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Cook v. Burnette6/26/2003
d pecuniary nature * * * and other pecuniary damages that they would have enjoyed but for the wrongful death of the decedent; subjecting the defendants to liability pursuant to [what is] commonly referred to as the Wrongful Death Act." Moreover, paragraph 10 of his survival count asserts "that as a direct and proximate result of one or more of the aforementioned acts or omissions of the Defendant, the plaintiff's decedent, MARY HOLIDAY, did suffer serious injuries of a personal and pecuniary nature * * *; subjecting the Defendants to liability pursuant to [what is] commonly referred to as the Survival Act." Therefore, because both of the counts specifically referred to the defendants in the plural, all three defendants were on notice that they were potentially liable to the plaintiff.
Plaintiff also points to the remaining allegations in the complaint, which are all directed against Bank One and LaSalle and purportedly satisfy all the requirements necessary for alleging a cause of action in wrongful death and a survivor action, to establish that the banks had received sufficient notice. In fact, plaintiff notes, both counts allege that the banks had a duty of reasonable care, breached that duty, and that the breach proximately caused the decedent's injuries and death, resulting in pecuniary damages. See Leavitt v. Farwell Tower Ltd. Partnership, 252 Ill. App. 3d 260, 264 (1993) (recounting the essential elements for maintaining a cause of action under the Wrongful Death Act). Therefore, plaintiff concludes, where the complaint provided enough information to indicate a ground for liability, and the ad damnum clause included a prayer for relief in excess of $30,000, it provided enough information to support a judgment. See Parrino v. Landon, 8 Ill. 2d 468, 473 (1956).
As an aside, plaintiff notes that the May 16, 1997, default order and letter that was sent to the banks also put them on notice of the possibility of a substantial monetary judgment. The letter stated:
"Please be advised that all defendants in the above captioned lawsuit have been deemed in default, and this matter is currently scheduled for a prove-up on June 26, 1997 at 9 a.m. I enclose a copy of the Court Order entered on May 16, 1997 in this regard."
In light of the evidence that both banks received a copy of the default order and plaintiff's accompanying letter, plaintiff argues that both banks had the requisite notice that they were in default, yet allowed the default judgment to be entered anyway.
The banks respond by noting the language of section 2-604 of the Illinois Code of Civil Procedure (735 ILCS 5/2-604 (West 1994)), which provides in pertinent part:
"Except in case of default, the prayer for relief does not limit the relief obtainable, but where other relief is sought the court shall, by proper orders, and upon terms that may be just, protect the adverse party against prejudice by reason of surprise. In case of default, if relief is sought, whether by amendment, counterclaim, or otherwise, beyond that prayed in the pleading to which the party is in default, notice shall be given the defaulted party as provided by rule." (Emphasis added.) 735 ILCS 5/2-604 (West 1994).
Therefore, the banks assert, a defendant actually may properly choose not to defend an action and to take a default in reliance on the ad damnum in a complaint and has a right to presume that no further relief will be awarded without notice. See Park Avenue Lumber & Supply Co. v. Hoferberg, Inc., 76 Ill. App. 2d 334, 345 (1966).
Moreover, the banks assert that the right to rely on the content of the ad damnum clause is protected by Supreme Court Rule 105, which provide
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