                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           Dovalina v. Conley, 2013 IL App (1st) 103127




Appellate Court             BRADLEY DOVALINA, Plaintiff-Appellant, v. JOHN P. CONLEY,
Caption                     Defendant-Appellee (Carl Maruaa and Judy Drozd, Defendants).



District & No.              First District, Fifth Division
                            Docket No. 1-10-3127


Filed                       May 3, 2013


Held                        The grant of defendant’s petition under section 2-1401 of the Code of
(Note: This syllabus        Civil Procedure to reduce the default judgment obtained by plaintiff to
constitutes no part of      $50,000 due to plaintiff’s failure to attach to the complaint an affidavit
the opinion of the court    pursuant to Supreme Court Rule 222(b) that he did or did not seek
but has been prepared       damages in excess of $50,000 was reversed and the cause was remanded
by the Reporter of          with directions to reinstate the original judgment for $128,101.20, since
Decisions for the           plaintiff had a reasonable expectation that any judgment would not be
convenience of the          capped at $50,000, the complaint gave notice that damages in excess of
reader.)
                            $50,000 were sought, Rule 222 did not apply, defendant had no
                            reasonable expectation that Rule 222 did apply, and no harm resulted
                            from the absence of the Rule 222 affidavit.


Decision Under              Appeal from the Circuit Court of Cook County, No. 06-L-66019; the
Review                      Hon. Robert J. Clifford, Judge, presiding.


Judgment                    Reversed and remanded with instructions.
Counsel on                  John E. Partelow, of Law Offices of John E. Partelow, of Chicago, for
Appeal                      appellant.

                            Kevin P. Gosewisch, of Kevin P. Gosewisch P.C., of Chicago, for
                            appellee.


Panel                       JUSTICE PALMER delivered the judgment of the court, with opinion.
                            Presiding Justice McBride and Justice Howse concurred in the judgment
                            and opinion.



                                              OPINION

¶1          Plaintiff Bradley Dovalina won a default judgment in his personal injury action against
        defendant John Conley for $128,101.20. The court reduced the judgment to $50,000 for
        plaintiff’s failure to attach an Illinois Supreme Court Rule 222(b) (eff. July 1, 2006) affidavit
        of damages to his complaint. Plaintiff argues the court erred in reducing the judgment
        because (1) Rule 222 did not apply to plaintiff’s complaint and case; (2) the court had the
        authority to enter a judgment in excess of $50,000; (3) the judgment in excess of $50,000
        was not void; and (4) defendant’s motion to modify the judgment was untimely. We reverse
        and remand with instructions.

¶2                                            Background
¶3          On March 24, 2006, plaintiff filed a verified three-count personal injury action in the law
        division of the circuit court of Cook County sixth municipal district against defendant, Carl
        Maruaa and Judy Drozd. He sought damages “in an amount in excess of $50,000” from each
        of the three defendants. On November 12, 2006, the court entered a default judgment against
        defendant in the amount of $128,101.20. It also entered a judgment in favor of Drozd and
        granted plaintiff’s motion to voluntarily dismiss Maruaa. Only the default judgment against
        defendant is at issue here.
¶4          On December 21, 2006, the court vacated the default judgment on defendant’s motion
        and granted him leave to answer or otherwise plead. Defendant filed an unverified answer.
        On April 6, 2007, the court struck the unverified answer and ordered defendant to file a
        verified answer by April 27, 2007. When defendant failed to do so, the court reinstated the
        $128,101.20 default judgment on May 3, 2007.
¶5          On October 13, 2009, defendant filed a petition to vacate or modify the default judgment
        pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West




