{ "id": 637078, "name": "ROBERT A. RYAN, Plaintiff-Appellee, v. ANDREW J. KONTRICK, Defendant-Appellant", "name_abbreviation": "Ryan v. Kontrick", "decision_date": "2002-11-08", "docket_number": "No. 1 \u2014 01 \u2014 2528", "first_page": "225", "last_page": "233", "citations": [ { "type": "official", "cite": "335 Ill. App. 3d 225" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "284 Ill. App. 3d 1025", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260352 ], "year": 1996, "pin_cites": [ { "page": "1028", "parenthetical": "\"The prejudice to a party [under Supreme Court Rule 369(c)] is certainly part of the totality of the circumstances and should be considered by the trial court\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/1025-01" ] }, { "cite": "281 Ill. App. 3d 832", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150209 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "839" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0832-01" ] }, { "cite": "203 Ill. App. 3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2581212 ], "year": 1990, "pin_cites": [ { "page": "853", "parenthetical": "when ruling on a section 2 - 1401 motion, courts may consider the litigant's attention to a related case when assessing due diligence" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0847-01" ] }, { "cite": "166 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198894 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "209" }, { "page": "205-06" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0204-01" ] }, { "cite": "76 Ill. App. 3d 384", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3279680 ], "year": 1979, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0384-01" ] }, { "cite": "219 Ill. App. 3d 120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5797875 ], "year": 1991, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0120-01" ] }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "222" }, { "page": "224" }, { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "273 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258597 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "837" }, { "page": "836-37" }, { "page": "837" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0830-01" ] }, { "cite": "297 Ill. App. 3d 297", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910222 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "300-01" }, { "page": "301" }, { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0297-01" ] }, { "cite": "295 F.3d 724", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11452434, 9412059 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/br/281/0724-01", "/f3d/295/0724-01" ] }, { "cite": "11 U.S.C. \u00a7 701", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 852", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564582 ], "year": 1999, "pin_cites": [ { "parenthetical": "Ryan I" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0852-01" ] } ], "analysis": { "cardinality": 811, "char_count": 19504, "ocr_confidence": 0.766, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3381525332171876 }, "sha256": "d285da819bbbd540884130bb2fe42c824859e98dbfd5ff7a1d992784861ccd23", "simhash": "1:0b3a799678c25d71", "word_count": 3210 }, "last_updated": "2023-07-14T21:04:10.004592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROBERT A. RYAN, Plaintiff-Appellee, v. ANDREW J. KONTRICK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE QUINN\ndelivered the opinion of the court:\nDefendant Andrew J. Kontrick appeals the order of the trial court granting plaintiff Robert A. Ryan\u2019s motion to reinstate in connection to this court\u2019s opinion in Ryan v. Kontrick, 304 Ill. App. 3d 852 (1999) (Ryan I). Ryan\u2019s motion was filed 290 days after a stay was lifted in a bankruptcy proceeding initiated by Kontrick. On appeal, Kontrick contends that the trial court erred in granting plaintiffs motion to reinstate because Ryan failed to exercise due diligence in filing the motion, as required by Supreme Court Rule 369(c). 134 Ill. 2d R. 369(c).\nBACKGROUND\nIn Ryan I, Kontrick appealed the trial court\u2019s confirmation of a December 1996 arbitration award of $519,324.42 against him in favor of Ryan, which had resulted from a contract dispute between the two men, both of whom are medical doctors. This amount consisted of compensatory and punitive damages and attorney fees and costs. The trial court also awarded prejudgement interest on that sum. In our March 26, 1999, opinion in Ryan I, we affirmed the arbitrator\u2019s awards of compensatory damages and attorney fees, but vacated the punitive damages award. The case was remanded for entry of an order requiring Kontrick to pay interest at the required statutory rate. This court\u2019s mandate in Ryan I was issued on November 17, 1999.