FIFTH DIVISION

                                              September 20, 2002

1-01-2528

ROBERT A. RYAN,					) Appeal from the

								) Circuit Court of

		Plaintiff-Appellee,			) Cook County.	

								)

			v.					)

								)		

ANDREW J. KONTRICK,					) Honorable

								) Dorothy Kirie Kinnaird,

		Defendant-Appellant.		) Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	Defendant Andrew J. Kontrick appeals the order of the trial court granting plaintiff Robert A. Ryan's motion to reinstate in

connection to this court's opinion in Ryan v. Kontrick, 304 Ill. App. 3d 852 (1999) (Ryan I).  Ryan's motion was filed 290 days after a stay was lifted in a bankruptcy proceeding initiated by

Kontrick.  On appeal, Kontrick contends that the trial court

erred in granting plaintiff's motion to reinstate because Ryan

failed to exercise due diligence in filing the motion, as

required by Supreme Court Rule 369(c).  134 Ill. 2d R. 369(c). 

BACKGROUND    

	In Ryan I, Kontrick appealed the trial court's confirmation of a December 1996 arbitration award of $519,324.42 against him

in favor of Ryan, which had resulted from a contract dispute

between the two men, both of whom are medical doctors.  This amount consisted of compensatory and punitive damages and attorney fees and costs.  The trial court also awarded

prejudgement interest on that sum.  In our March 26, 1999,

opinion in Ryan I, we affirmed the arbitrator's awards of compensatory damages and attorney fees, but vacated the punitive

damages award.  The case was remanded for entry of an order

requiring Kontrick to pay interest at the required statutory

rate.  This court's mandate in Ryan I was issued on November 17, 1999.  

	In April 1997, during the pendency of the appeal in Ryan I, Kontrick filed with the bankruptcy court a petition for relief

under chapter 7 of the United States Bankruptcy Code (11 U.S.C. §

701 et seq. (1994)).  In response, Ryan filed a complaint seeking to deny Kontrick a discharge of the amount owed on the

arbitration award.  As a result of Kontrick's bankruptcy

proceeding, an automatic stay was imposed prohibiting any further

proceedings against Kontrick.  In addition to the Ryan I appeal, this stay affected two other suits, one in Lake County and one in

Cook County, that Ryan had pending against Kontrick.  The stay

was later modified to allow Kontrick to proceed with his appeal

in Ryan I. 

	On June 13, 2000, the bankruptcy court entered its order

denying Kontrick a discharge, which was the subject of a motion

to amend.  On July 10, 2000, the bankruptcy court entered its

amended order, which also denied Kontrick a discharge.  On July 20, 2000, the automatic stay was lifted by operation of law. 

Kontrick then appealed the bankruptcy court's order denying

discharge, and the Court of Appeals for the Seventh Circuit

affirmed the bankruptcy court's order while the instant case was

under advisement.  In re Kontrick, 295 F.3d 724 (7th Cir. 2002).   	On February 7, 2001, Ryan, through his attorney, filed a

wage garnishment and citation to discover assets to enforce the

December 1996 arbitration award, which had been reversed in part

in Ryan I.  Kontrick moved to quash on the ground that the trial court lacked jurisdiction to enforce the reversed judgment and

that Ryan had failed to reinstate the case as required by Supreme

Court Rule 369(c).  The trial court granted Kontrick's motion to

quash, and Ryan's attorney, who had filed the garnishment and

citation, was sanctioned. 

	On March 30, 2001, Ryan filed his motion to reinstate under

Supreme Court Rule 369(c).  In the memorandum in support of his

motion, Ryan argued that he did not have a duty to reinstate

because Kontrick was the prevailing party for purposes of Rule

369(c).  In the alternative, Ryan noted that since the date the

automatic stay was dissolved, he and Kontrick had been involved

in other proceedings relating to Ryan's collection of the

arbitration award.  Based upon Kontrick's acquiescence to

repeated deferrals in a case involving the allegedly fraudulent

transfer of funds from Kontrick to his wife, Ryan argued that

Kontrick had acquiesced to the delay in filing for reinstatement.  Ryan also argued that the parties had been "actively preoccupied"

with proceedings relating to sanctions brought against Ryan and

his attorney in bankruptcy court. 

