                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Steiner v. Eckert, 2013 IL App (2d) 121290




Appellate Court            GREGORY STEINER and AGRISTAR FROZEN FOODS, INC.,
Caption                    Plaintiffs-Appellees, v. JEFFREY P. ECKERT, Defendant-Appellant
                           (Platinum Frozen Foods, Inc., Benchmark Holdings Group, Inc.,
                           Meadows Cold Storage, Inc., and Americe, Inc., Defendants).



District & No.             Second District
                           Docket No. 2-12-1290


Filed                      August 23, 2013
Rehearing denied           October 4, 2013


Held                       The trial court’s decision to enforce the parties’ settlement agreement as
(Note: This syllabus       amended by their forbearance agreement was upheld on appeal, since the
constitutes no part of     trial court had a proper basis for concluding that the parties had entered
the opinion of the court   into a settlement agreement and, as modified by the forbearance
but has been prepared      agreement, the settlement agreement unambiguously provided for the
by the Reporter of         entry of a judgment against defendant for $1 million if he was still in
Decisions for the          default after the expiration of the eight-month forbearance period.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 09-CH-2305; the
Review                     Hon. Terence M. Sheen, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 David Drenk, of Leoris & Cohen, P.C., of Highland Park, for appellant.
Appeal
                           Neal H. Levin and Ryan W. Blackney, both of Freeborn & Peters LLP,
                           of Chicago, for appellee.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justices Hutchinson and Hudson concurred in the judgment and opinion.




                                             OPINION

¶1           Defendant Jeffrey P. Eckert appeals from the order of the circuit court of Du Page County
        granting plaintiff Gregory Steiner’s amended motion for enforcement of a settlement
        agreement and entering judgment in favor of Steiner for $1 million, and from the trial court’s
        subsequent order denying Eckert’s motion to vacate.1 Because the trial court did not abuse
        its discretion either in granting the amended motion to enforce the settlement agreement or
        in entering judgment, we affirm.

¶2                                         I. BACKGROUND
¶3          Plaintiffs, Steiner and AgriStar Frozen Foods, Inc., filed a 12-count complaint against,
        among others, Eckert and Platinum Frozen Foods, Inc., of which Eckert was the sole officer,
        director, and shareholder. Steiner and Eckert entered into a settlement agreement, dated June
        29, 2010, and an addendum thereto, dated August 10, 2010, under which Eckert agreed to
        pay Steiner a certain amount of money in exchange for dismissal of plaintiffs’ claims. The
        settlement agreement further provided that plaintiffs’ claims would be dismissed with leave
        to reinstate should Eckert default under the settlement agreement. The settlement agreement
        also stated that, if Eckert satisfied his monetary obligation under its terms, then all claims
        would be dismissed with prejudice. In the event of Eckert’s default, Steiner retained the right
        under the settlement agreement to obtain a judgment against Eckert for $1 million minus any
        amounts received under the settlement agreement.
¶4          On September 3, 2010, the trial court entered an agreed order that stated that the “parties
        have entered a [s]ettlement [a]greement resolving the claims of this litigation.” The
        September 3 order also provided that, by “agreement of the parties, and pursuant to the
        [s]ettlement [a]greement,” the complaint was dismissed without prejudice to plaintiffs’ right
        to reinstate if Eckert defaulted under the settlement agreement. The order further stated that,


               1
                Although the notice of appeal also refers to the March 27, 2012, order denying Eckert’s
        motion to disqualify Steiner’s counsel, he raises no issue on appeal as to that ruling.

