago, Judge Elsner dismissed the consumer fraud and fraud counts." Plaintiff further argued that defendant's belief that attorney Loftus was representing him in this refiled case was not reasonable. It appeared, according to plaintiff, that attorney Loftus had been representing both defendant and his codefendant in the 2003 litigation. Whereas codefendant Columbia knew to hire substitute counsel, defendant did not explain why he failed to do so. Plaintiff also argued that defendant failed to explain his lack of diligence in the instant case. As plaintiff pointed out, a default judgment was entered against defendant on July 29, 2008. Even though defendant filed within 30 days a section 2--1301 motion to vacate judgment, which the court denied on December 10, 2008, defendant then waited over five months (until May 21, 2009) to file his section 2--1401 petition. Finally, plaintiff argued that defendant failed to acknowledge several facts regarding his knowledge and notice of the pending case against him, such as having been served "via abode service" on January 26, 2007.

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No. 2--09--0852 On July 27, 2009, defendant filed a reply supporting his section 2--1401 petition to vacate the default judgment. According to defendant, plaintiff repled count II in his refiled complaint despite the fact that Judge Elsner had dismissed that count on April 12, 2005. After the court repeatedly dismissed plaintiff's fraud claims, plaintiff voluntarily dismissed his complaint; went forum shopping to avoid the previous rulings of the court; and then refiled the previously dismissed claims. Defendant requested that the court vacate the default judgment; dismiss count II; and grant defendant leave to answer the breach-of-contract claim. A hearing on defendant's section 2--1401 petition to vacate the default judgment was held on August 6, 2009. At the hearing, attorney Rocawich appeared on behalf of defendant and argued as follows. Since the case began in 2003, defendant was represented by attorney Loftus, who diligently defended the suit for 3

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