	Ryan further argued that to grant reinstatement would

undermine neither the orderly disposition of the case nor the

policy considerations behind Rule 369(c) and asserted that he had

delayed seeking reinstatement because if Kontrick were to win his

appeal of the bankruptcy court's denial of discharge, Ryan would

be required to return the funds he had collected.  Ryan asserted that he would be "inequitably and grievously harmed" and that

Kontrick would receive an undeserved windfall if reinstatement

were denied.

	After hearing arguments, the trial court granted Ryan's

motion to reinstate, noting that the litigation between Ryan and

Kontrick, which included both the State court proceedings

involving the arbitration award and the federal bankruptcy

proceedings, had been "vigorously fought."  Reinstatement aside,

the trial court questioned whether collection of the arbitration

award could occur prior to a conclusion of the appeal relating to

Kontrick's discharge proceedings.  The trial court distinguished

the cases involving Rule 369(c) from the instant case, by stating

that only the "ministerial task of computation" was necessary in

the instant case, which was different from other cases, where

there was "a lot to be done" after remand.  After the parties

filed competing memoranda regarding the manner in which post- judgment interest should be calculated, the trial court entered

its amended judgment in favor of Ryan for $422,414.53.  This

appeal followed.  

ANALYSIS

	Kontrick contends that the trial court erred in granting

Ryan's motion to reinstate.  He argues that as the prevailing

party in Ryan I, Ryan has failed to establish due diligence under Supreme Court Rule 369(c).  

	Supreme Court Rule 369(c) provides that, "When the reviewing

court remands the case for a new trial or hearing and the mandate

is filed in the circuit court, the case shall be reinstated

therein upon 10 days' notice to the adverse party."  134 Ill. 2d

R. 369(c).  The parties seem to agree that to be timely under the

circumstances of this case, the motion to reinstate should have

been filed within 10 days of July 20, 2000, the date the

automatic stay was lifted following the denial of Kontrick's

discharge petition. 

	When determining whether a party has reinstated a case

within a reasonable period of time, it is proper for a court to

consider the totality of the circumstances, particularly any

reasons offered for an undue delay.  People v. NL Industries, Inc., 297 Ill. App. 3d 297, 300-01 (1998).  The reasonableness requirement is considered in terms of whether a petitioner has

exercised due diligence in filing the petition.  National Underground Construction, Co. v. E.A. Cox Co., 273 Ill. App. 3d 830, 837 (1995).  When considering cases under Rule 369(c), this

court may consider cases brought under section 2-1401 of the

Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)),

addressing the issue of due diligence.  See National Underground, 273 Ill. App. 3d at 836-37.  Thus, due diligence in filing a

reinstatement petition requires the petitioner to have a

"reasonable excuse" for failing to timely file the petition.  See

Smith v. Airoom, Inc., 114 Ill. 2d 209, 222 (1986).  Finally, absent an abuse of discretion, the trial court's ruling upon a

motion for reinstatement will stand.  People v. NL Industries, Inc., 297 Ill. App. 3d at 301.

	Kontrick argues that each of Ryan's proffered reasons for

failing to file for reinstatement establishes a lack of due

diligence on Ryan's part.  As for Ryan's claim that he was under

no obligation to reinstate the case, Kontrick cites Renth v. Krausz, 219 Ill. App. 3d 120, 121 (1991), which stated in reference to application of the equitable doctrine of laches,that "ignorance of the law or legal rights will not excuse delay in

bringing suit."  Kontrick further argues that Ryan's explanation

that he did not seek reinstatement because he was waiting to see

the results of the bankruptcy appeal in order to avoid having to

return any money in the event Kontrick was successful is without

merit.  He asserts that this justification is illogical because

reinstatement is a matter wholly separate from the bankruptcy

proceeding.  Kontrick also asserts that this justification is contradicted by Ryan's own conduct because during the pendency of

Kontrick's bankruptcy proceeding, Ryan initiated garnishment

proceedings.  

	Kontrick further asserts that Ryan's justification for

failing to reinstate is without merit because the diligence

requirement is not relaxed by a litigant's desire to wait and see

how events unfold elsewhere.  In support, Kontrick relies upon

Smith v. Airoom, where our supreme court stated: 

		" 'Relief under section [2-1401] is available

only to those who diligently pursue their

legal defenses and remedies in court, not to

those who disregard these procedures on the

gamble that better results can be obtained

through other procedures or at a cheaper

cost.' "  Smith v. Aroom, 114 Ill. 2d at 2245, quoting Abbell v. Munfield, 76 Ill. App. 3d 384, 388 (1979).

