Goodwin v. Matthews

• Decision Date: 20 December 2018
• Docket Number: No. 17-2141,17-2141
• Citation: 428 Ill.Dec. 731,2018 IL App (1st) 172141,123 N.E.3d 460
• Parties: Kevin GOODWIN and Ray Rabideau, Plaintiffs-Appellees, v. Kenneth MATTHEWS, Defendant-Appellant, (Laskeshia Odoms and Unknown Occupants, Defendants).
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 172141

123 N.E.3d 460

428 Ill.Dec. 731

Kevin GOODWIN and Ray Rabideau, Plaintiffs-Appellees,

v. Kenneth MATTHEWS, Defendant-Appellant,(Laskeshia Odoms and Unknown Occupants, Defendants).

No. 17-2141

Appellate Court of Illinois, First District, FOURTH DIVISION.

December 20, 2018

JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 Defendant Kenneth Matthews, pro se , appeals the entry of an order of possession in favor of plaintiffs Kevin Goodwin (Goodwin) and Ray Rabideau (Rabideau) (collectively plaintiffs) in a forcible entry and detainer action pursuant to the Forcible Entry and Detainer Act (Act) ( 735 ILCS 5/9-101, et seq. (West 2016) ). On appeal, defendant maintains that (1) the order of possession is void because plaintiffs failed to satisfy the statutory requirements for service of a five-day notice according to section 9-211 of the Act ( 735 ILCS 5/9-211 (West 2016) ), (2) the circuit court erroneously struck his jury demand, (3) the circuit court erred when it did not hold an evidentiary hearing on his motion to quash, and (4) the circuit court erred in granting Goodwin's oral motion to amend the complaint. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On June 9, 2017, Goodwin filed a complaint in forcible entry and detainer against defendant seeking possession of a property located at 5409 S. Princeton Avenue, Unit 1, Chicago, Illinois as well as rent and late fees totaling $10,000. After an attempt by the sheriff to serve defendant with summons failed, Goodwin was granted leave to employ a special process server to serve the complaint. After four attempts, the special process server filed an affidavit with the court indicating that defendant was unable to be served with the summons. Goodwin's counsel then filed an affidavit for service of the summons by posting indicating defendant was "concealed within the state; therefore, process cannot be served upon defendant." The sheriff posted the summons on July 17, 2017, and stated that defendant was required to appear on July 28, 2017.

¶ 4 On July 27, 2017, defendant filed a pro se motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2016) ) in which he argued that Goodwin was not the owner of the property and therefore lacked standing. Attached to his motion was a copy of the warranty deed for the property indicating Rabideau was the owner of the premises. Defendant noticed the motion for July 28, 2017.

¶ 5 The record demonstrates that on July 28, 2017, plaintiffs' counsel and defendant were present before the circuit court. Although there is no record of proceedings included in this appeal, orders entered that day indicate (1) the complaint was amended to include Rabideau as an additional plaintiff, (2) Laskeshia Odoms (an individual originally named as a defendant) was dismissed, and (3) an order of possession was entered in favor of plaintiffs and against defendant. No monetary judgment was entered against defendant.

¶ 6 Thereafter, on July 31, 2017, defendant filed a pro se emergency motion to quash service by posting and to vacate the order of possession. Defendant maintained that plaintiffs failed to comply with the service requirements of the Act when, on July 17, 2017, they posted notice on the apartment door when he was in actual possession of the premises. In support of his motion, defendant filed an affidavit stating that "at all relevant times" he was "in actual possession of the premises located at 5409 South Princeton Ave" and that he was "not concealed within this State[.]" The following day, defendant filed an appearance and jury demand.

¶ 7 On August 2, 2017, the circuit court denied defendant's motion to quash service by posting and vacate the order of possession. The circuit court also struck defendant's jury demand finding defendant waived this right.

¶ 8 Shortly thereafter, defendant retained counsel who filed, in one document, an amended motion to quash, a motion to reconsider the court's denial of the motion to quash, a motion to vacate the July 28, 2017, order, and a motion to stay enforcement. In these motions, defendant argued (1) Goodwin did not make an honest, well-directed effort to locate defendant and did not follow the statutory requirements for service of process, (2) defendant was not served with a five-day notice prior to the lawsuit being filed as required by the Act, (3) the circuit court erred in striking his jury demand, and (4) the circuit court erred when it allowed Goodwin's oral motion to amend the complaint. Defendant requested an evidentiary hearing. Attached to the motions was an affidavit from defendant in which he again averred that he resided at the property and could be located there. Also attached to the motions was a copy of a five-day notice defendant averred he received from another tenant, Barry McCarey (McCarey), after the lawsuit had been filed. The five-day notice was not dated, was signed by McCarey, but was not notarized or sworn.