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       2010)).1 Defendant claimed that Supreme Court Rule 222(b) required that plaintiff attach to
       his initial pleading an “affidavit that the total money damages sought does or does not exceed
       $50,000” (Ill. S. Ct. R. 222(b) (eff. July 1, 2006)) and, where no affidavit is filed, the
       recovery amount is limited to $50,000.2 Plaintiff had not attached a Rule 222(b) affidavit to
       his complaint. Defendant argued that the $128,101.20 judgment against him was, therefore,
       excessive, beyond the court’s authority and void under Rule 222. Defendant requested that
       the court vacate the judgment. In the alternative, he requested that the court reduce the
       judgment to $50,000. He asserted that, because the judgment against him was void, it could
       be attacked at any time.
¶6          Plaintiff responded that the petition should be denied because it was untimely, it did not
       meet the requirements of section 2-1401 and the default judgment was neither void nor
       excessive. On January 4, 2010, the court granted defendant’s petition “on the basis that the
       judgment is void.” It reduced the judgment against defendant to $50,000 plus costs.
¶7          On September 21, 2010, the court denied plaintiff’s posttrial motion to reconsider. It held
       that the filing of a Rule 222(b) affidavit with the initial pleading is mandatory and plaintiff’s
       failure to attach a Rule 222(b) affidavit to his initial pleading rendered the portion of the
       default judgment in excess of $50,000 void. The court noted that, although defendant filed
       his section 2-1401 petition beyond the statutory two-year time limitation on such actions, this
       deadline did not apply because defendant brought his petition on voidness grounds. Plaintiff
       filed his timely notice of appeal from the court’s orders on October 20, 2010.

¶8                                             Analysis
¶9         Plaintiff argues that the court erred in granting defendant’s section 2-1401 petition and
       reducing the judgment because (1) Rule 222 did not apply to his complaint and case; (2) the
       court had the authority to enter a judgment in excess of $50,000 in the absence of a Rule
       222(b) affidavit; (3) the judgment in excess of $50,000 was not void; and (4) defendant’s
       section 2-1401 petition to modify the judgment was untimely.
¶ 10       Section 2-1401 authorizes a party to seek relief from a final judgment, such as a default
       judgment, when brought more than 30 days after judgment has been entered. Sarkissian v.
       Chicago Board of Education, 201 Ill. 2d 95, 101 (2002). A section 2-1401 petition must be
       filed no later than two years after entry of the order of judgment and set forth a meritorious
       defense or claim, due diligence in presenting that defense or claim to the circuit court and


               1
                  Prior to defendant’s filing of the petition, plaintiff had initiated an action seeking to enforce
       the judgment. At defendant’s request, the court stayed the enforcement proceeding and transferred
       it to the court hearing defendant’s petition.
               2
                Defendant also asserted that Cook County General Order 1.2 required the filing of a Rule
       222 affidavit in actions seeking damages between $50,000 and $100,000. Cook County General
       Order 1.2,2.3(b)(5) does indeed require the filing of a Rule 222 affidavit in such actions, but only
       for actions filed in the municipal department, not for actions filed, as here, in the law division of a
       municipal district court. Cook. Co. Cir. Ct. G.O. 1.2,2.3(b)(5)(iii) (July 12, 2000).

