Corporate Registered Agent’s Inaction Not Binding On Corporation: Court Vacates One-Year Old Default Judgment

West Bend Mut. Ins. Co. v. 3RC Mechanical and Contracting, Inc., 2014 IL App (1st) 123213, presents a recent and detailed illustration of the prevailing Section 2-1401 (735 ILCS 5/2-1401) standards to vacate judgments that are between 30 days and two years old.

The plaintiff (as subrogee of its insured) filed suit against a mechanical contractor – an Illinois LLC – for breach of an oral construction contract.  But before plaintiff filed suit, and without plaintiff’s knowledge, the contractor filed for bankruptcy protection.  When plaintiff learned of the contractor’s bankruptcy, it got permission from the bankruptcy court to continue the breach of contract suit against the contractor in state court.

Over the next several months, the contractor was a no-show at several (breach of contract suit) court hearings.   The plaintiff sent two motions for default and a default order to the contractor’s former registered agent and to the contractor’s former business address – an address from which the contractor moved before the lawsuit was filed.  The registered agent never notified the contractor’s managing partner of the state court case’s status and never sent the managing partner court orders or motions even though the partner’s identity and address was listed in the corporate bankruptcy filings.  The trial court entered an approximately $80,000 default judgment against the contractor.   About five months later, when the contractor learned of the default, it filed a Section 2-1401 petition to vacate the default judgment.  The contractor’s petition to vacate was granted and the plaintiff appealed.

Held: Affirmed.

Rules/Reasoning:

Code Section 2-1401 provides a mechanism for someone to vacate a judgment more than 30 days old.  The party moving to vacate a 30-plus days’ old judgment must support the petition with an affidavit and show (1) a meritorious defense; (2) due diligence in raising the defense in the underlying case; and (3) due diligence in filing the section 2-1401 petition for relief from the judgment.  3RC, ¶ 11.

Due diligence in bringing the 2-1401 motion is established as long as it’s filed within two years of the judgment.  2-1401(c), (¶ 12).  A meritorious defense is one that raises a question of law that deserves to be factually investigated.  As for the second element – due diligence in raising a defense – the court looks to whether the 2-1401 petitioner had a reasonable excuse for failing to timely act as opposed to simple oversight or negligence.  The petitioner must show that his failure to defend the suit was an “excusable mistake” and that he acted reasonably in initially failing to defend the suit. (¶ 14).

Here, the contractor defendant established due diligence in filing the petition since it brought the petition to vacate some five months after the judgment entered – well within the two-year statutory cut-off.  The contractor also established a meritorious defense: it asserted that there was no written or verbal contract between it and the plaintiff and filed a supporting, sworn affidavit.

On the due diligence in presenting a defense element, the court noted that plaintiff repeatedly sent court papers to the corporation’s former registered agent and to the wrong address – the corporation’s former place of business that had been closed for more than a year.  The corporation’s ex-registered agent failed to notify the corporate managing partner of the lawsuit and the default order.

The Court also noted that plaintiff failed to send court orders directly to the corporate managing partner, even though the managing partners’ address was prominently listed in various corporate bankruptcy filings.  Because of this, the Court agreed with the trial court and found that defendant demonstrated a reasonable excuse for not appearing in and defending the underlying case.  (¶¶ 14-16).

Take-aways: This case presents a good snapshot of Section 2-1401 motion practice including the required showings necessary to vacate a dated judgment (between 31-730 days old).  It also shows the perils of not properly serving default orders on a corporate defendant.

When dealing with a defunct or financially foundering corporation that’s not represented by counsel, I always try to serve the corporation at its registered office or, failing that, I serve a corporate officer.  If necessary, I hire a process server to skiptrace the corporate principals so I can show the court I did all I could to notify the corporate defendant of a default order or judgment.

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Agent of Disclosed Principal in Contract Litigation (Is It A Corporate Or a Personal Obligation?)

 

imageSometimes it’s difficult to determine who the contracting parties are.  A common example is where the contract text names the parties are two corporations but it’s signed by an individual.  Or, the contract signer clearly notes his corporate affiliation (by stating his job title) next to his signature, but the body of the contract states that the parties are individuals (not corporations) or that the signer is personally guaranteeing the corporate obligations.

Yellow Book Sales and Distribution Co. v. Feldman, 2012 IL App (1st) 120069 illustrates the importance of signature line clarity in contracts in determining the responsible party if a contract is breached.

In Yellow Book, the plaintiff sued an officer of a defunct corporation for breach of  several advertising contracts.  The contract was between two corporations – an advertising firm (plaintiff) and a glass company.  The glass company’s President signed the contracts and wrote “President” or “Pres.” next to his signatures.

The contracts’ signature blocks provided that the signer “personally and individually” assumed full responsibility for the contracts and a contract term on the back page also provided that the signer guaranteed the corporate obligations.

After the corporation dissolved (the corporation was in good standing when the contracts were signed), the plaintiff sued the corporate officer individually for unpaid invoices.  After a bench trial, the trial court found for the plaintiff and the officer appealed.

Result:  Affirmed.

Reasoning:

The contract clearly provided in two different places (signature block and the “Terms and Conditions” section) that the defendant was signing both for the corporation and for himself.

Generally, when a corporate officer signs a contract and indicates his corporate status next to his signature, this insulates the officer from personal liability.  ¶ 38. 

This is a manifestation of the agent of a disclosed principal rule – a corporate officer isn’t personally liable on contracts he signs on behalf of his corporate principal/employer.  (¶¶ 38, 48); See 810 ILCS 5/3-402(a)(b) (where organization name is followed by signature of representative, the signature is deemed made in representative capacity).

The contracts’ text stated that the contracting parties were two corporations and the corporate officer who signed the contracts indicated his corporate affiliation (“Pres.”, “President”) next to his signatures.

Still, this wasn’t enough to defeat the clear contract language in two separate locations that unequivocally stated the defendant was personally guaranteeing the corporation’s contract obligations.

Also critical to the First District’s ruling was the bargaining equality element: the defendant was a lawyer and experienced businessman who testified he clearly understood the difference between personal and corporate liability.

There was also trial testimony that showed defendant was given an opportunity to review the contracts before he signed them and the parties had done business together for over a decade.

Lastly, the Court also noted that defendant made no attempt to either cross out the contracts’ guarantee language or insert language that clarified he was signing only for the corporation and not for himself.  ¶¶ 46-48.

Afterwords:

1/ The contract text and signature line should clearly identify the contracting parties and the signature block should reflect who is signing – an individual, a business entity or both.

2/ If the intent is for the contract to bind a business entity only (not an individual), the contract and signature block should say so and the signer should note his job title or corporate affiliation.

3/ If a contracting party wants the signing corporate officer to be responsible along with the corporation, the signature line should make clear that the person signing is doing so on his own (and not just his company’s) behalf.