Hurlbert v. Brewer

Filed 12/11/08 NO. 4-08-0225

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

WILBERN F. HURLBERT and SHARI ) Appeal from
HARRINGTON, as Co-Special ) Circuit Court of
Administrators of the Estate of HELEN ) Champaign County
I. HURLBERT, Deceased, ) No. 06L121
Plaintiffs-Appellees, )
v. )
SCOT E. BREWER, D.D.S., d/b/a C-U )
DENTURE SERVICE; and AMERICAN )
INTERNATIONAL GROUP, )
Defendants, )
and )
NATIONAL UNION FIRE INSURANCE COMPANY ) Honorable
of PITTSBURGH, PENNSYLVANIA, ) Jeffrey B. Ford,
Defendant-Appellant. ) Judge Presiding.
_________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In June 2004, Helen I. Hurlbert died after having 16

teeth removed in one setting by defendant, Scot E. Brewer,

D.D.S., who was doing business as C-U Denture Service. In June

2006, plaintiffs, Wilbern F. Hurlbert and Shari Harrington, as

co-special administrators of Helen's estate, filed a four-count

complaint against Brewer. In August 2006, plaintiffs filed an

amendment to their complaint, seeking a declaratory judgment

against defendants, National Union Fire Insurance Company of

Pittsburgh, Pennsylvania (National Union), and American Interna-

tional Group (AIG), regarding insurance coverage of Brewer. In

November 2006, plaintiffs filed a motion for entry of judgment

based on a stipulation with Brewer. On December 7, 2006, the

trial court approved the stipulation and entered a $100,000

judgment in plaintiffs' favor and against Brewer.
 In April 2007, National Union entered an appearance in

this case. That same month, plaintiffs filed a motion for

dismissal without prejudice of the claim asserted against Na-

tional Union and AIG, which the trial court granted in May 2007.

In July 2007, plaintiffs and Brewer filed a petition to amend the

December 7, 2006, judgment under section 2-1401 of the Code of

Civil Procedure (Procedure Code) (735 ILCS 5/2-1401 (West 2006)),

seeking to increase the judgment to $500,000 based on their

mutual mistake as to the insurance policy limits. That same

month, the court granted plaintiffs and Brewer's petition and

amended the December 7, 2006, as requested. In October 2007,

National Union filed a petition to vacate the July 2007 order

under section 2-1401 of the Procedure Code (735 ILCS 5/2-1401

(West Supp. 2007)). The next month, plaintiffs filed a motion to

dismiss National Union's petition to vacate. After a February

2008 hearing, the court granted plaintiffs' motion to dismiss,

finding National Union lacked standing to file its petition to

vacate.

National Union appeals, contending the trial court

erred by dismissing its petition to vacate because it does have

standing to challenge the court's July 2007 order. National

Union also asserts we should grant its petition to vacate, but we

decline to address that issue since it is premature. We reverse

and remand.

I. BACKGROUND

The June 8, 2006, complaint named only Brewer as a

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defendant. On July 3, 2006, attorneys from the law firm of

Querry & Harrow, Ltd., entered Brewer's appearance. In August

2006, Querry & Harrow filed a motion to withdraw as Brewer's

counsel. The motion indicated AIG hired Querry & Harrow to

represent Brewer in this litigation. Shortly, after Querry &

Harrow filed an appearance on Brewer's behalf, the firm received

notice AIG was denying coverage of Brewer for this lawsuit.

Additionally, the motion stated AIG reserved the right to file a

declaratory-relief action. Plaintiffs filed an answer to the

motion, requesting the trial court deny the motion and enter a

declaratory judgment that AIG provide insurance for Brewer as to

plaintiffs' claim.

In response to the motion to withdraw, plaintiffs also

filed a motion for leave to file an amendment to their complaint.

