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Turns out much-hyped settlement

still allows banks to
steal homes -28-3
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ADVERTISEMENT
THURSDAY, MAY 2, 2013 10:08 AM CDT
Turns out much-hyped

settlement still allows
banks to steal homes
New data reveals mega-banks still illegally foreclosing on thousands. Get this: The
housing settlement allows it
DAVID DAYEN
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TOPICS: SETTLEMENT, FORECLOSURE, FRAUD, MORTGAGE FRAUD, EDITOR'S PICKS, BANKS, WALL STREET, JP
MORGAN CHASE, BANK OF AMERICA, CITIGROUP, WELLS FARGO, SAN FRANCISCO, BUSINESS NEWS, POLITICS
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The absolute least Americans can hope for from a major government settlement with a large
industry over well-documented crimes is that the industry wouldnt, after signing the settlement,
just continue to commit the same crimes day after day. After all, following the tobacco industry
settlement, cigarette makers did manage to stop advertising to teenagers that their product had
no medical side effects.
But new evidence reveals the nations largest banks have apparently continued to fabricate
documents, rip off customers and illegally kick people out of their homes, even after inking a
series of settlements over the same abuses. And the worst part of it all is that the main settlement
over foreclosure fraud was so weakly written that it actually allows such criminal conduct to
http://www.salon.com/2013/05/02/the_foreclosure_fraud_settlement_was_a_big_dud/
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occur, at least up to a certain threshold. Potentially hundreds of thousands of homes could be

effectively stolen by the big banks without any sanctions.
Before I get into the reasons why, let me step back. It is a sad fact of modern life and the
foreclosure mess that I have to differentiate between the litany of settlements granted by the
government to the big banks. In this instance, Im talking about the National Mortgage
Settlement, the $25 billion deal concluded a year ago between 49 state attorneys general, federal
agencies like the Justice Department and the Department of Housing and Urban Development,
and the five largest mortgage servicers: Bank of America, JPMorgan Chase, Wells Fargo, Citi
and GMAC/Ally Bank. Under the settlement, banks pay a trifling amount in hard dollars to the
states as well as foreclosure victims, and provide principal reductions and other loan
modifications to struggling borrowers. They also agreed to comply with a broad set of servicing
standards for the time period of the settlement, covering three years.
Most of the focus has been on the principal reductions, and whether the banks are actually
accomplishing them for the benefit of homeowners. But its these servicing standards that are
being violated. Thats the inescapable conclusion of new evidence disclosed by the Center for
Investigative Reporting and NBC Bay Area. Focusing on mortgage documents and foreclosures
in the San Francisco region, they found that banks and their subsidiaries continue to file invalid
documents and foreclose on properties to which they appear to have no legal right.
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In one case, mechanical engineer Joji Thomas, in a last-ditch bid to save his home, delivered a
cashiers check for $27,777.85 to Bank of America, which promptly lost the payment, and
foreclosed anyway. In another case, BofA transferred a property to a separate entity that was
already closed down, and they clumsily switched the dates on the document to make it look
correct. Reporters also uncovered documents prepared by robo-signers, individuals hired to
attest to the veracity of thousands of mortgage documents without having any underlying
knowledge of the contents (basically a mass perjury scheme).
These are precisely the kinds of abuses that state and federal regulators professed to stop with
the National Mortgage Settlement. And this is not the only evidence that Bank of America and
its counterparts simply went on with business as usual, fabricating documents to prove a shaky
chain of ownership before initiating foreclosures, or ripping off borrowers seeking a modification
or trying to save their homes. A few brave county recording clerks have examined mortgage
documents in their offices and found massive fraud. And the same week that state and local
officials announced the settlement, Wells Fargo posted online job listings seeking a loan
servicing specialist to basically robo-sign documents.
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The natural question to ask, then, is whether these criminal activities violate the terms of the
National Mortgage Settlement. Could this be the lever to reopen the entire foreclosure fraud
case against the banks?
The answer is: yes and no. The individual cases do violate the terms. Banks agreed in the
settlement to stop robo-signing, to provide modifications for those homeowners who qualify, to
keep accurate payment records and deposit payments properly, to only charge applicable fees,
and other steps. Theres even an oversight monitor, empowered to check incoming data from
the banks, ensure compliance, and make quarterly reports on their actions.
But theres a bit of a hitch. As writer and attorney Abigail Field first pointed out last year, for all
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of these different servicing standards, the banks have a threshold error rate that allows them to
violate their obligations, up to and including illegally taking someones home, a certain amount of
times. For the vast majority of standards, the threshold error rate is 5 percent (for a few its as
high as 10 percent). That means that banks could violate these standards, which often leads to
illegal foreclosures, on one out of every 20 mortgages they service, and the settlement monitor
has no ability to do anything about it. For context, RealtyTrac estimated 1.8 million foreclosure
filings just in 2012. Under the National Mortgage Settlement, 90,000 of those could be
fraudulent, without sanction.
I asked Alan White, law professor at City University of New York with expertise on
foreclosures, if this was accurate. Abigail Fields analysis is essentially correct, White replied.
The cases described in the [Center for Investigative Reporting/NBC Bay Area] report would
violate the terms of the settlement, but would not result in enforcement by the monitor or
monitoring committee unless the number of similar cases detected exceeded the thresholds.
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It gets worse. That 5 percent threshold is based on reportable errors in a given reporting
period, such as a quarter. The settlement monitor, Joseph Smith, does issue quarterly reports,
but as it says right in the Office of Mortgage Settlement Oversight FAQ and in the settlement
language, the oversight process begins with compliance reports from the banks themselves.
An Internal Review Group tests the servicing standards to compute the quarterly metrics. They
are allegedly independent from the line of business whose performance is being measured, but
they are still paid by that bank, and they compose the baseline review that the settlement monitor
uses. The monitor can solicit more information from the banks if he perceives a noncompliance
problem (though he doesnt really have the resources to engage in a full review). But really, their
job is one of checking the banks work. If this is such a good idea, we should stop sending out
food inspectors and let agribusiness self-report their findings on tainted meat and produce, and
the inspectors will sit back in Washington and verify everything. (Oh wait, were doing that too.)
The first court-ordered quarterly report from the settlement monitor is due in May, and theres
little reason to believe it will give anything other than a free pass. Even if by some miracle the
monitor did find violations above the threshold, under the settlement, the banks have the right to
appeal the findings. The settlement monitor must confer with the servicer over noncompliance,
and the servicers have the right to cure any violation, sort of a no harm, no foul situation
where the bank fixes some errors to get below the threshold.
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I certainly agree that the error tolerance is a huge concession to the banks, said law professor
Alan White. I think the banks sold the AGs on the idea that the problems were all in 2009-2010,
while going forward the problems were to be fixed. Some tolerance for error seems reasonable, but 5 percent
of the mortgages in the U.S. is 2.5 million accounts. The agreement should at least have required all mortgage
accounts with errors to be fixed and compensated for.
White also pointed out that homeowners would still have the ability, in many states, to sue the
bank for breaking the law. But if a homeowner had the kind of resources needed to sue a giant
bank, they probably wouldnt have ever been in foreclosure in the first place.
One of the main points of a law enforcement apparatus is to collectively look out for individual
abuses, and to use their leverage and resources to bring criminal enterprises to justice. That just
isnt happening in the case of foreclosure fraud. Instead, we see settlements where the criminal
conduct gets institutionalized, and where hundreds of thousands of violations go unpunished
(really all of the violations since theres no independent, workable compliance system in
place).
When announcing the National Mortgage Settlement, President Obama said that it would end
some of the most abusive practices of the mortgage industry, and begin to turn the page on an
era of recklessness that has left so much damage in its wake. It does not appear that any of
those abusive practices have ended. And the government, at all levels, has basically walked
away from its responsibility to protect homeowners.
David Dayen is a contributing writer for Salon. Follow him on Twitter at
@ddayen.
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Illinois Official Reports