\nIn April 1997, during the pendency of the appeal in Ryan I, Kon-trick filed with the bankruptcy court a petition for relief under chapter 7 of the United States Bankruptcy Code (11 U.S.C. \u00a7 701 et seq. (1994)). In response, Ryan filed a complaint seeking to deny Kontrick a discharge of the amount owed on the arbitration award. As a result of Kontrick\u2019s bankruptcy proceeding, an automatic stay was imposed prohibiting any further proceedings against Kontrick. In addition to the Ryan I appeal, this stay affected two other suits, one in Lake County and one in Cook County, that Ryan had pending against Kon-trick. The stay was later modified to allow Kontrick to proceed with his appeal in Ryan I.\nOn June 13, 2000, the bankruptcy court entered its order denying Kontrick a discharge, which was the subject of a motion to amend. On July 10, 2000, the bankruptcy court entered its amended order, which also denied Kontrick a discharge. Kontrick then appealed the bankruptcy court\u2019s order denying discharge, and the Court of Appeals for the Seventh Circuit affirmed the bankruptcy court\u2019s order while the instant case was under advisement. In re Kontrick, 295 F.3d 724 (7th Cir. 2002).\nOn February 7, 2001, Ryan, through his attorney, filed a wage garnishment and citation to discover assets to enforce the December 1996 arbitration award, which had been reversed in part in Ryan I. Kontrick moved to quash on the ground that the trial court lacked jurisdiction to enforce the reversed judgment and that Ryan had failed to reinstate the case as required by Supreme Court Rule 369(c). The trial court granted Kontrick\u2019s motion to quash, and Ryan\u2019s attorney, who had filed the garnishment and citation, was sanctioned.\nOn March 30, 2001, Ryan filed his motion to reinstate under Supreme Court Rule 369(c). In the memorandum in support of his motion, Ryan argued that he did not have a duty to reinstate because Kontrick was the prevailing party for purposes of Rule 369(c). In the alternative, Ryan noted that since June 13, 2000, the date the automatic stay was dissolved, he and Kontrick had been involved in other proceedings relating to Ryan\u2019s collection of the arbitration award. Based upon Kontrick\u2019s acquiescence to repeated deferrals in a case involving the allegedly fraudulent transfer of funds from Kon-trick to his wife, Ryan argued that Kontrick had acquiesced to the delay in filing for reinstatement. Ryan also argued that the parties had been \u201cactively preoccupied\u201d with proceedings relating to sanctions brought against Ryan and his attorney in bankruptcy court.\nRyan further argued that to grant reinstatement would undermine neither the orderly disposition of the case nor the policy considerations behind Rule 369(c) and asserted that he had delayed seeking reinstatement because if Kontrick were to win his appeal of the bankruptcy court\u2019s denial of discharge, Ryan would be required to return the funds he had collected. Ryan asserted that he would be \u201cinequitably and grievously harmed\u201d and that Kontrick would receive an undeserved windfall if reinstatement were denied.\nAt the hearing on Ryan\u2019s motion to reinstate, the trial court had a discussion with Kontrick\u2019s attorney, who explained that the automatic stay was lifted by operation of law on June 13, 2000, the date the bankruptcy court originally denied Kontrick a discharge. Kontrick\u2019s attorney further explained that the denial of discharge did not become final until 10 days after the bankruptcy court entered its July 10, 2000, amended order. Based upon counsel\u2019s statements, the trial court concluded that Ryan could have sought reinstatement as early as July 21, 2000. After hearing arguments, the trial court granted Ryan\u2019s motion to reinstate, noting that the litigation between Ryan and Kon-trick, which included both the state court proceedings involving the arbitration award and the federal bankruptcy proceedings, had been \u201cvigorously fought.\u201d Reinstatement aside, the trial court questioned whether collection of the arbitration award could occur prior to a conclusion of the appeal relating to Kontrick\u2019s discharge proceedings. The trial court distinguished the cases involving Rule 369(c) from the instant case by stating that only the \u201cministerial task of computation\u201d was necessary in the instant case, which was different from other cases, where there was \u201ca lot to be done\u201d after remand. After the parties filed competing memoranda regarding the manner in which postjudgment interest should be calculated, the trial court entered its amended judgment in favor of Ryan for $422,414.53. This appeal followed.