{ "id": 3611762, "name": "JOHN KAPUT, Plaintiff-Appellee, v. WILLIAM L. HOEY, Defendant-Appellant", "name_abbreviation": "Kaput v. Hoey", "decision_date": "1987-07-13", "docket_number": "No. 86-1070", "first_page": "800", "last_page": "810", "citations": [ { "type": "official", "cite": "159 Ill. App. 3d 800" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "328 N.E.2d 341", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "342" }, { "page": "344" } ], "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 110", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5407310 ], "weight": 3, "pin_cites": [ { "page": "111-12" }, { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0110-01" ] }, { "cite": "378 N.E.2d 1130", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1975, "pin_cites": [ { "page": "1136" }, { "page": "1136" } ], "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 474", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5621438 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "481-82" }, { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0474-01" ] }, { "cite": "92 S. Ct. 2846", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "33 L. Ed. 2d 766", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "408 U.S. 943", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782728, 1782820, 1782772, 1782766 ], "opinion_index": 0, "case_paths": [ "/us/408/0943-03", "/us/408/0943-04", "/us/408/0943-02", "/us/408/0943-01" ] }, { "cite": "272 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "48 Ill. 2d 580", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906340 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0580-01" ] }, { "cite": "386 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 484", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3310654 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0484-01" ] }, { "cite": "206 N.E.2d 299", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1963, "opinion_index": 0 }, { "cite": "57 Ill. App. 2d 40", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2598018 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-app-2d/57/0040-01" ] }, { "cite": "190 N.E.2d 348", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "27 Ill. 2d 609", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358431 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/27/0609-01" ] }, { "cite": "404 N.E.2d 554", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "558" } ], "opinion_index": 0 }, { "cite": "83 Ill. 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App. 3d", "case_ids": [ 3321079 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0733-01" ] }, { "cite": "223 N.E.2d 318", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "320" } ], "opinion_index": 0 }, { "cite": "78 Ill. App. 2d 402", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2569026 ], "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/78/0402-01" ] }, { "cite": "232 N.E.2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "164" } ], "opinion_index": 0 }, { "cite": "88 Ill. App. 2d 428", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3536149 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0268-01" ] }, { "cite": "499 N.E.2d 1381", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "462 N.E.2d 562", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 496", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5676718 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0496-01" ] }, { "cite": "384 N.E.2d 63", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "66 Ill. App. 3d 484", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3320902 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/66/0484-01" ] }, { "cite": "476 N.E.2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "131 Ill. App. 3d 235", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3437056 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/ill-app-3d/131/0235-01" ] }, { "cite": "458 N.E.2d 931", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "120 Ill. App. 3d 1043", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594387 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/120/1043-01" ] }, { "cite": "483 N.E.2d 297", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "136 Ill. App. 3d 490", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564136 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/136/0490-01" ] }, { "cite": "455 N.E.2d 130", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "118 