	Kontrick next argues that Ryan's justification that he did

not reinstate because he was busy defending himself against

sanctions relating to Kontrick's bankruptcy proceeding is equally

without merit.  In support, he relies upon People v. NL Industries, where this court affirmed the trial court's denial of the State's motion to reinstate where it had waited nine months

to reinstate a case it had won involving nearly $2.3 million in

environment cleanup costs.  In so ruling, this court rejected the State's justification that its delay in reinstating the case was

the result of "serious time constraints under which [the State's]

counsel labored at the time, the need to set priorities and the

desire not to begin the active litigation of the case until

counsel assigned to it had sufficient time to do a diligent job." 

People v. pNL Industries, 297 Ill. App. 3d at 301.

	As for Ryan's argument relating to the prejudice, or lack

thereof, suffered by the parties as a result of reinstatement,

Kontrick argues that prejudice must be considered only after Ryan

has established due diligence.  In support of his position,

Kontrick cites National Underground Construction, Co. v. E.A. Cox Co., 273 Ill. App. 3d 830 (1995), where the plaintiff had waited 23 months to file a motion to reinstate after the mandate had

issued in a case where this court had reversed the trial court's

granting of summary judgment in favor of the defendant.  The

plaintiff offered no reason for the delay and the trial court

denied the motion.  In affirming the trial court and finding a

lack of diligence, this court in National Underground stated that, "The grounds available to a trial court for dismissing for

lack of due diligence include the mere failure to offer a

reasonable excuse for undue delay in filing the petition." 

National Underground, 273 Ill. App. 3d at 837.

	Kontrick also cites Bright v. Dicke, 166 Ill. 2d 204, 209 (1995), which held in the context of a party's late filing of a

request for admission of facts or the genuineness of documents under Supreme Court Rule 216(c), that "[a]lthough Rule 183 does

give judges discretion to allow responses to be served beyond the

28-day time limit, that discretion does not come into play under

the rule unless the responding party can first show good cause

for the extension."  Similarly, argues Kontrick, just as a lack

of prejudice is not a substitute for good cause, it is also no

substitute for due diligence.      

	In response, Ryan admits that he and his attorneys "did not

take the technical action of moving to reinstate" the case, but

argues that he satisfied the requirements of Rule 369(c).  He

states that he had not been informed of the requirements for

reinstatement and notes that within three months of July 20,

2000, he and his attorney performed work on the case, which

eventually led to the filing of garnishment and citation papers

in February 2001.  Given these facts, Ryan argues that contrary

to Kontrick's assertion, he did not "impermissibly sit on his

confirmation rights following the lifting of the automatic stay." 

See In re Marriage of Frazier, 203 Ill. App. 3d 847, 853 (1990) (when ruling on a section 2-1401 motion, courts may consider the

litigant's attention to a related case when assessing due

diligence).

	Ryan further argues that the trial court properly relied upon the fact that he did not seek reinstatement because of the

pendency of Kontrick's discharge appeal, which could result in

Ryan's repayment of funds he collected.  He argues that the lack of finality of the denial of Kontrick's discharge, which was just

decided, cannot be classified as a "gamble" for better results. 

Rather, he argues that he has continually pressed his rights,

attempting to collect the funds he is owed. 

	Ryan also argues that the trial court properly granted his

motion to reinstate because Kontrick contributed to the delay in

filing the motion.  Relying upon the "inter-relatedness" of the

bankruptcy proceedings, the fraudulent transfer action and the

case at bar, Ryan asserts that Kontrick repeatedly arranged for

deferrals of the state fraudulent transfer action before and for

nearly 16 months after the automatic stay was lifted in order to

avoid potentially duplicative and unnecessary use of judicial

resources and to minimize his litigation expenses.  Ryan also

states that by actively engaging him in the other related

proceedings, Kontrick tacitly acknowledged Ryan's right to

proceed with reinstatement.  Ryan likens his situation to that of

the defendant in O'Brien v. Meyer, 281 Ill. App. 3d 832 (1996), where a new trial was allowed over three years after reversal of

a verdict for defendant even though a motion to reinstate had not

been timely.  In reversing the trial court's denial of the

motion, this court noted that "the defendants were willing

participants in any delay" and that "all the parties proceeded as

though the case had been reinstated."  O'Brien, 281 Ill. App. 3d at 839.  

