{ "id": 5795806, "name": "HARRY COHEN, d/b/a Bell Iron and Metal Company, Plaintiff-Appellant, v. WOOD BROTHERS STEEL STAMPING COMPANY, Defendant-Appellee", "name_abbreviation": "Cohen v. Wood Bros. Steel Stamping Co.", "decision_date": "1991-12-27", "docket_number": "No. 1\u201490\u20143141", "first_page": "354", "last_page": "360", "citations": [ { "type": "official", "cite": "227 Ill. App. 3d 354" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "449 N.E.2d 879", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 921", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592020 ], "pin_cites": [ { "page": "924" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0921-01" ] }, { "cite": "533 N.E.2d 22", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2433590 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0191-01" ] }, { "cite": "530 N.E.2d 230", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. 2d 370", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217995 ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0370-01" ] }, { "cite": "552 N.E.2d 1027", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1030" } ], "opinion_index": 0 }, { "cite": "194 Ill. App. 3d 1098", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499689 ], "weight": 2, "pin_cites": [ { "page": "1103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/1098-01" ] }, { "cite": "220 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5275141 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0805-01" ] }, { "cite": "383 N.E.2d 1361", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1366" } ], "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 733", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3321079 ], "weight": 2, "pin_cites": [ { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0733-01" ] }, { "cite": "578 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 128", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498393 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0128-01" ] }, { "cite": "559 N.E.2d 981", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 529", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2586623 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0529-01" ] }, { "cite": "494 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 38", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3499451 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0038-01" ] }, { "cite": "576 N.E.2d 552", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "216 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5287683 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0863-01" ] }, { "cite": "499 N.E.2d 1381", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "529 N.E.2d 1068", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 511", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554110 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0511-01" ] } ], "analysis": { "cardinality": 658, "char_count": 14442, "ocr_confidence": 0.773, "pagerank": { "raw": 1.9363134904756767e-07, "percentile": 0.7349328088239894 }, "sha256": "9f7a83dd2129d02cdc13b3048bff5ac9e5434f9c2d227800742b7966ad718923", "simhash": "1:cba80aad2b468c04", "word_count": 2373 }, "last_updated": "2023-07-14T16:10:11.260403+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HARRY COHEN, d/b/a Bell Iron and Metal Company, Plaintiff-Appellant, v. WOOD BROTHERS STEEL STAMPING COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McNULTY\ndelivered the opinion of the court:\nPlaintiff Harry Cohen, doing business as Bell Iron & Metal Company, appeals from the denial of his petition pursuant to section 2\u2014 1401 of the Code of Civil Procedure which sought to vacate a prior order dismissing his case. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1401.) We reverse the decision of the trial court.\nOn July 3, 1986, plaintiff filed a complaint alleging defendant\u2019s breach of a contract for the sale of goods. On March 17, 1987, the trial court granted defendant\u2019s motion for summary judgment and denied plaintiff\u2019s motion for reconsideration. On September 30, 1988, this court reversed the trial court\u2019s decision and remanded for further proceedings. In its decision, the appellate court held that a valid contract existed between the parties. (Cohen v. Wood Brothers Steel Stamping Co. (1988), 175 Ill. App. 3d 511, 529 N.E.2d 1068.) Upon remand plaintiff filed a motion for summary judgment, and on June 7, 1989, the trial court granted plaintiff\u2019s motion as to all issues except the amount of plaintiff\u2019s damages, and set the case for August 3 for status of discovery. On August 3, 1989, the court extended Cohen\u2019s time to respond to discovery requests until August 24, and set a hearing on the damage issue for October 12, 1989. On September 22, 1989, defendant filed an updated discovery request narrowing its request to only three documents. At this time an agreed order was entered striking the October 13 trial date and resetting the case for status on November 16,1989.