MOUNT VERNON – St. Clair County Associate Judge Richard Aguirre improperly kept a claim alive for a concrete company that failed to show up for hearings or produce evidence, the Fifth District appellate court ruled Jan. 29.

The company, Evans Concrete and Grading, made the Fifth District's decision easy by failing to submit a brief.

Aguirre in 2005 dismissed a claim that Evans filed against builder Taylor-Morley Inc., but in 2006 he vacated the order.

According to three Fifth District judges, Aguirre made the right call the first time.

"Evans has failed to explain why it neglected to respond to Taylor's discovery requests within the allotted time or why it failed to appear at the hearings," wrote Justice Thomas Welch.

"Accordingly, the trial court abused its discretion in granting Evans' motion to vacate where the record is devoid of any reasonable explanation by Evans for failing to diligently pursue its claim or to set forth facts or allegations stating a meritorious claim," he wrote.

The claim stemmed from a chain of disputes over construction of Green Mount Lake Apartments.

Capitol Group Inc., a plumbing supplier, filed a mechanic's lien in 2003 against Mason's Landscaping, a subcontractor on the apartment project.

Another supplier, Milford Supply, filed a mechanic's lien against Mason's Landscaping and sued Taylor-Morley for allegedly breaching a contract.

Taylor filed a breach of contract counterclaim against Mason's Landscaping.

In 2004, Evans filed a mechanic's lien against the project and a breach of contract claim against Taylor-Morley.

Taylor-Morley asked Evans for documents, without success, so Taylor-Morley moved to compel responses or strike Evans' pleadings.

Aguirre held a hearing in 2005, but no one appeared for Evans.

"The court called Evans' counsel to ask why he was not in court," Welch wrote.

"Counsel responded that he was unaware of Taylor's motion to strike," he wrote.

Aguirre called counsel for Evans and informed him that trial on all claims would start in three days.

Aguirre gave Evans until noon the next day to provide discovery.

"Evans failed to provide the discovery responses," Welch wrote.

When trial began, Evans did not appear in court.

Taylor-Morley moved to dismiss, and Aguirre granted the motion.

Evans moved to vacate the order and submitted an affidavit claiming it was unaware of the motion to dismiss or the order granting it.

Aguirre held a hearing in 2006 and vacated the order.

Taylor-Morley appealed, successfully.

"The mere assertion of a meritorious defense or claim is not adequate to warrant the vacatur of a judgment," Welch wrote.

"The requirement that a petition to vacate allege a meritorious defense or claim is designed to ensure that the movant, having had one chance in a court which he disdained, does not have a second chance without some support for his position," he wrote.

He held that Evans needed to allege facts that would have prevented the entry of the judgment if the trial court had known them.

He declared the affidavit "devoid of any facts from which the trial court could find the existence of a meritorious claim or defense."

"It merely sets out a simple recitation of the procedural posture of the case," he wrote.

Justices Bruce Stewart and Stephen Spomer concurred.

Richard Stockenberg represents Taylor-Morley.

Michael Benson represents Evans Concrete and Grading.

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