Opinion
No. 2-12-0491
08-06-2013
OSCAR and JOSEFINA TIONGCO, Plaintiffs-Appellees, v. HAROLD BACHRACH and MARK A. ADAMS Defendants-Appellants.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Du Page County
No. 11 SC 3771
Honorable
Peter W. Ostling
Judge, Presiding
JUSTICE delivered the judgment of the court.
Presiding Justice Burke and Justice McLaren concurred in the judgment.
ORDER
¶ 1 Held: In an appeal governed by the principles of First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976), because plaintiffs filed no appellees' brief, this court can address whether the trial court erred in entering a default judgment against the defendants and in later declining to vacate the default. Reaching the merits, we hold that the trial court did not err. Because, however, we find prima facie error in the trial court's denial to defendants of an opportunity to contest damages, we vacate the damages award and remand for defendants to have that opportunity. ¶ 2 On December 2, 2011, the trial court entered a default judgment against defendants, Harold Bachrach and Mark A. Adams, on a small claims complaint brought by plaintiffs, Oscar and Josefina Tiongco. The court awarded damages of $4,116.23, attorneys fees of $450.00, and costs of $360.64. On April 5, 2012, the trial court denied defendants' motion to vacate the December 2 default. The court also denied defendants an opportunity to contest the amount of damages. Defendants appeal both the December 2 and April 5 judgments. For the following reasons, we affirm both judgments but vacate the award of damages and remand this matter so that defendants may contest what, if any, damages are appropriate.
¶ 3 I. BACKGROUND
¶ 4 On June 17, 2011, plaintiffs brought a small claims complaint for amounts owed under a one-year residential lease. The complaint contained no background allegations, but as explained later in the trial proceedings, defendants vacated the premises before the end of the one-year term and thereafter paid no rent. Plaintiffs sought $4,116.23, consisting of rent, utility fees, and cleaning and repair expenses. They also sought an unspecified amount for attorneys fees and costs. By summonses served June 29 and July 6, 2011, respectively, defendants were directed to appear on August 3, 2011. Both summonses stated: "IF YOU FAIL TO [APPEAR], A JUDGMENT BY DEFAULT MAY BE TAKEN AGAIN YOU FOR THE RELIEF ASKED IN THE COMPLAINT. NO JUDGMENT SHALL BE TAKEN UNTIL THE EXPIRATION OF 30 DAYS AFTER SERVICE." ¶ 5 At the August 3 proceeding, the court observed that defendants had not appeared. Plaintiffs moved for a default judgment for $4,116.23 plus $315.00 in costs and $350.00 in attorneys fees. Plaintiffs filed an affidavit substantiating the amount of costs (but nothing with respect to attorneys fees). The court entered a default judgment in the amounts requested. ¶ 6 On September 6, counsel for defendants filed his appearance. Defendants then, by counsel, moved to vacate the August 3 default and permit them 28 days to answer or otherwise plead. The motion stated no grounds but consisted of a one-sentence prayer for relief. ¶ 7 On November 1, the trial court entered a handwritten order drafted by defendants' counsel. The order recited that the court was granting, over plaintiffs' objection, defendants' September 6 motion to vacate the August 3 judgment. The order set the date of December 2, 2011, for "status on settlement & trial setting & defendants' filing date for responsive pleadings." There is no report of proceedings corresponding to this order. ¶ 8 On December 2, the court called the case twice but defendants did not appear. At the first call, plaintiffs's counsel notified the court that the case had not settled. After the second call, the court inquired of plaintiffs' counsel, "What's your pleasure?" Counsel requested a default judgment for $4,116.23 in damages, $450.00 in attorneys fees "pursuant to contract," and $360.64 in costs. Counsel remarked that she did not have an affidavit of costs, to which the court replied, "That's fine. I'll take your representation." No proof of attorneys fees was presented, either. The court entered judgment in the requested amounts. ¶ 9 On December 6, the clerk of the court sent defense counsel notice of the default. On January 3, 2012, defendants filed a motion to vacate. This motion, like the September 6 filing, consisted of a simple prayer for relief and stated no grounds. The motion was originally scheduled to be heard on January 12. On that date, the court set a briefing schedule and set the motion for hearing on March 7. ¶ 10 On February 12, plaintiffs filed a response to the motion to vacate, commenting that defendants' motion presented absolutely no grounds for the relief requested. Specifically, plaintiffs noted that defendants failed to show that they exercised due diligence or had a meritorious defense to the suit. ¶ 11 Unlike the motion itself, defendants' reply, filed February 24, contained some substance. They alleged that their December 2 failure to appear was "due to a diary error" on the part of defense counsel. Defendants further alleged that the default against defendant Bachrach was void because, contrary to the language of the summons, the judgment was entered within 30 days of service. Defendants further noted that, on November 1, 2011 (the date the first default was vacated), they made plaintiffs an offer for settlement. Plaintiffs did not mail their reply for nearly a month, and, as of the December 2 status hearing, defense counsel had not had a chance to speak with defendants about the proposal. Defendants asserted that