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       upon satisfaction of the monetary obligation under the settlement agreement, the complaint
       would be dismissed with prejudice. Also, a counterclaim, filed by Platinum Frozen Foods,
       Inc., was dismissed, and the trial court retained jurisdiction to enforce the settlement
       agreement. The order was signed by counsel for plaintiffs and by attorney Douglas Drenk for
       Eckert and Platinum Frozen Foods, Inc. A handwritten notation, next to Drenk’s signature,
       stated “per clients [sic] express approval 9-2-2010.”
¶5         On February 8, 2011, Steiner and Eckert entered into a written “forbearance agreement,”
       requiring Steiner to forgo enforcing his rights under the settlement agreement for a period
       of eight months. In consideration of such forbearance, Steiner would “cause to be executed”
       a judgment in the amount of $1 million in favor of himself and against Eckert. The
       forbearance agreement further provided that, during the eight-month period, execution of the
       judgment would be stayed and not “entered on the docket.” Finally, the forbearance
       agreement stated that, if Eckert were in default under the settlement agreement at the end of
       the eight-month period, Steiner could “have the [j]udgment entered on the docket, record the
       [j]udgment and execute upon the [j]udgment,” as well as exercise any other rights and
       remedies under the settlement agreement.
¶6         On December 11, 2011, Steiner filed a combined, amended motion to enforce the
       settlement agreement and for entry of judgment (amended motion). The amended motion
       referred to the settlement agreement, the forbearance agreement, and the September 3, 2010,
       agreed order. The amended motion asserted that, as of its date, Eckert had not paid any
       money toward satisfaction of the amount owed under the settlement agreement. The amended
       motion thus asserted that Eckert was in default under the settlement agreement and the
       forbearance agreement and that entry of judgment in the amount of $1 million was proper.
       The amended motion asked the trial court to enter a judgment of $1 million in favor of
       Steiner and against Eckert.
¶7         On December 21, 2011, attorney Daniel Voelcker filed a “supplemental appearance” on
       behalf of Eckert. The next day, Eckert filed a motion to disqualify Steiner’s attorney.
¶8         After denying the motion to disqualify on March 27, 2012, the trial court set a briefing
       schedule on Steiner’s amended motion. The trial court also set the amended motion for a
       hearing on July 12, 2012. On May 8, 2012, Eckert filed a motion to stay the briefing schedule
       and hearing on the amended motion. However, the record reflects that the motion to stay was
       never noticed up or ruled on. Eckert never filed any written response to Steiner’s amended
       motion.
¶9         At the July 12 hearing on the amended motion, Eckert was represented by an attorney
       from the Voelcker law firm. Additionally, Drenk stated that he would be seeking leave to file
       an appearance as additional counsel for Eckert.2
¶ 10       Also at the July 12 hearing, the trial court noted that Eckert had filed no response to the
       amended motion. The trial court further stated that “there’s no reason ***, based on the


              2
                Although the transcript states that Drenk was going to seek to file his appearance for
       “Steiner,” that is clearly in error as Drenk’s subsequently filed appearance stated that he was
       representing Eckert.

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       unopposed pleadings, *** [not to] grant the [m]otion to [e]nforce the [s]ettlement and [e]ntry
       of [j]udgment,” and that it was “going to do that” because “there [were] no pleadings filed
       in response to [the motion].” Eckert’s attorney did not respond or object to the amended
       motion or the trial court’s comments during the hearing. The trial court entered a written
       order on that same date, stating that Eckert failed to file a response to the amended motion
       and entering a judgment in favor of Steiner and against Eckert in the amount of $1 million
       plus postjudgment interest.
¶ 11        On August 10, 2012, Eckert, represented by Drenk, filed a verified motion to vacate the
       July 12, 2012, judgment pursuant to “735 ILCS 5/2-1203 and/or 735 ILCS 5/2-1301(e)
       [(West 2010)].” In the motion to vacate, Eckert contended that no valid settlement agreement
       was shown to exist by either verified pleadings or evidence. Additionally, Eckert argued that
       the settlement agreement, if it did exist, made “no sense whatsoever and [was] completely
       ‘nonsensical’ and unenforceable even if valid.”
¶ 12        On November 1, 2012, the trial court conducted a hearing on the motion to vacate. The
       trial court ruled that there was not a “mistake of fact, a mistake of law, [or] a change in the
       law.” The trial court further stated that its July 12 order showed that, although Eckert was
       given an opportunity to object to Steiner’s amended motion, he failed to do so. The trial court
       also explained that it had previously noted that there was a settlement agreement and that it
       had retained jurisdiction to enforce it. The trial court added that there was “no issue as to
       whether there was an agreement or not,” because the agreement had never been contested and
       Eckert’s pleadings had admitted its existence. The trial court also found that the settlement
       agreement was not ambiguous. The trial court therefore denied the motion to vacate. In doing
       so, it further stated that section 2-1301(e) of the Code of Civil Procedure (735 ILCS 5/2-
       1301(e) (West 2010)) “really doesn’t apply.” Following the denial of his motion to vacate,
       Eckert filed this timely appeal.

