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Cooper v. United Development Co.

OPINION FILED MARCH 20, 1984.

EDGAR H. COOPER ET AL., PLAINTIFFS-APPELLANTS,

v.

UNITED DEVELOPMENT COMPANY ET AL., DEFENDANTS-APPELLEES (RIVER OAKS WEST DEVELOPMENT COMPANY ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

In this action for breach of an implied warranty of habitability, plaintiffs, a class consisting of original unit owners of The Park of River Oaks, *fn1 appeal from the trial court's entry of two orders that: (1) dismissed their complaint with prejudice since it was barred by the applicable statute of limitations; (2) allegedly denied them leave to amend said complaint; (3) dismissed, for jurisdictional reasons, their motion to quash an allegedly void order; and (4) denied, for lack of diligence and a meritorious claim, their section 72 petition for relief from judgment. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) *fn2 A summary of the pertinent procedural matters follows.

On January 26, 1982, plaintiffs instituted a class action seeking to recover damages for an alleged breach of an implied warranty of habitability. The named defendants were: United Development Company (United), the agent-developer for the condominium project; Inland-Robbins Construction, Inc. (Inland), the general contractor; Westinghouse Electric Company (Westinghouse), the subcontractor; and River Oaks West Development Company (River Oaks), the beneficial owner of the property. On March 30, 1982, United and Inland filed a motion to dismiss which was premised on plaintiffs' failure to state a cause of action, as well as their failure to file suit within the limitation period provided for in section 15 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 16). *fn3 An agreed order was entered on May 14, 1982, setting July 8, 1982, as the hearing date for defendants' motion to dismiss.

Following presentation of plaintiffs' motion on July 8, 1982, for a continuance, the trial court entered an order reciting that defendants' motion would be "taken under advisement until Wednesday, July 14, 1982 * * *. Ruling on said motion to be given after said date." Thereupon, plaintiffs were given until 9 a.m. on July 14, 1982, to submit law in opposition to the motion to dismiss. A memorandum was filed by plaintiffs on July 14, 1982, in response to defendants' motion; however, the actual time of filing was not recorded on this document.

On July 20, 1982, pursuant to United and Inland's motion to dismiss, as well as an analogous motion previously filed by Westinghouse, the trial court entered an order *fn4 dismissing plaintiffs' complaint with prejudice for the reason that it was "barred on its face by the applicable statute of limitations." It was further ordered that the cause remain pending "against any and all remaining defendants," i.e., River Oaks. In the record filed with this court is the aforesaid signed order which contains the name of the attorney for United. The attorney for the plaintiffs was not present when the order was entered. Counsel for defendants, after becoming aware on or before July 27, 1982, that such a dispositive order had been entered, did not advise plaintiffs' counsel of this critical fact until August 31, 1982. The record also contains a three-page, hand-written memo signed by the trial court explaining its reason for the order. This memo does not contain any date of filing and was never furnished to counsel for plaintiffs.

At a progress call held on July 27, 1982, before the Honorable Alan Morrill, an order was entered dismissing the instant cause for want of prosecution. Plaintiffs thereafter filed a motion to vacate Judge Morrill's order; however, this motion was withdrawn after plaintiffs' counsel became aware on August 31, 1982, of the entry of the July 20 dismissal order. Copies of this order of dismissal were received by plaintiffs' counsel on September 7, 1982.

On December 9, 1982, plaintiffs filed their petition for section 72 relief along with a motion to quash the July 20 order as void. These motions claimed, essentially, that the trial court entered the dismissal order as to United and Inland without having provided plaintiffs with proper notice. However, an order was subsequently entered on February 16, 1983, which dismissed, for lack of jurisdiction, plaintiffs' motion to quash; this order also denied, for lack of diligence and a meritorious claim, their section 72 petition for relief from judgment. It is the propriety of this order which plaintiffs now contest on appeal. Westinghouse has not been joined as an appellee in this matter.

I

Initially, plaintiffs argue that the trial court erroneously dismissed, for want of jurisdiction, their motion to quash the dismissal order entered on July 20, 1982. Specifically, the trial court ruled that it could not entertain this motion since it was filed more than 30 days after the entry of the dismissal order. Plaintiffs now contend that such order was void and, therefore, subject to challenge at any time. We disagree.

Without question, a void judgment may be attacked and vacated at any time. (Fox v. Department of Revenue (1966), 34 Ill.2d 358, 361, 215 N.E.2d 271; Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App.3d 176, 178, 372 N.E.2d 965.) Such a judgment or order is characterized as void where the court lacks jurisdiction of the parties or subject matter, or lacks the inherent power to enter the contested order. (Horzely v. Horzely (1979), 71 Ill. App.3d 542, 545, 390 N.E.2d 28.) However, an alleged failure to notify a defendant of the entry of a default judgment will not render such judgment void. (American Consulting Association, Inc. v. Spencer (1981), 100 Ill. App.3d 917, 920, 427 N.E.2d 579, cert. denied (1982), 458 U.S. 1112, 73 L.Ed.2d 1375, 102 S.Ct. 3495.) Likewise, an "alleged failure to notify plaintiff that [a] dismissal order had been entered did not make the order void." Watts v. Medusa Portland Cement Co. (1971), 132 Ill. App.2d 227, 230, 268 N.E.2d 721, appeal denied (1971), 47 Ill.2d 592.

The two cases relied upon by plaintiffs in support of their argument for retention of jurisdiction to review the order are, in fact, inapposite. In re Franklin (1976), 42 Ill. App.3d 129, 355 N.E.2d 570, was concerned solely with an order of probation and commitment which was held void since the trial court, having failed to adjudicate a minor as a ward of the court, did not have jurisdiction to enter the dispositional order. Lowy v. Filosa (1974), 18 Ill. App.3d 123, 309 N.E.2d 356, dealt with section 72 petitions for relief from void consent decrees, rather than post-judgment motions to quash an allegedly void dismissal order.

• 1 Since, in accordance with Illinois decisional law, the instant dismissal order cannot be characterized as void, the trial court was without jurisdiction to review it after the expiration of 30 days. (Board of Managers v. Beringer (1981), 94 Ill. App.3d 442, 446, 418 N.E.2d 1099; Lurie Co. v. Teichner (1978), 63 Ill. App.3d 950, 951-52, 380 N.E.2d 959.) Thereafter, plaintiffs' sole source of relief from the order of dismissal was to proceed under section 72 of the Illinois Civil Practice Act. Halleck v. Trumfio (1980), 85 Ill. App.3d 1051, 1053, 407 N.E.2d 867; Lurie Co. v. Teichner (1978), 63 Ill. App.3d 950, 951-52.

It is averred that plaintiffs received no documentation of the July 20 dismissal order until September 7, 1982. Nonetheless, the fact remains that their motion to quash this order was not filed until December 9, 1982, well after the 30-day review period had expired. Consequently, the trial court correctly ruled that it ...


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