"professional courtesy and fair play would require that counsel for Plaintiffs, when she knew she had just responded to a settlement demand, to have advised the Court of same on December 2, 2011[,] and at least called Defendants or continued the matter for a short time rather than having a default judgment entered. Or to have the matter set for trial and obtained a date for Defendants to file their responsive pleading. None of that was done despite the clear language of the prior order."Defendants further contended that the court erred by awarding damages, costs, and fees without allowing defendants the chance to contest the amount. Finally, defendants asserted that they had a meritorious defense to the suit. As support, they attached an exchange of letters and e-mails they had with plaintiffs. In the exchange, defendants claim that they vacated the premises early because plaintiffs had agreed to shorten the one-year lease term in exchange for defendants' permitting plaintiffs to show the premises to potential buyers. ¶ 12 Subsequent to their reply, defendants twice moved successfully to reschedule the hearing on the motion to vacate. The first motion, filed March 6, 2012, claimed a scheduling conflict. The court entered an order that same day postponing the hearing to March 29 for "status of settlement." The court noted that the parties had "reached a settlement agreement," the settlement proceeds to be tendered to plaintiffs' counsel within 21 days. On March 29, defendants moved for another continuance. Defense counsel claimed he was still waiting for the settlement proceeds from one of the defendants. The court postponed the hearing to April 5, 2012. ¶ 13 At the April 5 hearing, defense counsel argued consistently with defendants' reply in support of their motion to vacate. The trial court denied the motion to vacate. The court remarked that defendants had already incurred, and got relief from, a default judgment. On the issue of a meritorious defense, the court remarked that the copy of the lease attached to plaintiffs' complaint contained the following provision:
"23. ENTIRE AGREEMENT: This document and the documents incorporated herein are the entire agreement of the parties and no representations of either party are binding unless contained herein."The court characterized the foregoing as an integration clause and noted that defendants did not attach any written modification shortening the one-year lease term. ¶ 14 Subsequent hearings below concerned defendants' motion to stay enforcement of the December 2 judgment. At a hearing on May 2, 2012, defendants made an oral motion to reconsider the denial of their motion vacate the December 2 default. The court denied the motion but provided "further clarification" of its reasons. The court noted that the relevant factors for its consideration included "whether the movant acted with due diligence; the existence of a meritorious defense; the severity of penalty as a result of default; and the attendant hardship on the nonmovant to proceed to a trial on the merits" (Havana National Bank v. Satorius-Curry, Inc., 167 Ill. App. 3d 562, 565 (1988)). The court stated that it would not elaborate on its prior determination that defendants failed to show that they had a meritorious defense. On the other factors, the court said
"The Court notes again that this was the second motion to vacate on this same file. The Court also notes that the notice of the subject default was sent to defendant[s'] attorney by the Clerk's office on December 6, 2011. *** The defendant[s] still chose to wait until January the 3rd, 2012[,], to file [their] motion to vacate. The Court finds that that is further evidence of a lack of diligence. The Court also notes as to the severity of penalty, that this is a small claims case. The judgment with the court costs is approximately, not to the penny, but approximately $5,000.The court then addressed defense counsel's allegation that he had entered the December 2, 2011, date incorrectly into his court calendar. The court asked for counsel's calendar "to see what date [he] misdiaried that hearing for." Counsel claimed he did not have the calendar with him. The court then continued:
As to the hardships, the record itself reflects the number of times the plaintiff[s] [have] been required to appear on the noted two Motions to Vacate, the first being filed last September 6, 2011[,] with no credible allegations of any meritorious defense having been presented to the Court to date.