Ill. App. 3d 602", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5658317 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/118/0602-01" ] }, { "cite": "383 N.E.2d 1361", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 1 }, { "cite": "66 Ill. App. 3d 733", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3321079 ], "year": 1966, "opinion_index": 1, "case_paths": [ "/ill-app-3d/66/0733-01" ] }, { "cite": "232 N.E.2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "88 Ill. App. 2d 428", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 8499523 ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/88/0428-01" ] } ], "analysis": { "cardinality": 1042, "char_count": 25082, "ocr_confidence": 0.771, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.3274949620614947 }, "sha256": "b45055aa46fe53e6a7fb301c9eecaae3ec507b9357fe4fdada0586be65b9cda2", "simhash": "1:9374f98faf770c44", "word_count": 4161 }, "last_updated": "2023-07-14T21:36:20.000303+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN KAPUT, Plaintiff-Appellee, v. WILLIAM L. HOEY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nThis is an appeal from an order entered by the circuit court of Cook County denying defendant\u2019s petition to vacate a default judgment entered on January 23, 1983. An appeal is also taken from the amount of damages awarded plaintiff. For the following reasons, we affirm.\nOn August 12, 1980, plaintiff John Kaput filed a complaint against defendant William Hoey seeking damages \u201cin excess of $15,000\u201d for injuries sustained when he allegedly fell on ice near defendant\u2019s apartment building at 1308 North Greenview in Chicago. After defendant was served a copy of the complaint, he appeared pro se on September 8, 1980, but did not file an answer or otherwise plead to the complaint.\nOn December 6, 1982, plaintiff moved for a default judgment and to assign the cause for prove-up of damages. The motion was granted by Judge Thomas O\u2019Brien on January 28, 1983, and the cause transferred to Judge P. A. Sorrentino. On May 14, 1984, Judge Philip Fleischman both set the cause for prove-up and, in a separate order, dismissed it for want of prosecution. On June 1, 1984, upon motion, the order of dismissal was vacated and costs for same were waived; the cause was reinstated and set for trial on June 12, 1984. On June 12, 1984, the cause was assigned to Judge Giliberto for prove-up, and plaintiff was subsequently awarded a judgment in the amount of $29,500 plus costs.\nOn June 11, 1986, Judge Giliberto signed a memorandum of judgment after which an original and two subsequent alias citations to discover assets were issued. Upon service of an alias, defendant appeared by counsel on October 7, 1985. On November 6, 1985, he filed a petition under section 2 \u2014 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1401), to vacate the default judgment entered against him. The petition alleged that defendant was not informed of any of the proceedings mentioned above until after August 19, 1985, when he received an alias citation to discover assets. The petition further alleged that defendant had a meritorious defense to plaintiff\u2019s claim in that he \u201cha[d] information that plaintiff fell on a public walkway and not on a walkway under the control of the defendant, that plaintiff was contributorily negligent in causing his injuries and that defendant [sic] was not injured to the extent claimed.\u201d In support of the petition, defendant provided an affidavit in which defendant attested to the truth of the matters set forth in his petition.\nAt the hearing on his petition, defendant testified that between 1980, after plaintiff filed his complaint, and 1985, he \u201cdidn\u2019t hear a word\u201d regarding the proceedings in question. He also stated that during that period, he was away from his residence at 3035 Knollwood in Glenview on three occasions due to marital difficulties, but he was uncertain as to the specific dates. With respect to his meritorious defense, defendant\u2019s testimony regarding his conversation with an unidentified woman who allegedly witnessed plaintiff\u2019s fall was prohibited on the ground it was hearsay.\nAfter considering the above testimony, the trial court denied defendant\u2019s section 2 \u2014 1401 petition, reasoning that the petition lacked specificity and well-pleaded facts, and that defendant failed to produce evidence of a meritorious defense. After expressing doubts concerning defendant\u2019s credibility, the court also noted that defendant frustrated notice by refusing to claim certified mail from plaintiff\u2019s counsel on at least two occasions in 1981. It is from these rulings as well as the damages awarded plaintiff that defendant appeals.