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Lasalle National Trust, N.A. v. Lamet

March 19, 2002

LASALLE NATIONAL TRUST, N.A., PLAINTIFF-APPELLANT,
v.
JEROME S. LAMET AND STEPHANIE KANWIT, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice McBRIDE

UNPUBLISHED

Appeal from the Circuit Court of Cook County. Honorable Loretta C. Douglas, Judge Presiding.

Plaintiff LaSalle National Trust, N.A. (LaSalle), filed a complaint for unpaid rent against defendants Jerome Lamet and Stephanie Kanwit, tenants who had rented office space from LaSalle. Defendants counterclaimed, seeking reformation. After years of court hearings and transfers, the trial court dismissed the cause for want of prosecution. LaSalle filed a motion to quash the dismissal order as void. The court denied the motion. LaSalle now appeals, asking that this cause be remanded for further proceedings.

Initiated in 1993, this cause was eventually assigned to Judge Loretta Douglas of the Cook County Circuit Court, Law Division, on March 31, 1998, "for all purposes, including supervision of discovery, hearing any and all dispositive motions, the scheduling of trial and trial." According to LaSalle, no date was set for appearance, status or hearing. On April 17, 1998, again according to LaSalle, Judge Douglas entered an order dismissing LaSalle's cause "for want of prosecution" without providing notice to either party and outside their presence in court.

In order to protect their counterclaims, defendants filed a motion to vacate the April 1998 dismissal on June 1, 1998. Defendants never served LaSalle or filed notice for hearing on this motion; therefore, it was never heard by the court. However, on August 26, 1998, defendants received notice that LaSalle had filed a petition to quash the April 1998 dismissal for lack of due process, which was based upon LaSalle's claim that neither party had received notice of that hearing. LaSalle's petition was heard on August 31, 1998, with both parties present in court. Judge Douglas determined that since more than 30 days had passed since the entry of the dismissal she had no jurisdiction to hear this petition and recommended to LaSalle that it "serve notice as required for Relief from Judgment." We do not address whether the trial court had jurisdiction to consider the "petition to quash" on August 31, 1998, because LaSalle never appealed that ruling.

LaSalle never filed or served notice for Relief from Judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)), as the court had instructed. Instead, LaSalle chose to file a second petition to quash the April 1998 dismissal, again claiming it was void for lack of due process. LaSalle, however, did not file this second petition until June 1999, 14 months after the court entered the April 1998 dismissal and 10 months after the court specifically told LaSalle on August 31, 1998, to proceed under the provision for relief from judgment. Judge Douglas, presiding over LaSalle's second petition to quash, allowed a full briefing and oral arguments. On December 16, 1999, she denied LaSalle's petition and finally disposed of the case, finding that LaSalle "failed to act with the requisite due diligence in filing its section 2-1401 petition for relief and in bringing it for hearing."

LaSalle appeals from both the April 1998 dismissal for want of prosecution and the December 1999 denial of its second petition to quash. LaSalle first contends that the April 1998 dismissal was void for lack of notice to the parties, a violation of procedural due process. Second, LaSalle contends this void order may be quashed at any time, without having to pursue relief under section 2-1401. Consequently, LaSalle claims, the trial court should have quashed the April 1998 dismissal, and we, in turn, should reverse the trial court's order of December 1999 thereby remanding this cause for further proceedings. We disagree.

LaSalle's first claim that the April 1998 dismissal order was void for lack of notice is incorrect for the following reasons: (1) the record suggests that the parties were given notice to appear by court order; and (2) even if the order was entered without notice, it would not be void but only voidable.

We first observe that LaSalle's claim that "all parties as well as the trial court herein" acknowledge that no notice was given is unsupported by any citation to the record. In fact, the record suggests that notice to appear was given. This is shown by the order entered by Judge Douglas on April 17, 1998, which states, "This cause coming on for status, the Court finds and orders as follows: This cause is dismissed for want of prosecution for failure of Plaintiff(s) to appear pursuant to prior Court order." Thus, the order entered by Judge Douglas states that LaSalle failed to appear pursuant to prior court order. There is also evidence in the record that on March 31, 1998, the matter was set for a status hearing in front of Judge Douglas on April 17, 1998. This is shown by an exhibit attached to an affidavit prepared by LaSalle's attorney. That exhibit, labeled H, contains a computerized printout of the history of this case while pending in the law division. That printout not only shows that on March 31, 1998 the case was assigned to Judge Douglas, the printout also shows that on that same date Judge Douglas set the case on the status call for April 17, 1998.

Moreover, in the December 16, 1999 order denying LaSalle's petition to quash, Judge Douglas states that it is LaSalle's claim "that it received no further notice from this Court or the County Clerk's office as to the dates for status or hearing, even though [it] is the custom and practice of the assignment court room [to give such notice]." Although Judge Douglas acknowledged that the parties claimed that they were not notified, her order does not give any credence to this claim.

The parties do not dispute that the case was assigned to Judge Douglas on March 31, 1998. There is also no dispute that LaSalle was notified to appear in the assignment room on March 31, 1998, but it did not do so. Additionally, in the December 1999 order, denying LaSalle's petition to quash, Judge Douglas indicated that she "dismissed this matter for want of prosecution for failure of Plaintiff to appear pursuant to Court Order." From our review of the record, it appears that the case was set for status on April 17, 1998 and LaSalle failed to appear, just as it had on March 31, 1998.

Assuming arguendo that the April 17, 1998 order was entered without notice, the order would not be void. While LaSalle is correct when it states a void order is subject to attack at any time, the question of

"whether a judgment is void or voidable depends on whether the court entering the challenged order possessed jurisdiction over the parties and the subject matter. [Citation.] If jurisdiction is lacking, any subsequent judgment of the court is rendered void and may be attacked collaterally. [Citation.] 'Judgments entered in a civil proceeding may be collaterally attacked as void only where there is a total want of jurisdiction in the court which entered the judgment, either as to the subject matter or as to the parties.' [Citation.] A voidable judgment, however, is one entered erroneously by a court having jurisdiction and is not subject to collateral attack. [Citation.] Once a court has acquired jurisdiction, an order will not be rendered void merely because of an error or impropriety in the issuing court's determination of the law. [Citations.]" In re Marriage of Mitchell, 181 Ill. 2d 169, 174, 692 N.E.2d 281 (1998).

In this case LaSalle contends that the order was void because it was entered without notice. LaSalle does not suggest that the court lacked jurisdiction over the parties or the subject matter. It simply claims that there was no notice given. However, there is no question that the circuit court had jurisdiction in this matter. Therefore, even if the ...


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