The Court notes that the court order from March 6, 2012[,] indicated *** that the parties had represented to each other that they had settled their issues and that the defendants were to pay the settlement funds within 21 days. That was—and based on that representation of settlement, the then pending motion, the then pending hearing on the Motion to Vacate was continued to March 29, 2012[,] for status of settlement or the continued hearing on [the] Motion to Vacate.
On March 29th, the defendant[s] had presented an emergency motion to the Court regarding that settlement, settlement funds not having been paid by the previously agreed upon date as provided in that March 6, 2012[,] order. That history regarding the purported settlement, although certainly not reflective of the defendant[s'] attorney, does reinforce in the Court's mind a lack of diligence by the defendants in the presentation of any claim herein."
"The Court also notes again that on whatever date the misdiaried date may have been, in the Court's mind the question as yet still unanswered is why when [defense counsel] came to court on the day when it was misdiaried and found out that the case was not on the call and that a judgment was previously entered why, perhaps, that that [sic]Motion to Vacate was not filed on that same day."¶ 15 Defendants filed this timely appeal.
¶ 16 II. ANALYSIS
¶ 17 Defendants devote separate sections of their brief to arguing (1) that the trial court erred in entering the December 2, 2011, default judgment; and (2) that the court erred in denying defendants' motion to vacate that judgment. We address these issues together. First, they are governed by the same standard. "The overriding consideration when deciding whether to vacate a default judgment, just as when deciding whether to enter a default order, is whether substantial justice is being done." Biscan v. Village of Melrose Park Bd. of Fire & Police Commissioners, 277 Ill. App. 3d 844, 848 (1996). Second, there are no facts that we may consider with respect to one of the issues that we may not consider with respect to the other; the same body of facts applies to both. Accordingly, we collapse the two issues into the single issue of whether the trial court erred in denying the motion to vacate. ¶ 18 Section 2-1301(d) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1301(d) (West 2012)) provides that a "[j]udgment of default may be entered for want of an appearance, or for failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought." Subsection (e) of section 2-1301 states:
"The Court may in its discretion, before final order or judgment, set aside any default, and on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable." 735 ILCS 5/2-1301(e) (West 2012).¶ 19 Defendants also argue that, if we hold that the trial court did not err in vacating the December 2 default, we should at least find error in the court's refusing them an opportunity to contest the amount of damages to be awarded. ¶ 20 Before proceeding further, we note that plaintiffs filed no brief in this court. In First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976), the supreme court explained the courses of action available to a reviewing court when the appellee provides no input in the appeal:
"We do not feel that a court of review should be compelled to serve as an advocate for the appellee or that it should be required to search the record for the purpose of sustaining the judgment of the trial court. It may, however, if justice requires, do so. Also, it seems that¶ 21 One court has summarized these directives as follows:
if the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee's brief, the court of review should decide the merits of the appeal. In other cases[,] if the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record[,] the judgment of the trial court may be reversed."