Supreme Court
BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311
Caption in Supreme
Court:
BAC Home Loans Servicing, LP, f/k/a COUNTRYWIDE HOME

LOANS SERVICING, LP, Appellee, v. KIM E. MITCHELL,
Appellant.
Docket No.
116311
Filed
March 20, 2014
Held
Where a debtors first appearance in a defaulted mortgage proceeding

was posttrial, with a motion to vacate based on defects in the
substituted service which had been attempted, the debtor had made a
waiver, but it was prospective only and did not retroactively validate
earlier orders entered without personal jurisdiction, which should be
vacated.
(Note: This syllabus

constitutes no part of the
opinion of the court but
has been prepared by the
Reporter of Decisions
for the convenience of
the reader.)
Decision Under
Review
Appeal from the Appellate Court for the First District; heard in that
court on appeal from the Circuit Court of Cook County, the Hon.
Laura Cha-Yu Liu, Judge, presiding.
Judgment
Reversed and remanded.
Counsel on
Appeal
Daniel J. Voelker and Tricia L. Putzy, of Voelker Litigation Group, of

Chicago, for appellant.
Steven F. Smith, Ashley H. Nall and Amy E. Breihan, of Bryan Cave
LLP, of Chicago for appellee.
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JUSTICE KILBRIDE delivered the judgment of the court, with

