Find Legal Information

Third Division

September 11, 2002

No. 1-00-0873

OPINION UPON DENIAL OF REHEARING

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 againstdefendant Elena Flores to recover for injuries and damages shesustained in a two-car collision that occurred on August 10,1997, at the intersection of Humboldt Boulevard and AugustaBoulevard in Chicago, Illinois. On April 8, 1999, defendant wasserved with an alias summons and complaint.

On May 19, 1999, a notice of arbitration hearing was mailedfrom the Arbitration Center⁽¹⁾, setting the arbitration hearing forAugust 3, 1999. On June 1, 1999, the trial court granteddefendant's motion to vacate any and all defaults and for leaveto file an appearance, answer, and jury demand. On June 2, 1999,the law firm of Thomas L. Burdelik & Associates filed anappearance on behalf of defendant along with interrogatories, anotice to produce, and a request for production. The firm alsofiled an answer on behalf of defendant, in which defendantadmitted negligence but denied that the negligence was a director proximate cause of plaintiff's injuries or damages.

On June 28, 1999, plaintiff's counsel sent defendant'scounsel evidentiary documents for the August 3, 1999, arbitrationhearing pursuant to Illinois Supreme Court Rule 90(c). 145 Ill.2d R. 90(c). The Rule 90(c) material did not indicate the datethe arbitration hearing would be held. On August 3, 1999, thearbitration hearing was conducted. Plaintiff and her counselboth appeared at the arbitration hearing and participated in thehearing. However, neither defendant nor her counsel was presentat the arbitration hearing. The arbitration panel subsequentlyawarded plaintiff $20,000, plus costs. On September 16, 1999,the trial court entered judgment on the arbitration award.

On October 22, 1999, plaintiff filed a motion for award ofcosts. On November 15, 1999, a hearing was held on plaintiff'smotion for costs. Defense counsel appeared at the hearing andargued the motion. The trial court subsequently ruled thatplaintiff was entitled to $520 as costs, pursuant to the judgmenton the arbitration award. On December 16, 1999, plaintiff'scounsel sent a letter to defense counsel seeking payment of thearbitration award and costs. On December 27, 1999, plaintiff'scounsel faxed a copy of the arbitration award to defense counsel.

On January 4, 2000, defendant filed a petition to vacate thearbitration judgment pursuant to section 2-1401 of the IllinoisCode of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 1998)),on the ground that defendant never received notice of thearbitration hearing or the September 16, 1999, judgment order. On February 9, 2000, a hearing was held on defendant's petition. The trial court granted defendant's section 2-1401 petition,finding that under Ratkovich v. Hamilton, 267 Ill. App. 3d 908,642 N.E.2d 834 (1994), the arbitration judgment was void andsubject to vacatur because defendant did not receive 60 days'written notice of the arbitration hearing as required by SupremeCourt Rule 88 (134 Ill. 2d R. 88). On appeal, plaintiff contendsthat the trial court erred in granting defendant's section 2-1401petition. For the reasons that follow, we reverse and remand.ANALYSIS

I. Trial Court's Application of Ratkovich

In Ratkovich v. Hamilton, 267 Ill. App. 3d 908, 642 N.E.2d834 (1994), a defendant was permitted to intervene in the caseafter Supreme Court Rule 88⁽²⁾ notices of the arbitration hearingwere sent to the original parties, but none issued to theintervening defendant, who subsequently failed to appear. TheRatkovich court, applying both Supreme Court Rule 88 (134 Ill. 2dR. 88) and Supreme Court Rule 91(a)⁽³⁾ (145 Ill. 2d R. 91(a)), heldthat where a party fails to receive 60 days' written notice of anarbitration hearing, any awards that issue are void. Ratkovich,267 Ill. App. 3d at 914. In reaching this decision, theRatkovich court analogized to the holding in Vortanz v. ElmhurstMemorial Hospital, 179 Ill. App. 3d 584, 589-90, 534 N.E.2d 625(1989), which held that a trial court's order dismissing aplaintiff's complaint with prejudice was void, because plaintiffhad received no notice that defendants would be presenting amotion to dismiss.

However, Vortanz and the appellate court decision thatVortanz relied on for its holding regarding void judgments (Marasv. Bertholdt, 126 Ill. App. 3d 876, 467 N.E.2d 599 (1984)) haveboth been called into question. See Mortimer v. River OaksToyota, Inc., 278 Ill. App. 3d 597, 602, 663 N.E.2d 113 (1996)(stating that the Vortanz and Maras decisions, which hold that anorder entered without notice to a party is "void," are bothquestionable in light of Illinois Supreme Court decisions holdingthat only orders entered by a court lacking personal or subject-matter jurisdiction are "void"). Both Illinois Appellate andSupreme Court case law have consistently held that a judgment ororder is void where it is entered by a court or agency lackingpersonal jurisdiction, subject-matter jurisdiction, or theinherent power to enter the particular judgment or order, orwhere the judgment or order is procured by fraud. See, e.g.,Johnston v. City of Bloomington, 77 Ill. 2d 108, 112, 395 N.E.2d549 (1979); People v. Davis, 156 Ill. 2d 149, 155, 619 N.E.2d 750(1993) (stating that whether a judgment is void or voidablepresents a question of jurisdiction); In re Marriage of Mitchell,181 Ill. 2d 169, 174-75, 692 N.E.2d 281 (1998); Steinbrecher v.Steinbrecher, 197 Ill. 2d 514, 530-31, 759 N.E.2d 509 (2001);Siddens v. Industrial Comm'n, 304 Ill. App. 3d 506, 511, 711N.E.2d 18 (1999); LaSalle National Trust, N.A. v. Lamet, 328 Ill.App. 3d 729, 731-32, 767 N.E.2d 464 (2002).