"In short, the supreme court set forth three distinct, discretionary options a reviewing court may exercise in the absence of an appellee's brief: (1) it may serve as an advocate for the appellee and decide the case when the court determines justice so requires, (2) it may decide the merits of the case if the record is simple and the issues can be easily decided without the aid of the appellee's brief, or (3) it may reverse the trial court when the appellant's brief demonstrates prima facie reversible error that is supported by the record." Thomas v. Koe, 395 Ill. App. 3d 570, 577 (2009).¶ 22 Defendants' brief and the record disclose no prima facie error in the trial court's denial of the motion to vacate the December 2 default judgment. Furthermore, justice does not require that we serve as an advocate for the appellee on the issue. As the record is brief and the issue is not complex, we reach the merits, and conclude that the trial court did not err. We do, however, find prima facie error in the trial court's denying defendants an opportunity to contest damages.
¶ 23 A. The December 2 Default Judgment
¶ 24 We begin by noting that, formerly, relief from a default judgment required a showing of a meritorious defense and a reasonable excuse for not timely asserting that defense. Nitsche v. City of Chicago, 280 Ill. 268, 270-71 (1917); Busser v. Noble, 8 Ill. App. 2d 268, 274 (1956). Four decades ago, the supreme court in People ex rel. Reid v. Adkins, 48 Ill. 2d 402, 406 (1971), noted that, with the passage of the predecessor to section 2-1301(e) (Ill.Rev.Stat.1969, ch. 110, par. 50(5)), it was no longer necessary that relief from a default judgment "be sought on the precise grounds that there is a meritorious defense and a reasonable excuse for not having timely asserted such defense." Rather, "[t]he overriding consideration" was now "whether or not substantial justice is being done between the litigants and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits." Id. The following approach is now well established:
" 'Whether substantial justice is being achieved by vacating a judgment or order is not subject to precise definition, but relevant considerations include diligence or the lack thereof, the existence of a meritorious defense, the severity of the penalty resulting from the order or judgment, and the relative hardships on the parties from granting or denying vacatur.' " Jacobo v. Vandervere, 401 Ill. App. 3d 712, 715 (2010) (quoting Jackson v. Bailey, 384 Ill. App. 3d 546, 549 (2008)).Thus, while a showing of a meritorious defense and due diligence is no longer indispensable to relief from a default judgment, those considerations have a place in the overall inquiry. As this court noted in Venzor v. Carmen's Pizza Corp., the primary authority on which defendants rely:
" 'The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant's delay in responding to the court's command actually jeopardizes plaintiff's basic position. But this should not be the only, nor necessarily, theWe went on to emphasize that default judgments should be entered sparingly:
determining factors [sic]. It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.' " 235 Ill. App. 3d 1053, 1058 (1992) (quoting Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill. App.2d 102, 108-09 (1960).
" 'The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.' "Id. (quoting Widicus, 261 Ill. App. 2d at 109).¶ 25 As for the standard of review, the supreme court has recently said that the trial court's "decision as to whether the default should be set aside [under section 2-1301(e)] is discretionary," with the trial court bearing in mind (1) that "entry of default is a drastic remedy that should be used only as a last resort"; (2) that "[t]he law prefers that controversies be determined according to the substantive rights of the parties"; and (3) that "[t]he provisions of the Code of Civil Procedure governing relief from defaults are to be liberally construed toward that end." In re Haley D., 2011 IL 110886, ¶ 69. Since it is a discretionary ruling, the trial court's disposition of a section 2-1301(e) motion is, we have held, reversible only for abuse of that discretion. See Jacobo, 401 Ill. App. 3d at 715; Marren Builders, Inc. v. Lampert, 307 Ill. App. 3d 937, 941 (1999). "A trial court has abused its discretion when it acts arbitrarily without the employment of conscientious judgment or if its decision exceeds the bounds of reason and ignores principles of law such that substantial prejudice has resulted." Marren Builders, 307 Ill. App. 3d at 941. ¶ 26 Our decision in Venzor is the only case to which defendants compare the facts at hand. The appellant in Venzor was a third-party defendant in a