{ "id": 5220542, "name": "OREST MRYSZUK, Plaintiff-Appellee, v. FLAVIO HOYOS, Defendant-Appellant", "name_abbreviation": "Mryszuk v. Hoyos", "decision_date": "1992-05-13", "docket_number": "No. 1\u201487\u20141352", "first_page": "860", "last_page": "864", "citations": [ { "type": "official", "cite": "228 Ill. App. 3d 860" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "459 N.E.2d 1056", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 328", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558774 ], "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0328-01" ] }, { "cite": "360 N.E.2d 113", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 820", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2896694 ], "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0820-01" ] }, { "cite": "396 N.E.2d 1192", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 146", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5604982 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0146-01" ] }, { "cite": "410 N.E.2d 999", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 606", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3174095 ], "pin_cites": [ { "page": "609-10" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0606-01" ] } ], "analysis": { "cardinality": 460, "char_count": 7731, "ocr_confidence": 0.777, "pagerank": { "raw": 7.404632848295127e-08, "percentile": 0.4428729242515683 }, "sha256": "c7921f4b221c8e62d2e2e17cd5758f70b3d9eb67abff0c368fcb886be824d31c", "simhash": "1:9c68c0bc774d9d5d", "word_count": 1260 }, "last_updated": "2023-07-14T16:00:32.943049+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "OREST MRYSZUK, Plaintiff-Appellee, v. FLAVIO HOYOS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GREIMAN\ndelivered the opinion of the court:\nFollowing an ex parte bench trial in which defense counsel failed to appear at the appropriate time, defendant appeals the trial court\u2019s denial of a motion to reconsider judgment. However, we find the trial court abused its discretion when it denied defendant\u2019s motion to vacate. Pursuant to Illinois Supreme Court Rule 366 (107 Ill. 2d R. 366), we reverse the trial court\u2019s decision as to defendant\u2019s motion to vacate and remand for new trial.\nThis litigation arises from an automobile accident plaintiff and defendant had in 1980. Plaintiff claims defendant ran a red light to hit his car; defendant counterclaims he was in the intersection waiting to turn when plaintiff hit him.\nThe long and uneven procedural history of this case includes a default judgment that plaintiff obtained in 1985 when defendant moved and his attorney never received his new address. However, defendant\u2019s section 2 \u2014 1401 petition to vacate that judgment was granted, and after four requests for continuances by plaintiff, trial was finally set for February 18,1987.\nOn the day of trial, defense counsel was detained in another court and missed the first two calls for defendant\u2019s case. On the third call, with defense counsel absent, the trial judge heard the case ex parte with only plaintiff testifying as to the cause of the accident.\nPlaintiff testified that he was moving through a green light when defendant hit him. He also presented a verified affidavit that stated he incurred $2,120.95 in damages, and presented evidence as to those damages. The trial court entered judgment for plaintiff, awarding him $2,120.95.\nDefendant\u2019s attorney had scheduled a hearing in Federal immigration court prior to defendant\u2019s trial call and was told that matter would conclude by 10:30 a.m., but it did not finish until 11:30 a.m. Counsel had previously instructed defendant to request the trial court to hold the matter until he arrived. While defendant was in the courtroom at the time his case was called, he was unfamiliar with courtroom procedure and so failed to make an appearance or otherwise make his presence known. When defense counsel did arrive, he waited until the trial court concluded its other business before asking leave to approach the bench, which the trial court refused.\nOn March 11, 1987, defendant filed a motion to vacate ex parte judgment entered February 18, 1987, and obtained a hearing date of March 23, 1987, which was continued to March 31, 1987. On March 31, 1987, the trial court entered an order denying defendant\u2019s motion to vacate and denying defendant\u2019s motion to reconsider judgment entered February 18, 1987. Defendant here appeals only the court\u2019s decision as to the motion to reconsider.\nPlaintiff argues that the motion to reconsider was not timely filed and thus this court has no jurisdiction on appeal. However, we find that it was timely since the trial court signed the order, drawn up by plaintiff\u2019s attorney, which specifically denied both motions and the twice-reconstructed record provides no conclusive evidence that the motion to reconsider was not timely made.