Based on the reasoning applied in City of Bloomington,Davis, In re Marriage of Mitchell, Steinbrecher, Siddens andLaSalle National Trust, the arbitration judgment in the instantcase was not void, since the trial court had personaljurisdiction over defendant and subject-matter jurisdiction,⁽⁴⁾where defendant was served with a summons and complaint. SeePeople v. Rainey, 325 Ill. App. 3d 573, 581, 758 N.E.2d 492(2001) (stating that in a civil suit a trial court obtainspersonal jurisdiction when an action is filed and proper summonsis served on defendant); CPM Productions, Inc. v. Mobb Deep,Inc., 318 Ill. App. 3d 369, 373-74, 742 N.E.2d 393 (2000) (notingthat subject-matter jurisdiction refers to a court's power toentertain and determine the general question presented by thecase and to grant the particular relief requested). In thepresent case, the arbitration judgment was voidable, not void. Avoidable judgment is a judgment entered erroneously by a courthaving jurisdiction. In re Marriage of Mitchell, 181 Ill. 2d at174; LaSalle National Trust, 328 Ill. App. 3d at 732.

Here, the trial court had jurisdiction over the parties andover the mandatory arbitration. In exercising this jurisdiction,however, the trial court entered a judgment on the arbitrationaward that was in error, because defendant had failed to receive60 days' written notice of the arbitration hearing as required bySupreme Court Rule 88. The trial court's error in entering thejudgment, however, did not divest the court of the jurisdictionor authority to enter the judgment on the arbitration award. Inre Marriage of Mitchell, 181 Ill. 2d at 175. Therefore, thetrial court's judgment on the arbitration award was voidablerather than void. Accordingly, we decline to adopt the holdingin Ratkovich and instead conclude that where a party fails toreceive 60 days' written notice of an arbitration hearing asrequired by Supreme Court Rule 88, any awards that issue arevoidable.

Generally, a voidable judgment is not subject to collateralattack. In re Marriage of Mitchell, 181 Ill. 2d at 174. Acollateral attack on a judgment is an attempt to impeach thejudgment in an action other than that in which the judgment wasrendered. 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, 537 N.E.2d 956 (1989) (stating that an application tovacate a judgment within 30 days of entry is a direct attack, andif made after the expiration of 30 days, it is a collateralattack). However, a party can collaterally attack a voidablejudgment by demonstrating, through a section 2-1401 petition,that the judgment was rendered in error. In re Marriage ofStefiniw, 253 Ill. App. 3d 196, 201, 625 N.E.2d 358 (1993).

II. Section 2-1401 Petition

Section 2-1401 of the Code pertains to motions to vacatejudgments brought more than 30 days from entry of the judgment. A section 2-1401 proceeding invokes the equitable powers of thecourt when the exercise of such power is needed to prevent aninjustice. In re Petition of Glick, 259 Ill. App. 3d 371, 373,632 N.E.2d 165 (1994). The purpose of a section 2-1401 petitionis to bring before the trial court facts that were not known atthe time of judgment and that, if known, would have preventedentry of the judgment. Physicians Insurance Exchange v. Jennings,316 Ill. App. 3d 443, 457, 736 N.E.2d 179 (2000); Christine A.T.v. H.T., 326 Ill. App. 3d 569, 575, 761 N.E.2d 299 (2001).

In order to obtain relief under section 2-1401 of the Code,a petitioner must show by a preponderance of the evidence: (1)the existence of a meritorious defense or claim; (2) duediligence in presenting this defense or claim; and (3) duediligence in filing the section 2-1401 petition. Smith v. Airoom,Inc., 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381 (1986); AmericanAmbassador Casualty Co. v. Jackson, 295 Ill. App. 3d 485, 602N.E.2d 717 (1998). The decision whether to grant or deny asection 2-1401 petition is reserved to the sound discretion ofthe trial court and will not be disturbed absent an abuse of thatdiscretion. American Ambassador, 295 Ill. App. 3d at 489.

In the instant case, the record indicates that the trialcourt's decision to grant defendant's section 2-1401 petition wasnot based on the court's determination that defendant had proventhe three elements of her section 2-1401 petition but, rather, onthe court's conclusion that the arbitration judgment was voidunder Ratkovich. However, as we have previously stated, webelieve that the judgment entered on the arbitration award wasvoidable, not void. Consequently, we believe that the trialcourt erred in granting defendant's section 2-1401 petition tovacate the arbitration judgment, because defendant failed to showdue diligence in filing her section 2-1401 petition.

Defense counsel, in her section 2-1401 petition and in asupporting affidavit, stated that she did not learn of thearbitration judgment until she reviewed the November 15, 1999,order sometime in December 1999. The record shows, however, thatdefense counsel actually received notice of the arbitrationjudgment on or about October 24, 1999, after receivingplaintiff's petition for costs, which referred to the arbitrationjudgment. On November 15, 1999, defense counsel appeared at thehearing on plaintiff's petition for costs and argued against thepetition, while never raising the issue of improper notice orobjecting to the arbitration judgment. The trial courtsubsequently ruled that plaintiff was entitled to $520 as costs.On December 16, 1999, plaintiff's counsel sent defense counsel aletter seeking payment of the arbitration award and costs. Then,on January 4, 2000, approximately 2