Plaintiff Response to Belz

Advocacy Guardianship Services, NFP, as Limited Guardian of the Person of Joseph L. Ziarnik and individually, Josh Mitzen as Director, Advocacy Guardianship Services NFP and individually; Devon Bank, as agent for Joseph L. Ziarnik under Power of Attorney for Property dated April 1, 2008, as Trustee of the Joseph Ziarnik Trust dated April 1, 2008 and individually, and Janna Dutton, as attorney for the Estate of Joseph Ziarnik and individually,

Plaintiffs,

v.

Tammi Goldman,

Defendant.

PLAINTIFFS' RESPONSE TO EDWIN BELZ MOTION TO VACATE

Plaintiffs, Advocacy Guardianship Services, NFP, as Limited Guardian of the Person of

Joseph L. Ziarnik and individually, Josh Mitzen as Director, Advocacy Guardianship Services

NFP and individually; Devon Bank, as agent for Joseph L. Ziarnik under Power of Attorney for

Property dated April 1, 2008, as Trustee of the Joseph Ziarnik Trust dated April 1, 2008 and

individually, and Janna Dutton, as attorney for the Estate of Joseph Ziarnik and individually, by

and through their attorneys, JOHNSON & BELL, LTD., hereby submit the following as their

response to Edwin Belz's motion to vacate.

ESTATE OF

JOSEPH L. ZIARNIK

A Disabled Person

1. On June 19, 2014, this Court issued a detailed opinion which granted Defendant's

motion to vacate default judgment that was entered against her. See June 19, 2014 Order, Ex. A.

In issuing its June 19, 2014 order, the Court noted that "defense counsel had repeatedly failed to

appear or comply with the court's order to answer plaintiff's complaint." Id., at p. 3.

Consequently, the Court granted Defendant's motion on the condition that Plaintiffs be awarded

their attorney's fees incurred as a result of Defendant's counsel's conduct and that those fees be

paid by Defendant's counsel, Ed Belz ("Belz"), not Defendant. Id., at p. 4.

2. Belz now brings a four sentence motion to vacate the Court's order against him on

the grounds that he was granted leave to withdraw as attorney for Defendant prior to the Court's

order and was not therefore given notice of the motion to vacate or the Court's order. See

Motion generally. Notably missing from Belz motion is any justification for his actions which

needlessly prolonged these proceedings or any argument that the Court's imposition of sanctions

was not warranted or proper on its merits.

3. Unfortunately for Belz, his argument was squarely addressed in a case cited by

the Court in its June 19, 2014 order (Andreasen v. Suburban Bank of Bartlett, 173 Ill.App.3d

333, 527 N.E.2d 595 (1 s t Dist. 1988)) and was summarily rejected by the First District Appellate

Court.

4. In Andreasen, the trial court granted a motion to vacate and assessed attorney's

fees against the moving party's attorneys as a condition of granting the motion - just as in the

present case. The attorney against whom fees were assessed made the same argument advanced

by Belz in the present case {i.e., that he had withdrawn from the case and fees could not therefore

be assessed against him). The Andreasen court summarily rejected the attorney's argument and

stated inter alia:

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We cannot agree that the court lost the power to determine the fee question adversely to [the attorney] once he formally withdrew from representing plaintiffs-counterdefendants. The default had already occurred at that point and Brace was undoubtedly one of the responsible persons, as counsel of record.

Andreasen, 173 Ill.App.3d at 338-39, 527 N.E.2d at 599.

5. The Court's imposition of sanctions was proper and more than justified. There is

simply no basis for vacating the Court's June 19, 2014 order. Belz should be ordered to pay the

$2,120.00 in attorney's fees that has been detailed in the Petition for Attorney's Fees filed by

WHEREFORE, Plaintiffs, DEVON BANK, ADVOCACY GUARDIANSHIP

SERVICES NFP, JOSH MITZEN, and JANNA DUTTON, respectfully request that this

Honorable Court enter an order denying Edwin Belz's motion to vacate and for such other relief

as the Court deems just and proper.

Joseph R. Marconi Victor J. Pioli JOHNSON & BELL, LTD.

