Cooper v. United Development Co.

• Decision Date: 20 March 1984
• Docket Number: No. 83-727,83-727
• Citation: 78 Ill.Dec. 510,462 N.E.2d 629,122 Ill.App.3d 850
• Parties: , 78 Ill.Dec. 510 Edgar H. COOPER, Jewelle Cooper, Robert C. Webb and Claire Webb, individually and as representatives of a class consisting of all unit owners of "the Park of River Oaks," a condominium, Plaintiffs-Appellants, v. UNITED DEVELOPMENT COMPANY and Inland-Robbins Construction, Inc., Defendants- Appellees, and River Oaks West Development Company and Westinghouse Electric Company, Defendants.
• Court: United States Appellate Court of Illinois

Page 629

462 N.E.2d 629

122 Ill.App.3d 850, 78 Ill.Dec. 510

Edgar H. COOPER, Jewelle Cooper, Robert C. Webb and Claire Webb, individually and as representatives of a class consisting of all unit owners of "the Park of River Oaks," a condominium, Plaintiffs-Appellants, v. UNITED DEVELOPMENT COMPANY and Inland-Robbins Construction Inc., Defendants- Appellees and River Oaks West Development Company and Westinghouse Electric Company, Defendants.

No. 83-727.

Appellate Court of Illinois First District, Second Division.

March 20, 1984.

Donald A. Shapiro, Ardwin E. Boyer of LeVine, Wittenberg, Eisner, Newman & Silverman, Chicago, for plaintiffs-appellants.

Wildman, Harrold, Allen & Dixon, Fred E. Schulz and Ann W. Regan, Chicago, for defendants-appellees.

DOWNING, Justice:

In this action for breach of an implied warranty of habitability, plaintiffs, a class consisting of original unit owners of The Park of River Oaks, ¹ appeal from the trial court's entry of two orders that: (1) dismissed their complaint with prejudice since it was barred by the applicable statute of limitations; (2) allegedly denied them leave to amend said complaint; (3) dismissed, for jurisdictional reasons, their motion to quash an allegedly void order; and (4) denied, for lack of diligence and a meritorious claim, their section 72 petition for relief from judgment. (Ill.Rev.Stat.1979, ch. 110, par. 72.) ² A summary of the pertinent procedural matters follows.

On January 26, 1982, plaintiffs instituted a class action seeking to recover damages for an alleged breach of an implied warranty of habitability. The named defendants were: United Development Company ("United"), the agent-developer for the condominium project; Inland-Robbins Construction, Inc. ("Inland"), the general contractor; Westinghouse Electric Company ("Westinghouse"), the subcontractor; and River Oaks West Development Company ("River Oaks"), the beneficial owner of the property. On March 30, 1982, United and Inland filed a motion to dismiss which was premised on plaintiffs' failure to state a cause of action, as well as their failure to file suit within the limitation period provided for in Ill.Rev.Stat.1979, ch. 83, par. 16. ³ An agreed order was entered on May 14, 1982 setting July 8, 1982 as the hearing date for defendants' motion to dismiss.

Following presentation of plaintiffs' motion on July 8, 1982 for a continuance, the trial court entered an order reciting that defendants' motion would be "taken under advisement until Wednesday, July 14, 1982 * * *. Ruling on said motion to be given after said date." Thereupon, plaintiffs were given until 9 a.m. on July 14, 1982 to submit law in opposition to the motion to dismiss. A memorandum was filed by plaintiffs on July 14, 1982 in response to defendants' motion; however, the actual time of filing was not recorded on this document.

On July 20, 1982, pursuant to United and Inland's motion to dismiss, as well as an analogous motion previously filed by Westinghouse, the trial court entered an order ⁴ dismissing plaintiffs' complaint with prejudice for the reason that it was "barred on its face by the applicable statute of limitations." It was further ordered that the cause remain pending "against any and all remaining defendants," i.e., River Oaks. In the record filed with this court is the aforesaid signed order which contains the name of the attorney for United. The attorney for the plaintiffs was not present when the order was entered. Counsel for defendants, after becoming aware on or before July 27, 1982 that such a dispositive order had been entered, did not advise plaintiffs' counsel of this critical fact until August 31, 1982. The record also contains a three-page, hand-written memo signed by the trial court explaining its reason for the order. This memo does not contain any date of filing and was never furnished to counsel for plaintiffs.

At a progress call held on July 27, 1982 before the Honorable Alan Morrill, an order was entered dismissing the instant cause for want of prosecution. Plaintiffs thereafter filed a motion to vacate Judge Morrill's order; however, this motion was withdrawn after plaintiffs' counsel became aware on August 31, 1982 of the entry of the July 20 dismissal order. Copies of this order of dismissal were received by plaintiffs' counsel on September 7, 1982.

On December 9, 1982, plaintiffs filed their petition for section 72 relief along with a motion to quash the July 20 order as void. These motions claimed, essentially, that the trial court entered the dismissal order as to United and Inland without having provided plaintiffs with proper notice. However, an order was subsequently entered on February 16, 1983 which dismissed, for lack of jurisdiction, plaintiffs' motion to quash; this order also denied, for lack of diligence and a meritorious claim, their section 72 petition for relief from judgment. It is the propriety of this order which plaintiffs now contest on appeal. Westinghouse has not been joined as an appellee in this matter.