¶ 13                                        II. ANALYSIS
¶ 14       On appeal, Eckert, relying on sections 2-1301 and 2-1203, contends that the trial court
       abused its discretion when it summarily granted the amended motion and entered judgment
       in favor of Steiner, because Steiner submitted no verified pleadings or evidence to establish
       the existence of the settlement agreement. Alternatively, Eckert argues that, even if the
       settlement agreement had been shown to exist, there should have been an evidentiary hearing
       before enforcing it, because its terms were ambiguous. We will address each of these
       contentions in turn.
¶ 15       Preliminarily, however, we address Eckert’s procedural contention that the trial court
       effectively entered a default judgment against him for failure to plead when it granted the
       amended motion and entered judgment for $1 million. He relatedly contends that the “default
       judgment” was improperly entered because Steiner never established the existence of the
       settlement agreement or the forbearance agreement by way of an evidentiary “prove up.” As
       the trial court correctly noted, there was no default judgment entered in this case. A default
       judgment can be entered only for want of appearance or failure to plead. Teitelbaum v.
       Reliable Welding Co., 106 Ill. App. 3d 651, 658 (1982); see also 735 ILCS 5/2-1301(d)


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       (West 2010) (default judgment may be entered for want of appearance or failure to plead).
       Eckert’s failure to respond in writing or otherwise object to the amended motion does not
       make the resulting judgment one based on default for a failure to plead. See KSAC Corp. v.
       Recycle Free, Inc., 364 Ill. App. 3d 593, 597 (2006) (a motion is not a pleading). By entering
       into the settlement agreement and the forbearance agreement, Eckert negated any need to
       plead or otherwise respond to Steiner’s complaint. Therefore, the trial court correctly ruled
       that there was no default judgment entered and that section 2-1301(e) did not apply in this
       case. Accordingly, we need not consider Eckert’s argument based on section 2-1301(e). Even
       if we were to consider that argument, it would fail because Eckert failed to raise the issue
       before the trial court granted the amended motion and entered judgment. See In re B.L., 315
       Ill. App. 3d 602, 605 (2000) (party may not acquiesce in procedure and complain on appeal).
¶ 16        As noted, Eckert’s motion to vacate also challenged the July 12 order under section 2-
       1203. That provision permits a party to seek to vacate a judgment in a nonjury case. See 735
       ILCS 5/2-1203(a) (West 2010). The purpose of such a motion is to alert the trial court to
       errors it has committed and to afford it an opportunity to correct those errors. Regas v.
       Associated Radiologists, Ltd., 230 Ill. App. 3d 959, 967 (1992). We review the trial court’s
       denial of a section 2-1203 motion for an abuse of discretion. Jacobo v. Vandervere, 401 Ill.
       App. 3d 712, 715 (2010). In deciding whether the trial court abused its discretion in this
       context, the question is not whether we agree with the trial court, but whether the trial court
       acted arbitrarily without conscientious judgment, or, in view of all the circumstances,
       exceeded the bounds of reason and ignored recognized principles of law such that substantial
       prejudice resulted. In re Marriage of Wolff, 355 Ill. App. 3d 403, 409 (2005).
¶ 17        A trial court is authorized, under certain circumstances, to summarily enforce a
       settlement agreement entered into by the parties while the suit is pending. Pritchett v.
       Asbestos Claims Management Corp., 332 Ill. App. 3d 890, 896-97 (2002). Settlement
       agreements are encouraged and are given full force and effect. Green v. Safeco Life
       Insurance Co., 312 Ill. App. 3d 577, 581 (2000). Illinois courts recognize settlement
       agreements when they are based upon sufficient consideration and the parties have met on
       equal terms. McAllister v. Hayes, 165 Ill. App. 3d 426, 427 (1988). We will not disturb a trial
       court’s decision to enforce a settlement agreement absent an abuse of discretion. Lampe v.
       O’Toole, 292 Ill. App. 3d 144, 146 (1997).
¶ 18        To enforce a settlement agreement, the movant must allege the liability of the
       nonmovant, the agreement concerning the amount to be paid, and the acceptance of the
       agreement in settlement of the underlying dispute. McAllister, 165 Ill. App. 3d at 427.
       Settlement agreements are binding so long as there is clearly an offer to compromise,
       acceptance, and a meeting of the minds. Magee v. Garreau, 332 Ill. App. 3d 1070, 1076
       (2002). Counsel may bind a client to a settlement agreement provided that counsel has the
       authority to do so. Lampe, 292 Ill. App. 3d at 146.
¶ 19        In our case, we first address Eckert’s contention that the trial court erred in granting the
       amended motion when Steiner failed to show, via verified pleadings or evidence, the
       existence of a valid settlement agreement. Steiner alleged in his amended motion the
       existence of the settlement agreement, the existence of the forbearance agreement, and the
       precise terms upon which he relied in support of his request for a judgment based on the