personal injury action. Three months after being served with the third-party complaint and summons, the appellant was served with a "notice of motion for default hearing" that was scheduled for the same date as the trial. Venzor, 235 Ill. App. 3d at 1055. At the hearing, the appellant appeared with counsel. The plaintiff and the defendant (also the third-party plaintiff) advised the court that they had settled for $100,000. Counsel for the appellant moved for leave to file an appearance, additional time for the appellant to file an answer, and a continuance of the trial on the third-party action. Counsel explained that the appellant "was unaware of the significance of the summons he had been served." Id. The trial court denied the requests and entered a default judgment against the appellant for $100,000. The appellant subsequently moved under section 2-1301(e) to vacate the default. The trial court denied the motion. Id. ¶ 27 We held that the denial was erroneous. Against the third-party plaintiff's assertion that the appellant failed to provide any excuse in the trial court as to why he did not timely defend the third-party action, we noted that the appellant did claim that he failed to understand the significance of the summons. While this was, we acknowledged, a "poor excuse for [the] inaction," we did not believe that the appellant should have been "saddled with a $100,000 default judgment as a result of this ignorance." Id. at 1058. We also noted that the amount of the default was "not determined through any evidentiary proceeding as to either damages or comparative negligence." Id. at 1058-59. We found it unjust for the appellant to "pay such an amount for his default" where there was no evidence "that his failure to respond to the summons amounted to a contumacious flouting of judicial authority, or amounted to an attempt to elude service." Id. at 1059. "In addition," we noted, we saw "nothing in the record to indicate that [the appellant's] counsel lacked diligence to such an extent as to warrant a default judgment." Id. ¶ 28 The third-party plaintiff also argued that the appellant failed to show that he had a meritorious defense, but we noted that it was "no longer necessary that section 2-1301(e) relief be sought on the ground that there is a meritorious defense." Id. at 1059. We further noted that the third-party plaintiff failed to argue, and the record did not indicate, that it would suffer hardship by having to undergo a trial on the merits. Id. There would indeed, we noted, be hardship to the appellant from letting the default stand:
"[T]he trial court has entered a default judgment in the amount of $100,000. The effect of this judgment is to completely indemnify an alleged joint tort-feasor without any showing of fault or fault allocation. No reasonable person could agree, under the circumstances of this case, that [the appellant] should be saddled with such a responsibility. Moreover, judicial procedure should not be used as a means to obtain 'no cost' liability insurance coverage." Id.¶ 29 Venzor is significantly unlike the present case. The default judgment in Venzor was the first against the appellant. Here, the default judgment that defendants appeal was the second against them in the same proceeding. Defendants have provided no explanation for their nonappearance on August 3, 2011, which resulted in the first default judgment. (Below, defendants contended that the first default judgment was void as to defendant Bachrach, but they do not reassert that position on appeal.) The trial court vacated that judgment on November 1 and set the matter for a status hearing in one month. Heightened caution was then in order, yet defendants again failed to appear. Defense counsel has assumed the blame. The trial court, however, insinuated some skepticism of counsel's claim to have incorrectly entered the December 2 status date into his calendar. Certainly, the trial court was better positioned than this court to assess counsel's credibility. See McDonnell v. McPartlin, 192 Ill. 2d 505, 529 (2000). In any case, we charge counsel's lapses to defendants in considering whether they exercised due diligence. See Campbell v. White, 187 Ill. App. 3d 492, 503 (1989) (in judging due diligence as a factor under section 2-1301(e), "it seems appropriate *** that the attorney's negligence is chargeable to the party"). Additionally, we note that, unlike in Venzor, defendants have claimed no failure to appreciate the significance of any of the proceedings below. ¶ 30 Venzor also compares poorly to the case at hand in terms of the hardships to the defaulted parties. The default judgment here (for $5,000) was a small fraction of the judgment entered in Venzor (for $100,000), and