opinion.
Chief Justice Garman and Justices Freeman, Thomas, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
OPINION
1
In this case, we consider whether a partys waiver of objections to the circuit courts
personal jurisdiction applies retroactively to validate orders entered prior to the partys
submission to the courts jurisdiction. The appellate court held that the waiver applied both
prospectively and retroactively. For the following reasons, we hold that a partys waiver of
personal jurisdiction is prospective only and does not serve to validate retroactively orders
entered by the circuit court without personal jurisdiction. Accordingly, we reverse the
appellate courts judgment and remand to the circuit court for further proceedings.
2
3
I. BACKGROUND
Defendant, Kim E. Mitchell, executed a promissory note with Countrywide Home Loans,
Incorporated, in the amount of $75,400. The note was secured by a mortgage on defendants
home in Chicago. Approximately four years later, plaintiff BAC Home Loans Servicing, LP,
formerly known as Countrywide Home Loans Servicing, LP, filed a complaint to foreclose the
mortgage.
The special process servers affidavit states defendant was served with summons and
complaint by substituted service on November 14, 2009. According to the affidavit, a copy of
the process was left at defendants residence with her daughter, Michelle Foreman, who also
lived at the residence.
Defendant did not answer the complaint. Plaintiff mailed defendant a notice stating it
intended to move for entry of a judgment of foreclosure and sale on June 9, 2010. On June 3,
2010, plaintiff filed a motion for order of default, a motion for judgment of foreclosure and
sale, and a motion to appoint a selling officer. On June 9, 2010, the circuit court of Cook
County granted plaintiffs motions, entering an order of default, an order appointing a selling
officer, and a judgment for foreclosure and sale.
A notice of sale was mailed to defendants address and a judicial sale was held on
September 13, 2010. On August 2, 2011, plaintiff filed a motion for an order confirming the
report of sale and distribution and for possession. Notice of the motion was mailed to
defendant. The circuit court entered an order confirming the sale on September 14, 2011.
On October 12, 2011, defendant filed an appearance and a motion to vacate the circuit
courts September 14, 2011, order confirming the report of sale and distribution and for
possession. Defendant asserted to the best of her knowledge she was never served with
summons, she did not receive notice of the motion for default judgment, she was informed by
plaintiff that a loan modification had been approved, and she did not receive notice of the
September 14, 2011, order. Defendant asked the court to vacate the order in the interest of
justice.
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Defendant later withdrew her motion and filed a motion to quash the September 14, 2011,
order or, in the alternative, a petition for relief from judgment under section 2-1401 of the Code
of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) and section 15-1508 of the Illinois
Mortgage Foreclosure Law (735 ILCS 5/15-1508 (West Supp. 2011)). Defendant essentially
repeated the allegations of her previous motion to vacate. Defendant added that justice was
not done, and the sale of her home was fraudulent and a due process violation. The motion
was stricken without prejudice. Defendant refiled her motion the following day, this time
attaching exhibits referenced in the motion.
In its response to the motion, plaintiff asserted defendant was served by substituted service
on November 14, 2009. Plaintiff attached a copy of the affidavit of service. The affidavit stated
substituted service was made by:
leaving a copy of this process at [defendants] usual place of abode with: Michelle
Foreman (Relationship) Daughter, a person residing therein who is of the age of 13
years or upwards and informed that person of the contents thereof and that further
mailed a copy of this process in a sealed envelope with postage paid addressed to the
defendant at his/her usual place of abode on 11-17-09.
Defendant filed a reply, asserting the substituted service was defective because she does
not have a daughter. Defendant asserted her only child is a son named William Mitchell and
she does not know anyone named Michelle Foreman. Defendant attached an affidavit stating
those facts.
The circuit court denied defendants motion to quash the order confirming the sale.
Defendants alternative section 2-1401 and 15-1508 petition was also denied because she
failed to provide the court with grounds to vacate the order confirming the sale.
On appeal, defendant contended that the substituted service of process was defective and
the circuit court, therefore, lacked personal jurisdiction to enter the default judgment, the
judgment of foreclosure, the order of sale, and the order of possession. Plaintiff acknowledged
the substituted service was improper because it was not in compliance with section 2-203 of
the Code (735 ILCS 5/2-203 (West 2008)). Plaintiff argued, however, that defendant waived
all objections to the courts personal jurisdiction by filing a postjudgment motion to vacate the
September 14, 2011, order confirming the sale.
The appellate court observed that challenges to personal jurisdiction are governed by
section 2-301 of the Code (735 ILCS 5/2-301(a), (a-5) (West 2010)) and section 15-1505.6 of
the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1505.6 (West Supp. 2011)).
Defendants initial postjudgment motion filed on October 12, 2011, failed to comply with the
statutory requirements for challenging the circuit courts personal jurisdiction because it was
not a motion to dismiss for lack of jurisdiction or a motion to quash service of process.
The appellate court noted that failure to comply with the statutory requirements for
challenging the courts personal jurisdiction results in waiver of all objections to the courts
jurisdiction over the partys person. (Internal quotation marks omitted.) 2013 IL App (1st)
121713-U, 41. Based on that statutory language, the appellate court held defendants waiver
worked prospectively and retroactively. 2013 IL App (1st) 121713-U, 41. Accordingly,
defendant waived any jurisdictional challenge to the circuit courts orders entered prior to her
initial postjudgment motion in this case. The trial courts judgment was, therefore, affirmed.
2013 IL App (1st) 121713-U.
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15
We allowed defendants petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
16
17
II. ANALYSIS
To enter a valid judgment, a court must have both jurisdiction over the subject matter and
jurisdiction over the parties. In re Marriage of Verdung, 126 Ill. 2d 542, 547 (1989). A
judgment entered by a court without jurisdiction over the parties is void and may be challenged
at any time, either directly or collaterally. Verdung, 126 Ill. 2d at 547. We review de novo
whether the circuit court obtained personal jurisdiction. In re Detention of Hardin, 238 Ill. 2d
33, 39 (2010).
Personal jurisdiction may be established either by service of process in accordance with
statutory requirements or by a partys voluntary submission to the courts jurisdiction.
Verdung, 126 Ill. 2d at 547. As in the appellate court, plaintiff concedes that the substituted
service of process in this case was defective and did not confer personal jurisdiction.
The appellate court determined, however, that defendant voluntarily submitted to the
circuit courts jurisdiction by filing her initial postjudgment motion to vacate the order
confirming the sale on October 12, 2011. Defendant did not challenge that determination in her
petition for leave to appeal, her opening brief, or her reply brief. Rather, defendants only
argument on appeal to this court has been that by filing her October 12, 2011, motion, she
submitted to the courts jurisdiction prospectively only. Defendant emphasize[d] the need for
this courts guidance and clarification on whether waiver of objections to personal
jurisdiction under section 2-301 is both prospective and retroactive.
At oral argument, counsel for defendant argued for the first time in this court that defendant
did not submit to the circuit courts jurisdiction by filing her October 12, 2011, motion.
Counsel contended that defendants motion was in compliance with section 2-301(a),
requiring a party to file a motion to dismiss the entire proceeding or any cause of action
involved in the proceeding or *** a motion to quash service of process to preserve objections
to the courts personal jurisdiction. 735 ILCS 5/2-301(a) (West 2010). Counsel asserted that
defendants motion only alleged that service of process was defective.
Plaintiffs counsel responded that this issue was not raised in defendants petition for leave
to appeal or her briefs on appeal to this court. Plaintiffs counsel, therefore, argued that the
issue was not properly before this court.
We agree with plaintiff that defendant forfeited this argument by failing to raise it in her
petition for leave to appeal, her opening brief, or her reply brief. Supreme Court Rule 315(c)(3)
states a petition for leave to appeal shall contain a statement of the points relied upon in
asking the Supreme Court to review the judgment of the Appellate Court. Ill. S. Ct. R.
315(c)(3) (eff. Feb. 26, 2010). The rule further requires a short argument (including
appropriate authorities) stating why review by the Supreme Court is warranted and why the
decision of the Appellate Court should be reversed or modified. Ill. S. Ct. R. 315(c)(5) (eff.
Feb. 26, 2010). Defendants petition for leave to appeal does not meet those requirements for
raising her argument that her initial postjudgment motion complied with section 2-301(a) of
the Code. There is no mention whatsoever of that issue in defendants petition for leave to
appeal. Accordingly, defendants argument was not properly preserved for our review. See
People v. Whitfield, 228 Ill. 2d 502, 509 (2007).
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We further note that this court has repeatedly held an appellants failure to argue a point in
the opening brief results in forfeiture under Supreme Court Rule 341(h)(7). See Vancura v.
Katris, 238 Ill. 2d 352, 369-73 (2010). According to Rule 341(h)(7), points not argued in the
appellants brief are waived and shall not be raised in the reply brief, in oral argument, or on
petition for rehearing. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Defendant, therefore, also
forfeited her argument that her initial postjudgment motion complied with section 2-301(a) by
failing to argue it in her opening brief and instead raising it for the first time in oral argument.
Accordingly, the sole issue properly before this court is whether by filing her initial
postjudgment motion, defendant waived objections to the circuit courts personal jurisdiction
both prospectively and retroactively. Defendant contends her postjudgment motion resulted in
waiver of objections to the courts personal jurisdiction prospectively only. She maintains that
her waiver of objections cannot serve to validate retroactively previous orders entered by the
circuit court without personal jurisdiction.
Plaintiff responds that under section 2-301 of the Code, defendant waived all objections to
the courts jurisdiction over [her] person by filing the postjudgment motion to vacate. The
statute does not contain any temporal restriction on the waiver. Plaintiff, therefore, concludes
that defendant waived all objections to the circuit courts personal jurisdiction, both
prospectively and retroactively, by filing her postjudgment motion to vacate the order
confirming the report of sale.
In Verdung, this court considered whether a partys general appearance in a case conferred
personal jurisdiction on the circuit court retroactively. This court held there was no doubt that
the circuit court had personal jurisdiction over the party as of the date of her general
appearance. This court held, however, that a party who submits to the courts jurisdiction does
so only prospectively and the appearance does not retroactively validate orders entered prior to
that date. Verdung, 126 Ill. 2d at 547.
To support its holding, this court relied upon the appellate courts decisions in J.C. Penney
Co. v. West, 114 Ill. App. 3d 644 (1983), and Sullivan v. Bach, 100 Ill. App. 3d 1135 (1981). In
J.C. Penney, the appellate court held that a defendants voluntary submission to the circuit
courts jurisdiction was prospective only. By filing a petition to vacate a default judgment, the
defendant did not submit to the circuit courts jurisdiction retroactively to validate previous
orders entered without personal jurisdiction. J.C. Penney Co., 114 Ill. App. 3d at 647. Rather,
where a judgment is void when entered, it remains void despite subsequent submission by a
party to the circuit courts jurisdiction. J.C. Penney Co., 114 Ill. App. 3d at 646. The appellate
court reasoned:
Where the defendant is found to have voluntarily submitted himself to the courts
jurisdiction prior to judgment, the court has personal jurisdiction at the time it enters
the judgment order, but the same logic serves only to submit a defendant to the courts
jurisdiction as of the date he appeared, not retroactively as of the date of the ex parte
judgment, where his appearance comes after judgment is entered. [Citation.] A
defendants attempts to set aside a void judgment subsequent to the entry of that
judgment are not to be considered as giving the court original jurisdiction to enter the
judgment; doing so deprives the defendant of his day in court. [Citations.] (Emphasis
added.) J.C. Penney Co., 114 Ill. App. 3d at 647 (quoting Sullivan, 100 Ill. App. 3d at
1142).
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The rule on prospective-only personal jurisdiction set forth in Verdung is, therefore, based
on the due process concept of allowing the defendant his day in court before entering judgment
against him. The fundamental requirement of due process is the opportunity to be heard, and
that right has little reality or worth unless one is informed that the matter is pending. Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also In re Dar. C., 2011
IL 111083, 61. The rule in Verdung is intended to protect parties due process rights by
preventing entry of a judgment without prior notice and an opportunity to be heard.
Plaintiff contends, however, that the rule in Verdung is no longer valid because it was
established prior to the amendment of section 2-301 in 2000. Plaintiff argues that the
amendment to section 2-301 eliminated any temporal restriction on waiver and the statute now
simply provides that filing a responsive pleading or motion results in waiver of all objections
to the courts jurisdiction over the partys person. Plaintiff contends that the amended statute
contains no language restricting the waiver to any time in the proceeding.
Before the amendment in 2000, section 2-301 of the Code provided for a distinction
between special and general appearances. The statute stated:
(a) Prior to filing any other pleading or motion, a special appearance may be made
either in person or by attorney for the purpose of objecting to the jurisdiction of the
court over the person of the defendant. A special appearance may be made as to an
entire proceeding or as to any cause of action involved therein. Every appearance, prior
to judgment, not in compliance with the foregoing is a general appearance. 735 ILCS
5/2-301(a) (West 1998).
Following the amendment in 2000, section 2-301 states:
(a) Prior to the filing of any other pleading or motion other than a motion for an
extension of time to answer or otherwise appear, a party may object to the courts
jurisdiction over the partys person, either on the ground that the party is not amenable
to process of a court of this State or on the ground of insufficiency of process or
insufficiency of service of process, by filing a motion to dismiss the entire proceeding
or any cause of action involved in the proceeding or by filing a motion to quash service
of process. Such a motion may be made singly or included with others in a combined
motion, but the parts of a combined motion must be identified in the manner described
in Section 2-619.1. Unless the facts that constitute the basis for the objection are
apparent from papers already on file in the case, the motion must be supported by an
affidavit setting forth those facts.
(a-5) If the objecting party files a responsive pleading or a motion (other than a
motion for an extension of time to answer or otherwise appear) prior to the filing of a
motion in compliance with subsection (a), that party waives all objections to the courts
jurisdiction over the partys person. 735 ILCS 5/2-301(a), (a-5) (West 2010).
A conflict has arisen in our appellate court on the impact of the 2000 amendment to section
2-301. Some appellate panels have continued to follow the reasoning in Verdung, holding that
a partys voluntary submission to the circuit courts personal jurisdiction is prospective only
and does not retroactively validate prior orders entered without jurisdiction. C.T.A.S.S. & U.
Federal Credit Union v. Johnson, 383 Ill. App. 3d 909, 911-12 (1st Dist. 2008); Mortgage
Electronic Systems v. Gipson, 379 Ill. App. 3d 622, 629-31 (1st Dist. 2008). Other decisions
have held that a waiver of all objections to the courts jurisdiction over the partys person
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must be construed as comprehensive, applying both prospectively and retroactively.