33 West Monroe Street Suite 2700 Chicago, Illinois 60603 312-372-0770 312-372-9818 (fax)

Attorneys for Plaintiffs, Devon Bank, Advocacy Guardianship Services NFP, Josh Mitzen, and Janna Dutton

Plaintiffs.

Respectfully submitted,

DEVON BANK, ADVOCACY GUARDIANSHIP SERVICES NFP, JOSH MITZEN, and JANNA DUTTON

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CERTIFICATE OF SERVICE

The undersigned, a non-attorney, on oath states I served this notice by mailing a copy to the above mentioned attorneys at their respective addresses and depositing the same in the U.S. Mail at 33 W. Monroe Street, Suite 2700, Chicago, Illinois 60603 before the hour of 5:00 p.m. on the 9 t h

day of October 2014, with proper postage prepaid.

Edwin J. Belz 4407 N. Elston Ave. Chicago, IL 60630

Tami Goldman 3939 North Kostner Avenue Chicago, Illinois 60641

Joel Kessler 180 North Wacker Drive - Suite 201 Chicago, Illinois 60606

Under penalties as provided by law pursuant to Section 5/1-109 of the Illinois Code of Civil Procedure (750 ILCS 5/1-109), I certify that the statements set forth herein are true and correct.

06/20/14 FRI 10:24 FAX 3126035890 JUDGE MARY ANNE MASON

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION

IN RE ESTATE OF JOSEPH L. ZIARNIK

ADVOCACY GUARDIANSHIP SERVICES, et al, No. 08 P 08140

Plaintiffs, Calendar 16

v. Judge David B. Atkins

TAMI GOLDMAN,

Defendant.

MEMORANDUM OPINION AND ORDER

THIS CAUSE COMING ON TO BE, HEARD on Defendant's Motion to Vacate Default Judgment, the court having considered the briefs submitted and the arguments of counsel, and the court being fully advised in the premises;

IT IS HEREBY ORDERED that defendant's motion to vacate is granted.

This action concerns various representations and statements published by defendant Tami Goldmann on her website and blog. Plaintiffs filed this action in February 2012, claiming that defendant is liable to plaintiffs individually and on behalf of Mr. Ziarnik's estate under theories of: (1) defamation; (2) interference with prospective economic advantage; (3) false light; and (4) violation of privacy. Under all four counts, plaintiffs seek injunctive relief and damages of One-Hundred Thousand Dollars ($100,000.00) per plaintiff.

Defendant retained attorney Edwin Bellz to represent her in this matter, who filed an appearance on defendant's behalf on March 19, 2012, and a motion to dismiss plaintiffs' amended complaint on May 22,2012. Nevertheless, defense counsel failed to file a reply in support of the motion or to appear in court for oral argument on December 9, 2013. Accordingly, the court denied the motion to dismiss and ordered defendant to answer plaintiff's amended complaint on or before December 23, 2013. At the next status date of January 28, 2014, defense counsel again failed to appear in court or to timely file defendant's answer. Plaintiffs' then orally moved for default, which the court granted via handwritten order prepared by plaintiffs' counsel stating, "Plaintiffs' oral motion for default is GRANTED and default judgment is entered against defendant Tammi Goldman and in favor of Plaintiffs on all counts of the First Amended Complaint." Default was then set for prove-up, and continued on several occasions. On March 28, 2014, while prove-up was still pending, Attorney Edwin Bellz appeared in court to withdraw as defendant's attorney.

Background


On April 29, 2014, defendant personally appeared and requested leave to file the instant motion to vacate. In her motion and reply in support thereof, defendant claims that she was never informed of the January 28, 2014 court date and did not discover the order of default until April 15, 2014, after her attorney had withdrawn. Defendant maintains that she has exercised due diligence as soon as she-received notice of her attorney's withdrawal, has attended every court date since that time, and has filed her documents in a timely manner. She explains that she is "mortified by her own attorney's conduct," and asks the court to grant her motion so that the case may be decided on the merits rather than on a technicality. Plaintiffs object to defendants' motion based on the understanding that the January 28, 2013 order constitutes a valid final judgment and that defendant has apparently failed to satisfy the requirements for vacating such a judgment more than thirty days after the entry thereof.

