{ "id": 4301636, "name": "MICHELLE D. JACOBO, Plaintiff-Appellee, v. ALISHA D. VANDERVERE, Defendant-Appellant", "name_abbreviation": "Jacobo v. Vandervere", "decision_date": "2010-05-19", "docket_number": "Nos. 2\u201408\u20141104, 2\u201410\u20140192 cons.", "first_page": "712", "last_page": "716", "citations": [ { "type": "official", "cite": "401 Ill. App. 3d 712" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "230 Ill. App. 3d 959", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5211269 ], "year": 1992, "pin_cites": [ { "page": "967", "parenthetical": "\"A section 2 - 1203 motion invokes the sound discretion of the trial court\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0959-01" ] }, { "cite": "384 Ill. App. 3d 546", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4279529 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "548", "parenthetical": "decision to grant or deny section 2 - 1301 motion is within sound discretion of trial court" }, { "page": "548-49" }, { "page": "549" }, { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/384/0546-01" ] } ], "analysis": { "cardinality": 484, "char_count": 9883, "ocr_confidence": 0.768, "pagerank": { "raw": 5.061447019797991e-08, "percentile": 0.318656029753086 }, "sha256": "6fc7770b060a3453a0ffcbadc12e923f28c6e5fc52aba40f4f4d7b820a9eea1e", "simhash": "1:b5a6480e171e8c6f", "word_count": 1635 }, "last_updated": "2023-07-14T16:03:46.574655+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHELLE D. JACOBO, Plaintiff-Appellee, v. ALISHA D. VANDERVERE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE JORGENSEN\ndelivered the opinion of the court:\nOn July 23, 2008, the trial court entered against defendant, Alisha D. Vandervere, a default in favor of plaintiff, Michelle D. Jacobo, on her complaint related to damages incurred in an automobile accident. On August 6, 2008, the court held a proveup hearing on plaintiff\u2019s damages and entered a default judgment in the amount of $10,219. On August 26, 2008, defendant moved pursuant to section 2 \u2014 1301(e) of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1301(e) (West 2006)) to vacate the default judgment. On October 21, 2008, after a hearing, the court denied defendant\u2019s motion to vacate.\nDefendant appealed. On appeal, this court determined that we could not consider defendant\u2019s arguments because the record did not contain a transcript of the proceedings, a certified bystander\u2019s report, or an agreed statement of facts as required by Supreme Court Rule 323(c) (210 Ill. 2d R. 323(c)). Jacobo v. Vandervere, No. 2\u201408\u20141104, slip op. at 2 (2009) (unpublished order under Supreme Court Rule 23). Both defendant and plaintiff had submitted proposed bystander\u2019s reports for the trial court to certify, but the court did not do so because it could not recall the specific basis upon which it denied defendant\u2019s motion to vacate the default judgment. We concluded that Rule 323(c) does not provide the trial court the option of flatly denying certification of a bystander\u2019s report, and we remanded the cause for the preparation of a report of proceedings in conformance with Rule 323(c). Jacobo, slip op. at 3.\nOn February 25, 2010, defendant moved that this court reinstate her appeal, which had previously been fully briefed, asserting that, on January 18, 2010, the trial court certified a report of proceedings and, therefore, we may now consider the appeal\u2019s merits \u201con the previously filed briefs.\u201d We grant defendant\u2019s motion to reinstate the appeal and, for the following reasons, we affirm the trial court\u2019s denial of defendant\u2019s motion to vacate the default judgment.\nI. BACKGROUND\nOn remand, the following facts were certified by the trial court. On June 8, 2008, plaintiff filed her verified complaint, and a summons issued that same date. An affidavit of service reflected that defendant was personally served on June 27, 2008. The summons listed the return date as July 16, 2008, which was continued to July 23, 2008. Defendant failed to appear on July 23, 2008, the court entered a default order, and the case was continued to August 6, 2008, for a proveup and the entry of a default judgment. On August 6, 2008, defendant did not appear and, after a proveup, a default judgment in the amount of $10,219 was entered against her.\nOn August 26, 2008, defendant moved to vacate the default judgment. On September 2, 2008, the court set a briefing schedule on defendant\u2019s motion to vacate. Plaintiff subsequently moved to strike defendant\u2019s motion to vacate and for sanctions pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137). Defendant filed, in addition to her response to the motion to strike, a countermotion for sanctions.\nA hearing on all motions was scheduled for October 21, 2008. Before the hearing, the court reviewed \u201cthe court file and the motions, briefs, responses, and replies\u201d that the parties had filed. At the hearing, no evidence was presented; rather, the attorneys argued the points raised in their motions and responses.\nThe court noted in the certified report of proceedings that \u201c[njeither at the October 21, 2008[,] hearing [on the motion to vacate], nor in any of the motions did defendant\u2019s attorney claim that the defendant was not served, or that she had any valid reason for ignoring the three initial court dates and for taking no action from June 27, 2008[,] until August 26, 2008.\u201d\nAdditionally, the court noted that the attachments to plaintiff\u2019s motion to strike and for sanctions demonstrated that defendant\u2019s insurance carrier was aware of the pending litigation prior to both the entry of the default (on July 23, 2008) and the entry of the default judgment (on August 6, 2008). According to the court, a July 3, 2008, letter from defendant\u2019s insurance carrier to plaintiff\u2019s counsel noted: \u201cI note the above file is now in suit. A review of the court file indicates that there [sic] service has been obtained on our insured to date.