(Emphasis omitted.) GMB Financial Group, Inc. v. Marzano, 385 Ill. App. 3d 978, 994 (2d
Dist. 2008); Eastern Savings Bank, FSB v. Flores, 2012 IL App (1st) 112979, 16.
When construing a statute, our primary objective is to ascertain and give effect to the intent
of the legislature. People v. Elliott, 2014 IL 115308, 11. The most reliable indicator of
legislative intent is the statutory language, given its plain and ordinary meaning. Elliott, 2014
IL 115308, 11. In determining the statutes plain meaning, we consider the subject it
addresses and the legislatures purpose in enacting it. Elliott, 2014 IL 115308, 11.
Plaintiff emphasizes that under the amended statute, a party waives all objections to the
courts jurisdiction over the partys person by initially filing a responsive pleading or motion.
735 ILCS 5/2-301(a-5) (West 2010). The statute plainly provides that a party waives all
objections to the courts personal jurisdiction by filing a responsive pleading or motion before
challenging the courts jurisdiction. Under section 2-301(a), the waiver of objections to
personal jurisdiction is comprehensive when a party submits to the courts jurisdiction by
initially filing a responsive pleading or motion.
The critical issue here, though, is whether the waiver of all objections applies retroactively
to validate an order or judgment entered without personal jurisdiction. Personal jurisdiction is
established either by effective service of process or by a partys voluntary submission to the
courts jurisdiction. Verdung, 126 Ill. 2d at 547. The amended statute does not specifically
state the effect a partys waiver of objections has on orders or judgments entered by the court
without personal jurisdiction. The statute does not state that the waiver is intended to validate
orders entered prior to service of process or the partys voluntary submission to the courts
jurisdiction.
Further, it is not apparent from the statutory language that the legislature intended to
abrogate this courts established case law providing that a party who submits to the courts
jurisdiction does so only prospectively and the appearance does not retroactively validate
orders entered prior to that date. Verdung, 126 Ill. 2d at 547. The settled law prior to the
amendment to section 2-301 provided that where a judgment is void when entered, it remains
void, despite subsequent submission by a party to the circuit courts jurisdiction. J.C. Penney
Co., 114 Ill. App. 3d at 646.
In one recent case, the appellate court read section 2-301(a-5) as simply codifying the
long-standing rule that a party may waive a defect in jurisdiction over the person by
proceeding without objection. Higgins v. Richards, 401 Ill. App. 3d 1120, 1126 (2010)
(quoting Mullaney, Wells & Co. v. Savage, 31 Ill. App. 3d 343, 347 (1975), citing People v.
Securities Discount Corp., 361 Ill. 551 (1935)). Under the case law prior to the 2000
amendment, a general appearance was considered to waive all objections to the courts
personal jurisdiction and submit the party to the courts jurisdiction. KSAC Corp. v. Recycle
Free, Inc., 364 Ill. App. 3d 593, 594 (2006); J.C. Penney Co., 114 Ill. App. 3d at 647. The
waiver submitted the party to the courts jurisdiction only prospectively, however, and it did
not serve to validate retroactively prior orders entered without personal jurisdiction. Verdung,
126 Ill. 2d at 547; J.C. Penney Co., 114 Ill. App. 3d at 647. Thus, the 2000 amendment to
section 2-301 may be construed as simply codifying the previously settled law on waiver of
objections to personal jurisdiction and not as changing the established rule that a partys
submission to the courts jurisdiction is prospective-only. Verdung, 126 Ill. 2d at 547.
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We conclude that the amended statute is ambiguous as to the effect of a partys waiver on
prior orders entered without personal jurisdiction. The amended statute does not indicate a
clear intent for a partys waiver of objections to confer personal jurisdiction on the court
retroactively. When a statute is ambiguous, we look to aids of statutory construction, including
legislative history and established rules of construction. Poris v. Lake Holiday Property
Owners Assn, 2013 IL 113907, 47. We, therefore, turn to the legislative history to ascertain
the legislatures intent in amending section 2-301.
In explaining the amendment to section 2-301, Senator Hawkinson stated:
This bill amends the Code of Civil Procedure dealing with special appearances. It is
not an initiative of the Illinois State Bar Association but it was suggested by the Bar
Association. Its a cleanup. It is designed to prevent an unknowing waiver. When you
file a motion in court, before you file your special appearance, it allows you to file your
special appearance and other motions at the same time. (Emphasis added.) 91st Ill.
Gen. Assem., Senate Proceedings, Mar. 11, 1999, at 42-43 (statements of Senator
Hawkinson).
The remarks by Senator Hawkinson support a conclusion that the amendment was intended
to prevent an unknowing waiver of a partys objections to personal jurisdiction. Prior to the
amendment, section 2-301(a) distinguished between general and special appearances. 735
ILCS 5/2-301(a) (West 1998). The distinction between those types of appearances created
confusion and potential for inadvertent waivers of objections to the circuit courts personal
jurisdiction. See Marzano, 385 Ill. App. 3d at 993-94. The amendment to section 2-301(a)
eliminated the distinction between general and special appearances. 735 ILCS 5/2-301(a)
(West 2010).
Although the legislative history shows the amendment was intended to clarify the law to
prevent inadvertent waivers of objections to the courts personal jurisdiction, it is not entirely
clear that the amendment accomplished its objective. In this case, defendants initial
postjudgment motion to vacate the order confirming the sale was filed by her attorney and it
alleged defective service of process. The appellate court, nevertheless, held the motion was
insufficient to preserve defendants objections to the courts personal jurisdiction under
section 2-301(a). Thus, it appears that counsel inadvertently waived defendants objections to
personal jurisdiction. If counsel inadvertently waived defendants objections, it is almost
certain that pro se defendants will have difficulty in preserving their objections to personal
jurisdiction under the amended section 2-301(a).
In any case, there is no indication from the legislative history that the amendment was
intended to alter the existing law on the effect of waiver of objections to personal jurisdiction.
The amendment to section 2-301 was intended to provide additional protection of a
defendants right to assert an objection to the courts personal jurisdiction by preventing
unknowing waiver. If we were to construe the amended statute as providing for retroactive
waiver validating prior orders entered without personal jurisdiction, it would result in a harsher
rule on waiver and be inconsistent with the legislatures objective of providing parties
additional protection in this context.
Based on the statutory language and legislative history, we do not believe the legislature
intended to adopt a rule allowing a defendants waiver to validate retroactively orders entered
without personal jurisdiction. Plaintiffs proposed construction of the statute is at odds with the
fundamental rationale of our rule providing for prospective-only submission to the courts
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jurisdiction, namely, to avoid depriv[ing] the defendant of his day in court. (Internal
quotation marks omitted.) J.C. Penney Co., 114 Ill. App. 3d at 647. In the absence of clear
language or legislative history to the contrary, we conclude section 2-301(a-5), as amended,
codified the law on waiver as it existed before the amendment. We, therefore, reaffirm the
longstanding rule that a party who submits to the courts jurisdiction does so only
prospectively and the appearance does not retroactively validate orders entered prior to that
date. Verdung, 126 Ill. 2d at 547. To the extent that Illinois appellate court decisions,
including Marzano and Flores, hold to the contrary, they are overruled.
Here, defendant voluntarily submitted to the circuit courts personal jurisdiction by filing
her initial postjudgment motion to vacate the order confirming the sale on October 12, 2011.
By filing her motion, defendant waived objections to the circuit courts personal jurisdiction
prospectively only, however. The waiver did not serve to validate retroactively the void orders
entered prior to defendants submission to the courts jurisdiction.
A judgment entered by a court without personal jurisdiction is void and may be challenged
at any time, either directly or collaterally. Verdung, 126 Ill. 2d at 547. The orders entered by
the circuit court without personal jurisdiction prior to defendants October 12, 2011,
postjudgment motion must be vacated. We, therefore, reverse the judgments of the appellate
and circuit courts, and remand to the circuit court for further proceedings.
III. CONCLUSION
For the foregoing reasons, the judgments of the circuit court and the appellate court are
reversed. The cause is remanded to the circuit court for further proceedings.
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914 N.E.2d 221, 333 Ill.Dec. 14
394 Ill.App.3d 14
Appellate Court of Illinois,
First District, Second Division.
Marta VALDOVINOS, as parent, guardian,
and next friend of Daniel Valdovinos, a
disabled individual, PlaintiffAppellant,
v.
Tadanori TOMITA, M.D., individually
and as an employee and agent of Children's
Memorial Hospital, an Illinois not-forprofit corporation, DefendantsAppellees.
No. 1082401.
6 Cases that cite this headnote

