Williamsburg Village Owners' Ass'n, Inc. v. Lauder Associates

• Decision Date: 20 June 1990
• Docket Number: No. 1-89-1733,1-89-1733
• Citation: 146 Ill.Dec. 245,200 Ill.App.3d 474,558 N.E.2d 208
• Parties: , 146 Ill.Dec. 245 WILLIAMSBURG VILLAGE OWNERS' ASSOCIATION, INC., Plaintiff-Appellant, v. LAUDER ASSOCIATES, Richard Brandstatter, John Blazina, Emil Blazina, Helen M. Blazina and Irwin Lipka, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 208

558 N.E.2d 208

200 Ill.App.3d 474, 146 Ill.Dec. 245

WILLIAMSBURG VILLAGE OWNERS' ASSOCIATION, INC., Plaintiff-Appellant, v. LAUDER ASSOCIATES, Richard Brandstatter, John Blazina, Emil Blazina, Helen M. Blazina and Irwin Lipka Defendants-Appellees.

No. 1-89-1733.

Appellate Court of Illinois,

First District, Third Division.

June 20, 1990.

Vincent A. Lavieri, Mary E. Haglund of Kovitz, Shifrin & Waitzman, Arlington Heights, for plaintiff-appellant.

Christopher Jacobs, James A. Blazina of James A. Blazina, Chartered, Chicago, for defendants-appellees.

Justice FREEMAN delivered the opinion of the court:

On December 2, 1989, plaintiff, Williamsburg Village Owners' Association, Inc., brought a forcible entry and detainer action against defendants, Lauder Associates, seeking possession of certain commercial condominium property and recovery of $8,385.72 of unpaid assessments for common element expenses from January 1, 1986 through October 31, 1987.

Following a trial in the circuit court of Cook County, the court entered an ex parte default judgment against defendants. The court awarded damages of $7,869, attorney fees of $585, and possession of the office condominium to plaintiff. Pursuant to the trial court's order of possession, plaintiff collected $55,909.02 under an assignment of rents.

Defendants appealed from that judgment, and this court reversed and remanded the case for further proceedings. (Williamsburg Village Owners' Association, Inc. v. Lauder Associates (1989), 181 Ill.App.3d 931, 130 Ill.Dec. 528, 537 N.E.2d 857.) On remand, defendants filed a Motion to Vacate Judgment, Declare an Assignment of Rents Void Ab Initio and Return of Collected Funds. The trial court granted defendants' motion and, on June 14, 1989, ordered plaintiff to return the funds it had collected by June 21.

On June 21, the date which had been set for trial, plaintiff advised the court that it would be filing a substitution of attorneys. Also, on that date, defendants made an oral motion to hold plaintiff in contempt of court for failing to comply with the turn-over order of June 14. The court stated:

"He's making a request to substitute attorneys, you are making a request for sanctions and its all oral. I'm going to hold my order and continue this case for hearing on all of the motions. And that they be reduced to writing for July 3rd 1989 at 10:30 a.m. That's it."

At the July 3 hearing defendants presented their motion to hold plaintiff in contempt. Counsel for plaintiff first contended that he had not seen a copy of the motion, next argued that the June 14 turn-over order had been continued from the June 21 hearing to July 3, then stated that he did not know why there had been no compliance. Plaintiff requested an opportunity to obtain a copy of the June 21 transcript of the proceedings in order to show the court that the order had been continued; however, the request was denied. The court stated that it had not continued the turn-over order, entered an order finding plaintiff in contempt, and assessed a $500 fine for every day of continued noncompliance.

On July 6, the parties again appeared in court. Upon being advised that plaintiff had not turned over the funds, the court increased the contempt fine to $1,000 per day. The fine was increased, a third time, to $1,500 on July 13, 1989.

On July 20, defendants filed a garnishment on plaintiff's bank account. On or about August 10, answers to interrogatories were filed and defendants levied on plaintiff's bank account. Plaintiff urges four points on appeal: (1) the trial court abused its discretion in holding it in contempt; (2) the trial court lacked jurisdiction to increase the contempt fine; (3) the trial court's turn-over order was an abuse of discretion; and, (4) the garnishment should have been quashed. We affirm.

Plaintiff first contends that the trial court abused its discretion in holding it in contempt because it was not given prior notice of defendants' contempt motion and the opportunity to be heard. At oral argument, plaintiff complained that the notice had not been timely given because it had not been received within two court days prior to the hearing as required by Circuit Court Rule 2.1(d). Plaintiff asserts that when it raised the issue of lack of notice the trial judge had an obligation to inquire into whether adequate notice had been given.

Defendants claim that the Notice of Motion and Proof of Service was filed on July 3, 1989. Additionally, defendants assert that plaintiff's counsel was personally served with a copy of the motion on June 30, 1989.

