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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,
v.
CHE CE CE CORPORATION d/b/a La Notte and John Mancini, Defendants-Appellants.

Page 29

         Appeal from the Circuit Court of Cook County, No. 17-M1-718829; the Hon. Martin P. Moltz and the Hon. David A. Skyrd, Judges, presiding.

         David R. Herzog, of Herzog & Schwartz PC, of Chicago, for appellants.

         No brief filed for appellee.

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

         OPINION

         PIERCE, JUSTICE.

         ¶ 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

Page 30

set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493 (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://www.cookcountyclerkofcourt.org/Forms/pdf_files/CCMN021_SAMPLE.pdf (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 plaintiff's 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 ...


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