[2]
In ruling on a motion for involuntary dismissal, a

court must construe the pleadings and supporting
documents in a light most favorable to the
nonmoving party. S.H.A. 735 ILCS 5/2619.
[3]
Aug. 4, 2009.

[4]
Holdings: The Appellate Court, Hoffman, J., held that:
[2] doctrine of res judicata did not apply to bar fraud claims.
Cases that cite this headnote

[5]
Pretrial Procedure
Affirmative Defenses, Raising by Motion to
Dismiss
Pretrial Procedure
Matters Deemed Admitted
A motion for involuntary dismissal admits the
legal sufficiency of the complaint and raises
defects, defenses, or other affirmative matters
that defeat the claim. S.H.A. 735 ILCS 5/2619.
Appeal and Error

Cases Triable in Appellate Court
Appellate Court does not give deference to
the circuit court's judgment on a motion for
voluntary dismissal, but, rather, reviews the
matter de novo. S.H.A. 735 ILCS 5/2619.
[1] fraud claims were not barred by laches, and
[1]
Appeal and Error

Extent of Review Dependent on Nature of
Decision Appealed from
The relevant question on appeal of an
involuntary dismissal is whether the existence
of a genuine issue of material fact should have
precluded dismissal or, absent such an issue of
fact, whether dismissal is proper as a matter of
law. S.H.A. 735 ILCS 5/2619.
Synopsis
Background: Parent, guardian, and next friend of disabled
individual filed suit against physician and hospital who had
provided care to individual shortly after his birth, asserting
fraud. Physician and hospital filed motion to dismiss. The
Circuit Court, Cook County, Kathy M. Flanagan, J., granted
motion. Plaintiff appealed.
West Headnotes (17)
Pretrial Procedure
Construction of pleadings
Equity
Personal disabilities
Fraud claims asserted by parent, guardian, and
next friend of allegedly mentally incompetent
individual against physician and hospital that had
provided care to individual around time of his
birth were not barred by laches, though claims
had been brought nine years after discovery of
alleged fraud and over 24 years after allegedly
fraudulent act itself, as it could reasonably be
found that individual suffered form a legal
disability, given that from at least ten days after
his birth until the present, he was a quadriplegic,
and he suffered from mental retardation, cerebral
palsy, and a seizure disorder.
2014 Thomson Reuters. No claim to original U.S. Government Works.
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Appellate Court may affirm the judgment of the

circuit court on any basis appearing in the record.

[6]
Equity
Nature and elements in general
Laches is an equitable defense that bars an
action where an unreasonable delay in bringing
suit has caused a party to be misled, prejudiced,
or take a course of action he would not have
otherwise taken.
[11]
Doctrine of res judicata did not apply to bar fraud

claims asserted by parent of disabled individual
against physician and hospital that had provided
care to individual around time of his birth, as
fraud action and prior chancery action brought
by parent against physician were not predicated
on a single group of operative facts, such that the
two suits involved distinct causes of action; prior
action involved allegations that physician had
improperly engaged in ex parte communications
with defense counsel, while current suit was
based on allegations that physician falsified his
operative report on individual.

[7]
Judgment
What constitutes distinct causes of action
Equity
Grounds and Essentials of Bar
Equity
Prejudice from Delay in General
To invoke a laches defense, defendant must
prove: (1) a lack of diligence by plaintiff in
bringing the suit and (2) that plaintiff's delay
resulted in prejudice.

[12]
[8]
Equity
Judgment
Nature and elements of bar or estoppel by
former adjudication
Limitation of Actions
Disabilities in General
An individual under a legal disability cannot
be held accountable for any apparent delay,
negligence, or laches in seeking redress through
the courts.
Under the doctrine of res judicata, a final

judgment on the merits is conclusive as to the
rights of the parties and their privies, and bars
any subsequent action between the same parties
involving the same claim, demand, or cause of
action.

