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Marble Emporium, Inc. v. Vuksanovic

May 9, 2003


Appeal from the Circuit Court of Cook County. No. 98 CH 01079 Honorable Cyril Watson, Judge Presiding.

The opinion of the court was delivered by: Justice Reid


The case involves a mechanic's lien. The trial court entered a default judgment against Dejan Vuksanovic but failed to include language of finality pursuant to Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a). Despite the entry of the default judgment, the complaint remained pending against another defendant for the next 3½ years. The trial court permitted supplementary proceedings pursuant to Supreme Court Rule 277 (134 Ill. 2d R. 277) and section 2-1402 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1402 (West 2000)). The trial court eventually entered an order with Rule 304(a) language, but only after the supplementary proceedings had taken place. For the reasons that follow, we reverse the decision of the trial court.


Marble Emporium, Inc. (Marble Emporium), filed a complaint to foreclose a mechanic's lien against Richard Swin, First National Bank of Chicago (First Bank), Lehman Home Equity, trust No. 1995-1 (Lehman), K&B Arts, Inc. (K&B), Vuksanovic, unknown owners and unknown lien claimants. Marble Emporium is a masonry supplier and installer that supplied materials and services for the 155 Harbor Point Drive, Unit 5212 construction project (Project). The complaint alleges that Swin is the owner of the property. Swin authorized K&B to contract with others for construction services pertaining to the project. Swin and K&B allegedly entered into several agreements. When all the work was completed on January 26, 1996, Marble Emporium was owed $18,635 plus interest. Marble Emporium claims that debt has never been paid. Vuksanovic, as president of K&B, allegedly personally guaranteed collection of the $18,635. The alleged personal guarantee amounts to Vuksanovic writing "I guarantee this statement personally." The statement to which Vuksanovic refers is an invoice stating that materials were sold to K&B Arts.

The complaint contains a copy of the notice and claim for lien that was recorded with the Cook County recorder of deeds as document No. 97886094. The notice and claim for lien name Swin, First Bank and unknown owners and non-record lien claimants, but do not name K&B or Vuksanovic as respondent. First Bank and Lehman were properly served. K&B, Swin and Vuksanovic were not served. The trial court subsequently authorized a special process server to effect service on Swin, K&B, and Vuksanovic.

On April 6, 1998, Swin appeared through counsel and moved to dismiss on the grounds that Swin and Marble Emporium had entered into a release whereby Marble Emporium agreed to release Swin from any and all claims in exchange for the payment of $13,824. On April 16, 1998, Marble Emporium moved for default judgment as to First Bank and Lehman as well as Vuksanovic, though he had not been served. Vuksanovic filed a motion to quash, after which an allegedly improperly notarized proof of service surfaced. The proof of service claims that Vuksanovic was personally served on March 14, 1998. The document was signed by Joseph A. Tolomeo and contained a purported attestation by Tilia Tolomeo. That signature was not properly notarized.

On May 5, 1998, Swin filed a motion to dismiss claiming that Marble Emporium's execution of a release in exchange for $13,824 and the simultaneous execution of a lien waiver mandated dismissal of the complaint. Marble Emporium responded that the payment of $13,824 had never been made. The trial court denied that motion to dismiss but approved a settlement four months later. In that settlement order, Swin was to pay plaintiff $5,000 in full settlement of the claims made against him. That order, entered December 14, 1998, did not contain Supreme Court Rule 304(a) language.

A citation to discover Vuksanovic's assets was filed on May 21, 1999. Because Vuksanovic failed to appear, the trial court entertained a rule to show cause. On July 22, 1999, the trial court continued the hearing on the rule to show cause to make time for Vuksanovic to be served.

On August 5, 1999, Vuksanovic filed a special and limited appearance to challenge the trial court's jurisdiction over him. He claimed that, because he lived alone, it was impossible for substitute service to be effectuated. When confronted with the purported affidavit of the special process server, Vuksanovic moved to strike it, arguing that the affidavit was neither properly notarized nor certified under the rules. The trial court denied the motion to strike the Tolomeo affidavit and denied the motion to quash for lack of in personam jurisdiction. The trial court further granted Vuksanovic leave to file a motion to vacate a void judgment and to continue the citation to discover assets.

The motion to vacate a void judgment claimed that the 1996 release between Swin and Marble Emporium extinguished the enforceability of Vuksanovic's alleged personal guarantee on the grounds that, under Illinois law, the discharge of the principal's obligation ends the liability of the guarantor. The motion also argued that the lien was filed against Swin and First Bank and not Vuksanovic. The trial court denied this motion.

On October 24, 2001, Marble Emporium filed a motion for the turnover of a painting collection that was discovered during a second citation to discover assets. Vuksanovic filed a motion to strike the motion to turn over the painting collection. Vuksanovic argues that, pursuant to Supreme Court Rule 277(f), a citation proceeding automatically terminates six months from the date of (1) the respondent's first personal appearance pursuant to the citation or (2) the respondent's first personal appearance pursuant to subsequent process issued before the citation, whichever is sooner. 134 Ill. 2d R. 277(f). Because the citation was filed on January 25, 2001, Vuksanovic argues that it terminated automatically on July 25, 2001. Vuksanovic claims the trial court had no authority to enter any orders collateral to the citation examination. Vuksanovic also claims that, because the trial court never made a Rule 304(a) finding, the case was still pending against K&B such that Marble Emporium could not execute on the judgment.

On November 7, 2001, K&B filed a motion to dismiss the case against it. This was based on K&B's belief that no judgment had been entered against it and that no prosecution of the case against it had taken place for over three years. By November 15, 2001, Swin had replaced Marble Emporium as the litigating party. Swin moved for leave to voluntarily dismiss K&B and for a finding of finality pursuant to Rule 304(a) as to the trial court's April 23, 1998, default judgment order. This was premised on a claimed scrivener's error whereby K&B was left out of the order along with the Rule 304(a) language.

On November 20, 2001, Vuksanovic moved "for certain relief" in the nature of a motion for reconsideration of the motion for turnover of the painting collection. The trial court ruled that Vuksanovic's position was without merit. On December 4, 2001, the trial court granted Swin's motion to voluntarily dismiss K&B. The order also denied Vuksanovic's motion for certain relief, namely, the motion to strike the turnover motion and the motion to quash citation to third parties. The trial court barred Vuksanovic from selling the paintings. Execution of ...

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