\nANALYSIS\nKontrick contends that the trial court erred in granting Ryan\u2019s motion to reinstate. He argues that as the prevailing party in Ryan I, Ryan has failed to establish due diligence under Supreme Court Rule 369(c) where he filed his motion to reinstate 290 days after June 13, 2000, the date the automatic stay in the bankruptcy proceedings was lifted.\nSupreme Court Rule 369(c) provides that, \u201cWhen the reviewing court remands the case for a new trial or hearing and the mandate is filed in the circuit court, the case shall be reinstated therein upon 10 days\u2019 notice to the adverse party.\u201d 134 Ill. 2d R. 369(c).\nWhen determining whether a party has reinstated a case within a reasonable period of time, it is proper for a court to consider the totality of the circumstances, particularly any reasons offered for an undue delay. People v. NL Industries, Inc., 297 Ill. App. 3d 297, 300-01 (1998). The reasonableness requirement is considered in terms of whether a petitioner has exercised due diligence in filing the petition. National Underground Construction Co. v. E.A. Cox Co., 273 Ill. App. 3d 830, 837 (1995). When considering cases under Rule 369(c), this court may\nconsider cases brought under section 2 \u2014 1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 1401 (West 2000)), addressing the issue of due diligence. See National Underground, 273 Ill. App. 3d at 836-37. Thus, due diligence in filing a reinstatement petition requires the petitioner to have a \u201creasonable excuse\u201d for failing to timely file the petition. See Smith v. Airoom, Inc., 114 Ill. 2d 209, 222 (1986). Finally, absent an abuse of discretion, the trial court\u2019s ruling upon a motion for reinstatement will stand. People v. NL Industries, Inc., 297 Ill. App. 3d at 301.\nKontrick argues that each of Ryan\u2019s proffered reasons for failing to file for reinstatement establishes a lack of due diligence on Ryan\u2019s part. As for Ryan\u2019s claim that he was under no obligation to reinstate the case, Kontrick cites Renth v. Krausz, 219 Ill. App. 3d 120, 121 (1991), which stated in reference to application of the equitable doctrine of laches, that \u201cignorance of the law or legal rights will not excuse delay in bringing suit.\u201d Kontrick further argues that Ryan\u2019s explanation that he did not seek reinstatement because he was waiting to see the results of the bankruptcy appeal in order to avoid having to return any money in the event Kontrick was successful is without merit. He asserts that this justification is illogical because reinstatement is a matter wholly separate from the bankruptcy proceeding. Kontrick also asserts that this justification is contradicted by Ryan\u2019s own conduct because during the pendency of Kontrick\u2019s bankruptcy proceeding, Ryan initiated garnishment proceedings.\nKontrick further asserts that Ryan\u2019s justification for failing to reinstate is without merit because the diligence requirement is not relaxed by a litigant\u2019s desire to wait and see how events unfold elsewhere. In support, Kontrick relies upon Smith v. Airoom, where our supreme court stated:\n\u201c \u2018Relief under section [2 \u2014 1401] is available only to those who diligently pursue their legal defenses and remedies in court, not to those who disregard these procedures on the gamble that better results can be obtained through other procedures or at a cheaper cost.\u2019 \u201d Smith v. Airoom, 114 Ill. 2d at 224, quoting Abbell v. Mun-field, 76 Ill. App. 3d 384, 388 (1979).\nKontrick next argues that Ryan\u2019s justification that he did not reinstate because he was busy defending himself against sanctions relating to Kontrick\u2019s bankruptcy proceeding is equally without merit. In support, he relies upon People v. NL Industries, where this court affirmed the trial court\u2019s denial of the State\u2019s motion to reinstate where it had waited nine months to reinstate a case it had won involving nearly $2.3 million in environmental cleanup costs. In so ruling, this court rejected the State\u2019s justification that its delay in reinstating the case was the result of \u201cserious time constraints under which [the State\u2019s] counsel labored at the time, the need to set priorities and the desire not to begin the active litigation of the case until counsel assigned to it had sufficient time to do a diligent job.\u201d People v. NL Industries, 297 Ill. App. 3d at 301.