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No. 2--02--1327

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE HUTCHINSON delivered the opinion of the court:

Plaintiff, All-Steel Employees Credit Union, appeals from an order granting garnishee, TCFNational Bank, relief pursuant to section 2--1401 of the Code of Civil Procedure (Code) (735 ILCS5/2--1401 (West 2002)) from a final judgment under section 12--706(b) of the Code (735 ILCS 5/12--706(b) (West 2002)). We reverse.

Plaintiff sued Winston Singh on a promissory note. Singh admitted liability, and on October1, 2000, the trial court entered judgment for $15,019.77, which included prejudgment interest, fees,and costs.

On January 9, 2002, plaintiff served a summons for nonwage garnishment on garnishee, withwhich Singh had a checking account. The summons included interrogatories to be answered andreturned to plaintiff and the trial court on or before February 20, 2002. On February 20, 2002, thecase file contained no such answers, and the trial court entered a conditional judgment againstgarnishee for $16,891.20. On February 25, 2002, plaintiff served garnishee with a summons toconfirm the conditional judgment. Garnishee did not answer or appear, and the trial court confirmedthe conditional judgment on March 27, 2002.

Plaintiff served garnishee with a citation to discover assets on May 16, 2002. The hearingwas set for June 19, 2002. On June 4, 2002, garnishee filed a form answer stating that it had $345of the property of the "judgment debtor." On June 19, 2002, a rule to show cause issued againstgarnishee for its failure to appear at the hearing.

On August 9, 2002, garnishee filed a "Motion to Vacate Judgment." It alleged that onFebruary 27, 2002, it had faxed to plaintiff's counsel the answers to the interrogatories for nonwagegarnishment. These answers stated that garnishee did not hold any property of Singh's nor was itindebted to him. It further alleged that plaintiff's counsel admitted receiving the answers. It finallyalleged that the summons to confirm the conditional judgment was invalid in that it had a return datemore than 28 days after the issuance of the summons, and was thus not in compliance with section12--705 of the Code (735 ILCS 5/12--705 (West 2002)).

Plaintiff responded, denying that counsel had received a copy of the answer before April 1,2002, or that anyone associated with garnishee ever provided any indication that the answers hadbeen filed or mailed. Counsel averred that he so advised garnishee in a letter of April 17, 2002.

Garnishee replied, alleging that as of January 9, 2002, and all times after, Singh's account withgarnishee was overdrawn by $192.20. It further alleged that the supervisor of its legal processingdepartment believed that advising plaintiff's counsel of this was a sufficient defense against thejudgment, and the supervisor did not realize that she was mistaken until more than 30 days after thetrial court had entered the judgment. Garnishee noted that the citation to discover assets was servedmore than 30 days after the trial court entered the judgment, and garnishee alleged that it was afterthe hearing on the citation that the supervisor realized that the defense was not sufficient.

The reply also contained an affidavit in which an employee of garnishee averred that shemailed the answers to the circuit clerk on February 27, 2002 (i.e., after the trial court entered theconditional judgment, and two days after garnishee was served with the summons to confirm theconditional judgment). No such answer can be found in the record.

On November 19, 2002, the trial court vacated the judgment against garnishee. Its orderstated:

"[Garnishee] did not exercise due diligence at the trial court level and was negligent in failingto file Answer to the Citation, in failing to respond to the Summons to Confirm ConditionalJudgment, and was not diligent in filing its Motion to Vacate. However, court finds thatsubstantial justice requires that the judgment be vacated because the balance at defendant'saccount at TCF Bank was significantly less that the judgment plus interest against defendantSingh."

Plaintiff now timely appeals, contending that the trial court abused its discretion when itgranted relief to garnishee despite finding that it had not acted diligently.

Initially, we dispose of plaintiff's motion to strike garnishee's surreply brief, which we tookwith this case. We grant the motion. Plaintiff contends that the brief simply restates garnishee'sposition in its response brief, and this is largely an accurate characterization. Moreover, when wegranted garnishee's motion to file the surreply brief, we limited it to five pages. The document filedis five single-spaced pages. Supreme Court Rule 344(b) (155 Ill. 2d R. 344(b)) requires that briefsbe double spaced. The brief is thus nearly twice the length of what we allowed.

Turning to the merits of the matter, we will reverse an order granting a petition under section2--1401 only when we find that the trial court entering the order abused its discretion. Smith v.Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986). The granting of the petition must be sustained by apreponderance of the evidence. Smith, 114 Ill. 2d at 220-21.

The basic standards for the granting of a section 2--1401 petition are set out in Smith:

"To be entitled to relief under section 2--1401, the petitioner must affirmatively set forthspecific factual allegations supporting each of the following elements: (1) the existence of ameritorious defense or claim; (2) due diligence in presenting this defense or claim to thecircuit court in the original action; and (3) due diligence in filing the section 2--1401 petitionfor relief." (Emphasis added.) Smith, 114 Ill. 2d at 220-21.