\nSection 2 \u2014 1401 of the Illinois Code of Civil Procedure provides the method for obtaining relief from final orders, judgments, and decrees after the expiration of 30 days from the date of entry. (Falcon Manufacturing Co. v. Nationwide Brokers, Inc. (1984), 123 Ill. App. 3d 496, 462 N.E.2d 562; Ill. Rev. Stat. 1983, ch. 110, par. 2\u2014 1401.) To warrant relief under section 2 \u2014 1401, the petitioner must demonstrate the existence of a meritorious defense and the exercise of due diligence in presenting that defense and in filing the section 2 \u2014 1401 petition. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381; Sterne v. Forrest (1986), 145 Ill. App. 3d 268, 495 N.E.2d 1304; Carroll Service Co. v. Schneider (1986), 144 Ill. App. 3d 38, 494 N.E.2d 253.) In considering such petition, the court should determine whether a party has wilfully disregarded the process of the court or is so indifferent to it that the party is chargeable with culpable negligence. (Verson Allsteel Press Co. v. Mackworth Rees, Division of Avis Industrial, Inc. (1981), 99 Ill. App. 3d 789, 426 N.E.2d 241.) Whether section 2 \u2014 1401 relief should be granted lies within the discretion of the trial court, and upon appeal, the court of review may only determine whether the trial court abused that discretion. Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill. App. 3d 714, 471 N.E.2d 221.\nDefendant initially contends that the trial court abused its discretion in not vacating the default judgment because plaintiff failed to notify defendant of the proceedings following his pro se appearance, defendant relied on misinformation from a circuit court clerk, plaintiff delayed the institution of proceedings, and defendant is entitled to his day in court. Under the circumstances of this case, each of these contentions is without merit.\nWith respect to the issue of notice of plaintiff\u2019s motion for default, when defendant filed his pro se appearance on September 8, 1980, he submitted a Knollwood address in Glenview, Illinois. Defense counsel conceded at the section 2 \u2014 1401 petition hearing that \u201cwe don\u2019t dispute the fact that the notice was sent to the address that they had currently for the defendant, we don\u2019t dispute the fact that they returned the service showing that they mailed it to that address.\u201d Moreover, the court\u2019s computerized printout of the case reveals that a notice of motion, the motion itself, and proof of service were filed on January 23, 1983, the date the motion for default was presented to the court.\nDefendant nevertheless argues that such notice was madequate in that he was estranged from his wife and did not reside at the Knollwood address on three occasions during the pendency of these proceedings. The record of the hearing on defendant\u2019s section 2 \u2014 1401 petition reveals, however, with the exception of Christmas 1980 to February 1981, July or August 1982, and late summer 1984, defendant resided primarily at his Knollwood address between 1980 and 1985. In fact, during the periods he was away from home, he still kept in contact with his wife and children, and paid the household bills. Thus, service was properly made at defendant\u2019s \u201cusual place of abode\u201d as required by the Hlinois Code of Civil Procedure. See Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 203.\nDefendant additionally maintains that his failure to receive notice of the hearing on damages and the default order merits the vacation of the default judgment. Regarding notice of the damages hearing, defendant erroneously cites Hall v. McMillian (1972), 8 Ill. App. 3d 448, 289 N.E.2d 669. In Hall, the plaintiff sought reversal of an order vacating a prior default judgment as to the issue of damages for lack of notice, whereas in the present case, for purposes of this argument, defendant seeks vacature of the judgment on the issue of liability. Moreover, defendant was made aware of a potential damages hearing, as the face of plaintiff\u2019s default motion, which was properly served, sought not only defendant\u2019s default, but also the setting of the cause for assessment of damages.