\nAs for Ryan\u2019s argument relating to the prejudice, or lack thereof, suffered by the parties as a result of reinstatement, Kontrick argues that prejudice must be considered only after Ryan has established due diligence. In support of his position, Kontrick cites National Underground Construction Co. v. E.A. Cox Co., 273 Ill. App. 3d 830 (1995), where the plaintiff had waited 23 months to file a motion to reinstate after the mandate had issued in a case where this court had reversed the trial court\u2019s granting of summary judgment in favor of the defendant. The plaintiff offered no reason for the delay and the trial court denied the motion. In affirming the trial court and finding a lack of diligence, this court in National Underground stated that, \u201cThe grounds available to a trial court for dismissing for lack of due diligence include the mere failure to offer a reasonable excuse for undue delay in filing the petition.\u201d National Underground, 273 Ill. App. 3d at 837.\nKontrick also cites Bright v. Dicke, 166 Ill. 2d 204, 209 (1995), which held in the context of a party\u2019s late filing of a request for admission of facts or the genuineness of documents under Supreme Court Rule 216(c), that \u201c[although Rule 183 does give judges discretion to allow responses to be served beyond the 28-day time limit, that discretion does not come into play under the rule unless the responding party can first show good cause for the extension.\u201d Similarly, argues Kontrick, just as a lack of prejudice is not a substitute for good cause, it is also no substitute for due diligence.\nIn response, Ryan admits that he and his attorneys \u201cdid not take the technical action of moving to reinstate\u201d the case, but argues that he satisfied the requirements of Rule 369(c). He states that he had not been informed of the requirements for reinstatement and notes that within three months of July 20, 2000, he and his attorney performed work on the case, which eventually led to the filing of garnishment and citation papers in February 2001. Given these facts, Ryan argues that contrary to Kontrick\u2019s assertion, he did not \u201cimpermissibly sit on his confirmation rights following the lifting of the automatic stay.\u201d See In re Marriage of Frazier, 203 Ill. App. 3d 847, 853 (1990) (when ruling on a section 2 \u2014 1401 motion, courts may consider the litigant\u2019s attention to a related case when assessing due diligence).\nRyan further argues that the trial court properly relied upon the fact that he did not seek reinstatement because of the pendency of Kontrick\u2019s discharge appeal, which could result in Ryan\u2019s repayment of funds he collected. He argues that the lack of finality of the denial of Kontrick\u2019s discharge, which was just decided, cannot be classified as a \u201cgamble\u201d for better results. Rather, he argues that he has continually pressed his rights, attempting to collect the funds he is owed.\nRyan also argues that the trial court properly granted his motion to reinstate because Kontrick contributed to the delay in filing the motion. Relying upon the \u201cinter-relatedness\u201d of the bankruptcy proceedings, the fraudulent transfer action and the case at bar, Ryan asserts that Kontrick repeatedly arranged for deferrals of the state fraudulent transfer action before and for nearly 16 months after the automatic stay was lifted in order to avoid potentially duplicative and unnecessary use of judicial resources and to minimize his litigation expenses. Ryan also states that by actively engaging him in the other related proceedings, Kontrick tacitly acknowledged Ryan\u2019s right to proceed with reinstatement. Ryan likens his situation to that of the defendants in O\u2019Brien v. Meyer, 281 Ill. App. 3d 832 (1996), where a new trial was allowed over three years after reversal of a verdict for the defendants even though a motion to reinstate had not been timely. In reversing the trial court\u2019s denial of the motion, this court noted that \u201cthe defendants were willing participants in any delay\u201d and that \u201call the parties proceeded as though the case had been reinstated.\u201d O\u2019Brien, 28 Ill. App. 3d at 839.\nRyan disputes Kontrick\u2019s position that prejudice to the parties is relevant only after diligence has been demonstrated. He directs our attention to Smith v. Airoom, where the supreme court stated that \u201cwhere justice and good conscience may require it a default judgment may be vacated even though the requirement of due diligence has not been satisfied.