{ "id": 5424403, "name": "SANDRA BORCHERDING et al., Plaintiffs-Appellees, v. ANDERSON REMODELING COMPANY, INC., Defendant (Ron Kafka, Defendant-Appellant).LESTER WATSON et al., Plaintiffs-Appellees, v. KAFKA, INC., Defendant (Ron Kafka, Defendant-Appellant)", "name_abbreviation": "Borcherding v. Anderson Remodeling Co.", "decision_date": "1993-12-09", "docket_number": "Nos. 2\u201492\u20141041, 2\u201492\u20141084 cons", "first_page": "655", "last_page": "663", "citations": [ { "type": "official", "cite": "253 Ill. App. 3d 655" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "89 Ill. App. 3d 544", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5540979 ], "pin_cites": [ { "page": "547-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0544-01" ] }, { "cite": "189 Ill. App. 3d 638", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2678449 ], "year": 1980, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0638-01" ] }, { "cite": "153 Ill. 2d 6", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738967 ], "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0006-01" ] }, { "cite": "157 Ill. App. 3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3543297 ], "year": 1992, "pin_cites": [ { "page": "853" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0847-01" ] }, { "cite": "248 Ill. App. 3d 134", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2944956 ], "weight": 2, "pin_cites": [ { "page": "138" }, { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/0134-01" ] }, { "cite": "164 Ill. App. 3d 75", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5254990 ], "year": 1984, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0276-01" ] }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "year": 1991, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "134 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 713, "char_count": 18803, "ocr_confidence": 0.737, "pagerank": { "raw": 8.028762967988308e-08, "percentile": 0.46516457137076334 }, "sha256": "f885bf75fa83148620c114b60d56475b557c453e956883a264dffadc773cb03b", "simhash": "1:b7aa520edf7a5d37", "word_count": 3053 }, "last_updated": "2023-07-14T15:28:32.530889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SANDRA BORCHERDING et al., Plaintiffs-Appellees, v. ANDERSON REMODELING COMPANY, INC., Defendant (Ron Kafka, Defendant-Appellant).LESTER WATSON et al., Plaintiffs-Appellees, v. KAFKA, INC., Defendant (Ron Kafka, Defendant-Appellant)." ], "opinions": [ { "text": "JUSTICE WOODWARD\ndelivered the opinion of the court:\nThis is a consolidated appeal. In two separate actions the trial court entered default judgments against defendant Ron Kafka. In cause No. 2 \u2014 92\u20141041, the trial court entered a judgment in favor of plaintiffs Sandra Borcherding and Charlotte Evans (Borcherding plaintiffs) against defendants Ron Kafka (Kafka) and Anderson Remodeling Co. (Anderson), jointly and severally. In cause No. 2 \u2014 92\u2014 1084, the trial court entered a judgment in favor of plaintiffs Lester and Carol Watson (Watson plaintiffs) against Kafka, Inc., and Ron Kafka, individually. Kafka, individually, appeals in both actions from the trial court\u2019s denials of his petitions for relief from the judgments under section 2 \u2014 1401 of the Code of Civil Procedure (735 ILCS 5/2\u2014 1401 (West 1992)). Anderson is not a party in the Borcherding appeal. Kafka claims in both appeals that the trial court erred in denying his section 2 \u2014 1401 petitions because the underlying default judgments were void. He claims that the Borcherding judgment was void both because the Borcherding plaintiffs\u2019 complaint failed to state a cause of action and because the arbitration award by Anderson against the Borcherding plaintiffs renders their claims res judicata. Kafka further claims that the Watson judgment was void because the Watson plaintiffs\u2019 complaint failed to state a cause of action.\nOn February 6, 1991, the Borcherding plaintiffs filed a two-count complaint against defendant Anderson and Kafka. They sued Kafka in both his \u201crepresentative [sic]\u201d and individual capacities. Their complaint alleged the following. Kafka was the employee and/or agent of Anderson. They informed Kafka that they would not enter into a contract with any company connected to a company called \u201cFather and Sons.