Included in defendants' brief, as exhibit 1, is a photocopy of a Notice of Motion and Proof of Service by Delivery. In the section provided for Proof of Service, the typewritten date of service is Monday, July 3, 1989. That date is crossed out, and Friday, June 30, 1989, is handwritten above it. The defense attorney's initials appear beside the handwritten date, and his signature appears in the appropriate space provided on the form. The Proof is stamped, filed July 3, 1989. In addition, included in the record is an original of a letter, dated June 30, 1989, sent by messenger, and addressed to Judge Bryant. The letter states that a copy of the motion is enclosed, and indicates that a carbon copy was sent to plaintiff's counsel.

The evidence in the record supports defendants' claim that notice of the motion, albeit untimely, was given. Nevertheless, even if notice was not proper, we believe that plaintiff has waived the issue.

Even though an order of court may be void ab initio for lack of due process, such as notice, a defect in notice can be waived. (Walter v. City of West Chicago (1976), 39 Ill.App.3d 297, 300, 349 N.E.2d 437.) Preservation of a question for review requires an appropriate objection in the court below (Hargrove v. Gerill Corp. (1984), 124 Ill.App.3d 924, 929, 80 Ill.Dec. 243, 464 N.E.2d 1226), and failure to object constitutes a waiver. Smith v. Airoom, Inc. (1986), 114 Ill.2d 209, 229, 102 Ill.Dec. 368, 499 N.E.2d 1381; People ex rel. Wilcox v. Equity Funding Life Ins. Co. (1975), 61 Ill.2d 303, 313, 335 N.E.2d 448.

We have reviewed the July 3 proceedings wherein defendants' motion for contempt was presented. The following colloquy occurred:

"Mr. JACOBS [defense counsel]: Your Honor, we have two motions. One motion to hold--hold the Plaintiff in contempt of court. Here is the original.

MR. LAVIERI [plaintiff's counsel]: I've never seen a copy of this motion.

THE COURT: You did get a copy of the order?

MR. LAVIERI: Yes, I did and--

THE COURT: Will you give me a reason why you have not turned it over?

MR. LAVIERI: You continued everything until--

THE COURT: No, I didn't continue the order that was on June 21st.

MR. LAVIERI: Yes, you did.

* * * * * *

THE COURT: I didn't continue that one. Why have you not turned the money over? That is the question.

MR. LAVIERI: I understand that. I will have to check with my clients why they haven't turned the money over.

THE COURT: Prepare an order finding the Association plaintiff in contempt as of this moment * * *."

If, by stating that it had not seen the motion, plaintiff meant that it had not received notice, such an objection was nebulous, and insufficient. In order to put the court on notice of any defect it was incumbent upon plaintiff to state the objection with sufficient clarity, renewing it until such time as the court acknowledged and responded to it.

In Hargrove, the plaintiffs' counsel observed that there had been improper notice, but indicated a willingness to proceed with the hearing that day. The trial court's order contained the specific finding that plaintiffs' attorney agreed to a hearing instanter despite the 24-hour notice. On review, the court held that the plaintiffs had waived the issue of untimely notice by their failure to raise sufficient objection before the trial court to the defective notice. 124 Ill.App.3d at 929, 80 Ill.Dec. 243, 464 N.E.2d 1226.

Similarly, in Carlsen v. Village of Oakwood Hills (1987), 164 Ill.App.3d 396, 115 Ill.Dec. 421, 517 N.E.2d 1107, the plaintiff assigned error to the trial court's hearing of defendants' motion since the plaintiff had not been served with the motion until the morning of trial. Initially, the plaintiff's counsel objected to the timeliness of the filing of the motion on the basis that he had just received it that morning. The trial court granted a recess so that the court and plaintiff could review the motion and so that plaintiff could prepare a response. Plaintiff did not renew his objection for lack of notice when court resumed. On the contrary, plaintiff took part in a spirited argument which included citation of authority. The court held, since the plaintiff demonstrated a willingness to proceed on the motion he should not be heard to complain.

Here, there was never any objection to the sufficiency of the notice. Plaintiff, after its initial argument of having not seen the motion, relied solely on its mistaken belief that the order had been continued and a lack of knowledge concerning the reasons for the noncompliance. Further, absent some assertion from plaintiff that notice was defective, it was not the duty of the trial court to inquire.

Plaintiff here also contends that the court entered the contempt finding without first conducting an evidentiary hearing. The record reveals that plaintiff neither requested a continuance in order to prepare a response to the motion nor did it offer any evidence in opposition to the motion. At oral argument plaintiff stated that it did not request a hearing.

Having proceeded to defend against the contempt citation by relying on its mistaken belief concerning the continuance, plaintiff cannot now be heard to complain about the insufficiency of the hearing. Lemke v. Kenilworth Insurance Co. (1985), 109 Ill.2d 350, 354-55, 94 Ill.Dec. 66, 487 N.E.2d 943.

Plaintiff next contends that the trial...