Garnishee unquestionably failed to exercise diligence in presenting its defense, so we canaffirm the order only if this case falls within the limited circumstances in which a court may relax thedue diligence requirement because "justice and good conscience may require it." Smith, 114 Ill.2dat 225. Such relaxation is justified only under extraordinary circumstances (Gonzalez v. ProfileSanding Equipment, Inc., 333 Ill. App. 3d 680, 686 (2002)), which these are not. Garnishee wasserved with two summonses and a citation to discover assets before it actually filed a document withthe trial court. Taking the evidence in the light most favorable to garnishee, it prepared its answersto the interrogatories for nonwage garnishment after it received the summons to confirm theconditional judgment. It mailed them to the clerk and plaintiff's counsel, but failed to confirmpromptly that either the clerk or plaintiff's counsel received them or that the untimely answers werelegally sufficient. Garnishee does not explain its failures other than as its own employee'smisunderstanding of the necessary procedure. Because of its inaction, the trial court entered ajudgment against it in the amount authorized by the Code. We see nothing in this history that justifiesspecial equitable relief to garnishee.

Garnishee cites numerous cases as supporting the trial court's judgment, all of which arefactually distinguishable. We consider only those that best support garnishee's position. In Zee Jay,Inc. v. Illinois Insurance Guaranty Fund, 194 Ill. App. 3d 1098,1100, 1104 (1990), the appellate courtsustained the granting of a section 2--1401 petition that gave relief from a dismissal with prejudiceentered as a sanction for discovery violations. The court found that the order vacated was contraryto the Illinois Supreme Court's standards for discovery sanctions. Further, the "with prejudice"language may have been added accidentally. Zee Jay, 194 Ill. App. 3d at 1103. The court thusdeemed the original order to be unauthorized under existing law, whereas in this case the judgmentwas precisely that required by section 12--706.

In Community 1st Credit Union v. Boswell, 302 Ill. App. 3d 739 (1999), the appellate courtpartially relaxed the diligence requirement to provide relief to a garnishee that had not acteddiligently, but that had nevertheless attempted to present a defense. The garnishee mailed to the trialcourt an untimely and legally insufficient response to a summons to confirm a conditional judgment;however, some evidence suggested that it had filed its answers to the garnishment interrogatories ontime, but that the clerk had lost them. Community 1st Credit Union, 302 Ill. App. 3d at 743-44. Itthus appeared that, but for the clerk's error, no judgment would have been entered against it in thefirst place. The court determined that garnishee's default was the result of an "excusable mistake." Community 1st Credit Union, 302 Ill. App. 3d at 744. The situation in Community 1st Credit Unionis not comparable with this one, where garnishee made no attempt to file the answers or any otherresponsive document on time.

Kunde v. Prentice, 329 Ill. 82 (1928), predates the modern formulation in Smith of thediligence standard, but also is a case in which a court gave a garnishee relief when she had made asignificant, but insufficient, attempt to respond to the summonses. The garnishee was physicallypresent in court on both relevant dates, but was confused by the trial court's procedure and did notsucceed in making her presence known, so conditional and final judgments were entered against her. The court held that this, in combination with numerous errors, made it mandatory that the judgmentagainst her be vacated to allow her to present her defense. The court judged that the most seriouserror was the absence of a service date on the return of the writ of scire facias (functioning as asummons to confirm the conditional judgment), as this would have deprived the trial court ofjurisdiction to enter the final judgment had the garnishee not waived this defect by appearing later. Kunde, 329 Ill. at 88. We reject garnishee's contention that the defect in the original summons here(the return date was later than specified by the Code) presents a comparable circumstance. We neednot consider whether this defect was of similar legal effect, as the presence of the defect in the returnof the writ was only a supporting factor in the Kunde court's granting of relief. The garnishee'ssubstantial effort to present her defense was the primary basis; garnishee made no such effort here.

This case resembles Enclosures, Inc. v. American Pay Telephone Corp., 287 Ill. App. 3d 900(1997), more closely than it does any of the cases cited by garnishee in support of the judgment. InEnclosures, Inc., the trial court initially defaulted the defendant, but the plaintiff then failed to appearat the prove-up, so the trial court dismissed the case for want of prosecution. The plaintiff reinstatedthe case, and notified the defendant, which again did not appear, and so the trial court entered a newdefault judgment against the defendant. The defendant petitioned to vacate the judgment on thegrounds that it had a good defense, that it had temporarily been without litigation counsel when thetrial court entered the judgment, and that it was unaware that the reinstatement of the case requiredit to act. Enclosures, Inc., 287 Ill. App. 3d at 901. The trial court found that the defendant had notbeen diligent, but nevertheless granted the petition. Enclosures, Inc., 287 Ill. App. 3d at 901-02. However, the appellate court held that the defendant had failed to exercise any diligence, that noextraordinary circumstances existed to justify the complete relaxation of the diligence requirement,and that the trial court had thus abused its discretion in granting the section 2--1401 petition. Enclosures, Inc., 287 Ill. App. 3d at 903. The present case is likewise one in which the garnishee'sonly explanation for its lack of diligence is that one of its employees wrongly concluded that it didnot need to present the trial court with its defense. Garnishee has displayed a nearly complete lackof diligence, and no extraordinary circumstances mitigate this failure. The trial court therefore abusedits discretion in granting garnishee's section 2--1401 petition.

For the reasons given, the order the circuit court of Kane County is reversed.

Reversed.

GROMETER and KAPALA, JJ., concur.