[9]

[10]
Equity
Any delay in filing a lawsuit cannot be imputed
to an individual under a legal disability, even
if the next friend who brings the suit is clearly
guilty of laches.
Appeal and Error

Reasons for Decision
Judgment
Nature and requisites of former recovery as
bar in general
[13]
Judgment
Nature and elements of bar or estoppel by
former adjudication
Judgment
Matters which might have been litigated
The res judicata bar extends not only to what was
actually decided in the first action, but also to
those matters that could have been decided.
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[14]
Judgment
Nature and requisites of former recovery as
bar in general
For the doctrine of res judicata to apply, three
requirements must be satisfied: (1) a final
judgment on the merits rendered by a court of
competent jurisdiction, (2) identity of causes of
action, and (3) identity of parties or their privies.
[15]
Judgment
Theory of action or recovery
Under transactional test for determining whether
causes of action are the same for purposes of
res judicata, separate claims will be considered
the same if they arise from a single group of
operative facts, regardless of whether they assert
different theories of relief.
[16]
Judgment
What constitutes identical causes
Transactional test for determining whether
causes of action are the same for purposes of
res judicata is to be applied pragmatically, taking
into account such considerations as whether
the facts are related in time, space, origin, or
motivation, whether they form a convenient
trial unit, and whether their treatment as a unit
conforms to the parties' expectations or business
understanding or usage.
[17]
Appeal and Error

Motions
Defendants forfeited on appeal brought by
plaintiff from dismissal of her fraud complaint
issues of whether plaintiff had failed to
sufficiently allege that defendant intended to
deceive plaintiff, or that plaintiff had justifiably
relied on defendant's purportedly false statement,
as defendants failed to raise these issues in their

motion to dismiss.
Attorneys and Law Firms

**223 Holstein Law Offices, LLC, of Chicago (Robert A.
Holstein, of counsel; Anthony M. Sciara, Brief Source, of
counsel), for PlaintiffAppellant.
Lowis & Gellen, LLP, of Chicago (Deborah R. O'Brien,
Pamela L. Gellen & Scott R Wolfe, of counsel), for
DefendantsAppellees.
Opinion
Justice HOFFMAN delivered the opinion of the court:
*15 ***16 The plaintiff, Marta Valdovinos, as parent,
guardian, and next friend of Daniel Valdovinos (Daniel),
appeals from an order of the circuit court dismissing both
counts of her fifth amended complaint against the defendants,
Dr. Tadanori Tomita and Children's Memorial Hospital
(Children's Memorial). For the reasons which follow, we
reverse the judgment of the circuit court and remand for
further proceedings.
The procedural history of this matter is long and complex,
comprising over 18 years of litigation. For the sake of brevity,
we have attempted to limit our recitation ***17 **224 of
the facts to those necessary to resolve the issues presented in
this appeal.
On June 6, 1991, the plaintiff, as parent and next friend of
Daniel, filed a complaint in the law division, asserting claims
for medical negligence against various doctors and hospitals
involved in her pre-natal care and Daniel's birth and postdelivery care. During the course of the litigation, the plaintiff
filed multiple amended complaints. The final complaint
filed in that action alleged that Daniel suffered severe
neurological damage when the plaintiff was injected with
a drug during her pregnancy. The plaintiff asserted causes
of action for negligence and strict products liability against
the pharmaceutical company which manufactured the drug,
ParkeDavis and Company, and for medical malpractice
against the doctor who administered the drug, Dr. Juliette
LunaJoson, and the clinic where she worked, the Luna
Manalac Medical Center.
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While the law division action was still pending, the plaintiff
filed a two-count complaint in the chancery division on
September 19, 1997. Among those named as defendants in
this suit was Dr. Tomita, a doctor who had operated on
Daniel shortly after his birth in 1984 and last saw Daniel
approximately one year later. In the chancery complaint,
the plaintiff alleged that Dr. Tomita had refused to meet
with her attorneys prior to giving his deposition in the
law division action and that certain answers he gave at
the deposition demonstrated that he had engaged in ex
parte communications with defense counsel in violation of
Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581,
585, 499 N.E.2d 952 (1986). In count I, the plaintiff sought
a mandatory injunction ordering Dr. Tomita to meet with
the plaintiff's attorneys prior to testifying at trial in the law
division case. In count II, the plaintiff asserted a cause of
action for conspiracy to commit and the actual commission
of outrageous tortious conduct. In the prayer for relief on
count II, the plaintiff sought orders: enjoining Dr. Tomita
and Daniel's other treating physicians from communicating
with anyone regarding Daniel's medical treatment without his
consent; impounding the evidence deposition given by Dr.
Tomita and restraining the *16 parties from offering the
deposition at trial; barring Dr. Tomita from testifying at trial;
and disqualifying certain attorneys.
In the law division action, the plaintiff filed a motion to
stay the proceedings pending the outcome of the chancery
action. After the denial of that motion, the plaintiff moved to
voluntarily dismiss the law division action. The circuit court
allowed the voluntary dismissal but ordered $117,059.41 in
fees and cost to be paid to the defendants pursuant to Supreme
Court Rule 219(e) (166 Ill.2d R. 219(e)).
The defendants in the chancery action filed motions to
dismiss the plaintiff's complaint and seeking the imposition
of sanctions pursuant to Supreme Court Rule 137 (155
Ill.2d R. 137). The circuit court subsequently dismissed
the plaintiff's chancery action with prejudice. Without
conducting a hearing, the court also denied the defendants'
request for the imposition of Rule 137 sanctions. On appeal,
we affirmed the circuit court's dismissal of the plaintiff's
chancery complaint, but reversed the circuit court's order
denying the motions for Rule 137 sanctions and remanded
with instructions that the defendants be afforded a hearing
on their motions for sanctions. Valdovinos v. Tomita, 307
Ill.App.3d 1081, 260 Ill.Dec. 293, 760 N.E.2d 1066 (1999)
(unpublished under Supreme Court Rule 23). The record

before us does not indicate whether such a hearing was held.
The circuit court's orders allowing the voluntary dismissal
of the law division action, ***18 **225 but imposing
fees and costs on the plaintiff, were subsequently upheld
on appeal. Valdovinos v. LunaManalac Medical Center,
Ltd., 328 Ill.App.3d 255, 262 Ill.Dec. 147, 764 N.E.2d 1264
(2002). Thereafter, the plaintiff reinstated her case in the
law division. On December 29, 2005, the plaintiff and the
remaining defendants entered into a settlement agreement,
and the law division action was dismissed.
On February 14, 2006, the plaintiff initiated the current
action against Dr. Tomita and his employer, Children's
Memorial (collectively referred to as the defendants).
The plaintiff subsequently filed a two-count, fifth amended
complaint seeking damages for fraud. Count I was directed
against Dr. Tomita and alleged that the doctor intentionally
misrepresented the nature of Daniel's injuries in a June 26,
1984, operative report. According to the plaintiff, Dr. Tomita
noted in his 1984 operative report that CT scans taken on
June 19, 1984, showed that Daniel suffered from hypodense
subdural hematomas, indicating that the hematomas occurred
prior to the birth process. However, at an evidence deposition
taken on July 29, 1997, Dr. Tomita testified that the
1984 operative report contained a typographical error and
that the CT scans showed that Daniel's hematomas were
hyperdense, meaning that they occurred during the birth
process. The plaintiff alleged that, as a result of Dr. Tomita's
misrepresentation, *17 she was fraudulently induced into
suing the wrong parties and settling her law division claims
for a fraction of their value. Count II asserted a cause of
action for fraud against Children's Memorial, alleging that
Dr. Tomita was acting within the course and scope of his
employment with the hospital and that Children's Memorial
knew or should have known that Dr. Tomita's 1984 operative
report was fraudulent.
The defendants filed a motion to dismiss the plaintiff's fifth
amended complaint pursuant to sections 2615 and 2619 of
the Code of Civil Procedure (Code) (735 ILCS 5/2615, 2
619 (West 2008)). In their motion, the defendants contended
that both counts I and II should be dismissed under section 2
619(a)(4) of the Code as barred by the doctrine of res judicata,
and, alternatively, pursuant to section 2619(a)(9) of the Code
by application of the defense of laches. The motion also
argued that count II of the fifth amended complaint should be
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dismissed because it failed to set forth a direct claim for fraud