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       agreements. Eckert did not dispute these allegations before the trial court entered judgment,
       even though he was given proper notice and ample opportunity to do so. Additionally, the
       trial court had previously entered an “agreed order” expressly recognizing the settlement
       agreement, to which Eckert did not object. Eckert also entered into the forbearance
       agreement, which expressly relied on the existence of the settlement agreement and the fact
       that Eckert was in default under its terms. The foregoing together show that the trial court
       had a proper basis for concluding that the parties had entered into a settlement agreement,
       as modified by the forbearance agreement, and what the relevant terms were.
¶ 20        Eckert attempted to show in his motion to vacate that the trial court had overlooked a
       disputed issue of fact as to whether the parties had entered into a valid settlement agreement
       and that it should have conducted an evidentiary hearing on that issue. Specifically, he
       pointed out that he sent Steiner an email in which he withdrew his settlement offer because
       Steiner had not yet signed the settlement agreement. In his response to the motion to vacate,
       however, Steiner attached another email from Eckert in which Eckert retracted his
       withdrawal.
¶ 21        A settlement agreement requires a meeting of the minds. City of Chicago v. Ramirez, 366
       Ill. App. 3d 935, 946 (2006). An evidentiary hearing regarding the formation and terms of
       a settlement agreement is appropriate when there are disputed factual issues in that regard
       and additional evidence is necessary to satisfactorily resolve the issues. Ramirez, 366 Ill.
       App. 3d at 946. Where there is no legitimate dispute as to the facts essential to a purported
       settlement agreement, the existence of a settlement agreement is a question of law. Ogle v.
       Hotto, 273 Ill. App. 3d 313, 319-20 (1995).
¶ 22        In this case, Eckert never raised any factual issue as to the existence of the settlement
       agreement or its terms, or requested an evidentiary hearing in that regard, prior to the trial
       court’s ruling on Steiner’s amended motion. See In re Estate of Rice, 108 Ill. App. 3d 751,
       759 (1982) (summary proceeding regarding a settlement agreement approved where opposing
       party never objected or requested an evidentiary hearing). In that respect, he forfeited the
       opportunity to do so. See In re B.L., 315 Ill. App. 3d at 605. Although he belatedly attempted
       to raise a factual issue via his motion to vacate, the evidence he relied on was readily
       available to him prior to the trial court’s July 12 order and judgment. As the trial court
       correctly observed, “there was no issue as to whether there was an agreement or not” at the
       time it entered judgment on July 12. This ruling was not arbitrary, nor did it exceed the
       bounds of reason or ignore recognized legal principles such that substantial prejudice
       resulted. See Woolums v. Huss, 323 Ill. App. 3d 628, 640 (2001) (purpose of postjudgment
       motion is not to “add new evidence that could have been produced earlier”).
¶ 23        Eckert next maintains that the trial court should not have entered judgment pursuant to
       the summary proceeding, because the terms of the settlement agreement were ambiguous.
       Again, no such argument was raised prior to the July 12 order, although it readily could have
       been. Moreover, as the trial court stated, the settlement agreement, as alleged, was not
       “ambiguous at all.” This was an accurate characterization, as the settlement agreement, as
       alleged, plainly called for a judgment of $1 million in the event that Eckert failed to comply
       with its terms.


                                                -6-
¶ 24        Finally, we note that the settlement agreement was effectively amended by the
       forbearance agreement. The forbearance agreement, consistent with the settlement
       agreement, provided for a $1 million judgment in the event that Eckert was still in default
       under the settlement agreement after the eight-month period expired. The trial court’s
       decision to enforce the settlement agreement necessarily depended on the forbearance
       agreement. Its July 12 judgment for $1 million based on the settlement agreement, as
       amended by the forbearance agreement, was entirely proper. Eckert has not shown that the
       trial court abused its discretion in enforcing the settlement agreement as amended by the
       forbearance agreement and entering judgment.

¶ 25                                 III. CONCLUSION
¶ 26      For the foregoing reasons, we affirm the order of the circuit court of Du Page County
       granting Steiner’s amended motion to enforce the settlement agreement and its entry of
       judgment in favor of Steiner and against Eckert in the amount of $1 million plus
       postjudgment interest.

¶ 27      Affirmed.




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