Courts of Northbrook Condo. Ass'n v. Bhutani

• Decision Date: 17 April 2014
• Docket Number: No. 1–13–0417.,1–13–0417.
• Citation: 379 Ill.Dec. 1001,2014 IL App (1st) 130417,7 N.E.3d 839
• Parties: The COURTS OF NORTHBROOK CONDOMINIUM ASSOCIATION, Plaintiff–Appellee, v. Baldev BHUTANI, Defendant–Appellant (Ravat Bhutani and All Unknown Occupants, Defendants).
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 130417

7 N.E.3d 839

379 Ill.Dec. 1001

The COURTS OF NORTHBROOK CONDOMINIUM ASSOCIATION, Plaintiff–Appellee,

v.Baldev BHUTANI, Defendant–Appellant (Ravat Bhutani and All Unknown Occupants, Defendants).

No. 1–13–0417.

Appellate Court of Illinois, First District, Fifth Division.

March 14, 2014.

Rehearing Denied April 17, 2014.

No brief filed for appellant.

Jennifer L. O'Reilly, Levenfeld Pearlstein, LLC, Chicago, for appellee.

OPINION

Presiding Justice GORDON delivered the judgment of the court, with opinion.

¶ 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 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 refused 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 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 against him and grant him 30 days to respond to the complaint. On October 3, 2012, the trial court entered a judgment for plaintiff in the amount of $1,312.50 for attorney fees.

¶ 10 The trial court granted defendant's motion to vacate on October 15, 2012, and the matter was set for trial on October 24, 2012. On that day, the trial court entered an order of possession and money judgment of $5,288.25 in damages, $2,658.75 in attorney fees, and $632.86 in court costs for plaintiff. On the written order, the trial court noted in pen, “Counsel for plaintiff and witness present for trial. Defendant Baldev Bhutani present.” Although defendant has repeatedly claimed that he never received a trial, plaintiff states in its brief that the trial court conducted an “informal hearing” pursuant to Illinois Supreme Court Rule 286(b) (eff. Aug. 1, 1992), which provides that the trial court may relax the rules of procedure and the rules of evidence to adjudicate a dispute in a small claims case. No transcript or report of proceedings of the October 24, 2012, hearing appears in the appellate record.

¶ 11 On November 21, 2012, defendant filed a pro se “Motion to Reconsider and Vacate Order of October 24, 2012.” In his pro se motion, defendant claims that the trial court entered its order of possession without a hearing or sworn testimony, and that it allowed plaintiff's attorney to draft the written order. Defendant further argues that, since the only remedy provided by plaintiff's bylaws was for plaintiff to obtain a lien on the townhouse, plaintiff was not allowed to seek a court order of eviction. Defendant attaches to his pro se motion copies of plaintiff's bylaws, as well as a copy of plaintiff's payment ledger, in which defendant is named as “Raj Bhutani.” ⁴ Defendant additionally claims to have mailed a $1,100 check to plaintiff as a show of “good faith.”

¶ 12 The trial court set defendant's pro se motion to reconsider for a hearing on December 12, 2012, but the case was transferred to a new judge who was not present that day. Defendant spoke with plaintiff and requested a hearing date for sometime after December 25, 2012, but plaintiff refused, claiming that defendant had already agreed to an earlier date. As a result, plaintiff filed a “Motion to Hear Defendant's Motion to Reconsider and Vacate Judgment,” requesting a hearing on December 19, 2012. The notice of plaintiff's motion indicates that defendant was notified of the motion by email on December 17, 2012.⁵ Defendant did not appear in court on December 19, 2012, and the trial court denied defendant's pro se motion to reconsider based on the written motion before the court.

¶ 13 On January 7, 2013, defendant filed a pro se “Motion for Leave to File Motion to Vacate and Motion to Dismiss.” Defendant claims in his pro se motion that he was not properly served with a summons, but he did not challenge the trial court's jurisdiction, and he instead claims that the new trial judge was granted “limited subject matter jurisdiction” when the case was transferred on December 12, 2012. Defendant also argues that he should be granted leave to file his pro se motion to dismiss because: (1) plaintiff's bylaws did not permit plaintiff to seek an order of eviction; (2) defendant did not receive a jury trial; (3) plaintiff failed to provide defendant a verified validation of debt statement pursuant to the Fair Debt...