\u201d Kafka represented to them that Anderson was a reputable and reliable company which would provide suitable remodeling services and that Anderson was not connected with Father and Sons. In relianee on these representations, they entered into a remodeling contract with Anderson and made a down payment. Kafka\u2019s statements were willfully and intentionally false. When they learned that Anderson was the successor company to Father and Sons, they attempted to revoke the contract. Kafka and Anderson refused to honor their revocation. Kafka and Anderson obtained an arbitration award against them in the amount of $13,200.23 based on the contract.\nCount I of the Borcherding plaintiffs\u2019 complaint alleged a violation of the Consumer Fraud and Deceptive Business Practices Act (Act) (815 ILCS 505/1 et seq. (West 1992)), and count II alleged common-law fraud. They sought $25,000 in compensatory damages and $250,000 in punitive damages.\nThe Borcherding plaintiffs attempted to serve Anderson and Kafka this complaint on several occasions but were unsuccessful. After the trial court appointed a special process server, the Borcherding plaintiffs finally served Kafka on May 29, 1991. On August 9, 1991, the Borcherding plaintiffs moved for a default judgment against Kafka and Anderson on the ground that neither of them had made an appearance or filed an answer.\nOn August 12, 1991, the trial court found Anderson and Kafka in default. The trial court scheduled a hearing for the Borcherding plaintiffs to prove up their damages. On August 14, 1991, Anderson moved to dismiss the Borcherding plaintiffs\u2019 complaint. Anderson asserted that on January 13, 1991, Anderson had obtained an arbitration award against the Borcherding plaintiffs which precluded their present cause of action. On August 20, 1991, rather than rule on Anderson\u2019s motion to dismiss, the trial court entered a default judgment in favor of the Borcherding plaintiffs. The trial court awarded to the Borcherding plaintiffs $5,600 in compensatory damages and $18,000 in punitive damages. In addition, the trial court revoked the contract between the parties and extinguished the Borcherding plaintiffs\u2019 liability on the contract. The trial court further awarded the Borcherding plaintiffs $571.10 in costs and $2,000 in attorney fees.\nOn July 15, 1992, Kafka, individually, petitioned under section 2\u2014 1401 for relief from the default judgment against him and moved to dismiss the Borcherding plaintiffs\u2019 complaint. Kafka denied that he had represented to the Borcherding plaintiffs that Anderson had no connection to Father and Sons. Kafka asserted, therefore, that the Borcherding plaintiffs failed to state a claim against him. On July 30, 1992, the trial court denied Kafka\u2019s section 2 \u2014 1401 petition.\nKafka, individually, appealed the denial of his section 2 \u2014 1401 petition pursuant to Supreme Court Rule 304(b)(3) (134 Ill. 2d 304(b)(3)). As noted above, Anderson is not a party in this appeal. Kafka claims that the Borcherding plaintiffs failed to state a claim against Kafka under either the Act or under common-law fraud. Therefore, according to Kafka, the default judgment against him was void, and he was entitled to relief from that judgment under section 2 \u2014 1401 regardless of whether he acted with due diligence. He also argues that the damage award was void because the Borcherding plaintiffs did not state sufficient facts to support an award of punitive damages. Kafka further argues that the Borcherding judgment was void because the arbitration award that Anderson obtained against the Borcherding plaintiffs rendered the Borcherding plaintiffs\u2019 claims res judicata.\nOn May 20, 1991, the Watson plaintiffs filed a three-count complaint against Kafka, individually, and defendant Kafka, Inc. They sued Kafka in his representative and individual capacities. The Watson plaintiffs\u2019 complaint alleged the following. Kafka was the owner, employee, and/or agent of Kafka, Inc. He falsely represented to them that Kafka, Inc., was a reputable and competent company which would provide suitable remodeling services. In reliance on these statements, they entered into a remodeling contract with Kafka, Inc., on September 13, 1990, paid a sum of money to Kafka, Inc., and made certain purchases in preparation for the remodeling. Kafka, Inc., failed to begin work on their property as promised.