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Courts of Northbrook Condominium Ass'n v. Bhutani

Court of Appeals of Illinois, First District, Fifth Division

March 14, 2014

THE COURTS OF NORTHBROOK CONDOMINIUM ASSOCIATION, Plaintiff-Appellee,
v.
BALDEV BHUTANI, Defendant-Appellant, (Ravat Bhutani and All Unknown Occupants, Defendants)

Page 840

As Corrected.

Appeal from the Circuit Court of Cook County. No. 12 MI 716751. The Honorable David A. Skryd, Judge, presiding.

Affirmed.

SYLLABUS

In a forcible entry and detainer action to evict defendant from his condominium, the judgment for plaintiff association was affirmed where the trial court had both subject matter and personal jurisdiction over defendant, who was properly served with a 30-day notice and the complaint and summons, the trial court did not abuse its discretion by binding and certifying a supplement to the record on appeal, defendant waived any claim that plaintiff breached its fiduciary duty to defendant as to several issues not germane to the forcible entry and detainer action, and defendant's pro se motion to compel plaintiff to comply with a prior order granting a stay of judgment was properly denied, since that stay was not violated.

For APPELLANT: NONE.

For APPELLEE: Jennifer L. O'Reilly, Levenfeld Pearlstein, LLC, Chicago, Illinois.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Palmer concurred in the judgment and opinion.

OPINION

GORDON, PRESIDING JUSTICE

Page 841

[¶1] Plaintiff, the Courts of Northbrook Condominium Association, filed a forcible entry and detainer action to evict defendant townhouse co-owners Baldev Raj Bhutani and Ravat Bhutani, who is Baldev's son, and to collect unpaid assessment

Page 842

fees that defendants owed to plaintiff. Defendants did not appear in court and the trial court entered a default judgment against them. Afterwards, defendant Baldev Bhutani (defendant) filed a pro se general appearance and a pro se motion to vacate the default judgment, claiming a lack of service of process. The trial court granted defendant's pro se motion to vacate, but did not quash service. The case was set for trial, and the trial court entered a written order of possession and money judgment against defendant. The trial court then denied defendant's pro se motion to reconsider when defendant was not present, and it later denied defendant leave to file a second pro se motion to reconsider.

[¶2] Defendant appealed, and a different panel of this court granted defendant's pro se motion for a stay of judgment pending this appeal. Defendant then filed a pro se motion to compel compliance with the prior panel's order granting a stay of judgment, claiming that the order entitled him to retake possession of the townhouse, which the plaintiff refuses to give to him. Later, on its own motion, the prior panel remanded the case to the trial court for consideration of defendant's original pro se motion to reconsider since defendant was served notice of the hearing by email and claims he did not have the opportunity to argue the motion. After remand, the trial court heard arguments on defendant's original pro se motion to reconsider and it again denied defendant's motion. Defendant now appeals the second denial of his pro se motion to reconsider, and we have taken defendant's pro se motion to compel under advisement with the case.

[¶3] On appeal, defendant argues that the case should be reversed and remanded for a new trial because: (1) the trial court lacked subject matter jurisdiction; (2) the trial court lacked personal jurisdiction; (3) the trial court abused its discretion when it granted plaintiff's motion to supplement the trial record; and (4) plaintiff breached its fiduciary duty to defendant. Additionally, defendant argues that plaintiff violated this court's March 5, 2013, order granting a stay of judgment, and defendant requests that we grant his motion to compel compliance with this court's order and hold plaintiff in contempt. For the following reasons, we affirm.

[¶4] BACKGROUND

[¶5] Defendant states in his brief to this court that, in 2008, he and his son, Ravat Bhutani, purchased the townhouse in Northbrook, Illinois, and that the two moved into the townhouse together. Defendant further states that his son Ravat relocated to Maryland in early 2012, but defendant continued to reside in the townhouse until he was evicted in 2013.

[¶6] In early 2012, the defendant stopped paying monthly assessment payments, and on April 27, 2012, plaintiff issued a 30-day notice[1] pursuant to section 9-104.2 of the Forcible Entry and Detainer Act (735 ILCS 5/9-104.2 (West 2010)). The 30-day notice directed defendant and his son Ravat to pay $1,946.50 in unpaid monthly assessments, costs, and fees within 30 days. Two copies of the notice were sent by certified mail with return receipt requested. One copy was sent by certified mail to defendant at the address of the townhouse, but that notice was unclaimed and marked " return to sender" on June 1, 2012. The second copy of the notice was addressed to Ravat Bhutani at the same

Page 843

address and was received on April 31, 2012, but defendant claims that the signature on the return receipt was forged.[2] Plaintiff did not receive any money in response to the notice within the 30-day period and filed this forcible entry and detainer action against defendant, Ravat Bhutani, and all unknown occupants on July 17, 2012, seeking possession of the property and a money judgment for $3,048.25.

[¶7] Defendant claims that he was never served with process in this action. The appellate record contains an affidavit from Michael Fahey, a special process server appointed by the trial court, in which he stated that, on September 5, 2012, he arrived at the townhouse and a Middle Eastern man, approximately 55 years old, answered the door and identified himself as " Raj Bhutani." [3] The man told Fahey that he lived in the household and that he was renting it from defendant, a relative who owned the home. Fahey told the man that he was serving a summons on " Baldev Bhutani," which is defendant's first and last name, and that Fahey had been instructed to leave the service documents with a member of the household. The unknown man accepted the documents. On August 21, 2012, an attorney on behalf of Ravat Bhutani, defendant's son, signed a waiver of service of summons form at the request of plaintiff's attorney, and that waiver was filed in the trial court on September 10, 2012.

[¶8] The return date on the summons was seven days after Fahey served the papers and neither defendant nor his son Ravat appeared in court. As a result, the trial court entered a judgment against them awarding possession of the townhouse to plaintiff, plus a money judgment of $5,096.36 for damages, plus $651.36 for court costs.

[¶9] On September 28, 2012, defendant filed a pro se general appearance, and on October 1, 2012, he filed a pro se motion to vacate the judgment. In his pro se motion, defendant acknowledged that a court-appointed messenger left a copy of the summons in his son Ravat's name at the townhouse, but defendant claimed that he was not served personally. Although Ravat told defendant that he intended to have an attorney file an appearance on Ravat's behalf, defendant contacted the clerk of the circuit court on September 10, 2012, and learned that an appearance had not been filed. As a result, defendant filed a pro se general appearance on September 28, 2012, and he requested the trial court to vacate the default judgment ...


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