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03/29/89 Williamsburg Village v. Lauder Associates

March 29, 1989

WILLIAMSBURG VILLAGE OWNERS' ASSOCIATION, INC., PLAINTIFF-APPELLEE

v.

LAUDER ASSOCIATES, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

537 N.E.2d 857, 181 Ill. App. 3d 931, 130 Ill. Dec. 528 1989.IL.419

Appeal from the Circuit Court of Cook County; the Hon. Clarence Bryant, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant, Lauder Associates (Lauder), appeals from an order of the trial court in a forcible entry and detainer action which granted judgment in favor of plaintiff, Williamsburg Village Owners' Association, Inc. (Williamsburg), for possession of certain commercial condominium property located in Inverness, Illinois. The order also awarded plaintiff damages in the amount of $8,385.72 for unpaid common expenses regarding the property and granted plaintiff attorney fees in the amount of $585. On appeal defendant characterizes the trial court order as an ex parte default order, the entry of which, defendant asserts, constituted a substantial inJustice. Defendant also contends that the court erred in denying its motion to vacate the order.

For the reasons stated below, we reverse the judgment of the circuit court and remand this matter for further proceedings.

The record indicates that on December 2, 1987, plaintiff filed its forcible entry and detainer action against Lauder, seeking recovery of $8,385.72 in unpaid common expenses for the subject property, in addition to attorney fees and costs. On January 29, 1988, plaintiff filed an amended complaint, naming Lauder in addition to several other defendants and seeking $12,210.71 in unpaid common expenses plus costs and fees.

Lauder was served with summons by publication on February 4, 1988. The return date was March 14, 1988. On March 3, 1988, the case was dismissed for want of prosecution. On March 14, 1988, the court vacated the dismissal for want of prosecution. A special and limited appearance was filed on behalf of Irwin Lipka, a co-defendant not named in this appeal. Lipka was represented in court by the same attorneys as was defendant Lauder. On that date, the trial court indicated that Lipka and Lauder would be allowed to file motions to quash in support of a special and limited appearance. No special and limited appearance, however, was filed on behalf of defendant Lauder on that date. Counsel for Lauder indicated that he had appeared on behalf of Lauder in order to see if the case had been dismissed for want of prosecution and to discover the status of the case. Subsequently, a motion to quash service of summons was filed on behalf of the co-defendant Lipka.

On March 24, 1988, counsel tendered a special and limited appearance on behalf of defendant Lauder. The trial court denied Lauder's request for leave to file a motion to quash service of summons in support of a special and limited appearance, stating that such a motion could be filed at any time, without leave of court. It is indicated in defendant's post-trial motion to vacate that counsel for Lauder then asserted the "equitable defense" that the statutory assessment procedures were not properly followed. The court stated that the defense asserted was "not germane" to the issue of possession, pursuant to the forcible entry and detainer statute. The trial court granted the motion to quash service of summons on the co-defendant Lipka and stated that the case was ready for trial. Counsel for Lauder requested a continuance of the trial, and the court continued trial to March 31, 1988.

On March 31, 1988, counsel for Lauder indicated that he was not prepared to cross-examine any witness called by plaintiff, since he had just received a new schedule from plaintiff regarding the recovery amount sought. Counsel for plaintiff responded that he would "take away" the new schedule if necessary. Plaintiff's counsel also stated that Lauder had failed to make any discovery requests. The court indicated that the trial would proceed. The court thereafter entered judgment in favor of plaintiff. On April 4, 1988, defendant Lauder filed a motion to vacate the judgment, which was denied.

Defendant Lauder initially asserts on appeal that its participation in the proceedings in the trial court constituted a general appearance. Defendant filed a special and limited appearance on March 24, 1988, and then sought a continuance of the trial. The court continued the case to March 31, 1988, on which date defendant moved for leave to file a general appearance instanter.

It is well established in Illinois that a special appearance is waived when a party raises a defense, makes a motion, files a pleading, or takes any other action over which the court would have no power to dispose of without having personal jurisdiction over the party. (Greene v. Board of Election Commissioners (1983), 112 Ill. App. 3d 862, 445 N.E.2d 1337.) Any action by a party, except to object to the jurisdiction of the court, which "invokes the court's power to adjudicate an issue" (Greene, 112 Ill. App. 3d at 868) amounts to a submission to the jurisdiction of the court, and therefore, constitutes a general appearance. (People v. Estep (1955), 6 Ill. 2d 127, 126 N.E.2d 637.) A stipulation for a continuance amounts to a general appearance. (Estep, 6 Ill. 2d at 128.) In the instant case, therefore, defendant's request on March 24, 1988, for a continuance of the trial of the matter constituted a general appearance.

Defendant also contends that since its conduct constituted a general appearance, the court erred in refusing to allow it to file a written general appearance instanter on March 31, 1988. The only support in the record on appeal that defendant tendered a written general appearance to the court on March 31, 1988, appears in defendant's post-trial motion, filed on April 4, 1988. Plaintiff asserts that, therefore, there is insufficient support in the record for defendant's assertion. We have found, however, that defendant's conduct before the court on March 24, 1988, constituted a general appearance. Regardless of whether defendant tendered a written general appearance on March 31, 1988, does not change that result. Plaintiff apparently asserts, however, that defendant's alleged failure to file such an appearance, or to tender a written appearance as of record, supports plaintiff's assertion that defendant ...


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