\nCount I of the Watson plaintiffs\u2019 complaint alleged breach of contract. Count II alleged that defendants violated the Act. Count III alleged common-law fraud. The Watson plaintiffs sought $25,000 in compensatory damages and $250,000 in punitive damages.\nOn August 13, 1991, the trial court entered default judgments against both Kafka and Kafka, Inc., on the ground that they failed to appear or answer the Watson plaintiffs\u2019 complaint. On August 21, 1991, after a default prove-up hearing, the trial court awarded $7,700 in compensatory damages and $18,000 in punitive damages to the Watson plaintiffs. The trial court rescinded the contract between the Watson plaintiffs and Kafka, Inc. The trial court further awarded $446 in costs and $2,000 in attorney fees to the Watson plaintiffs.\nOn August 30, 1991, Kafka, Inc., moved to vacate the default judgment and dismiss the Watson plaintiffs\u2019 complaint. On October 7, 1991, the trial court vacated the default judgment as to Kafka, Inc., only; denied Kafka, Inc.\u2019s motion to dismiss the Watson plaintiffs\u2019 complaint; and allowed Kafka, Inc., 21 days to answer counts II and III of the Watson plaintiffs\u2019 complaint. The trial court subsequently awarded the Watson plaintiffs $1,765.25 in attorney fees as a condition of its vacation of the default judgment. The Watson plaintiffs voluntarily withdrew count I of their complaint.\nOn November 4, 1991, Kafka moved to vacate the default judgment against him. The trial court denied this motion as untimely. On March 19, 1992, the trial court reinstated the default judgment against Kafka, Inc., because Kafka, Inc., failed to pay the $1,765.25 in attorney fees.\nOn July 15, 1992, Kafka petitioned under section 2 \u2014 1401 for relief from the default judgment against him. Kafka asserted that he was not a proper party to the lawsuit. According to Kafka, he sold Kafka, Inc., on January 25, 1989, and was not the owner, employee, or agent of Kafka, Inc., when the Watson plaintiffs entered into the contract with Kafka, Inc. Therefore, according to Kafka, the Watson plaintiffs did not state in their complaint any facts which would impose liability on him. Kafka attached an affidavit to this petition in which he stated that he had never met, seen, or spoken to the Watson plaintiffs.\nIn an order of August 5, 1992, the trial court denied Kafka\u2019s section 2 \u2014 1401 petition. The trial court specifically found that counts II and III of the Watson plaintiffs\u2019 complaint clearly stated causes of action against Kafka. The trial court found, therefore, that Kafka was not entitled to relief under section 2 \u2014 1401 because he did not allege that he acted with due diligence and because the record demonstrated that he did not act with due diligence either in the underlying suit or in bringing the section 2 \u2014 1401 petition.\nKafka appealed the denial of his section 2 \u2014 1401 petition pursuant to Supreme Court Rule 304(b)(3) (134 Ill. 2d 304(b)(3)). Kafka, Inc., is not a party to this appeal. Kafka argues once again that the Watson plaintiffs\u2019 complaint was void because it failed to state a claim against him for a violation of the Act or for common-law fraud. He also argues that the Watson plaintiffs\u2019 complaint was insufficient to support an award for punitive damages.\nSection 2 \u2014 1401 allows a party to obtain relief from a judgment that is more than 30 days old, provided that the party proves the following: (1) the existence of a meritorious defense or claim; (2) due diligence in pursuing that defense or claim; and (3) due diligence in filing the section 2 \u2014 1401 petition. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221; Genesis & Sons, Ltd. v. Theodosopoulos (1991), 223 Ill. App. 3d 276, 279.) However, a void judgment may be attacked at any time. Therefore, a party need not show due diligence in order to obtain relief from a void judgment, even if more than 30 days have elapsed since the entry of that judgment. In re Marriage of Parks (1984), 122 Ill. App. 3d 905, 909; In re Marriage of Panozzo (1981), 93 Ill. App. 3d 1085, 1088.