Defendant appended McCarey's affidavit to the motions. McCarey averred that his signature on the five-day notice was forged and that he did not serve defendant with a copy of the five-day notice.¹

¶ 9 On August 21, 2017, the circuit court denied defendant's motions. In denying these motions the circuit court found defendant was not entitled to an evidentiary hearing because the special process server's affidavit demonstrated due diligence. This appeal followed.

¶ 10 ANALYSIS

¶ 11 On appeal, defendant pro se maintains that (1) the order of possession is void because plaintiffs failed to satisfy the statutory requirements for service of a five-day notice according to the Act and thus lacked subject matter jurisdiction, (2) the circuit court erroneously struck his jury demand, (3) the circuit court erred when it did not hold an evidentiary hearing on his motion to quash, and (4) the circuit court erred in granting Goodwin's oral motion to amend the complaint. Although plaintiffs have not filed a response brief in this court, we may proceed under the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976). We address each claim in turn.

¶ 12 Defendant first contends that he was not properly served with the five-day notice because he did not receive it prior to the filing of the complaint and the notice was not signed by the landlord or the landlord's agent. Section 9-209 of the Act provides that a landlord may notify the tenant in writing that the lease will be terminated unless payment of overdue rent is made within the time stated in the notice, which cannot be less than five days after service. 735 ILCS 5/9-209 (West 2016). Under section 9-211 of the Act, such notice may be served by (i) delivering a copy to the tenant, (ii) leaving a copy with an individual over the age of 13 who resides at the premises, or (iii) sending a copy to the tenant by certified or registered mail, with a returned receipt from the addressee. 735 ILCS 5/9-211 (West 2016). Section 9-211 further provides that if no one is in "actual possession" of the premises, service may be made by posting the notice on the premises. Id.

¶ 13 Asserting that he was in "actual possession" of the property, defendant argues that the service of the five-day notice by posting did not comply with section 9-211. Citing Figueroa v. Deacon , 404 Ill. App. 3d 48, 52, 343 Ill.Dec. 852, 935 N.E.2d 1080 (2010), and American Management Consultant, LLC v. Carter , 392 Ill. App. 3d 39, 55-56, 333 Ill.Dec. 605, 915 N.E.2d 411 (2009), he contends that the circuit court did not have subject matter jurisdiction over the action based on plaintiffs' failure to strictly satisfy the requirements of the Act. "Whether a circuit court has subject matter jurisdiction to entertain a claim presents a question of law which we review de novo ." In re Megan G. , 2015 IL App (2d) 140148, ¶ 20, 400 Ill.Dec. 741, 48 N.E.3d 1181. As discussed below, we reject defendant's jurisdictional challenge.

¶ 14 Subject matter jurisdiction is defined as the power of a court to hear and determine cases of the general class to which the proceeding in question belongs. LVNV Funding, LLC v. Trice , 2015 IL 116129, ¶ 39, 392 Ill.Dec. 245, 32 N.E.3d 553. Under the Illinois Constitution adopted in 1870, the circuit court's jurisdiction over special statutory proceedings, i.e. , "matters which had no roots at common law or in equity," was derived from the legislature. Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc. , 199 Ill. 2d 325, 336, 264 Ill.Dec. 283, 770 N.E.2d 177 (2002).

¶ 15 In a series of cases referred to as the Belleville Toyota cases, the Illinois Supreme Court recognized the effect that the 1964 and 1970 amendments to the Illinois Constitution made to the power of courts to exercise subject matter jurisdiction. See In re Nathan A.C. , 385 Ill. App. 3d 1063, 1069, 328 Ill.Dec. 350, 904 N.E.2d 112 (2008). In Belleville Toyota , our supreme court considered whether the failure to comply with a statutory requirement or prerequisite can deprive a circuit court of subject matter jurisdiction. Belleville Toyota , 199 Ill. 2d at 335, 264 Ill.Dec. 283, 770 N.E.2d 177. See also LVNV Funding, LLC , 2015 IL 116129, ¶ 33, 392 Ill.Dec. 245, 32 N.E.3d 553 (discussing Belleville Toyota ). The Belleville Toyota court stated that "[w]ith the exception of the circuit court's power to review administrative action, which is conferred by statute, a circuit court's subject matter jurisdiction is conferred entirely by our state constitution." Belleville Toyota , 199 Ill. 2d at 334, 264 Ill.Dec. 283, 770 N.E.2d 177.

¶ 16 Section 9 of article VI of the Illinois Constitution provides, in part, that the jurisdiction of the circuit courts extends to "all justiciable matters except when the Supreme Court has original and exclusive jurisdiction relating to the redistricting of the General Assembly and to the...