ESTATE OF

JOSEPH L. ZIARNIK
A Disabled Person

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.,

response to Edwin Belz's motion to vacate.

hereby submit the following as their

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
st

333, 527 N.E.2d 595 ( 1 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:

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
Plaintiffs.
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.
Respectfully submitted,
DEVON BANK, ADVOCACY
GUARDIANSHIP SERVICES NFP,
JOSH MITZEN, and JANNA DUTTON

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

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
day of October 2014, with proper postage prepaid.
th

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,
Plaintiffs,

No. 08 P 08140
Calendar 16
Judge David B. Atkins

v.

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.
Background
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.

06/20/14

FRI

10:25 FAX 3126035890

JUDGE MARY ANNE MASON

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 shereceived 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
2

06/20/14

FRI 10:26 FAX 3126035890

JUDGE MARY ANNE MASON

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
3

06/20/14

FRI 10:27 FAX 3126035890

JUDGE MARY ANNE MASON

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.