against Children's Memorial.
On May 7, 2008, the circuit court granted the defendants'
motion to dismiss the fifth amended complaint. In its ruling,
the circuit court found that the doctrine of res judicata did not
bar the plaintiff's instant claims. Instead, the court concluded
that the plaintiff's claims for fraud were barred by the defense
of laches, noting that the plaintiff waited nine years after the
discovery of the alleged fraud in 1997, and over 24 years after
the allegedly fraudulent act itself, to file the current action.
Following the denial of her motion for reconsideration, the
plaintiff appealed to this court.
defendant must prove: (1) a lack of diligence by the plaintiff

in bringing the suit and (2) that the plaintiff's delay resulted in
prejudice. Lozman v. Putnam, 379 Ill.App.3d 807, 822, 318
Ill.Dec. 788, 884 N.E.2d 756 (2008).
Traditionally, the defense of laches was limited to actions

arising in equity and was unavailable in actions at law. People
ex rel. McCoy v. Sherman, 123 Ill.App.3d 444, 446, 78
Ill.Dec. 698, 462 N.E.2d 817 (1984); Mother Earth, Ltd. v.
Strawberry Camel, Ltd., 72 Ill.App.3d 37, 52, 28 Ill.Dec.
226, 390 N.E.2d 393 (1979). Over time, Illinois courts have
expanded the application of the defense. For example, laches
is now routinely applied in lawsuits simultaneously seeking
both legal and equitable remedies. See e.g., Lee v. City of
In urging the reversal of the dismissal of her fifth amended
Decatur, 256 Ill.App.3d 192, 196, 194 Ill.Dec. 614, 627
complaint, the plaintiff contends the circuit court erroneously
N.E.2d 1256 (1994); Coleman v. O'Grady, 207 Ill.App.3d
applied the defense of laches. The plaintiff argues, inter alia,
43, 52, 152 Ill.Dec. 11, 565 N.E.2d 253 (1990); Bays v.
that laches cannot be asserted against a mentally incompetent
Matthews, 108 Ill.App.3d 1112, 1116, 64 Ill.Dec. 590, 440
person such as Daniel.
N.E.2d 142 (1982). There is still disagreement, however, as to
whether laches is an appropriate defense to suits only seeking
[1] [2] [3] [4] That portion of the defendants' motionmonetary damages, such as the one filed in the instant action.
to dismiss pertaining to the defense of laches was brought
Compare Kotsias v. Continental Bank, N.A., 235 Ill.App.3d
pursuant to section 2619(a)(9) of the Code (735 ILCS 5/2
472, 477, 176 Ill.Dec. 487, 601 N.E.2d 1185 (1992) with
619(a)(9) (West 2008)). A section 2619 motion to dismiss
People ex rel. Jackson v. DeGroot Motor Services, Inc., 222
admits the legal sufficiency of the complaint and raises
Ill.App.3d 594, 603, 165 Ill.Dec. 84, 584 N.E.2d 263 (1991).
defects, defenses, or other affirmative matters that defeat
Nevertheless, we need not decide whether the non-equitable
the claim. Cohen v. McDonald's ***19 **226 Corp., 347
nature of the plaintiff's claims precludes the application of
Ill.App.3d 627, 632, 283 Ill.Dec. 451, 808 N.E.2d 1 (2004). In
laches as the defense is inapplicable for another reason;
ruling on such a motion, a court must construe the pleadings
namely, Daniel's alleged mental incompetency.
and supporting documents in a light most favorable to the
nonmoving party. Webb v. Damisch, 362 Ill.App.3d 1032,
[8] It is well established that an individual under a legal
1037, 299 Ill.Dec. 401, 842 N.E.2d 140 (2005). The relevant
disability cannot be held accountable for any apparent delay,
question on appeal is whether the existence of a genuine
negligence, or laches in seeking redress through the courts.
issue of material fact should have precluded dismissal or,
Van Buskirk v. Van Buskirk, 148 Ill. 9, 26, 35 N.E. 383 (1893);
absent such an issue of fact, whether dismissal is proper as a
Zimmerman v. Village of Skokie, 174 Ill.App.3d 1001, 1007,
matter of law. *18 Kedzie & 103rd Currency Exchange v.
124 Ill.Dec. 618, 529 N.E.2d 599 (1988); Haas v. Westlake
Hodge, 156 Ill.2d 112, 11617, 189 Ill.Dec. 31, 619 N.E.2d
Community Hospital, 82 Ill.App.3d 347, 348, 37 Ill.Dec. 881,
732 (1993). This court does not give deference to the circuit
402 N.E.2d 883 (1980). Although the record is unclear as
court's judgment on a motion to dismiss pursuant to section
to whether Daniel was ever formally adjudicated mentally
2619, but, rather, reviews the matter de novo. Fuller Family
disabled, the fifth amended complaint alleged that, at least 10
Holdings, LLC v. Northern Trust Co., 371 Ill.App.3d 605,
days after his birth and until the present, Daniel has been a
613, 309 Ill.Dec. 111, 863 N.E.2d 743 (2007).
quadriplegic and suffering from mental retardation, cerebral
palsy, and a seizure disorder. Viewing these allegations in
[5] [6] [7] The equitable defense of laches bars an action a light most *19 favorable to the plaintiff, we believe
where an unreasonable delay in bringing suit has caused a
that Daniel could reasonably be found to be entirely
party to be misled, prejudiced, or take a course of action
without understanding ***20 **227 or capacity to make
he would not have otherwise taken. Summers v. Village of
or communicate decisions regarding his person and totally
Durand, 267 Ill.App.3d 767, 77071, 205 Ill.Dec. 321, 643
unable to manage his estate or financial affairs and, thus,
N.E.2d 272 (1994). In order to invoke this defense, the
suffering from a legal disability. See Estate of Riha v.
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v. Tomita,
394 Ill.App.3d
14 (2009)
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914 N.E.2d 221, 333 Ill.Dec. 14
Christ Hospital, 187 Ill.App.3d 752, 756, 135 Ill.Dec. 907,

544 N.E.2d 403 (1989). As the record before us contains
sufficient facts to support the contention that Daniel is under
a legal disability, we cannot say, as a matter of law, that
Daniel's claims are barred by the defense of laches. See
Haas, 82 Ill.App.3d at 348, 37 Ill.Dec. 881, 402 N.E.2d 883.
Accordingly, the circuit court erred in dismissing the instant
action on that basis.
[9] We reach this conclusion notwithstanding the fact that,
during the last 18 years, Daniel's representatives have filed
other lawsuits on his behalf and, therefore, could have brought
the current action sooner. Any delay in filing a lawsuit cannot
be imputed to an individual under a legal disability, even
if the next friend who brings the suit is clearly guilty of
laches. See Luebke v. Browning, 18 Ill.App.2d 427, 440
41, 152 N.E.2d 589 (1958) (mentally disabled person not
accountable for her conservator's seven-year delay in bringing
suit). To hold otherwise, would require that the enforcement
of an incompetent person's rights be left to the whim
or mercy of some self-constituted next friend. Bruso v.
Alexian Brothers Hospital, 178 Ill.2d 445, 454, 227 Ill.Dec.
532, 687 N.E.2d 1014 (1997), quoting Passmore v. Walther
Memorial Hospital, 152 Ill.App.3d 554, 558, 105 Ill.Dec.
493, 504 N.E.2d 778 (1987).
[10] On appeal, the defendants raise two alternative grounds
for affirmance. They contend that the plaintiff's fifth amended
complaint must be dismissed because its claims are barred by
the doctrine of res judicata and because the complaint fails
to state a cause of action for fraud. As this court may affirm
the judgment of the circuit court on any basis appearing in
the record (Liberty Mutual Insurance Co. v. American Home
Assurance Co., 368 Ill.App.3d 948, 955, 306 Ill.Dec. 733,
858 N.E.2d 530 (2006)), we will consider the defendants'
arguments.
[11] Initially, we address the defendants' contention that
the doctrine of res judicata precludes the plaintiff's claims
for fraud. The defendants maintain that the fraud claims are
barred by the doctrine of res judicata because the plaintiff
could have, but failed to, include these claims in the 1997
chancery action. Because this issue was raised in the circuit
court pursuant to section 2619(a)(4) of the Code (735 ILCS
5/2619(a)(4) (West 2008)), our review is de novo. See Fuller
Family Holdings, 371 Ill.App.3d at 613, 309 Ill.Dec. 111, 863
N.E.2d 743.
[12] [13] [14] Under the doctrine of res judicata, a final