\nIf a complaint entirely fails to state a cause of action against a particular defendant, any judgment on the complaint is void as to that defendant. (Hoopingarner v. Peric (1975), 28 Ill. App. 3d 53, 57.) However, defects in a plaintiff\u2019s complaint do not render the judgment void unless the complaint completely fails to state a cause of action. Therefore, Kafka has waived all but the most substantial defects in plaintiffs\u2019 complaints by defaulting. (See Stanard v. Stanard (1969), 108 Ill. App. 2d 240, 243-44.) We will first determine, therefore, whether the Watson complaint and the Borcherding complaint were so defective as to render the judgments void.\nIn order to recover under the Act, a plaintiff must show that \u201cdefendant is engaged in trade or commerce and has committed acts or engaged in practices which are either unfair or deceptive.\u201d (Roche v. Fireside Chrysler-Plymouth, Mazda, Inc. (1992), 235 Ill. App. 3d 70, 83.) The elements of fraud under the Act are the following:\n\u201c(1) a statement by the seller; (2) of an existing or future material fact; (3) that was untrue, without regard to defendant\u2019s knowledge or lack thereof of such untruth; (4) made for the purpose of inducing reliance; (5) on which the victim relies; and (6) which resulted in damages.\u201d Roche, 235 Ill. App. 3d at 84-85.\nAccord Duran v. Leslie Oldsmobile, Inc. (1992), 229 Ill. App. 3d 1032, 1041.\nBoth the Watson and Borcherding plaintiffs specifically alleged that Kafka was engaged in trade or commerce and that Kafka was the employee and/or agent of a company which was engaged in the business of offering services to the public. Thus, Kafka\u2019s argument that the Watson and Borcherding plaintiffs failed to allege that he was engaged in trade or commerce is unpersuasive.\nThe plaintiffs further alleged that Kafka made several false material statements which induced them to enter into a remodeling contract with Kafka, Inc. The Borcherding plaintiffs alleged that Kafka falsely represented that (1) Anderson would provide suitable remodeling services; (2) that Anderson was a competent and reputable company; and (3) that Anderson was not connected to Father and Sons. The Watson plaintiffs alleged that Kafka falsely represented (1) that Kafka, Inc., would provide suitable remodeling services; (2) that Kafka, Inc., was a reputable and competent company; and (3) that Kafka, Inc., would perform the work as promised.\nMere statements of opinion, or \u201cpuffing,\u201d are not actionable under the Act. (Totz v. Continental Du Page Aeura (1992), 236 Ill. App. 3d 891, 904.) Whether a statement is one of fact or of opinion can depend on the circumstances of the case. (Totz, 236 Ill. App. 3d at 905.) A statement that would otherwise be an opinion can constitute a statement of fact if it is made in such a way that the consumer could reasonably treat it as a statement of fact. (Totz, 236 Ill. App. 3d at 905; Duhl v. Nash Realty Inc. (1982), 102 Ill. App. 3d 483, 489-90.) Both the Borcherding and Watson plaintiffs sufficiently alleged, therefore, that Kafka made false material statements of present or future fact in order to induce reliance, that they relied on those statements, and that they suffered damages as a result.\nIn order to state a claim for common-law fraud, a plaintiff must allege that \u201c(1) the defendant made a statement; (2) of a material nature; (3) which was untrue; and (4) was known by the defendant to be untrue, or was made in culpable ignorance of its truth or falsity; (5) was made for the purpose of inducing reliance by the plaintiff; (6) was actually relied on by the plaintiff; and (7) resulted in plaintiff\u2019s injury.\u201d Bank of Northern Illinois v. Nugent (1991), 223 Ill. App. 3d 1, 9.\nWhile an action for common-law fraud does not require that the seller be engaged in trade or commerce, it requires proof of elements that an action under section 2 of the Act does not. An action for common-law fraud cannot be based on a representation or promise of future conduct unless it is part of a scheme to defraud. (Nugent, 223 Ill. App. 3d at 10.) Furthermore, defendant must make a misrepresentation which he knows to be untrue. (Nugent, 223 Ill. App. 3d at 10-11.) Both the Watson and Borcherding complaints alleged that Kafka made material misrepresentations of present fact and that he made those misrepresentations intentionally.