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       due diligence in filing the petition. Protein Partners, LLP v. Lincoln Provision, Inc., 407 Ill.
       App. 3d 709, 715 (2010).
¶ 11       As plaintiff points out, defendant’s section 2-1401 petition was untimely. Defendant filed
       his section 2-1401 petition on October 13, 2009, more than two years after entry of the May
       3, 2007, order reinstating the default judgment. He did not assert any basis for excusing his
       untimely filing, let alone assert a meritorious defense or claim or due diligence of any kind.
       Instead, defendant asserted that he was not barred from seeking relief because he was
       attacking a void judgment and such can be attacked at any time.
¶ 12       Pursuant to section 2-1401(f), a litigant may attack a void judgment at any time, even
       beyond the two-year limitation period of section 2-1401. Ford Motor Credit Co. v. Sperry,
       214 Ill. 2d 371, 379 (2005). The general requirements for a valid section 2-1401 petition–that
       the petitioner must bring the petition within two years of the order of judgment and allege
       a meritorious defense or claim and due diligence–do not apply to petitions seeking to
       invalidate void judgments. Ford Motor Credit Co., 214 Ill. 2d at 379. Generally, the trial
       court has the discretion to grant or deny a section 2-1401 petition and we will not disturb the
       court’s decision on review absent an abuse of that discretion. Kaput v. Hoey, 124 Ill. 2d 370,
       378 (1988). However, “[r]eview of a judgment on a section 2-1401 petition that is requesting
       relief based on the allegation that the judgment is void shall be de novo.” Protein Partners,
       LLP, 407 Ill. App. 3d at 716 (citing People v. Vincent, 226 Ill. 2d 1, 18 (2007), and Rockford
       Financial Systems, Inc. v. Borgetti, 403 Ill. App. 3d 321, 324 (2010)).
¶ 13       A void order or judgment is “one entered by a court without jurisdiction of the subject
       matter or the parties, or by a court that lacks the inherent power to make or enter the order
       involved.” Ford Motor Credit Co., 214 Ill. 2d at 379-80. “A void judgment is from its
       inception a complete nullity and without legal effect.” Ford Motor Credit Co., 214 Ill. 2d at
       380. “ ‘ “[B]ecause of the disastrous consequences which follow when orders and judgments
       are allowed to be collaterally attacked, orders should be characterized as void only when no
       other alternative is possible.” ’ ” Ford Motor Credit Co., 214 Ill. 2d at 380 (quoting Belleville
       Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 341 (2002), quoting In re
       Marriage of Vernon, 253 Ill. App. 3d 783, 788 (1993)).
¶ 14       Initially, plaintiff argues that Rule 222 does not apply to this case. Rule 222 is titled:
       “Limited and Simplified Discovery in Certain Cases.” It “sets forth reforms in the discovery
       process in cases seeking money damages not in excess of $50,000. Two major elements of
       reform are imposed: (1) mandatory disclosure, and (2) limits on discovery.” Ill. S. Ct. R. 222,
       Committee Comments (adopted June 1, 1995). “Rule 222 governs discovery in all cases to
       which it applies.” Kapsouris v. Rivera, 319 Ill. App. 3d 844, 850 (2001). If Rule 222 applies
       in a case, then the parties must comply with its limited and simplified discovery rules rather
       than with the general discovery rules set forth elsewhere in the Illinois Supreme Court rules.
       Kapsouris, 319 Ill. App. 3d at 850.
¶ 15       Rule 222 provides, in relevant part, as follows:
                “(a) Applicability. This rule applies to all cases subject to mandatory arbitration, civil
           actions seeking money damages not in excess of $50,000 exclusive of interest and costs,
           and to cases for the collection of taxes not in excess of $50,000. *** Except as otherwise


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            specifically provided by this rule, the general rules governing discovery procedures
            remain applicable to cases governed by this rule.
                (b) Affidavit re Damages Sought. Any civil action seeking money damages shall have
            attached to the initial pleading the party’s affidavit that the total of money damages
            sought does or does not exceed $50,000. If the damages sought do not exceed $50,000,
            this rule shall apply. Any judgment on such claim which exceeds $50,000 shall be
            reduced posttrial to an amount not in excess of $50,000. Any such affidavit may be
            amended or superseded prior to trial pursuant to leave of court for good cause shown, and
            only if it is clear that no party will suffer any prejudice as a result of such amendment.
            Any affidavit filed pursuant hereto shall not be admissible in evidence at trial.” Ill. S. Ct.
            R. 222 (eff. July 1, 2006).
¶ 16        We interpret a supreme court rule in the same manner as we interpret a statute. Robidoux
       v. Oliphant, 201 Ill. 2d 324, 332 (2002). Therefore, our primary goal is to ascertain and give
       effect to the intent of the drafters of the rule. Robidoux, 201 Ill. 2d at 332. The plain language
       of the rule is the most reliable indicator of the drafter’s intent. Robidoux, 201 Ill. 2d at 332.
       “Where the language of a rule is clear as written, it must be applied without reading into it
       any conditions, exceptions, or limitations not expressed by the drafter.” Timothy Whelan Law
       Associates, Ltd. v. Kruppe, 409 Ill. App. 3d 359, 375 (2011). Only when the meaning of a
       rule is unclear will the court resort to extrinsic aids beyond the language of the rule for
       construction. Grady v. Marchini, 375 Ill. App. 3d 174, 177 (2007). The interpretation of a
       supreme court rule presents a question of law that we review de novo. Robidoux, 201 Ill. 2d
       at 332.
¶ 17        The plain language of Rule 222(a) provides that the rule “applies to *** civil actions
       seeking money damages not in excess of $50,000 exclusive of interest and costs.” Ill. S. Ct.
       R. 222(a). Rule 222(a) clearly states that, where a civil action seeks an amount in excess of
       $50,000, the rule does not apply.
¶ 18        Further, committee comments to the rule explain that “[t]he limited and simplified
       discovery procedures are triggered by the filing of an appropriate affidavit as set forth in
       paragraph (b).” Ill. S. Ct. R. 222, Committee Comments (adopted June 1, 1995). Rule 222(b)
       plainly provides that only “[i]f the damages sought do not exceed $50,000, this rule shall
       apply.” Ill. S. Ct. R. 222(b). Necessarily, therefore, if the damages sought exceed $50,000,
       the rule shall not apply. Clearly, the purpose of a Rule 222(b) affidavit is for the
       determination of whether the simplified discovery rules provided in Rule 222 apply in a
       particular case.
¶ 19        Rule 222(b) provides that “[i]f the damages sought do not exceed $50,000, this rule shall
       apply. Any judgment on such claim which exceeds $50,000 shall be reduced posttrial to an
       amount not in excess of $50,000.” (Emphasis added.) Ill. S. Ct. R. 222(b). Read in context
       with the preceding sentence, “such claim” means a claim in which “the damages sought do
       not exceed $50,000,” i.e., a claim in which the plaintiff has filed an affidavit stating that he
       is seeking less than $50,000 and application of Rule 222 has been triggered. Indeed, neither
       party contests that, where an affidavit is filed stating that damages sought are less than
       $50,000, Rule 222(b) requires that any award in excess of $50,000 should be reduced to