\nWith respect to the default order, an alleged failure to notify a defendant of the entry of a default judgment will not render such judgment void. (Cooper v. United Development Co. (1984), 122 Ill. App. 3d 850, 462 N.E.2d 629.) While it is a factor which may in particular circumstances make a default judgment more vulnerable to a section 2 \u2014 1401 petition, it does not relieve a defendant from showing the exercise of due diligence. (Falcon Manufacturing Co. v. Nationwide Brokers, Inc. (1984), 123 Ill. App. 3d 496, 462 N.E.2d 562.) Given that defendant was properly served with plaintiff\u2019s motion for default and repeatedly refused to accept correspondence from plaintiff\u2019s counsel, there is no doubt that defendant\u2019s dilemma is the result of his own inexcusable mistake.\nEqually unavailing is defendant\u2019s position that failure to provide notice of the proceeding to vacate the order of dismissal renders the vacation void. Rule 2.1(a) of the Circuit Court of Cook County provides:\n\u201cExcept in actions appearing on the daily trial call or during the course of trial, written notice of the hearing of all motions shall be given to all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead, ***.\u201d (Circuit Court of Cook County Rules 2.1(a) (1987).)\nDefendant, having been adjudged in default prior to the dismissal of the cause, was therefore not entitled to notice of the hearing on plaintiff\u2019s motion to vacate the dismissal order within the contemplation of Rule 2.1.\nMoreover, case law cited by defendant himself further refutes the argument that notice of the reinstatement proceedings was required. In Trojan v. Marquette National Bank (1967), 88 Ill. App. 2d 428, 232 N.E.2d 160, upon oral motion of the plaintiffs' counsel, the trial judge reinstated the plaintiffs\u2019 action after having \u201cinadvertently]\u201d dismissed it for want of prosecution, a situation similar to what occurred in the instant case. As of the date of reinstatement, one of the defendant\u2019s had not been \u201c \u2018found by the court to be in default for failure to plead.\u2019 \u201d (Trojan v. Marquette National Bank (1967), 88 Ill. App. 2d 428, 435, 232 N.E.2d 160, 164, quoting Stidham v. Pappas (1966), 78 Ill. App. 2d 402, 406, 223 N.E.2d 318, 320.) Nevertheless, no notice of either the order of \u201cd.w.p.\u201d or subsequent order setting it aside and reinstating the cause was ever served upon him. The court held that even assuming the defendant was entitled to notice of the plaintiffs\u2019 motion, the failure of such in no way impaired the efficacy of the order of vacation and reinstatement or rendered the subsequent proceedings a nullity.\nAside from lack of notice, defendant blames his failure to appear on \u201cmisinformation\u201d given by a circuit court clerk after defendant filed his pro se appearance in 1980. When defendant asked the clerk \u201cwhat to do,\u201d he allegedly responded that \u201cthey would probably follow up on it and *** [defendant] would hear from them.\u201d In those cases cited by defendant where a court clerk\u2019s oral misrepresentation warranted the vacation of a default judgment, a specific and definite misstatement of fact had been made, such as an erroneous trial date (see Resto v. Walker (1978), 66 Ill. App. 3d 733, 383 N.E.2d 1361; Mutual Truck Parts Co. v. Nelson (1966), 69 Ill. App. 2d 30, 216 N.E.2d 301), or an erroneous continuance date. (See Toth v. Samuel Phillipson & Co. (1928), 250 Ill. App. 247.) Here, however, a vague and ambiguous statement was made to defendant and not one on which a reasonably prudent person would be entitled to rely. \u201cIt \u2018is well established that a litigant has to follow the progress of his case [citation], and inadvertent failure to do so is not a ground for relief [citation].\u2019 \u201d Cooper v. United Development Co. (1984), 122 Ill. App. 3d 850, 856, 462 N.E.2d 629, 634, quoting Stallworth v. Thomas (1980), 83 Ill. App. 3d 747, 751, 404 N.E.2d 554, 558.