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Cook v. Burnette6/26/2003
UNPUBLISHED
The present case arises from an order vacating an $800,000 default judgment against defendants Talman Home Federal Savings and Loan Association (FSB predecessor to LaSalle Talman Bank, FSB, predecessor to LaSalle Bank, hereinafter LaSalle) and First National Bank of Chicago , now doing business as Bank One (Bank One). It originates from a wrongful death and survival action brought by plaintiff-appellant Nathaniel Cook, the special administrator of the estate of Mary Holiday, alleging damages sustained when she died in a house fire. The complaint named as defendants Emma Burnette, LaSalle, and Bank One, but only prayed for relief against Burnette, who is not a subject of this appeal. Both LaSalle and Bank One (collectively, the banks) did not appear or file answers to the complaint, and a default judgment for $800,000 was jointly and severally entered against them. Subsequently, LaSalle and Bank One petitioned the court to vacate the default judgment as being void. The trial court ruled that because there was no prayer for relief in the plaintiff's complaint as against LaSalle and Bank One (in the ad damnum clause), the default judgment entered against them was void. However, the court did not dismiss the complaint at law.
After the $800,000 judgment was deemed to be void, the banks filed for an involuntary dismissal of the complaint, and plaintiff filed his notice of appeal. The banks then filed a motion with this court to dismiss the appeal on the grounds that the orders vacating the default judgment was not a final and appealable order. This court denied the motion to dismiss the appeal on the ground that an order granting a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)) is appealable as of right. Both banks then filed a motion to reconsider on the grounds that their section 2-1401 petitions had been withdrawn. This court granted the motion to reconsider the motion to dismiss the appeal, which was taken with this case. For the reasons that follow, we affirm.
On November 28, 1995, Cook filed a complaint for wrongful death and survival against defendants Burnette, LaSalle, and Bank One. He alleged that the defendants negligently maintained and controlled certain real property in the City of Chicago . As a result of these negligent acts or omissions, a fire occurred which caused the death of Mary Holiday. Throughout the complaint, several allegations were made regarding the defendants' joint liability for Mary Holiday's death. However, in the prayer for relief, compensation was sought from only Ms. Burnette.
LaSalle was served with the summons and complaint on December 1, 1995, which LaSalle then forwarded to its parent company, ABN AMRO North America, Inc. Subsequently, the complaint and summons were misplaced. On May 16, 1997, the trial court entered an order defaulting LaSalle for a failure to answer or appear in this cause. LaSalle admits receiving a copy of that default order, but it did not file a responsive pleading to the complaint or a motion to vacate the order at that time and did not retain an attorney to appear on its behalf.
With regard to Bank One, it was individually served a summons and the complaint on December 7, 1995. Based on its business practices, it asserts, it tendered its defense of the action to LaSalle and the City of Chicago . However, due to the passage of time, the destruction of documents and movement of personnel, Bank One was unable to locate any documents that confirmed its tender of its defense to LaSalle or the city. As with LaSalle, Bank One was defaulted on May 16, 1997, and also received a copy of the order.
The third defendant, Burnette, was
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