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       $50,000. The question is whether, as defendant asserts, “[i]f the plaintiff fails to file any
       affidavit whatsoever, the case is deemed to be a case that does not exceed $50,000 in
       damages and Supreme Court Rule 222(b) mandates that the damages shall be reduced to
       $50,000.”
¶ 20       Citing Grady v. Marchini, 375 Ill. App. 3d 174 (2007), defendant argued that, pursuant
       to Rule 222(b), the trial court does not have authority to enter a judgment in excess of
       $50,000 where the plaintiff has failed to attach an affidavit to his initial pleading and any
       amount in excess of $50,000 on such a claim should be reduced to $50,000. The trial court
       agreed with this proposition, finding that the filing of a Rule 222 affidavit with the initial
       pleading is mandatory and plaintiff’s failure to file such affidavit deprived the court of
       jurisdiction to enter a judgment in excess of $50,000. The court held that the portion of
       plaintiff’s judgment in excess of $50,000 was void and it, therefore, reduced plaintiff’s
       judgment to $50,000.
¶ 21       Grady is the only published decision on this topic. It is, however, distinguishable from
       the case at bar. In Grady, the plaintiff filed a negligence action against the defendant seeking
       damages in excess of $15,000. Grady, 375 Ill. App. 3d at 175. The plaintiff designated the
       case as an “LM” case, a law magistrate case. Grady, 375 Ill. App. 3d at 175, 179. The
       plaintiff did not attach a Rule 222(b) affidavit to her complaint stating that the damages she
       sought did or did not exceed $50,000. Grady, 375 Ill. App. 3d at 178. After a jury awarded
       the plaintiff $97,700 in damages, the trial court granted the defendant’s motion to reduce the
       award to $50,000 pursuant to Rule 222(b) for plaintiff’s failure to attach the affidavit. Grady,
       375 Ill. App. 3d at 176.
¶ 22       The appellate court affirmed. Grady, 375 Ill. App. 3d at 179. It held:
                “The language of Rule 222(b) is clear. A party shall attach his or her affidavit, which
           states whether the damages sought do or do not exceed $50,000, to the initial pleading.
           Any judgment that exceeds $50,000 shall be reduced to $50,000 if the damages sought
           did not exceed $50,000. The use of the term ‘shall’ indicates a mandatory intent. ***
                *** Thus, the use of ‘shall’ in imposing an obligation on the party to file an affidavit
           with his or her initial pleading stating whether or not he or she is seeking damages in
           excess of $50,000 is likewise mandatory. Plaintiff did not file an affidavit saying she was
           seeking in excess of $50,000. We conclude she is precluded from recovering more than
           $50,000. Rule 222(b) requires the judgment be reduced to $50,000.” (Emphases omitted.)
           Grady, 375 Ill. App. 3d at 178.
¶ 23       The court then stated:
                “We note the complaint sought damages in excess of $15,000 and the case was
           docketed as an LM case. *** ‘A Law Magistrate case number shall be assigned to ***
           actions in which the damages are $50,000 or less. The amount of damages contained in
           the complaint *** determine the category, not the amount of the verdict or judgment.’
           All pleadings had the case designated as an LM case; thus, this was a case seeking
           damages for $50,000 or less. *** This conclusion is supported by the fact [that the
           plaintiff] sought damages in excess of $15,000 in the complaint and not $50,000, the
           amount at which this case would have been given a ‘Law case number.’ ” Grady, 375 Ill.