\nDefendant\u2019s final contention in this regard is that plaintiff\u2019s delay in obtaining the default order and judgment as well as in instituting supplementary proceedings, along with notions of fairness, requires that the denial of his section 2 \u2014 1401 petition be reversed. In support of this argument, defendant relies on a number of cases in which the defendant was relieved of the consequences of his negligence based on equitable considerations. (See, e.g., Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348; Resto v. Walker (1978), 66 Ill. App. 3d 733, 383 N.E.2d 1361; Stehman v. Reichhold Chemicals, Inc. (1965), 57 Ill. App. 2d 40, 206 N.E.2d 299.) For example, in Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348, where the plaintiff was injured as a result of a collision between the bus on which she was riding and a dairy truck, the supreme court reversed the denial of the defendant\u2019s petition to vacate a default judgment not only because of the plaintiff\u2019s delay in executing the judgment, but also because the defendant\u2019s petition showed a meritorious defense. Defense counsel\u2019s failure to appear was due to strain produced by his mother\u2019s death, and the evidence adduced at trial consisted of medical damages unrelated to the injury sustained while on the defendant\u2019s bus.\nLikewise, in Stehman v. Reichhold Chemicals, Inc. (1965), 57 Ill. App. 2d 40, 206 N.E.2d 299, where the court reversed a default order entered against the defendant, the plaintiff not only delayed the proceedings, but also the defendant presented a meritorious defense in his petition to vacate accompanied by affidavits and exhibits, the facts of which the plaintiff did not deny in either her answer to the petition or in her brief submitted with the appeal, the plaintiff was nonsuited as to one of the defendants for wilful failure to comply with court orders, and the information as to the defendant\u2019s nonliability was overwhelming. Such unfair, unjust, or unconscionable circumstances, as in Elfman and Stehman, are not present in the instant case requiring relaxation of the due diligence requirement.\nDefendant, citing Eastman Kodak Co. v. Guasti (1979), 68 Ill. App. 3d 484, 386 N.E.2d 291, maintains that he is entitled to special consideration because he filed his appearance pro se. Defendant overlooks the fact that in Eastman, while the defendant\u2019s pro se appearance was relevant in the court\u2019s determination to affirm the vacation of the default judgment, the court also noted that the defendant had established a meritorious defense to the plaintiff\u2019s claim.\nDefendant asserts, however, that he too has a meritorious defense, but was precluded from presenting it at the hearing on his petition. We believe that the trial court correctly found that defendant\u2019s motion to vacate, and accompanying argument, included only unspecific and unsupported allegations of a meritorious defense, and therefore defendant failed to prove his right to the relief sought by a preponderance of the evidence. (See Cooper v. United Development Co. (1984), 122 Ill. App. 3d 850, 462 N.E.2d 629.) Furthermore, defendant\u2019s affidavit, in which defendant merely attests to the truth of the allegations contained in his petition, fails to meet the standard set forth by the supreme court in Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2846, namely that an affidavit \u201cis actually a substitute for testimony taken in open court and should contain as much pertinent information as the affiant could competently testify to if he were sworn as a witness.\u201d 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.\nDefendant next contends that the $29,500 awarded plaintiff should be set aside because defendant was not afforded proper notice of the hearing on damages. As defendant points out, section 2 \u2014 604 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 604) provides:\n\u201cIn case of default, if relief is sought, whether by amendment, counterclaim, or otherwise, beyond that prayed in the pleading to which the party is in default, notice shall be given the defaulted party as provided by rule.\u201d\nTherefore, the pertinent inquiry is whether $29,500 was beyond the limits of relief sought in plaintiff\u2019s complaint.\nDefendant urges that Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 378 N.E.2d 1130, and Klaisner v. Klaisner (1975), 28 Ill. App. 3d 110, 328 N.E.2d 341, are controlling authority on this issue. In Dils, the plaintiff sought in his complaint $50,000 from the defendant. The defendant failed to appear at trial, and the trial court held a default hearing, at which time the court entered an order for damages in the sum of $246,524, almost five times the ad damnum in the complaint. The defendant filed a section 72 petition, now known as a section 2 \u2014 1401 petition, challenging the award. The court concluded that \u201cthe instant judgment, a default judgment, is limited by the $50,000 ad damnum. *** [A] party has a right to assume that the relief granted on a default will not exceed or substantially differ from that described in the complaint.