The proposed amendment was a declaratory-judgment action against

National Union and AIG, seeking a judgment as to the nature,

extent, and amount of insurance coverage that AIG and National

Union had to provide Brewer for plaintiffs' claim. The amendment

also requested the trial court to reserve ruling on Querry &

Harrow's motion for leave to withdraw until the declaratory-

judgment action was decided. Plaintiffs served their motion and

proposed amendment on Querry & Harrow.

On August 24, 2006, the trial court first held a

hearing on the motion for leave to withdraw as counsel and

granted it. The court then held a hearing on the motion for

leave to file an amendment to the complaint and granted it

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without objection. The proposed amendment was filed instanter.

A report of proceedings for those hearings is not included in the

record on appeal. Moreover, the record on appeal does not

contain any evidence the amendment to the complaint was served on

National Union and AIG after the amendment was filed.

On November 30, 2006, plaintiffs filed a motion for

entry of judgment based on a stipulation. Plaintiffs and Brewer

agreed Brewer would waive a jury trial and stipulate to the entry

of a judgment against him in the amount of National Union's

policy limit as to this claim, specifically, $100,000 plus costs

of the suit. They also agreed Brewer would assign his bad-faith

claim against National Union to the plaintiffs and plaintiffs

would solely look to National Union to satisfy the judgment. On

December 7, 2006, the trial court entered a judgment in favor of

plaintiffs and against Brewer for $100,000 plus costs of the

suit. The judgment also approved Brewer's assignment of his

potential bad-faith claim against National Union. On January 29,

2007, Brewer executed an assignment document.

In February 2007, plaintiffs filed a new and separate

complaint for declaratory judgment against National Union,

asserting National Union's refusal to defend and indemnify Brewer

up to the amount of the insurance coverage was in bad faith.

Hurlbert v. National Union Fire Insurance Company of Pittsburgh,

Pennsylvania, No. 07-L-34 (Cir. Ct. Champaign Co.) (hereinafter

case No. 34). Plaintiffs prayed for a judgment against National

Union in the amount of $100,000, their attorney fees, an addi-

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tional sum of $25,000, and costs of the suit.

On April 26, 2007, the law firm of Purcell & Wardrope,

CHTD., filed an appearance on behalf of National Union in this

case. National Union also filed a motion to consolidate this

case with case No. 34, asserting the cases addressed the same

issue of insurance coverage for Brewer as to plaintiffs' claim.

The next day, plaintiffs filed a motion for the voluntary dis-

missal without prejudice of their declaratory-judgment action

against National Union and AIG in this case, which the trial

court granted on May 18, 2007.

On July 11, 2007, plaintiffs and Brewer filed a joint

petition to amend the judgment under section 2-1401 of the

Procedure Code (735 ILCS 5/2-1401 (West 2006)), seeking to

increase the judgment from $100,000 to $500,000. The petition

asserted that, at the time of the stipulation, plaintiffs and

Brewer mistakenly believed the insurance coverage was limited to

$100,000 per person. On May 10, 2007, plaintiffs received

discovery in case No. 34 that indicated the insurance coverage

was actually $500,000 per person. On July 19, 2007, the trial

court entered an order, amending the December 7, 2006, judgment

to the amount of $500,000 plus costs of the suit.

On October 29, 2007, National Union filed a petition to

vacate the July 19, 2007, order under section 2-1401 of the

Procedure Code (735 ILCS 5/2-1401 (West Supp. 2007)), asserting

plaintiffs and Brewer's mutual mistake was not a sufficient basis

for granting their petition to amend the judgment. The petition

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also noted Brewer had been informed of his policy limits about

six months before the December 7, 2006, judgment. On November

15, 2007, plaintiffs filed a motion to dismiss National Union's

petition to vacate. The motion to dismiss asserted National

Union lacked standing to file its petition to vacate because it

was no longer a party to the case and did not file a petition to

intervene. Plaintiffs and National Union then exchanged various

memoranda, affidavits, and authority regarding the motion to

dismiss and the petition to vacate.