Defendant's motion was set for clerk's status on June 17, 2014, for which plaintiffs' counsel failed to appear. In consideration of the purely procedural issue raised by defendants' motion and the circumstances surrounding the January 28, 2014 order of default, the court found oral argument unnecessary and took this matter under advisement for further consideration and preparation of this memorandum opinion.

Applicable Legal Standard

Motions brought under sections 2-1301(e) and 2-1401 require different allegations and are subject to different standards of review. Sidenstricker v. Dobbs, 110 Ill. App. 3d 620, 623-24 (4th Dist. 1982). Motions to vacate default judgments filed within thirty days of the date judgment was entered are governed by section 2-1301 of the Illinois Code of Civil Procedure, which provides that the court may, in its discretion, "set aside any final order or judgment upon any terms that shall be reasonable." 735 ILCS 5/2-1301(e). However, relief from final order and judgment after 30 days have passed since the entry thereof are governed by section 2-1401. See 735 ILCS 5/2-1401 (a).

The crucial distinction between the two statutory provisions is that motions brought under section 2-1401 must specifically allege as grounds for vacating the judgment that the defendant has a meritorious defense, exercised due diligence prior to judgment, and exercised due diligence in filing the petition for relief under section 2-1401. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986). Further, a section 2-1401 motion must also be supported by affidavit. 735 ILCS 5/2-1401(b). However, a more liberal policy exists with respect to vacating judgments under section 2-1301(e), and it is not necessary for the movant to establish the existence of a meritorious defense or offer a reasonable excuse for failing to timely assert that defense. See Chicago v. Central Nat'l Bank, 134 Ill. App. 3d 22, 25 (1st Dist. 1985); Sidenstricker, 110 Ill. App. 3d at 624. Instead, the overriding consideration when deciding whether to vacate a default judgment under section 2-1301(e), just as when deciding whether to enter a default order, is whether substantial justice is being done between the litigants, and whether it is reasonable under the circumstances to compel the nonmovant to proceed to trial on the merits. See Biscan v. Village of Melrose Park Bd. of Fire & Police Comm'rs, 277 Ill. App. 3d 844, 848 (1st Dist. 1996); Central Nat 7 Bank, 134 Ill. App. 3d at 25.

Defendant seeks to bring her motion pursuant to section 2-1301. However, plaintiffs argue that the instant motion is more appropriately evaluated under the more stringent standards and prerequisites of section 2-1401 because defendant filed the motion more than 30 days after the court's January 28, 2014 order. Plaintiffs further argue that the motion must be denied because defendant failed to attach an

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affidavit or to establish any of the accepted bases for relief under section 2-1401. For the following reasons, the court finds plaintiff's argument to be technically incorrect.

Pleadings subsequent to the complaint, written motions, and other documents required to be filed shall be filed with the clerk with a certificate of counsel or other proof of copies have been served on all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead. Ill. S. Ct. R. 104(b). In other words, once a party has appeared in an action and a motion is made to have that party held in default for failure to answer, notice must be given of that motion until there is a court order holding him or her in default for failure to plead. For this reason, lack of notice to an opposing party is a factor to be considered in determining whether an ex parte judgment should be vacated. See Lutz v. Lutz, 55 Ill. App. 3d 967, (2d Dist. 1977) (while a litigant has a duty to follow case progress, opponent has equal duty to notify the litigant of all documents filed and hearings requested); see also Difanis v. Martin-Trigona, 73 Ill. App. 3d 352, 355 (4th Dist. 1979); Hall v. Hall, 15 Ill. App. 3d 599,605 (1st Dist. 1973).

Here, defendant appeared through counsel in this action on March 19, 2012, and filed a motion to dismiss on May 22, 2012. On January 28,2014, after defense counsel had repeatedly failed to appear' or comply with the court's order to answer plaintiff's complaint, plaintiffs orally moved for default without defendant present and without prior notice to defendant of such a motion. Therefore, a default judgment could not have been properly entered on January 28, 2014. Instead, under the circumstances, the January 28, 2014 handwritten order prepared by plaintiffs' counsel must be construed as only a finding of default with the matter continued until such time as an entry of default judgment could appropriately be entered. Upon reviewing the record, no such final judgment has ever been entered in this action. For this reason, the court finds that the instant motion has properly been brought pursuant to section 2-1301 to vacate/set aside a default before a final order or judgment.