\nIt is clear that both the Watson and the Borcherding plaintiffs stated claims under section 2 of the Act and claims for common-law fraud sufficient to support valid judgments. If there were any minor deficiencies in either complaint, those deficiencies were waived. Furthermore, the damage awards in both cases were valid. We first point out that the trial court awarded compensatory and punitive damages to the Watson and Borcherding plaintiffs in amounts well within the amounts for which plaintiffs prayed in their complaints. (735 ILCS 5/ 2-604 (West 1992); Kaput v. Hoey (1988), 124 Ill. 2d 370, 381-82.) Whether to award punitive damages for fraudulent conduct rests with the sound discretion of the trial court. (Ekl v. Knecht (1991), 223 Ill. App. 3d 234, 243.) Kafka waived any objection to plaintiffs\u2019 failure to allege specifically that his fraudulent acts were so gross and malicious as to support a claim for punitive damages. See Guess v. Brophy (1987), 164 Ill. App. 3d 75, 81.\nWe next consider Kafka\u2019s argument that Anderson\u2019s arbitration award rendered the Borcherding judgment void because the Borcherding plaintiffs\u2019 claims against Kafka were res judicata. The doctrine of res judicata precludes the relitigation of issues that have already been decided in an earlier proceeding. (Powers v. Arachnid, Inc. (1993), 248 Ill. App. 3d 134, 138.) The doctrine bars a subsequent action between the same parties involving the same cause of action. (Benton v. Smith (1987), 157 Ill. App. 3d 847, 853.) It also precludes a party from relitigating an issue that was decided in a prior proceeding involving a different cause of action. Cirro Wrecking Co. v. Roppolo (1992), 153 Ill. 2d 6, 20; Powers, 248 Ill. App. 3d at 141.\nKafka asserts that the arbitrator\u2019s decision in Anderson\u2019s favor precludes the Borcherding plaintiffs\u2019 claim against Kafka because the arbitrator in the earlier proceeding \u201cmust have determined there existed a valid contract between the Plaintiffs and [Anderson] which was not voidable because of any fraud or consumer fraud.\u201d\nWe need not determine whether Kafka could properly invoke the doctrine of res judicata based on the arbitration award, however, because we conclude that he has waived that defense by his default in the present action. We find no support for Kafka\u2019s assertion that the prior adjudication of an issue stands as a jurisdictional bar to the re-litigation of that issue. In fact, principles of equity and fairness guide our application of the doctrine of res judicata. (Best Coin-Op, Inc. v. Paul F. Ilg Supply Co. (1989), 189 Ill. App. 3d 638, 650.) Furthermore, a defendant can waive the defense of res judicata by failing to raise it in a timely fashion. Thornton v. Williams (1980), 89 Ill. App. 3d 544, 547-48.\nIn this case, Kafka stood idly by and refused to defend the Borcherding action. He did not move to set aside the default judgment within 30 days of that judgment pursuant to section 2 \u2014 1301(e) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1301(e) (West 1992)). Instead, he waited almost a year from the entry of the default judgment before petitioning under section 2 \u2014 1401 for relief. In his section 2\u2014 1401 petition, he did not even allege that he acted with due diligence. He then raised the issue of res judicata for the first time on appeal from the trial court\u2019s denial of his section 2 \u2014 1401 petition. We cannot imagine a clearer case for the application of the waiver rule.\nWe conclude, therefore, that the trial court correctly refused to grant Kafka\u2019s section 2 \u2014 1401 petitions in either the Watson cause or the Borcherding cause.\nThe judgments of the circuit court in cause numbers 2 \u2014 92\u20141041 and 2 \u2014 92\u20141084 are affirmed.\nAffirmed.\nMcLAREN and BOWMAN, JJ., concur.", "type": "majority", "author": "JUSTICE WOODWARD" } ], "attorneys": [ "Douglas Drenk, of Douglas Drenk & Associates, P.C., of Wheaton, for appellant.", "Maureen Flaherty, of Lehrer, Flaherty & Canavan, of Wheaton, for appellees." ], "corrections": "", "head_matter": "SANDRA BORCHERDING et al., Plaintiffs-Appellees, v. ANDERSON REMODELING COMPANY, INC., Defendant (Ron Kafka, Defendant-Appellant).LESTER WATSON et al., Plaintiffs-Appellees, v. KAFKA, INC., Defendant (Ron Kafka, Defendant-Appellant).\nSecond District\nNos. 2\u201492\u20141041, 2\u201492\u20141084 cons.\nOpinion filed December 9, 1993.\nDouglas Drenk, of Douglas Drenk & Associates, P.C., of Wheaton, for appellant.\nMaureen Flaherty, of Lehrer, Flaherty & Canavan, of Wheaton, for appellees." }, "file_name": "0655-01", "first_page_order": 675, "last_page_order": 683 }