In December 2007, plaintiffs filed a motion to consoli-

date this case with case No. 34. The record on appeal contains

no evidence the trial court addressed this motion. Moreover,

plaintiffs filed a supplemental motion to dismiss, asserting

National Union breached its insurance contract with Brewer and

thus was estopped from challenging the judgment against Brewer.

Plaintiffs and National Union then filed responsive memoranda on

the supplemental motion to dismiss.

On February 21, 2008, the trial court held a hearing on

plaintiffs' motion to dismiss the petition to vacate and National

Union's petition to vacate. The court found the initial matter

that needed to be determined was National Union's standing to

file the petition to vacate. After hearing the parties' argu-

ments, the court granted the motion to dismiss, finding National

Union lacked standing to file the petition. The court addressed

neither plaintiffs' supplemental motion to dismiss nor the merits

of National Union's petition to vacate. Moreover, the court

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believed the dismissal order disposed of the entire case but made

a finding of appealability under Supreme Court Rule 304(a) (210

Ill. 2d R. 304(a)). On February 29, 2008, the court entered a

written order consistent with its oral ruling at the hearing.

Since this case was never consolidated with case No.

34, the trial court's dismissal of the petition to vacate based

on standing disposed of the entire controversy between National

Union and all of the parties in this case and was an adjudication

on the merits (see 134 Ill. 2d R. 273). Thus, the order was a

final and appealable order under Supreme Court Rules 301 and 303

(155 Ill. 2d R. 301; 210 Ill. 2d R. 303). See People for Use of

Howarth v. Gulf, Mobile, & Ohio R.R. Co., 125 Ill. App. 2d 473,

475-76, 261 N.E.2d 221, 222 (1970) (finding a court's dismissal

based on lack of standing was an adjudication on the merits and

an appealable judgment under Rule 301). On March 20, 2008,

National Union filed a notice of appeal from the February 29,

2008, order in substantial compliance with Rule 303 (210 Ill. 2d

R. 303).

II. ANALYSIS

A. Plaintiffs' Appellee Brief

National Union points out plaintiffs failed to provide

citation to the record on appeal in both the supplemental state-

ment of facts and the argument section of their brief in viola-

tion of Supreme Court Rules 341(h)(6) and 341(h)(7) (210 Ill. 2d

Rs. 341(h)(6), (h)(7)). National Union requests we strike

plaintiffs' appellee brief or disregard the offending sections.

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While an appellee is not required to submit a statement of facts

(see 210 Ill. 2d R. 341(i)), if he elects to do so, he must also

comply with Rule 341(h)(6). See Merrifield v. Illinois State

Police Merit Board, 294 Ill. App. 3d 520, 527, 691 N.E.2d 191,

197 (1997). Here, plaintiffs' appellee brief does fail to comply

with Rules 341(h)(6) and 341(h)(7).

"Where violations of supreme court rules are not so

flagrant as to hinder or preclude review, the striking of a brief

in whole or in part may be unwarranted." Merrifield, 294 Ill.

App. 3d at 527, 691 N.E.2d at 197. We conclude plaintiffs'

violations of the supreme court rules do not hinder our review of

the case since we reviewed the record as a whole in addressing

National Union's arguments. However, a reviewing court will not

consider any facts dehors the record and any claims based on such

facts. See People v. Newbolds, 364 Ill. App. 3d 672, 676, 847

N.E.2d 614, 618 (2006). Accordingly, we will not strike plain-

tiffs' brief but will disregard any fact or claim not supported

by the record.

B. Standard of Review

National Union asserts the appropriate standard of

review of the trial court's February 2008 judgment is de novo

because the court dismissed its petition to vacate due to a lack

of standing. See In re Estate of Schlenker, 209 Ill. 2d 456,

461, 808 N.E.2d 995, 998 (2004). Plaintiffs contend the appro-

priate standard of review is abuse of discretion because the

court denied National Union's petition to vacate the July 2007

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order, "which the court treated as the antecedent requisite of a

petition to intervene." See Regnery v. Meyers, 345 Ill. App. 3d

678, 683, 803 N.E.2d 504, 509 (2003) (petition to intervene);

Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 95,

858 N.E.2d 1, 7 (2006) (petition to vacate).

In both its written and oral orders, the trial court

indicated it was granting plaintiffs' motion to dismiss National

Union's motion to vacate based on National Union's lack of

standing. Further, the trial court never addressed the merits of

a request to intervene and the petition to vacate. Accordingly,

we agree with National Union the proper standard of review is de

novo.