\nOn November 16, 1989, counsel for Cohen did not appear and defendant informed the court that he had not received any information responsive to the outstanding discovery request. With only counsel for Wood Brothers present, the court reset the case for status on January 11, 1990, and imposed February 15 as a cut off for all discovery. On January 11, 1990, counsel for Cohen again did not appear in court. At this time the trial judge set the case for a final hearing on March 22. On March 13, 1990, again with only counsel for Wood Brothers present, the court imposed discovery sanctions, barring Cohen from presenting any evidence as to damages at the final hearing. At the March 22 hearing, Cohen\u2019s case was dismissed with prejudice. (Counsel for Cohen was again absent.)\nOn May 15, 1990, Timothy Carlmark, counsel for Cohen, resigned from his law firm, Cherry and Flynn, indicating to his superiors that Cohen\u2019s case was set for a final hearing in June 1990. Cherry and Flynn\u2019s review of Cohen\u2019s file did not reveal either the March 13 order granting discovery sanctions, or the March 22 dismissal with prejudice. Upon checking the clerk of the court\u2019s computerized docket, Cherry and Flynn learned that Cohen\u2019s case had been dismissed with prejudice as no evidence had been presented as to damages. Additionally, since the March 22 order did not reference the March 13 grant of sanctions, this appeared to be a dismissal for want of prosecution.\nOn August 8, 1990, Cohen\u2019s attorneys filed a section 2 \u2014 1401 petition for relief from final judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401.) Cherry and Flynn learned for the first time of the March 13 order granting sanctions when counsel for Woods Brothers attached a copy of the same to its motion in opposition to the section 2 \u2014 1401 petition. On October 2, 1990, the trial court denied Cohen\u2019s section 2\u2014 1401 petition, citing Cohen\u2019s lack of due diligence in pursuing both the original claim and the post-judgment petition. Cohen appeals this denial of his request for post-judgment relief.\nOn appeal, plaintiff contends that in denying the section 2\u2014 1401 petition the trial court abused its discretion in applying a strict \u201cdue diligence\u201d test instead of looking at whether \u201csubstantial justice\u201d would be done if plaintiff\u2019s motion was granted. Section 2 \u2014 1401 of the Illinois Code of Civil Procedure provides a comprehensive statutory procedure for obtaining relief from final orders and judgments after the expiration of 30 days from the entry thereof. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1401.) In order to obtain relief under section 2 \u2014 1401, a petitioner must establish that he has a meritorious claim, and that he exercised due diligence, both in the original action and in filing the section 2 \u2014 1401 petition for relief. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381.\nIt is not disputed that Cohen has a meritorious claim, as this court has already decided that a valid contract existed between the parties, and the trial court subsequently granted summary judgment in Cohen\u2019s favor on all issues except the extent of damages. What is at issue is the alleged lack of diligence of Cohen\u2019s attorneys and the strict due diligence standard adhered to by the trial court. Assuming, arguendo, that due diligence was lacking in the pursuit of both Cohen\u2019s case in chief and his section 2 \u2014 1401 petition (Cohen\u2019s attorney missed four court appearances between August 1989 and August 1990, failed to respond to all discovery requests during this period, and further, failed to file for post-judgment relief until four months from the entry of the order dismissing Cohen\u2019s claim), this court must decide whether the trial court\u2019s denial of post-judgment relief is justified, or whether the interests of justice and fairness require the application of a relaxed due diligence standard and the granting of Cohen\u2019s section 2 \u2014 1401 petition.