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Lamarca v. Che Ce Ce Corp.

Court of Appeals of Illinois, First District, First Division

September 16, 2019

JOE LAMARCA, Plaintiff-Appellee,
CHE CE CE CORPORATION d/b/a La Notte and JOHN MANCINI, Defendants-Appellants.

          Appeal from the Circuit Court of Cook County No. 17 M1 718829 The Honorable Martin P. Moltz and David A. Skyrd, Judges Presiding.

          JUSTICE PIERCE delivered the judgment of the court, with opinion. Presiding Justice Griffin and Justice Hyman concurred in the judgment and opinion.



         ¶ 1 Defendants Che Ce Ce Corp. d/b/a La Notte, and John Mancini (collectively, defendants) appeal from the circuit court of Cook County's denial of their 2-1401 petition (735 ILCS 5/2-1401 (West 2018)) to vacate a $10, 000 money judgment entered in a forcible entry and detainer action. On appeal, defendants argue that the money judgment is void because plaintiff Joe Lamarca's forcible entry and detainer complaint did not seek a money judgment, and because defendants were never served with an amended complaint seeking a money judgment. Plaintiff has not filed an appellee brief, and we therefore consider this appeal solely on defendants' brief and the record on appeal under the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133 (1976) ("[I]f the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee's brief, the court of review should decide the merits of the appeal. In other cases if the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record the judgment of the trial court may be reversed."). For the reasons that follow, we reverse the circuit court's judgment denying defendants' 2-1401 petition, grant defendants' petition, and vacate the circuit court's money judgment in favor of plaintiff and against defendants.

         ¶ 2 I. BACKGROUND

         ¶ 3 On November 7, 2017, plaintiff filed a complaint for forcible entry and detainer against defendants for unlawfully withholding possession of a property located at 6822 Windsor Avenue, Berwyn, Illinois (subject property). Plaintiff used the Clerk of the Circuit Court of Cook County's form "Complaint For Possession Only - Forcible Detainer." See http:// (last visited September 6, 2019). Plaintiff's complaint only sought possession of the subject property; nowhere in the complaint did plaintiff indicate that he would be seeking money damages. The summons issued by the clerk of court stated that the trial date was December 5, 2017. The summons contains a line "Rent Amount Claimed: $ ____," which plaintiff left blank. Defendants were served with the summons and forcible complaint, but did not file an appearance, file an answer, or otherwise plead. On December 5, 2017, the circuit court entered an order granting plaintiff possession of the subject property.[1] The circuit court's order also entered a $10, 000 judgment "and costs" in favor of plaintiff and against defendants.[2]

         ¶ 4 On October 3, 2018, defendants filed a 2-1401 petition. Defendants acknowledged that they had not filed an appearance or answer in response to plaintiff s complaint because "neither party was opposed to the entry of an order of possession with respect to the [subject property]." Defendants argued, however, that the money judgment was void pursuant to Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989) because plaintiffs complaint only sought an order of possession and did not seek any money damages. Defendants' petition was supported by Mancini's affidavit. Mancini averred that he was served with a summons and complaint. He contacted his attorney, who advised him that the only relief sought in the complaint was for possession of the subject property and that no monetary relief was requested. Mancini therefore directed his attorney not to take any action because he was not opposed to the entry of an order of possession. He further averred that "at no time did I receive and [sic] Amended Complaint or a Notice that a monetary judgment was sought against CHE CE CE Corporation or me personally in connection with the above-captioned case."

         ¶ 5 Plaintiff responded to defendants' petition. Plaintiff asserted that on December 5, 2017, plaintiff appeared before the circuit court "and orally moved to amend the complaint to included [sic] money damages against the guarantor and the Corporation. The court granted the motion and entered an order for possession and money judgment against both defendants." Plaintiff argued that defendants failed to establish due diligence in filing their petition, and that the petition failed to set forth a meritorious defense to plaintiff's complaint. Defendants replied that they did not need to establish due diligence or a meritorious defense because the money judgment was void due to plaintiff's failure to serve an amended complaint pursuant to Rule 105 upon seeking new or additional relief.

         ¶ 6 On December 27, 2018, the circuit court entered a handwritten order denying defendants' petition. The circuit court's order states, in full, "Defendant's 2-1401 motion is denied based on People v. Bailey." The circuit court's reference to "People v. Bailey" was not accompanied by any specific citation. There is no indication in the record that the circuit court heard oral argument on defendants' petition, and the circuit court's order does not state that defendants' petition was denied for the reasons stated in open court. Defendants filed their notice of appeal from the circuit court's order on December 27, 2018.

         ¶ 7 II. ANALYSIS

         ¶ 8 On appeal, defendants argue that the circuit court erred by denying their 2-1401 petition because the $10, 000 money judgment is void pursuant to Rule 105. We agree that the circuit court's money judgment is void for lack of personal jurisdiction because plaintiff failed to serve defendants with notice that it amended its complaint to seek new or additional relief in the form of a money judgment.

         ¶ 9 Section 2-1401 of the Code allows a party to file a petition in the circuit court seeking relief from a final order or judgment more than 30 days after the entry of that order or judgment, provided that the petition is filed within two years of the complained of order or judgment. 735 ILCS 5/2-1401(a), (c) (West 2018). A section 2-1401 petition must be filed in the original case and constitutes a new proceeding rather than a continuation of the underlying proceedings that culminated in a final judgment. Id. § 2-1401(b). A section 2-1401 petition may assert either a purely legal challenge to a final judgment or raise a fact-dependent challenge to the judgment. Warren County Soil & Conservation District v. Walters, 2015 IL 117783, ¶ 31. In order to obtain relief pursuant to section 2-1401 of the Code, the petition must set forth specific factual allegations supporting three elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief. Id. ¶ 51; Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986)). However, when a section 2-1401 petitioner seeks to vacate a void judgment, they raise a purely legal issue and do not need to establish a meritorious defense or satisfy due diligence requirements. Id. ¶48 (citing Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 104 (2002)). Where a section 2-1401 petition raises a purely legal challenge to a judgment, our review is de novo. Id. ¶ 47.

         ¶ 10 Here, defendants' 2-1401 petition advised the circuit court that they did not appear in response to the summons and forcible complaint because they had no objection to plaintiff receiving the only relief that he sought: possession of the subject property. "One has a right to assume that the relief granted on default will not exceed or substantially differ from that described in the complaint, and he may safely allow a default to be taken in reliance upon this assumption." Park Avenue Lumber & Supply Co. v. Nils A. Hofverberg, Inc., 76 Ill.App.2d 334, 345 (1966).

         ¶ 11 However, where a plaintiff seeks new or additional relief beyond what was pleaded in its complaint, the plaintiff must comply with Rule 105 and section 2-604 of the Code of Civil Procedure (Code) (735 ILCS 5/2-604 (West 2018)). Supreme Court Rule 105 "was designed to prevent a litigant from obtaining new or additional relief without giving the defaulted party a renewed opportunity to ...

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