\u201d Smith v. Airoom, 114 Ill. 2d at 225. Ryan advances that Kontrick\u2019s reliance on Bright is misplaced because there the party sought relief under Supreme Court Rule 183 (134 Ill. 2d R. 183), which allowed for extensions f time \u201cfor good cause shown\u201d for the late filing of responses under Rule 216 (134 Ill. 2d R. 216). The party who had filed the late responses offered no explanation as to why they were late and argued only that, because the opposing party was not prejudiced by the late responses, the trial court should have allowed them. Bright, 166 Ill. 2d at 205-06. Ryan asserts that he does not make a similar argument here. Rather, he claims that he has offered numerous reasons to satisfy the requirements of Rule 369(c) and that prejudice to the parties is another factor to be considered. See People v. NL Industries, Inc., 284 Ill. App. 3d 1025, 1028 (1996) (\u201cThe prejudice to a party [under Supreme Court Rule 369(c)] is certainly part of the totality of the circumstances and should be considered by the trial court\u201d).\nRyan\u2019s final argument in support of affirming the trial court is that denying reinstatement will improperly elevate form over substance. He again directs this court to O\u2019Brien, where this court stated that \u201c[t]he fact that the plaintiff did not go through the technical procedure of having the case reinstated pursuant to Rule 369(c) is not controlling. To hold otherwise under these facts would be a rigid and unreasonable adherence to formalism to the detriment of fairness.\u201d O\u2019Brien, 281 Ill. App. 3d at 839. In sum, Ryan argues that under the circumstances of this case, where he actively sought collection of the arbitration award, a battle he fought on many fronts, and where Kontrick was a willing participant in the delay in filing the motion to reinstate, Ryan was timely in filing his motion.\nWhile we do not condone Ryan\u2019s failure to file his motion to reinstate in compliance with Rule 369(c), after reviewing the totality of the circumstances, we find that Ryan exercised due diligence in filing his petition to reinstate. In doing so, we take into consideration the other litigation between Kontrick and Ryan. Ryan has fought the battle to collect his 1996 arbitration award against Kontrick on many fronts, including in the federal bankruptcy court and in various suits filed in state court. Kontrick\u2019s efforts to discharge this award in bankruptcy were rejected. In one of the state suits, Ryan has alleged that Kontrick had improperly transferred property to his wife in an effort to avoid paying this award. When Ryan\u2019s counsel prematurely filed an action to collect this judgment, Kontrick sought, and received, sanctions against Ryan\u2019s counsel. It is clear that all of this litigation is interconnected in that the ultimate goal on Ryan\u2019s part is collection of the arbitration award. For this reason alone, we find that Ryan has proffered a reasonable excuse as to his failure to file his motion within the required time frame.\nWe also find Kontrick\u2019s cited cases regarding due diligence distinguishable from this case. For instance, unlike in People v. NL Industries, this is not a situation where Ryan did nothing relating to collection of the arbitration award until such time as he believed he was ready to proceed. Nor do we have here a situation, as in National Underground, where Ryan has failed to offer a reasonable explanation for failing to file his motion to reinstate. Rather, as previously stated, Ryan has attempted to ensure his collection of the 1996 arbitration award based upon his involvement in the litigation with Kontrick over many years.\nWe also reject Kontrick\u2019s argument that reinstatement was improper because Ryan was gambling for a better result through his participation in the bankruptcy proceedings. Clearly, this is not a situation where Ryan has failed to pursue remedies and defenses in court and has, instead, opted to \u201cgamble\u201d for a better result.\nFinally, as we have found that Ryan has offered a reasonable excuse for failing to file a timely motion to reinstate, we consider the issue of prejudice. Kontrick does not argue, nor do we find, that he was prejudiced as a result of the reinstatement. Therefore, we find no need to comment further on the issue of prejudice. The trial court did not abuse its discretion in granting Ryan\u2019s motion to reinstate.\nAccordingly, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nGREIMAN and REID, JJ., concur.", "type": "majority", "author": "JUSTICE QUINN" } ], "attorneys": [ "Winston & Strawn, of Chicago (Kimball R. Anderson and E. King Poor, of counsel), for appellant.", "Abramson & Fox, of Chicago (Donald P Colleton, of counsel), for appellee." ], "corrections": "", "head_matter": "ROBERT A. RYAN, Plaintiff-Appellee, v. ANDREW J. KONTRICK, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1 \u2014 01 \u2014 2528\nOpinion filed November 8, 2002.\nWinston & Strawn, of Chicago (Kimball R. Anderson and E. King Poor, of counsel), for appellant.\nAbramson & Fox, of Chicago (Donald P Colleton, of counsel), for appellee." }, "file_name": "0225-01", "first_page_order": 243, "last_page_order": 251 }