C. Standing

National Union asserts it has standing to file a

petition to vacate the July 19, 2007, order because (1) it is a

party to this case, and (2) if not a party, it will be injured by

the increased judgment and will derive a benefit from the July

19, 2007, order being vacated.

National Union notes "'[a] party is one who is named as

such in the record and has been properly served with summons or

has entered an appearance.'" St. Paul Fire & Marine Insurance

Co. v. Downs, 247 Ill. App. 3d 382, 388-89, 617 N.E.2d 338, 342

(1993), quoting Collins v. St. Jude Temple No. 1, 157 Ill. App.

3d 708, 711, 510 N.E.2d 979, 981 (1987). While National Union

was named as a defendant in August 2006, it did not enter its

appearance until April 26, 2007. Then, on May 18, 2007, the

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trial court dismissed without prejudice plaintiffs' sole claim

against National Union, and National Union was no longer a party

to this litigation (see Nestle USA, Inc. v. Dunlap, 365 Ill. App.

3d 727, 731, 852 N.E.2d 282, 285 (2006)). Thus, National Union

was not a party when (1) the original December 7, 2006, judgment

was entered; (2) Brewer and plaintiffs filed their section 2-1401

petition; and (3) the trial court granted Brewer and plaintiffs'

section 2-1401 petition on July 19, 2007. Accordingly, we find

National Union was not a party to the litigation with respect to

the July 19, 2007, order that it sought to vacate.

We note that, in its reply brief, National Union argues

for the first time it is also a party to the July 19, 2007,

judgment because it had a stake in that judgment. We decline to

address that contention because National Union forfeited it by

failing to raise it in its initial brief. See 210 Ill. 2d R.

341(h)(7); Peltier v. Collins, 382 Ill. App. 3d 773, 780, 888

N.E.2d 1224, 1230 (2008).

National Union contends it still had standing to file

the section 2-1401 petition as a nonparty because it will be

injured by the increased judgment and will derive a benefit from

the July 19, 2007, order being vacated. In In re J.D., 317 Ill.

App. 3d 445, 449-50, 739 N.E.2d 1043, 1047-48 (2000), this court

stated the following with regard to section 2-1401 petitions

brought by nonparties:

"A nonparty to a judgment has no standing to

seek relief from that judgment by filing a

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 section 2-1401 petition. See Gay v. Open

Kitchens, Inc., 100 Ill. App. 3d 968, 972,

427 N.E.2d 338, 342 (1981). Section 2-1401

was never intended to permit a person not a

party to the action to intervene after final

judgment and reopen the suit so as to permit

a new claim to be filed. In re Estate of

Reilly, 68 Ill. App. 3d 906, 910, 386 N.E.2d

462, 465 (1979)."

As to standing, this court's broad statement in J.D. is

generally true. See Restatement (Second) of Judgments §64,

Comment d, at 149 (1982). However, a few narrow exceptions have

been recognized. See Restatement (Second) of Judgments §64(d)

and Comment d, at 149 (1982). Under Illinois case law, a

nonparty may seek relief under section 2-1401 of the Procedure

Code (735 ILCS 5/2-1401 (West Supp. 2007)) if the person is (1)

privy to the record, (2) injured by the judgment and will derive

benefit from its reversal, or (3) competent to release error.