\u201d (Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 481-82, 378 N.E.2d 1130, 1136.) Thus, that portion of the decree exceeding the ad damnum was held void.\nKlaisner was also an appeal from the denial of a section 72 petition. In that case, the plaintiff filed a complaint in which he sought a divorce, custody of the children, and \u201c \u2018other and further relief as this Court may deem just and equitable in the premises.\u2019 \u201d (Klaisner v. Klaisner (1975), 28 Ill. App. 3d 110, 111-12, 328 N.E.2d 341, 342.) The defendant failed to appear and a default hearing was held. The decree of divorce ordered the defendant to execute a deed conveying her interest in the marital home to the plaintiff. The court held that \u201cthe divorce court exceeded its authority by ordering the conveyance of defendant\u2019s interest in the marital home, which was first requested at the default hearing, without prior notice to the defendant. In doing so, the court rendered that portion of the decree void ***.\u201d 28 Ill. App. 3d 110, 114, 328 N.E.2d 341, 344.\nDils and Klaisner are distinguishable from the present case in that the relief awarded plaintiff here was not \u201cbeyond that prayed in the pleading.\u201d (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 604.) In both of the cases discussed above, the defendant had no notice from the complaint of the possible extent of the relief which the court subsequently granted. Consequently, the defendants were \u201cclearly prejudiced by reason of surprise.\u201d (Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 482, 378 N.E.2d 1130, 1136.) Here, however, no such prejudice resulted because defendant had adequate notice in the complaint that plaintiff was seeking damages \u201cin excess of $15,000,\u201d an amount not substantially different from what plaintiff was ultimately awarded. See Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381 (damages awarded three times the original contract cost were not excessive in default judgment action where defendant was not notified of hearing on the assessment of damages).\nFor the foregoing reasons, we affirm the denial of defendant\u2019s section 2 \u2014 1401 petition.\nAffirmed.\nMANNING, J., concurs.", "type": "majority", "author": "JUSTICE BUCKLEY" }, { "text": "JUSTICE CAMPBELL,\ndissenting:\nI respectfully dissent from that part of the majority opinion which holds that plaintiff was not required to give notice to defendant of plaintiff\u2019s motion to vacate the dismissal for want of prosecution (d.w.p.) and to return the cause for prove-up of damages. As authority for its decision, the majority cites Rule 2.1(a) of the Circuit Court of Cook County and Trojan v. Marquette National Bank (1967), 88 Ill. App. 2d 428, 232 N.E.2d 160. In my view, neither of these authorities is persuasive of the disposition.\nWith respect to Rule 2.1(a), the record is void of any indication that the applicability of Rule 2.1(a) to the circumstances at bar was raised below. Although an appellate court has the authority to affirm a trial court\u2019s decision on any theory properly preserved for review (Harney-Morgan Chevrolet Olds Co. v. Rabin (1983), 118 Ill. App. 3d 602, 455 N.E.2d 130), a theory not presented to the trial court is deemed waived for purposes of review. (Consentino v. Price (1985), 136 Ill. App. 3d 490, 483 N.E.2d 297.) For this reason, Rule 2.1(a) is an inappropriate ground for affirmance.\nFurther, Trojan v. Marquette National Bank does not stand for the proposition that a party in default is not entitled to notice of a motion to vacate a d.w.p. Rather, the Trojan court held that where a defendant had made no attempt to file his appearance either pro se or by counsel, the defendant was not entitled to notice of motion to set aside an order of dismissal for want of prosecution. In the present case, it is undisputed that defendant had filed a pro se appearance. The Trojan court declined to make a determination as to whether the notice requirement would be different if the defendant had filed an appearance.