Appeal from the Circuit Court of Winnebago County. No. 01--LM--1087 Honorable Angus S. More, Jr., Judge, Presiding.
The opinion of the court was delivered by: Justice O'malley
Plaintiff, the Rockford Housing Authority, filed a forcible entry and detainer complaint against defendant, Dorothy Donahue. The trial court defaulted defendant because she did not file a written appearance or pay the required filing fee before trial. The court refused to vacate the default judgment. Defendant appeals, contending that (1) Supreme Court Rule 181(b) (166 Ill. 2d R. 181(b)) does not require a written appearance in a forcible entry and detainer action; (2) because no written appearance was required, the court erred in defaulting plaintiff for not filing one; and (3) the court erred by refusing to vacate the default judgment. Because we agree with defendant's third contention, we reverse the judgment on that basis without deciding the other two issues.
Plaintiff is a public housing agency. Defendant and her two children live in an apartment pursuant to a lease with plaintiff, which receives a rental subsidy from the United States Department of Housing and Urban Development.
Plaintiff filed a complaint against defendant alleging that she breached a lease provision prohibiting criminal conduct by tenants when she was arrested for disorderly conduct after fighting with Leticia Chears. On July 23, 2001, defendant was served with a summons that required her to "appear" on August 16, 2001. Defendant appeared in court pro se on that date, denied the complaint's allegations, and requested a trial.
While in court, defendant was given a "NOTICE TO FORCIBLE DETAINER DEFENDANTS." The notice states that if defendant did not pay a fee of $70 at least 48 hours before the next court date she would be defaulted and prevented from participating in the trial. It states that the fee could be waived for financial need. The notice does not mention filing an appearance or answer and is not signed by the judge. Trial was set for September 13, 2001.
On September 13, defendant again appeared pro se and requested additional time to pay the filing fee. However, the court found her in default for failing to file an appearance and entered judgment against her. Later that day, defendant filed a pro se motion requesting additional time to pay the filing fee.
Defendant then retained Prairie State Legal Services (Prairie State), which, on September 20, 2001, filed a verified motion to vacate the default judgment. The motion alleges that defendant was acting in self-defense when she fought with Chears. Prairie State also filed a certification pursuant to section 5--105.5(b) of the Code of Civil Procedure (735 ILCS 5/5--105.5(b) (West 2000)) that resulted in waiving all fees for defendant.
On September 27, 2001, the court denied the motion to vacate. The court's written order states that "Defendant's verified motion to vacate is denied for the same reasons she was originally defaulted on September 13, 2001." Defendant timely appeals.
The parties dispute whether defendant should have been required to file a written appearance at all. See 166 Ill. 2d R. 181. Defendant contends that no written appearance was required and, therefore, the court erred in defaulting her for not filing one. However, we need not resolve these issues because, even if the court properly defaulted defendant, it should have exercised its discretion to vacate the default.
Although the court may enter a default judgment for want of an appearance, a default judgment is a drastic measure, not to be encouraged and to be employed only as a last resort. Biscan v. Village of Melrose Park Board of Fire & Police Commissioners, 277 Ill. App. 3d 844, 848 (1996). Once the court does enter a default judgment, it may exercise its discretion to set aside the default "upon any terms and conditions that shall be reasonable." 735 ILCS 5/2--1301(e) (West 2000).
A trial court's refusal to vacate a default judgment may be reversed because of a denial of substantial justice or for an abuse of discretion. Venzor v. Carmen's Pizza Corp., 235 Ill. App. 3d 1053, 1056-57 (1992). Factors in deciding whether a default order accomplishes substantial justice include the severity of the penalty to the defendant and the attendant hardship on the plaintiff if it is forced to proceed to trial. Venzor, 235 Ill. App. 3d at 1057-58.
Here, defendant received a summons that instructed her to appear on August 16. It did not require defendant to do anything else. She appeared in court on August 16 but received a "notice" stating that she had to file a written appearance and pay a filing fee before trial. The legal efficacy of this notice is not clear, given that no local rule specifically authorizes this notice and it is not signed by a judge.
Defendant then appeared on the trial date but was defaulted because she had not paid the appearance fee. Defendant's subsequent pleadings make it appear that the only reason she failed to pay the appearance fee was that she could ...