\nDefendant does not argue on appeal that the trial court\u2019s judgment of February 17, 1987, should be vacated. Generally, such an omission would find defendant had waived that issue. However, we find that the trial judge\u2019s action in denying defendant\u2019s motion to vacate was an abuse of discretion affecting defendant\u2019s substantial rights.\nUnder section 2 \u2014 1203 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1203), a party may file a motion after a judgment in a nonjury case within 30 days after the entry of the judgment and a timely filed motion stays enforcement of the judgment.\nWhether to grant a post-trial motion is ordinarily within the discretion of the trial court. (In re Marriage of Potter (1980), 88 Ill. App. 3d 606, 609-10, 410 N.E.2d 999.) The purpose of a motion to vacate a judgment is to alert the trial court to errors it has made and to afford an opportunity for their correction. (Sanborn v. Sanborn (1979), 78 Ill. App. 3d 146, 396 N.E.2d 1192.) Whether a trial court has abused its discretion turns on whether the court\u2019s refusal to vacate \u201cviolates the moving party\u2019s right to fundamental justice and manifests an improper application of discretion.\u201d Harris v. Harris (1977), 45 Ill. App. 3d 820, 821, 360 N.E.2d 113.\nThe abuse of discretion standard for reviewing decisions made under section 2 \u2014 1203 includes an inquiry as to \u201cwhether substantial justice is being done between the litigants and whether, under the circumstances of the case, it is reasonable to compel the other party to go to trial on the merits.\u201d In re Marriage of Sheber (1984), 121 Ill. App. 3d 328, 334, 459 N.E.2d 1056.\nWe find that the interests of fairness and justice compel the exercise of the equitable powers of this court to remand this case for new trial. While Sheber states that a movant is not required to show a meritorious defense or present a good excuse for failure to appear in court in order to obtain a vacatur, we find both of these factors present in defendant\u2019s case.\nDefendant provided a meritorious defense and counterclaim that it was plaintiff who was negligent in proceeding through the intersection after the light turned green, because defendant was simply waiting for traffic to stop to complete his turn when plaintiff hit him.\nThe circumstances of the case also establish that defense counsel had a reasonable explanation for not appearing on time and was duly diligent in trying to rectify the situation. Defense counsel\u2019s late appearance was inappropriate, harmful to defendant\u2019s interests and showed poor planning. However, counsel\u2019s explanation of the circumstances surrounding the unfortunate situation was certainly unintentional and comprehendible.\nDefense counsel explained that since the trial was continued on four earlier dates at plaintiff\u2019s behest, counsel was anxious to conclude the litigation in his client\u2019s best interests, so agreed to February 18, 1987. Further, he stated that he made inquiries to the personnel of the Federal immigration court as to when he could expect to conclude proceedings there and was told that he would be done by 10:30 a.m.\nCounsel also tried to allow for any unexpected lateness by instructing defendant to inform the court that he would be there shortly, which defendant, in his unfamiliarity with the court system, failed to do. Counsel explained that when he realized he would be late, he was unable to phone from the Federal court because there were no nearby telephones. As soon as possible, counsel phoned and instructed an associate to appear on defendant\u2019s behalf, but by then defendant\u2019s case had been heard. At most, defense counsel was one hour late.\nWe reverse because we find the trial court abused its discretion in denying defendant\u2019s motion to vacate judgment since defendant posed a meritorious position, plaintiff would suffer no hardship from vacatur and sufficient rational reasons existed for counsel\u2019s failure to appear on time.\nWe remand for new trial because we find that substantial justice was not done by the trial court\u2019s decision and that under the circumstances of the case, defendant is entitled to argue the merits.\nBecause we reach this decision, we need not determine the other issues raised in this case.\nReversed and remanded.\nTULLY and CERDA, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE GREIMAN" } ], "attorneys": [ "Robert Habib, of Chicago, for appellant.", "Frederic N. Scovell III, of Simon, McClosky & Scovell, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "OREST MRYSZUK, Plaintiff-Appellee, v. FLAVIO HOYOS, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201487\u20141352\nOpinion filed May 13, 1992.\nRobert Habib, of Chicago, for appellant.\nFrederic N. Scovell III, of Simon, McClosky & Scovell, Ltd., of Chicago, for appellee." }, "file_name": "0860-01", "first_page_order": 880, "last_page_order": 884 }