I.

Initially, plaintiffs argue that the trial court erroneously dismissed, for want of jurisdiction, their motion to quash the dismissal order entered on July 20, 1982. Specifically, the trial court ruled that it could not entertain this motion since it was filed more than 30 days after the entry of the dismissal order. Plaintiffs now contend that such order was void and, therefore, subject to challenge at any time. We disagree.

Without question, a void judgment may be attacked and vacated at any time. (Fox v. Department of Revenue (1966), 34 Ill.2d 358, 361, 215 N.E.2d 271; Federal Sign & Signal Corp. v. Czubak (1st Dist.1978), 57 Ill.App.3d 176, 178, 14 Ill.Dec. 686, 372 N.E.2d 965.) Such a judgment or order is characterized as void where the court lacks jurisdiction of the parties or subject matter, or lacks the inherent power to enter the contested order. (Horzely v. Horzely (1st Dist.1979), 71 Ill.App.3d 542, 545, 28 Ill.Dec. 46, 390 N.E.2d 28.) However, an alleged failure to notify a defendant of the entry of a default judgment will not render such judgment void. (American Consulting Association, Inc. v. Spencer (1st Dist.1981), 100 Ill.App.3d 917, 920, 56 Ill.Dec. 384, 427 N.E.2d 579, cert. denied, 458 U.S. 1112, 102 S.Ct. 3495, 73 L.Ed.2d 1375.) Likewise, an "alleged failure to notify plaintiff that [a] dismissal order had been entered did not make the order void." Watts v. Medusa Portland Cement Co. (2d Dist.1971), 132 Ill.App.2d 227, 230, 268 N.E.2d 721, appeal denied, 47 Ill.2d 592.

The two cases relied upon by plaintiffs in support of their argument for retention of jurisdiction to review the order are, in fact, inapposite. In re Franklin (1st Dist.1976), 42 Ill.App.3d 129, 355 N.E.2d 570, was concerned solely with an order of probation and commitment which was held void since the trial court, having failed to adjudicate a minor as a ward of the court, did not have jurisdiction to enter the dispositional order. Lowy v. Filosa (1st Dist.1974), 18 Ill.App.3d 123, 309 N.E.2d 356, dealt with section 72 petitions for relief from void consent decrees, rather than post-judgment motions to quash an allegedly void dismissal order.

Since, in accordance with Illinois decisional law, the instant dismissal order cannot be characterized as void, the trial court was without jurisdiction to review it after the expiration of 30 days. (Board of Managers of Dunbar Lakes Condominium Association II v. Beringer (1st Dist.1981), 94 Ill.App.3d 442, 446, 50 Ill.Dec. 105, 418 N.E.2d 1099; Lurie Co. v. Teichner (1st Dist.1978), 63 Ill.App.3d 950, 951-52, 20 Ill.Dec. 750, 380 N.E.2d 959.) Thereafter, plaintiffs' sole source of relief from the order of dismissal was to proceed under Section 72 of the Illinois Civil Practice Act. Halleck v. Trumfio (1st Dist.1980), 85 Ill.App.3d 1051, 1053, 41 Ill.Dec. 369, 407 N.E.2d 867; Lurie Co., 63 Ill.App.3d at 952, 20 Ill.Dec. 750, 380 N.E.2d 959.

It is averred that plaintiffs received no documentation of the July 20 dismissal order until September 7, 1982. Nonetheless, the fact remains that their motion to quash this order was not filed until December 9, 1982, well after the 30-day review period had expired. Consequently, the trial court correctly ruled that it lacked jurisdiction to consider the post-trial motion to quash tendered by plaintiffs.

II.

The next issue for resolution focuses on the propriety of the lower court's denial of plaintiffs' petition for section 72 relief. This denial was predicated on the court's conclusion that the requisite elements of due diligence and a meritorious claim were not satisfied.

Section 72 of the Illinois Civil Practice Act, now known as section 2-1401 of the Illinois Code of Civil Procedure, provides a comprehensive statutory procedure for obtaining relief from final orders, judgments and decrees after the expiration of 30 days from the entry thereof. (Davis v. Chicago Transit Authority (1st Dist.1980), 82 Ill.App.3d 987, 989, 38 Ill.Dec. 384, 403 N.E.2d 615.) The purpose of a section 72 petition is to bring to the court's attention "matters of fact not appearing in the record, which, if known to the court at the time the judgment was rendered, would have prevented its rendition." Peoples Gas Light & Coke Co. v. Rubin (1st Dist.1980), 89 Ill.App.3d 244, 246, 44 Ill.Dec. 520, 411 N.E.2d 886.

To warrant relief under section 72, a petitioner must demonstrate: (1) a meritorious defense or claim; (2) due diligence in presenting this defense or claim in the original action; (3) the trial court's misapprehension of the facts or a valid defense, through no fault or negligence of petitioner, at the time judgment was entered; and (4) due diligence in filing the petition for section 72 relief. (American Consulting Association, Inc., 100 Ill.App.3d at 921, 56 Ill.Dec. 384, 427 N.E.2d 579; Canton v. Chorbajian (2d Dist.1980), 88 Ill.App.3d 1015, 1021, 44 Ill.Dec. 74, 410 N.E.2d 1166, ...