that disparity widens even further when we consider that the consumer price index has risen 63% since 1992 according to the Bureau of Labor Statistics (retrieved from http://www.bls.gov/data/inflation_calculator.htm). See Lahman v. Gould, 82 Ill. App. 2d 220, 229 (1967) ("As a matter of law, it is clear that our courts will take judicial notice, and will not require proof, of periods of inflation and deflation."). ¶ 31 In addition to discussing Venzor, defendants raise several points, none of which persuade us that the trial court erred in declining to vacate the December 2 default judgment. First, defendants contend that, in moving orally, and without notice, for the second default judgment, plaintiffs failed to comply with supreme court and local rules regarding notice and service. As defendants did not raise this contention in the court below, it is forfeited for review. See Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996) ("It is well settled that issues not raised in the trial court are deemed waived and may not be raised for the first time on appeal."). ¶ 32 Second, defendants maintain that plaintiffs acted disingenuously in failing to advise the court on December 2 that settlement negotiations were underway and that plaintiffs had only recently responded to defendants' settlement offer. "As a result," defendants contend, "the trial court did not have the proper facts before it on which to base its decisions and therefore ruled erroneously." By the time, however, that the court ruled on the motion to vacate, it did have knowledge that settlement negotiations were ongoing on December 2, yet the court still declined to vacate the default judgment. This was reasonable, as even a strong likelihood of settlement would not have exempted defendants from their obligation to appear on December 2. ¶ 33 Relatedly, defendants claimed that plaintiffs owed them at least the professional courtesy of a phone call during the December 2 status hearing. Our standard is not what courtesies counsel owed each other but whether the trial court did substantial justice. It was defendants' own responsibility to insure their compliance with the court's order setting the December 2 status date (which, we add, was drafted by defendants). Their nonappearance was in no way plaintiffs' doing, and plaintiffs were well within their rights in asking for a default judgment on that date. ¶ 34 Third, defendants suggest that the trial court could have taxed them plaintiffs' attorneys fees for the December 2 missed appearance rather than impose the extreme penalty of a default judgment. The choice of penalties was committed to the trial court's discretion, though we are mindful that the " 'drastic' " penalty of a default is to be used sparingly. Venzor, 235 Ill. App. 3d at 1053 (quoting Widicus, 26 Ill. App. 3d at 109). We weigh the severity of the penalty against the magnitude of the offense. The two defaults caused at least eight months of delay: the first default occurred on August 3, 2011, and the hearing on the motion to vacate the second default did not occur until April 5, 2012. The court could, in its discretion, consider default a proportionate penalty. ¶ 35 Fourth, defendants contend that the trial court erred in holding that they demonstrated no meritorious defense to plaintiffs' action. While the existence of a meritorious defense is no longer a requisite to a successful section 2-1301(e) motion, it is a factor that courts consider in judging whether vacatur of the default judgment would promote substantial justice. See Merchants Bank v. Roberts, 292 Ill. App. 3d 925, 930 (1997) ("While a meritorious defense is no longer a necessary ground for seeking relief under section 2-1301(e) [citing Venzor, 235 Ill. App. 3d at 1059], it is still a factor in determining whether the judgment should be vacated."). Defendants claimed below that plaintiffs accepted an oral modification that shortened the lease term. The trial court rejected the possibility of an oral modification given the following language in the lease: "This document and the documents incorporated herein are the entire agreement of the parties and no representations of either party are binding unless contained herein." The court correctly construed this as an integration clause. By including such a clause, contracting parties "explicitly manifest[] their intention to protect themselves against misinterpretations which might arise from extrinsic evidence." Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 464 (1999). Therefore, where a facially unambiguous contract contains an integration clause, no extrinsic evidence may be allowed to bear upon the terms of the contract. Id. at 465. ¶ 36 Defendants only argument here is that the clause was intended "to apply only to prior representations before the lease was executed" and that "[n]owhere is there the usual language to the effect that there could be no modifications to the lease except in writing." We disagree. The lease unqualifiedly excludes all representations that are contained neither in the lease itself nor in any document incorporated into it. This exclusion of extrinsic representations is not limited to oral representations, nor to representations made after the lease is signed. Accordingly, we conclude that defendants have failed to demonstrate that they possess a meritorious defense to plaintiffs' action. ¶ 37 Defendants' fifth contention is that plaintiffs did not comply with the directive in section 2-1302(a) of the Code (735 ILCS 5/2-1302(a) (West 2012)) that the party who moved for the default judgment provide "immediate notice" of the entry of the judgment. While it seems plaintiffs themselves provided no notice of the December 2 default, the clerk of the trial court sent notice four days later on December 6. Therefore, defendants were not prejudiced. Rather, defendants, as the trial court noted, induced delay by not filing their motion to vacate until January 3, 2012. That motion, consisting of a one-sentence prayer for relief, could not have taken much time to prepare. Although the filing was within the 30-day statutory window (see 735 ILCS 5/2-1301 (e) (West 2012)), the trial court could rightly consider the lapse of time as further indicia of a lack of due diligence. ¶ 38 Lastly, defendants contend that "[t]here was no, nor could there be, any showing of any attendant hardship upon Plaintiffs to go to trial on the merits, most notably the lack of any showing that counsel's failure to appear actually jeopardized Plaintiff's basic position." This court has held that hardship includes the financial burden of going to trial. See Jacobo, 401 Ill. App. 3d at 716 (2010) ("Defendant's argument that requiring plaintiff to proceed to trial would not result in hardship to her ignores that, in that case, plaintiff would necessarily incur additional litigation expenses."). Moreover, we think the financial impact of going to trial should be considered not in isolation, but together with the cost and inconvenience previously borne by that party. In this case, eight months were consumed by proceedings related to the default judgments. During that time, plaintiffs were required to make several court appearances and to file a response to the second motion to vacate. After this time and expense, even a trial on a small claims case was more than could reasonably be expected of plaintiffs. ¶ 39 In light of the relevant factors, we hold that the trial court did not abuse its discretion in determining that denial of the second motion to vacate was consistent with substantial justice.
¶ 40 B. The Award of Damages, Attorneys Fees, and Costs
¶ 41 Defendants contend that, even if the trial court properly declined to vacate the default judgment itself, they were at least entitled to contest damages, attorneys fees, and costs before the trial court. Here, defendants make a showing of prima facie error by the trial court, justifying relief. They cite two decisions, one from our supreme court, Elfman v. Evanston Bus Co., 27 Ill. 2d 609 (1963), and one from this court, Goczeski v. Horizon Development Co., 102 Ill. App. 3d 6 (1981). Elfman holds that, "[a]though defaulted, where the action is in tort or for an unliquidated claim or amount, a defendant nonetheless has the right to be heard on the matter of damages." 27 Ill. 2d at 614. Citing Elfman and other authorities, we held in Goczeski that the trial court "erred in assessing specific damages against the defendants without affording them an opportunity to contest the basis of such damage or the extent thereof." Goczeski, 102 Ill. App. 3d at 9. "[A] default judgment," we said, "does not foreclose the defendant on the issue of damages where there had been no opportunity for the defendant to be heard on that issue." Id. at 9. Here, the damages were unliquidated, and defendants were denied an opportunity to contest them. Therefore, we vacate the damages award and remand for the trial court to afford defendants the chance to contest the amount of damages, attorneys fees, and costs.
¶ 42 III. CONCLUSION
¶ 43 For the foregoing reasons, we affirm the trial court's entry of the December 2 default judgment and its denial of defendants' motion to vacate the judgment. We vacate, however, the award of damages and remand this matter so that defendants may have an opportunity to contest the amount of damages, attorneys fees, and costs. ¶ 44 Affirmed in part and vacated in part. ¶ 45 Cause remanded.