See Reilly, 68 Ill. App. 3d at 910, 386 N.E.2d at 465; see also

Clayton v. Mimms & Co., 68 Ill. App. 3d 443, 445, 386 N.E.2d 452,

454 (1979); Frandsen v. Anderson, 108 Ill. App. 2d 194, 201, 247

N.E.2d 183, 187 (1969). Additionally, we note that, while the

case of Browning, Ektelon Division v. Williams, 256 Ill. App. 3d

299, 301-02, 628 N.E.2d 878, 881 (1993), uses the term "party"

before setting forth the aforementioned exceptions, it cites to

Reilly, which referred to nonparties.

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 In case No. 34, plaintiffs sought to hold National

Union liable for the $100,000 judgment against Brewer, which was

entered on December 7, 2006. The trial court's July 19, 2007,

order increased the judgment against Brewer to $500,000. Thus,

National Union was injured by the July 19, 2007, order, from

which it seeks relief, because the order increased National

Union's potential liability to plaintiffs in case No. 34 by

$400,000.

This case is similar to Browning, 256 Ill. App. 3d at

302, 628 N.E.2d at 881, where the First District found Browning

had standing to file a section 2-1401 petition after considering

the three exceptions contained in Reilly. We note whether

Browning was or was not a party is irrelevant because the First

District addressed Reilly's nonparty exceptions. In Browning,

256 Ill. App. 3d at 299-301, 628 N.E.2d at 879-80, the parties in

the original suit were a former sales representative and Brown-

ing's Ektelon division, which was a wholly owned subsidiary of

Browning. During the litigation, Browning sold Ektelon to

another company. Browning, 256 Ill. App. 3d at 301, 628 N.E.2d

at 880. The former sales representative obtained a judgment

against Ektelon and sought to satisfy his judgment by citing the

assets of Browning. Browning, 256 Ill. App. 3d at 301-02, 628

N.E.2d at 880-81. The First District concluded Browning satis-

fied both the privy and injury exceptions. Browning, 256 Ill.

App. 3d at 302, 628 N.E.2d at 881.

As to the intervention statement in J.D., this court

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cited Reilly in support of it. J.D., 317 Ill. App. 3d at 450,

739 N.E.2d at 1047-48. The Reilly court noted the general rule

in Illinois that "a person cannot intervene after the rights of

the original parties have been determined and a final decree

entered." Reilly, 68 Ill. App. 3d at 910, 386 N.E.2d at 466.

The Reilly court also stated it was unaware of any case law

allowing a nonparty to open a judgment for "the purpose of

raising a new claim against one of the original parties to the

judgment." Reilly, 68 Ill. App. 3d at 910, 386 N.E.2d at 465-66.

Such a purpose was inconsistent with the purpose of section 72 of

the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72

(now 735 ILCS 5/2-1401 (West Supp. 2007))), which was "to present

to the trial court new matters of fact not appearing in the

record which if known to the court when the judgment was rendered

would have prevented its rendition." Reilly, 68 Ill. App. 3d at

910, 386 N.E.2d at 466.

Here, the July 19, 2007, judgment was the result of

plaintiffs and Brewer's section 2-1401 petition that alleged

mutual mistake as to Brewer's insurance policy limits. In its

section 2-1401 petition, National Union seeks, inter alia, to

present facts regarding Brewer's knowledge of his policy limits

prior to the December 7, 2006, order. Such facts could have

shown no mistake on Brewer's part and thus prevented the trial

court from granting plaintiffs and Brewer's section 2-1401

petition based on mutual mistake. Thus, unlike the petitions at

issue in Reilly and J.D., National Union's petition is consistent

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with the purpose of section 2-1401.

Accordingly, we find National Union had standing to

intervene and file its petition to vacate under section 2-1401 of

the Procedure Code.

Last, we note this case is on appeal from the grant of

a motion to dismiss, and thus we also decline to address the

merits of National Union's petition to vacate.

III. CONCLUSION

For the reasons stated, we reverse the trial court's

grant of plaintiffs' motion to dismiss and remand for further

proceedings.

Reversed and remanded.

MYERSCOUGH and STEIGMANN, JJ., concur.

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