judgment on the merits is conclusive as to the rights of
the parties and their privies, and bars *20 any subsequent
action between the same parties involving the same claim,
demand, or cause of action. IFC Credit Corp., v. Magnetic
Technologies, Ltd., 368 Ill.App.3d 898, 900, 307 Ill.Dec. 76,
859 N.E.2d 76 (2006). The bar extends not only to what was
actually decided in the first action, but also to those matters
that could have been decided. River Park, Inc. v. City of
Highland Park, 184 Ill.2d 290, 302, 234 Ill.Dec. 783, 703
N.E.2d 883 (1998). For the doctrine of res judicata to apply,
three requirements must be satisfied: (1) a final judgment on
the merits rendered by a court of competent jurisdiction; (2)
identity of causes of action; and (3) identity of parties or their
privies. Hudson v. City of Chicago, 228 Ill.2d 462, 467, 321
Ill.Dec. 306, 889 N.E.2d 210 (2008).
**228 ***21 In this case, the parties do not dispute that the
same parties or their privies were involved in both the 1997
chancery action and the instant suit or that a final judgment on
the merits was rendered in the chancery action. Consequently,
the only issue presented is whether the two cases involved
distinct causes of action.
[15]
[16] To determine whether two causes of action
are the same, Illinois courts apply the transactional test.
Pursuant to this test, separate claims will be considered the
same cause of action for purposes of res judicata if they
arise from a single group of operative facts, regardless of
whether they assert different theories of relief. River Park,
Inc., 184 Ill.2d at 311, 234 Ill.Dec. 783, 703 N.E.2d 883.
The transactional test is to be applied pragmatically, taking
into account such considerations as whether the facts are
related in time, space, origin, or motivation, whether they
form a convenient trial unit, and whether their treatment
as a unit conforms to the parties' expectations or business
understanding or usage. River Park, Inc., 184 Ill.2d at
312, 234 Ill.Dec. 783, 703 N.E.2d 883, quoting Restatement
(Second) of Judgments 24, at 196 (1982).
In the 1997 chancery action, the plaintiff sought a number
of injunctions, including orders: directing Dr. Tomita to
meet with Daniel's attorney prior to testifying at trial;
enjoining Dr. Tomita and Daniel's other treating physicians
from communicating with anyone regarding Daniel's medical
treatment without his consent; impounding the evidence
deposition given by Dr. Tomita and restraining the parties
from offering the deposition at trial; barring Dr. Tomita
from testifying at trial; and disqualifying certain attorneys.
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v. Tomita,
394 Ill.App.3d
14 (2009)
ID: 9117741
DktEntry: 28-5
Page: 7 of 7
(28 of 34)
914 N.E.2d 221, 333 Ill.Dec. 14
were not raised in the defendants' motion to dismiss the fifth

amended complaint and are, therefore, forfeited for purposes
of this appeal. See Employers Insurance of Wausau v. Ehlco
Liquidating Trust, 186 Ill.2d 127, 161, 237 Ill.Dec. 82, 708
N.E.2d 1122 (1999) (Issues raised for the first time on appeal
are waived). Additionally, although the motion to dismiss
did assert that count II of the fifth amended complaint failed to
set forth a direct claim for fraud against Children's Memorial,
this argument was not included in the defendants' brief on
appeal, and it is, likewise, forfeited. See 210 Ill.2d R. 341(h)
(7) (Points not argued are waived).
The operative facts underlying the 1997 chancery action

involved allegations that Dr. Tomita's refusal to meet with
Daniel's attorneys prior to the 1997 evidence deposition, and
the answers he gave at the deposition, demonstrated that the
doctor had engaged in ex parte communications with defense
counsel in violation of Petrillo v. Syntex Laboratories, Inc.,
148 Ill.App.3d 581, 585, 499 N.E.2d 952 (1986). In contrast,
the facts underlying the plaintiff's claims for fraud are
premised on an allegation *21 that Dr. Tomita falsified his
1984 operative report by noting that Daniel suffered from
hypodense hematomas, not hyperdense hematomas, as
he later testified at his 1997 deposition. Because the current
lawsuit and the 1997 chancery action were not predicated on
a single group of operative facts, the doctrine of res judicata
does not bar the plaintiff's claims for fraud, and the circuit
court correctly refused to dismiss the fifth amended complaint
on that basis.
**229 ***22 For the foregoing reasons, we reverse the

circuit court's dismissal of the plaintiff's fifth amended
complaint and remand the cause for further proceedings.
[17] Finally, we turn to the defendants' contention that

the plaintiff's fifth amended complaint fails to set forth a
sufficient cause of action for fraud. In their brief before this
court, the defendants argue that the fifth amended complaint
fails to sufficiently allege that Dr. Tomita intended to deceive
the plaintiff or that the plaintiff justifiably relied upon Dr.
Tomita's purportedly false statement. These issues, however,
End of Document
KARNEZIS, P.J., and CUNNINGHAM, J., concur.

Parallel Citations
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Judicial Notice Against Bank of America

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Case: 13-17105

Turns out much-hyped settlement

THURSDAY, MAY 2, 2013 10:08 AM CDT

Turns out much-hyped

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Where a debtors first appearance in a defaulted mortgage proceeding

(Note: This syllabus

Reversed and remanded.

Daniel J. Voelker and Tricia L. Putzy, of Voelker Litigation Group, of

JUSTICE KILBRIDE delivered the judgment of the court, with

must be construed as comprehensive, applying both prospectively and retroactively.

914 N.E.2d 221, 333 Ill.Dec. 14

6 Cases that cite this headnote

In ruling on a motion for involuntary dismissal, a

3 Cases that cite this headnote

Holdings: The Appellate Court, Hoffman, J., held that:

Cases that cite this headnote

Reversed and remanded.

Appeal and Error

[1] fraud claims were not barred by laches, and

Appeal and Error

West Headnotes (17)

2014 Thomson Reuters. No claim to original U.S. Government Works.

914 N.E.2d 221, 333 Ill.Dec. 14

Appellate Court may affirm the judgment of the

1 Cases that cite this headnote

Cases that cite this headnote

Doctrine of res judicata did not apply to bar fraud

2 Cases that cite this headnote

Cases that cite this headnote

2 Cases that cite this headnote

229 *22 For the foregoing reasons, we reverse the