\nThe ramifications of the majority opinion should also be considered. In the present case, plaintiff\u2019s motion to vacate the d.w.p. was made within 30 days of the order and the parties were returned to status quo. Thus, because defendant was unaware that a d.w.p. had even been entered, arguably there was no actual prejudice to defendant. However, by virtue of the majority\u2019s decision, it is conceivable that a motion to vacate a d.w.p. made more than 30 days after the d.w.p. was entered could be granted without notice to the other party, thereby depriving that party of the right to assert a defense of lack of jurisdiction and preserve the d.w.p. Such an outcome would directly defeat the purpose of notice, which is to give all parties an opportunity to support or oppose a matter at issue. Kleidon v. City of Hickory Hills (1983), 120 Ill. App. 3d 1043, 458 N.E.2d 931.\nIn addition to plaintiff\u2019s failure to give notice to defendant of his motion to vacate the d.w.p., the record suggests other inadequacies of notice. Specifically, it is unclear whether defendant ever received notice of the motion for a default judgment or notice of the entry of default. Defendant contends that from the time of his pro se appearance in September 1980 until he was issued a citation to discover assets in August 1985, he never received notice of any of the intervening proceedings. Plaintiff maintains that the circuit court\u2019s computerized \u201cregister\u201d of the case indicates that notice of the motion for a default judgment with proof of service was filed on January 28, 1983, the same day default judgment was entered. Plaintiff offers no authority to support the contention that the introduction of a computerized printout indicating a filing is proof of service of notice to the parties. Nevertheless, the majority finds that defendant was properly served with notice of the motion for a default judgment and adds that defendant had \u201crepeatedly refused to accept correspondence from plaintiff\u2019s counsel.\u201d (159 Ill. App. 3d at 804.) It is not clear to what \u201ccorrespondence\u201d the majority refers, as plaintiff has alleged no attempts to contact defendant other than the notice of motion for a default judgment. More importantly, plaintiff does not deny defendant\u2019s allegation that he was not given notice of the entry of default, but claims that defendant was not entitled to such notice. Again, plaintiff offers no legal support for this conclusion.\nAs a general principle, the party charging that proper notice has been given or that it is not necessary has the burden of proving that fact by clear and convincing evidence. (See Buford v. Chicago Housing Authority (1985), 131 Ill. App. 3d 235, 476 N.E.2d 427.) In the present case, plaintiff has failed to satisfy that burden with respect to either the motion for a default judgment or the default judgment itself. In Czekaj v. Czekaj (1978), 66 Ill. App. 3d 484, 384 N.E.2d 63, this court held that failure to provide notice of the entry of the default judgment \u201ceffectively deprived [defendant] of his day in court and of his opportunity to assert his defense,\u201d and consequently set aside the default judgment to afford the defendant an opportunity to be heard.\nIt is also noteworthy that although the default judgment was entered on January 28, 1983, defendant was not issued a citation to discover assets until August 1985. It is well established that service of an execution more than 30 days after rendition casts a cloud upon the proceedings and makes the plaintiff more vulnerable to a petition for relief from the judgment. Resto v. Walker (1978), 66 Ill. App. 3d 733, 383 N.E.2d 1361.\nFor these reasons, I would reverse the trial court\u2019s denial of defendant\u2019s petition to vacate the default judgment and remand the cause for a full hearing on the merits.", "type": "dissent", "author": "JUSTICE CAMPBELL," } ], "attorneys": [ "Law Offices of Gerard A. Facchini and William J. Harte, Ltd., both of Chicago (Gerard A. Facchini, James E. Haley, William J. Harte, and Pamela S. Menaker, of counsel), for appellant.", "Russo, Doty & Associates and Abt, Meyer & Kages, both of Chicago (William M. Doty, of counsel), for appellees." ], "corrections": "", "head_matter": "JOHN KAPUT, Plaintiff-Appellee, v. WILLIAM L. HOEY, Defendant-Appellant.\nFirst District (1st Division)\nNo. 86 \u2014 1070\nOpinion filed July 13, 1987.\nRehearing denied September 24, 1987.\nCAMPBELL, J., dissenting.\nLaw Offices of Gerard A. Facchini and William J. Harte, Ltd., both of Chicago (Gerard A. Facchini, James E. Haley, William J. Harte, and Pamela S. Menaker, of counsel), for appellant.\nRusso, Doty & Associates and Abt, Meyer & Kages, both of Chicago (William M. Doty, of counsel), for appellees." }, "file_name": "0800-01", "first_page_order": 822, "last_page_order": 832 }