\u201d\nThe certified report of proceedings concludes that, on October 21, 2008, defendant\u2019s motion to vacate the default judgment was denied because the court did not find \u201cany good cause shown for defendant\u2019s failure to take any action for nearly two months after being served and that vacating the default judgment would not be fair to the plaintiff.\u201d Defendant appeals.\nII. ANALYSIS\nDefendant argues that the trial court abused its discretion by denying her section 2 \u2014 1301(e) motion to vacate the default judgment. She argues that section 2 \u2014 1301 allows a default judgment to be vacated when substantial justice so warrants. Here, defendant argues, substantial justice was not served because: (1) the penalty against her is severe; (2) forcing plaintiff to proceed to trial would not result in attendant hardship; and (3) during the approximately 40 days between the original return date on the summons and defendant\u2019s filing of her motion to vacate, her insurance carrier was trying to settle the claim and had requested documentation of plaintiffs bills. Defendant argues that she \u201cshould not be punished for attempting to settle the matter,\u201d and she notes that, on August 6, 2008, the same day as the default judgment, plaintiffs counsel sent defendant\u2019s insurance carrier a letter inviting the carrier to present a counteroffer.\nThe parties debate whether section 2 \u2014 1301(e) (setting aside of default judgments), as opposed to section 2 \u2014 1203 of the Code (735 ILCS 5/2 \u2014 1203 (West 2006)) (motions after judgment in nonjury cases), was the proper avenue for defendant\u2019s motion to vacate. As mentioned in our prior ruling in this case, for purposes of our review, the section of the Code under which defendant filed her motion is irrelevant because, under either section, we review the trial court\u2019s decision for an abuse of discretion. Jacobo, slip op. at 2, citing 735 ILCS 5/2 \u2014 1301(e) (West 2006) (court may \u201cin its discretion\u201d set aside default judgment upon reasonable terms and conditions); Jackson v. Bailey, 384 Ill. App. 3d 546, 548 (2008) (decision to grant or deny section 2 \u2014 1301 motion is within sound discretion of trial court); Regas v. Associated Radiologists, Ltd., 230 Ill. App. 3d 959, 967 (1992) (\u201cA section 2 \u2014 1203 motion invokes the sound discretion of the trial court\u201d). We may find an abuse of discretion only where the trial court acted arbitrarily such that no reasonable person would take the position it adopted. Jackson, 384 Ill. App. 3d at 548-49.\nHere, defendant asserts that substantial justice warrants that the default judgment be vacated. \u201cWhether substantial justice is being achieved by vacating a judgment or order is not subject to precise definition, but relevant considerations include diligence or the lack thereof, the existence of a meritorious defense, the severity of the penalty resulting from the order or judgment, and the relative hardships on the parties from granting or denying vacatur.\u201d Jackson, 384 Ill. App. 3d at 549. We cannot conclude that the trial court here abused its discretion in determining that substantial justice did not require the default judgment to be vacated.\nDefendant argues generally that it is unjust to enter judgment against a party without a trial on the merits. However, in light of the facts of this case, we cannot conclude on this basis alone that substantial justice was not served and that no reasonable person would take the trial court\u2019s position. According to the certified report of proceedings, defendant was properly served and failed to appear before the court on at least three occasions: on the summons\u2019 original return date, on the continued return date, and at the proveup hearing. As the trial court noted, neither below nor on appeal does defendant argue that she was not served, that she had good cause for not appearing, or that she was not aware that she needed to appear (although even a lack of notice of a hearing date would not necessarily excuse the failure to appear (Jackson, 384 Ill. App. 3d at 549)). Thus, the court did not abuse its discretion in considering defendant\u2019s failure to appear, particularly in light of her insurance company\u2019s awareness of the suit as early as July 3, 2008, and her assertion that she was attempting to settle the case, as reflecting a lack of diligence. Indeed, even on appeal, defendant does not explain why her (or plaintiff\u2019s counsel\u2019s) attempts to settle the matter (or, as alleged in her motion to vacate, her attorney\u2019s alleged lack of notice of the suit until August 25, 2008) in any way excused her from personally appearing before the court. Defendant\u2019s argument that requiring plaintiff to proceed to trial would not result in hardship to her ignores that, in that case, plaintiff would necessarily incur additional litigation expenses. Therefore, we cannot conclude that the trial court abused its discretion in concluding that vacating the default judgment would be unfair to plaintiff who had, at that point, proved up her case and the resultant damages.\nIII. CONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.\nAffirmed.\nZENOFF, EJ., and BOWMAN, J., concur.", "type": "majority", "author": "JUSTICE JORGENSEN" } ], "attorneys": [ "Keely Hillison and Amy E. Somor, both of Parrillo, Weiss & O\u2019Halloran, of Chicago, for appellant.", "Gary N. Foley and Lindsay J. Roalfs, both of Gary N. Foley, EC., of Round Lake Beach, for appellee." ], "corrections": "", "head_matter": "MICHELLE D. JACOBO, Plaintiff-Appellee, v. ALISHA D. VANDERVERE, Defendant-Appellant.\nSecond District\nNos. 2\u201408\u20141104, 2\u201410\u20140192 cons.\nOpinion filed May 19, 2010.\nKeely Hillison and Amy E. Somor, both of Parrillo, Weiss & O\u2019Halloran, of Chicago, for appellant.\nGary N. Foley and Lindsay J. Roalfs, both of Gary N. Foley, EC., of Round Lake Beach, for appellee." }, "file_name": "0712-01", "first_page_order": 728, "last_page_order": 732 }