	Ryan disputes Kontrick's position that prejudice to the parties is relevant only after diligence has been demonstrated. 

He directs our attention to Smith v. Airoom, where the supreme court stated that "where justice and good conscience may require

it a default judgment may be vacated even though the requirement

of due diligence has not been satisfied."  Smith v. Airoom, 114 Ill. 2d at 225.  Ryan advances that Kontrick's reliance on Bright is misplaced because there, the party sought relief under Supreme

Court Rule 183 (134 Ill. 2d R.183), which allowed for extensions

of time "for good cause shown" for the late filing of responses

under Rule 216 (134 Ill. 2d R.216).  The party who had filed the

late responses offered no explanation as to why they were late

and argued only that, because the opposing party was not

prejudiced by the late responses, the trial court should have

allowed them.  Bright, 166 Ill. 2d at 205-06.  Ryan asserts that he does not make a similar argument here.  Rather, he claims that

he has offered numerous reasons to satisfy the requirements of

Rule 369(c) and that prejudice to the parties is another factor

to be considered.  See People v. NL Industries, Inc., 284 Ill. App. 3d 1025, 1028 (1996) ("The prejudice to a party [under

Supreme Court Rule 369(c)] is certainly part of the totality of

the circumstances and should be considered by the trial court").  

	Ryan's final argument in support of affirming the trial

court is that denying reinstatement will improperly elevate form

over substance.  He again directs this court to O'Brien, where this court stated that "[t]he fact that the plaintiff did not go through the technical procedure of having the case reinstated

pursuant to Rule 369(c) is not controlling.  To hold otherwise

under these facts would be a rigid and unreasonable adherence to

formalism to the detriment of fairness."  O'Brien, 281 Ill. App. 3d at 839.  In sum, Ryan argues that under the circumstances of

this case, where he actively sought collection of the arbitration

award, a battle he fought on many fronts, and where Kontrick was

a willing participant in the delay in filing the motion to

reinstate, Ryan was timely in filing his motion.

	While we do not condone Ryan's failure to file his motion to

reinstate in compliance with Rule 369(c), after reviewing the

totality of the circumstances, we find that Ryan exercised due

diligence in filing his petition to reinstate.  In doing so, we

take into consideration the other litigation between Kontrick and

Ryan.  Ryan has fought the battle to collect his 1996 arbitration

award against Kontrick on many fronts, including in the federal

bankruptcy court and in various suits filed in state court. 

Kontrick's efforts to discharge this award in bankruptcy were

rejected.  In one of the state suits, Ryan has alleged that

Kontrick had improperly transferred property to his wife in an

effort to avoid paying this award.  When Ryan's counsel

prematurely filed an action to collect this judgment, Kontrick

sought, and received, sanctions against Ryan's counsel.  It is

clear that all of this litigation is interconnected in that the

ultimate goal on Ryan's part is collection of the arbitration award.  For this reason alone, we find that Ryan has proffered a

reasonable excuse as to his failure to file his motion within the

required time frame.

	We also find Kontrick's cited cases regarding due diligence

distinguishable from this case.  For instance, unlike in People v. NL Industries, this is not a situation where Ryan did nothing relating to collection of the arbitration award until such time

as he believed he was ready to proceed.  Nor do we have here a

situation as in National Underground, Ryan has failed to offer a reasonable explanation for failing to file his motion to

reinstate.  Rather, as previously stated, Ryan has attempted to ensure his collection of the 1996 arbitration award based upon

his involvement in the litigation with Kontrick over many years.

	We also reject Kontrick's argument that reinstatement was

improper because Ryan was gambling for a better result through

his participation in the bankruptcy proceedings.  Clearly, this

is not a situation where Ryan has failed to pursue remedies and

defenses in court, and has instead, opted to "gamble" for a

better result.

	Finally, as we have found that Ryan has offered a reasonable

excuse for failing to file a timely motion to reinstate, we

consider the issue of prejudice.  Kontrick does not argue, nor do

we find, that he was prejudiced as a result of the reinstatement. 

Therefore, we find no need to comment further on the issue of

prejudice.  The trial court did not abuse its discretion in granting Ryan's motion to reinstate.  

	Accordingly, the judgment of the circuit court of Cook

County is affirmed.

	Affirmed. 

	GREIMAN, and REID, JJ., concur.