Motion to Vacate

Both the entry and subsequent revocation of default judgment are matters within the trial court's sound discretion. See In re Marriage of Romashko, 212 Ill. App. 3d 1018,1024 (1st Dist. 1991); Wilkin Insulation Co. v. Holtz, 186 Ill. App. 3d 151,155 (1st Dist. 1989). As previously noted, the overriding consideration when deciding whether to vacate a default judgment pursuant to section 2-1301(e) is whether substantial justice is being done between the litigants, and whether it is reasonable under the circumstances to compel the nonmovant to proceed to trial on the merits. See Bican, 277 Ill. App. 3d at 848. Whether prompt and orderly disposition of controversies on their merits is best accomplished by setting aside judgment depends on the conduct of the parties, the relative hardship, prejudice or injustice which may result, and the alternatives which are available to assure and promote compliance with legal procedure. McLaughlin v. McLaughlin, 83 Ill. App. 2d 160,162 (3d Dist. 1967).

Under the circumstances of this action and in consideration of the issues raised in the pleadings and defenses previously asserted in defendant's motion to dismiss the complaint, the court finds it equitable to vacate the January 28, 2014 order/finding of default. Defendant was justified in relying on her attorney's representations and judgment. She should not be faulted for her attorney's negligence where it is clear that the defendant has taken all reasonable steps to participate in these proceedings and assert defenses to plaintiffs' claims. This is not a case where the defendant has individually ignored court orders and deadlines, but rather appears to be an instance where the defendant has placed her

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confidence in a legal professional who unreasonably failed to protect, and eventually abandoned, the client's interests.

However, in effort to assure substantial justice among the parties, the court also finds that plaintiffs should be awarded any reasonable attorney fees and costs incurred between January 28, 2014 and the date of this order. See Ward v. Rosenfeld, 204 Ill. App. 3d 908, 911-12 (4th Dist. 1990) (trial court may condition its vacating of default upon the payment of attorney's fees and costs). Such fees include court appearances in anticipation of final judgment and prove-up, as well counsel's preparation of a response to defendant's motion to vacate. This reimbursement of reasonable fees and costs should be sufficient to offset any undue hardship to plaintiffs and assure and promote future compliance with legal procedure. Further, the court finds it prudent to assess the foregoing award against former defense counsel rather than defendant individually. See Andreasen v. Suburban Bank of Bartlett, 173 Ill. App. 3d 333, 338 (1st Dist. 1988) (court may allocate or apportion a fee award among parties or their counsel in accordance with their relative fault). According to defendant's motion to vacate, it appears that defendant did not even learn about the January 28, 2014 default order until April 14, 2014, after defendant's attorney had repeatedly failed to appear for court proceedings, neglected to file an answer to plaintiff's complaint, and withdrawn as defense counsel with full knowledge of the default and its potential effects. For this reason, the court finds that the court's finding of default is entirely attributable to defendant's former attorney. See id, at 339 (court does not lose jurisdiction over withdrawn attorneys to assess fees for prior conduct).

For the foregoing reasons, the court grants defendant's motion to vacate and awards plaintiffs their reasonable attorney fees and costs incurred between January 28, 2014 and the date of this order. Plaintiffs are hereby granted leave to file a petition with the court for said fees and costs which includes a detailed calculation thereof. Should defendant's former attorney, Edwin Belz, object to this assessment, he is entitled to file a response to plaintiffs' motion and attend a hearing at his own expense before the court enters an enforceable order against him. Plaintiffs shall forward a copy of this order and their petition for fees to Edwin Belz's address of record.

WHEREFORE, Defendant's Motion to Vacate Default Judgment is granted in that the January 28, 2014 finding of default is hereby vacated and defendant is granted until July 14, 2014 to file her answer to plaintiffs' amended complaint with the Clerk of Circuit Court. Plaintiffs are granted until July 28, 2014 to file a motion for attorneys' fees and costs as set forth herein. This action is continued to July 28,2014 at 10:30 A.M. for further case management and status on the pleadings.

The Court.

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Documents

Plaintiff Response to Belz