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Benedetti & Sons, Inc. v. O'malley

OPINION FILED MAY 22, 1984.

BRUNO BENEDETTI & SONS, INC., PLAINTIFF-APPELLANT,

v.

ROBERT O'MALLEY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

On February 7, 1981, defendants Robert and Margaret O'Malley entered into an installment agreement with plaintiff for a residential property. The O'Malleys failed to make installment payments for January, February and March 1982. On February 19, 1982, plaintiff's notice of intent to declare a forfeiture was served on Robert O'Malley at his place of business, and, at the same time, a copy addressed to Margaret O'Malley was also delivered to Robert O'Malley. On or about March 23, 1982, the O'Malleys vacated the premises.

On June 17, 1982, plaintiff filed a two-count complaint against the O'Malleys and others, whose claims were apparently based on May and June 1981 conveyances of the property. Count I against the O'Malleys was for breach of contract for failure to make required payments for January through March 1982, to pay accrued taxes, and to keep the premises in good condition and repair. Count II alleged that plaintiff had reacquired title to the subject realty by the declaration of forfeiture and the defendants' claims to the property constituted a cloud on plaintiff's title. As relief plaintiff sought judgment against defendants in the amount of $7,193.46, costs and reasonable attorney fees, and a decree finding and confirming title in plaintiff's name in fee simple, free and clear of defendants' purported claims of interest.

On July 29, 1982, plaintiff caused to be recorded with the Du Page County recorder of deeds a declaration of forfeiture of the interest of the O'Malleys. On August 24, 1982, a default order was entered against the defendants for failure to appear or answer, and the matter was continued for proof of damages. On September 24, 1982, counsel for defendants was granted leave to file an appearance and one week to file an answer.

At this point plaintiff's counsel incorrectly suggested to the court that a section 72 petition (Ill. Rev. Stat. 1981, ch. 110, par. 72, now Ill. Rev. Stat. 1981, ch. 110, par. 2-1401) was necessary because 31 days had elapsed since the entry of the default order. The judge mistakenly agreed and, in substance, directed defense counsel to file such a motion and stated that he would vacate it and give plaintiff a day in court but that if an answer was not filed within one week from that day, he was going to have a prove-up instanter. On October 1, 1982, defendants filed a section 2-1401 petition, which the trial court granted and vacated the default order.

On October 20, 1982, plaintiff filed an amended complaint which was substantially the same as the original. On November 9, 1982, defendants filed a motion for summary judgment, alleging as to count I that, after defendants Robert and Margaret O'Malley vacated the premises in response to plaintiff's February 19, 1982, notice of intent to declare a forfeiture of rights under the articles of agreement, plaintiff took physical possession of the subject property; that plaintiff thus unilaterally terminated the O'Malleys' interest; that plaintiff subsequently took the benefit of such termination; and that plaintiff now sought relief based on the articles of agreement. As to summary judgment on count II, the other defendants maintained that plaintiff reacquired the fee simple title to the real estate free of their interest in it by the declaration of forfeiture recorded July 29, 1982.

The trial court granted defendants' motion for summary judgment on both counts, and a written order was filed March 15, 1983. In substance, the court found, inter alia, that an election to declare forfeiture dated February 19, 1982, was served by plaintiff on defendant O'Malleys, that possession of the subject real estate was regained by plaintiff between the service of that notice and commencement of the present action on June 17, 1982, that by service of the notice plaintiff had made an election to the exclusion of other available remedies it may have had, and that under Herrington v. McCoy (1982), 105 Ill. App.3d 527, this election constituted a bar in the instant case to suit for other damages. Plaintiff's motion for reconsideration was denied.

We first note that appellees have failed to file a brief in this appeal; however, pursuant to the guidelines in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 130, we have chosen to consider and decide the merits of the appeal.

• 1 Plaintiff's first contention on appeal deals with alleged errors of the trial court in vacating an order of default more than 30 days after its entry. The basic flaw in this contention is that it is based upon the premise that the order of default was a final order and that, therefore, a petition pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401) was required in order for the trial court to have authority to vacate the order. However, the order of default in question was not a final order. After entering the default order, the trial court had continued the cause for a prove-up of damages. No judgment for damages was ever entered.

Because the order of default was not a final order or judgment, a section 2-1401 motion was neither necessary nor proper. The trial court had the authority pursuant to section 2-1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1301(e)) to set aside the order of default in its discretion before final order or judgment. Section 2-1401 applies to petitions for relief from final orders or judgments after 30 days from the entry thereof, and defendants' motion here was outside the ambit of that section. The court required a section 2-1401 petition pursuant to a request by plaintiff, and we deem that it is not proper that plaintiff should be able to take advantage of a trial court error that it induced.

Since this situation is not under section 2-1401, defendants did not have to conform to the requirements of that section and affirmatively show due diligence and a meritorious defense. The court was aware of the pertinent facts: only 31 days had elapsed since the entry of the default order; according to the complaint, plaintiff had served a notice of forfeiture and had declared a forfeiture while seeking damages to the subject property; and defendants appeared before the court and were ready to answer. Under these circumstances, the court properly exercised its discretion to grant the defendants their day in court to answer and defend against plaintiff's claims.

• 2, 3 Plaintiff next contends, in essence, that the trial court erred in granting defendants' motion for summary judgment based on a finding that plaintiff made an effective election to declare a forfeiture which barred the action for damages. Plaintiff posits three bases to support this contention. None appear meritorious.

First, plaintiff asserts that the trial court erred in finding that service of a notice of intent to declare a forfeiture barred any action for further damages where there was no evidence before the court that the value of the property had appreciated, citing Herrington v. McCoy (1982), 105 Ill. App.3d 527. Because the court had no evidence on appreciation in value at the time it ruled on the motion for summary judgment, plaintiff asserts that a fact question existed that made summary judgment improper. Plaintiff misinterprets Herrington.

Herrington holds that under Illinois authority in forfeiture cases a party cannot make claims arising out of breach of contract terms after having elected to retake the property. (105 Ill. App.3d 527, 530-32.) The language upon which plaintiff relies comes in reference to cases where election of remedies occurred in settings other than that of forfeiture, which cases the court had distinguished prior to announcing its holding. It is a statement of the court offered as further support for the holding that the court ...


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