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            App. 3d at 179.
       The court concluded that “[t]he clear language of the present version of Rule 222 requires
       the trial court to reduce any judgment in excess of $50,000 here.” (Emphasis added.) Grady,
       375 Ill. App. 3d at 179.
¶ 24        Defendant asserts that the Grady court found that, where a complaint does not contain
       an affidavit stating that the plaintiff seeks damages in excess of $50,000, Rule 222(b)
       precludes recovery of more than $50,000 and requires that any judgment over $50,000 be
       reduced to $50,000. Grady does not stand for this proposition. The Grady court’s reduction
       of the judgment to $50,000 was based not only on the fact that the plaintiff failed to file an
       affidavit seeking in excess of $50,000 but also on the amount of damages she actually
       sought. The court held that, under the circumstances of that case, where the plaintiff had
       failed to file a Rule 222(b) affidavit, stated in her complaint that she sought damages “in
       excess of $15,000” and filed her case as a law magistrate case, thus indicating that she was
       seeking damages of $50,000 or less, a reduction from $97,700 to $50,000 was required. The
       Grady court reduced the judgment because plaintiff’s complaint showed she was not seeking
       more than $50,000, not solely because plaintiff failed to file an affidavit stating she was
       seeking in excess of $50,000. Since Rule 222 applies “[i]f the damages sought do not exceed
       $50,000” (Ill. S. Ct. R. 222(b) (eff. July 1, 2006)), Rule 222 clearly applied to the Grady
       plaintiff’s action and the court properly reduced the judgment.
¶ 25        Unlike in Grady, plaintiff here did not seek a judgment that did not exceed $50,000. He
       sought a judgment in excess of $50,000. Plaintiff’s complaint stated he was seeking “in
       excess of $50,000” in damages from each of three defendants, leading to a possible judgment
       in excess of $150,000. Further, plaintiff filed his case as an “L” case, a law division case, in
       the sixth district municipal court. The law division in the sixth municipal district hears civil
       actions for monetary damages in excess of $100,000. Cook Co. Cir. Ct. G.O.
       1.2,2.1(a)(1)(ii), (a)(4)(i) (Aug. 1, 1996). Plaintiff was clearly seeking a judgment in excess
       of $50,000 and, therefore, Rule 222 did not apply to his action.
¶ 26        We grant that Rule 222(b) requires that every plaintiff attach an affidavit to his original
       complaint stating whether the damages sought do or do not exceed $50,000. However, a
       plaintiff’s failure to attach the requisite affidavit does not mean that he is barred from
       recovering a judgment in excess of $50,000. Supreme court rules “ ‘have the force of law,
       and the presumption must be that they will be obeyed and enforced as written.’ ” Robidoux,
       201 Ill. 2d at 332 (quoting Bright v. Dicke, 166 Ill. 2d 204, 210 (1995)). However, supreme
       court rules are to be construed liberally and not literally. Levine v. Pascal, 94 Ill. App. 2d 43,
       59 (1968). “While rules of court are to be obeyed, ‘unswerving obedience’ is not demanded
       where no material harm is done to any litigant.” Levine, 94 Ill. App. 2d at 59 (quoting People
       v. Davis, 357 Ill. 396, 400 (1934)).
¶ 27        Rule 222 makes no provision for when a plaintiff fails to file the requisite affidavit. But,
       as illustrated clearly in Grady, what matters in a determination of whether Rule 222 applies
       to an action is the amount of damages a plaintiff is seeking, whether this is shown by a Rule
       222 affidavit or by a complaint, in order to protect the defendant from surprise. In Grady, the
       plaintiff’s complaint, via her damage claim and designation of her case as a law magistrate