\nThere is significant case law which supports the application of a strict due diligence standard and the trial court\u2019s denial of Cohen\u2019s section 2 \u2014 1401 petition. Two recent second district cases, Salazar v. Wiley Sanders Trucking Co. (1991), 216 Ill. App. 3d 863, 576 N.E.2d 552, and Carroll Service Co. v. Schneider (1986), 144 Ill. App. 3d 38, 494 N.E.2d 253, which are factually similar to the case at bar, uphold the application of a strict due diligence standard. In Caroll Service, the trial court found that defendant had a meritorious defense, had exercised due diligence in the preparation of the section 2 \u2014 1401 petition, but had not exercised due diligence in the prosecution of his lawsuit (he did not file an answer within 30 days of the complaint, and a default judgment was entered). The Caroll court attributed the negligence of the attorney to the defendant and refused to grant the section 2 \u2014 1401 petition. In Salazar, plaintiffs\u2019 complaint was filed in July 1988 and dismissed for want of prosecution in November 1988. (Plaintiffs\u2019 attorney failed to file an amended complaint and failed to appear at the hearing on the motion to dismiss.) In December of 1988, plaintiffs\u2019 attorney filed a section 2\u2014 1301(e) motion (Ill. Rev. Stat. 1987, ch. 110, 2 \u2014 1301(e)), which was never motioned up for hearing. In July 1989, this attorney resigned, claiming that he suffered from a mental illness, and advised the other members of his law firm that plaintiffs\u2019 case was still pending. Plaintiffs filed a section 2 \u2014 1401 petition to vacate the dismissal for want of prosecution in April 1990, claiming that their attorney had misled them as to the status of their case. The Second District Appellate Court upheld the trial court\u2019s denial of plaintiffs\u2019 post-judgment petition and its determination that a plaintiff is bound by the negligence of his attorneys (citing O\u2019Malley v. Powell (1990), 202 Ill. App. 3d 529, 559 N.E.2d 981). The Salazar court also found that plaintiffs did not use due diligence in filing their section 2 \u2014 1401 petition until nine months after their attorney resigned.\nOther recent case law, most notably several first district opinions, supports the application of a relaxed due diligence standard when required by the interests of justice and fairness. In Yates v. Barnaby\u2019s of Northbrook (1991), 218 Ill. App. 3d 128, 578 N.E.2d 174, plaintiff filed her personal injury suit in February 1987. Discovery was requested in April 1987, sanctions for noncompliance were requested in October 1987, plaintiff\u2019s original attorney requested leave to withdraw in March 1988, and plaintiff\u2019s case was dismissed with prejudice in April 1988 at an ex parte hearing. In July 1988 (three months after dismissal), plaintiff\u2019s substitute counsel filed a section 2 \u2014 1401 petition, and in August 1989, plaintiff\u2019s claim was reinstated as required by justice and fairness, despite a finding of negligence and lack of due diligence on the part of plaintiff\u2019s counsel. In affirming the trial court\u2019s grant of plaintiff\u2019s section 2 \u2014 1401 petition, the appellate court agreed with the trial court, which found that though due diligence was not present, largely due to lack of cooperation between the plaintiff\u2019s original and substitute counsel, justice and fairness required that the case be reinstated. In its opinion, the appellate court relied on a previous first district case, Resto v. Walker (1978), 66 Ill. App. 3d 733, 383 N.E.2d 1361, which noted that since petitions to vacate are addressed to the equitable powers of the court, \u201ccourts have not considered themselves strictly bound by precedent [citation], and have held, in the interest of justice and fairness, that these requirements need not be viewed in a vacuum [citation], nor must they invariably be enforced. *** In this regard, it is important to note the totality of circumstances attending the case, both before and after the rendition of judgment.\u201d Resto, 66 Ill. App. 3d at 739, 383 N.E.2d at 1366.\nAnother more recent first district case, Kalan v. Palast (1991), 220 Ill. App. 3d 805 expressed concern that plaintiff\u2019s attorney\u2019s firm should have been more diligent, but nevertheless upheld the granting of a section 2 \u2014 1401 petition in spite of an attorney\u2019s negligence in failing to comply with discovery requests and appear at plaintiff\u2019s dismissal hearing. (The attorney pleaded that he was suffering from alcoholism.)