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       case, gave notice to the defendant and the court that she would not seek a judgment in excess
       of $50,000 and that, therefore, Rule 222 applied to her action. Further, based on the
       plaintiff’s complaint and “LM” designation of the case, the defendant could reasonably
       expect that, because the judgment would be capped at $50,000, the simplified and limited
       discovery rules of Rule 222 rather than the usual discovery rules applied. Given these
       expectations, had the Grady court not held the plaintiff to that damage amount by reducing
       the judgment from $97,700 to $50,000, the defendant would have suffered material harm
       from the surprise of a judgment in excess of $50,000.
¶ 28       Unlike in Grady, defendant here did not have a reasonable expectation that plaintiff’s
       damage award would be capped at $50,000. On the contrary, he had a reasonable expectation
       that the judgment would be in excess of $50,000. Plaintiff’s complaint notified defendant
       that he was seeking “in excess of $50,000” in damages from defendant alone. Further,
       plaintiff filed his case in the law division of the sixth district municipal court, which only
       hears civil actions seeking in excess of $100,000 in monetary damages. Defendant thus had
       ample notice that plaintiff was seeking more than $50,000 in damages and that Rule 222,
       therefore, did not apply to the action.
¶ 29       The purpose of a Rule 222 affidavit is to determine whether simplified discovery should
       apply in a particular case, not to limit a plaintiff’s damages. Here, reduction of the judgment
       in excess of $50,000 was not warranted under Rule 222 because Rule 222 did not apply to
       the case, defendant had no reasonable expectation that it did and he suffered no harm from
       plaintiff’s failure to attach a Rule 222 affidavit to his complaint.
¶ 30       Even if Rule 222 did apply to plaintiff’s case, we would not agree with defendant that the
       judgment in excess of $50,000 was void. As noted previously, a void judgment is one entered
       by a court without personal or subject matter jurisdiction or the inherent power to make or
       enter the judgment involved and is subject to collateral attack by a section 2-1401 motion.
       Ford Motor Credit Co., 214 Ill. 2d at 379-80. In contrast, a voidable judgment is one entered
       erroneously by a court having jurisdiction and is not subject to collateral attack. People v.
       Davis, 156 Ill. 2d 149, 155-56 (1993).
¶ 31       Pursuant to the Illinois Constitution, the circuit courts have jurisdiction over all
       justiciable matters. Davis, 156 Ill. 2d at 156. “Generally, once a court has acquired
       jurisdiction, no subsequent error or irregularity will oust the jurisdiction thus acquired.
       Accordingly, a court may not lose jurisdiction because it made a mistake in determining
       either the facts, the law or both.” Davis, 156 Ill. 2d at 156. The court here had jurisdiction
       over both the parties and the subject matter. Further, it had the authority to enter a judgment
       not in excess of the ad damnum clause in plaintiff’s complaint. Charles v. Gore, 248 Ill. App.
       3d 441, 449 (1993) (“In cases of default, a court that grants an award in excess of the ad
       damnum exceeds its authority and that portion of the decree in excess of the ad damnum is
       void.”). Nothing in Rule 222(b) provides that the court does not have the authority to enter
       a judgment in excess of $50,000. Instead, Rule 222(b) merely provides that, under certain
       circumstances, if the court does enter a judgment in excess of $50,000, that judgment shall
       be reduced. Such an order entered in excess of $50,000 would be voidable, not void, and is
       therefore not subject to collateral attack under section 2-1401.


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¶ 32       Defendant’s section 2-1401 petition to vacate or modify the default judgment was filed
       beyond the two-year statutory limitation period on the basis that the underlying default
       judgment was void and could be attacked at any time. That judgment is not void.
       Accordingly, the trial court erred in granting defendant’s untimely section 2-1401 petition.
       See Parker v. Murdock, 2011 IL App (1st) 101645, ¶ 21. We reverse the court’s reduction
       of the default judgment to $50,000.

¶ 33                                        Conclusion
¶ 34       For the reasons stated above, we reverse the decision of the trial court granting
       defendant’s section 2-1401 petition and reducing the default judgment to $50,000. We
       remand to the trial court with instructions to reinstate the original judgment.

¶ 35      Reversed and remanded with instructions.




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