\nIn Zee Jay, Inc. v. Illinois Insurance Guaranty Fund (1990), 194 Ill. App. 3d 1098, 552 N.E.2d 1027, another first district case, the appellate court upheld the trial court\u2019s grant of a section 2 \u2014 1401 petition based on equitable considerations and in the absence of due diligence in both the case in chief and the post-judgment petition. Although the court noted that section 2 \u2014 1401 relief will not be allowed to avoid a judgment resulting from a party\u2019s or his attorney\u2019s negligence or lack of due diligence (citing Kaput v. Hoey (1988), 124 Ill. 2d 370, 530 N.E.2d 230), it also stated that such relief involves the equitable powers of the court, and added that the court must liberally construe the scope of relief available to prevent an unjust result. (Zee Jay, 194 Ill. App. 3d at 1103, 552 N.E.2d at 1030.) In this breach of insurance contract case, plaintiff failed to comply with discovery requests, orders, and warnings of the court from January 1986 to July 1987. (Plaintiff\u2019s original counsel died in September 1986.) In September 1987, the trial court dismissed plaintiff\u2019s claim with prejudice. In August 1988, the trial court vacated the \u201cwith prejudice\u201d language and granted plaintiff\u2019s section 2 \u2014 1401 petition. In relaxing the due diligence requirements and allowing plaintiff\u2019s request for post-judgment relief, the trial court noted that in situations where the basis for dismissal is discovery violations, its practice is to dismiss with leave to refile under section 13 \u2014 217. (Ill. Rev. Stat. 1987, ch. 110, par. 13\u2014 217.) The Zee Jay court also determined that the defendant would not be prejudiced by the reinstatement of plaintiff\u2019s actions. In its opinion, this court relied on the decision in Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 533 N.E.2d 22, which held that dismissal with prejudice is an inappropriate initial sanction for failure to comply with discovery. See also In re Application of the County Treasurer & Ex-Officio County Collector (1983), 114 Ill. App. 3d 921, 924, 449 N.E.2d 879, in which the first district found that a party has the right to be heard on the issue of damages even in the absence of due diligence. Furthermore, this opinion goes on to note that the \u201c[ijnterests of fairness and justice require that a party who has a meritorious defense to a major portion of the award should be heard even though the requirements of due diligence are not met.\u201d\nA review of these recent appellate court decisions seems to reveal a split between the first and second districts as to whether the due diligence standard should ever be relaxed. Reliance on the second district authority would support a strict application of the due diligence rule and require our affirmance of the denial of Cohen\u2019s petition for relief from judgment. However, we decline to follow this approach and alternatively rely on the ample authority provided by first district jurisprudence to relax the due diligence standard simply to allow Cohen the opportunity to prove up the damages for a case which he has already won. While we do not hold that the denial of Cohen\u2019s petition was an abuse of discretion, we nevertheless find that the interests of fairness and substantial justice compel the exercise of the equitable powers of this court. The facts at bar involve not a case of ordinary negligence, but an extraordinary situation where a young attorney abruptly and unexplicably abandoned both his client and his law firm without attending court and without adequately documenting the files for which he retained responsibility. To charge a plaintiff with the harsh results of such aberrant and unanticipated conduct on the part of his attorney would be a mockery of the demands of substantial justice.\nFor the above reasons, we reverse the judgment of the circuit court denying plaintiff\u2019s section 2 \u2014 1401 petition. We also vacate the March 13, 1990, order barring discovery, as such order was premature, and to do otherwise would be to grant plaintiff a hollow victory.\nReversed in part; vacated in part and remanded.\nMURRAY and GORDON, JJ., concur.", "type": "majority", "author": "JUSTICE McNULTY" } ], "attorneys": [ "Cherry & Flynn, of Chicago (Myron M. Cherry, Peter Flynn, Jeffrey M. Wagner, and Peter C. Vilmos, of counsel), for appellant.", "Sally Clark and Jay R. Kraning, both of Whitted & Kraning, of Chicago, for appellee." ], "corrections": "", "head_matter": "HARRY COHEN, d/b/a Bell Iron and Metal Company, Plaintiff-Appellant, v. WOOD BROTHERS STEEL STAMPING COMPANY, Defendant-Appellee.\nFirst District (5th Division)\nNo. 1\u201490\u20143141\nOpinion filed December 27, 1991.\nRehearing denied April 22, 1992.\nCherry & Flynn, of Chicago (Myron M. Cherry, Peter Flynn, Jeffrey M. Wagner, and Peter C. Vilmos, of counsel), for appellant.\nSally Clark and Jay R. Kraning, both of Whitted & Kraning, of Chicago, for appellee." }, "file_name": "0354-01", "first_page_order": 378, "last_page_order": 384 }