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

• Decision Date: 29 March 1989
• Docket Number: No. 88-1053,88-1053
• Citation: 130 Ill.Dec. 528,181 Ill.App.3d 931,537 N.E.2d 857
• Parties: , 130 Ill.Dec. 528 WILLIAMSBURG VILLAGE OWNERS' ASSOCIATION, INC., Plaintiff-Appellee, v. LAUDER ASSOCIATES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 857

537 N.E.2d 857

181 Ill.App.3d 931, 130 Ill.Dec. 528

WILLIAMSBURG VILLAGE OWNERS' ASSOCIATION, INC., Plaintiff-Appellee, v. LAUDER ASSOCIATES, Defendant-Appellant.

No. 88-1053.

Appellate Court of Illinois First District, Third Division.

March 29, 1989.

Nancy Tordai O'Shaughnessy and James A. Blazina of James A. Blazina, Chartered, Chicago, for defendant-appellant.

Arnold Pagniucci, of Sachnoff Weaver & Rubenstein, Ltd., Chicago, for plaintiff-appellee.

Presiding Justice FREEMAN delivered the opinion of the court:

Defendant, Lauder Associates (Lauder), appeals from an order of the trial court in a forcible entry and detainer action which granted judgment in favor of plaintiff, Williamsburg Village Owners' Association, Inc. (Williamsburg), for possession of certain commercial condominium property located in Inverness, Illinois. The order also awarded plaintiff damages in the amount of $8,385.72 for unpaid common expenses regarding the property, and granted plaintiff attorney fees in the amount of $585. On appeal defendant characterizes the trial court order as an ex parte default order, the entry of which, defendant asserts, constituted a substantial injustice. Defendant also contends that the court erred in denying its motion to vacate the order.

For the reasons stated below, we reverse the judgment of the circuit court and remand this matter for further proceedings.

The record indicates that on December 2, 1987, plaintiff filed its forcible entry and detainer action against Lauder, seeking recovery of $8,385.72 in unpaid common expenses for the subject property, in addition to attorney fees and costs. On January 29, 1988, plaintiff filed an amended complaint, naming Lauder in addition to several other defendants and seeking $12,210.71 in unpaid common expenses plus costs and fees.

Lauder was served with summons by publication on February 4, 1988. The return date was March 14, 1988. On March 3, 1988, the case was dismissed for want of prosecution. On March 14, 1988, the court vacated the dismissal for want of prosecution. A special and limited appearance was filed on behalf of Irwin Lipka, a codefendant not named in this appeal. Lipka was represented in court by the same attorneys as was defendant Lauder. On that date, the trial court indicated that Lipka and Lauder would be allowed to file motions to quash in support of a special and limited appearance. No special and limited appearance, however, was filed on behalf of defendant Lauder on that date. Counsel for Lauder indicated that he had appeared on behalf of Lauder in order to see if the case had been dismissed for want of prosecution, and to discover the status of the case. Subsequently, a motion to quash service of summons was filed on behalf of the codefendant Lipka.

On March 24, 1988, counsel tendered a special and limited appearance on behalf of defendant Lauder. The trial court denied Lauder's request for leave to file a motion to quash service of summons in support of a special and limited appearance, stating that such a motion could be filed at any time, without leave of court. It is indicated in defendant's post-trial motion to vacate that counsel for Lauder then asserted the "equitable defense" that the statutory assessment procedures were not properly followed. The court stated that the defense asserted was "not germane" to the issue of possession, pursuant to the forcible entry and detainer statute. The trial court granted the motion to quash service of summons on the codefendant Lipka, and stated that the case was ready for trial. Counsel for Lauder requested a continuance of the trial, and the court continued trial to March 31, 1988.

On March 31, 1988, counsel for Lauder indicated that he was not prepared to cross-examine any witness called by plaintiff, since he had just received a new schedule from plaintiff regarding the recovery amount sought. Counsel for plaintiff responded that he would "take away" the new schedule if necessary. Plaintiff's counsel also stated that Lauder had failed to make any discovery requests. The court indicated that the trial would proceed. The court thereafter entered judgment in favor of plaintiff. On April 4, 1988, defendant Lauder filed a motion to vacate the judgment, which was denied.

Defendant Lauder initially asserts on appeal that its participation in the proceedings in the trial court constituted a general appearance. Defendant filed a special and limited appearance on March 24, 1988 and then sought a continuance of the trial. The court continued the case to March 31, 1988, on which date defendant moved for leave to file a general appearance instanter.

It is well established in Illinois that a special appearance is waived when a party raises a defense, makes a motion, files a pleading, or takes any other action over which the court would have no power to dispose of without having personal jurisdiction over the party. (Greene v. Board of Election Commissioners (1983), 112 Ill.App.3d 862, 68 Ill.Dec. 484, 445 N.E.2d 1337.) Any action by a party, except to object to the jurisdiction of the court, which "invokes the court's power to adjudicate an issue" (Greene, 112 Ill.App.3d at 868, 68 Ill.Dec. 484, 445 N.E.2d 1337) amounts to a submission to the jurisdiction of the court, and therefore constitutes a general appearance. (People v. Estep (1955), 6 Ill.2d 127, 126 N.E.2d 637.) A stipulation for a continuance amounts to a general appearance. (Estep, 6 Ill.2d at 128, 126 N.E.2d 637.) In the instant case, therefore, defendant's request on March 24, 1988 for a continuance of the trial of the matter constituted a general appearance.

Defendant also contends that since its conduct constituted a general appearance, the court erred in refusing to allow it to file a written general appearance instanter on March 31, 1988. The only support in the record on appeal that defendant tendered a written general appearance to the court on March 31, 1988 appears in defendant's post-trial motion, filed on April 4, 1988. Plaintiff asserts that therefore, there is insufficient support in the record for defendant's assertion. We have found, however, that defendant's conduct before the court on March 24, 1988 constituted a general appearance. Regardless of whether defendant tendered a written general appearance on March 31, 1988, does not change that result. Plaintiff apparently asserts, however, that defendant's alleged failure to file such an appearance, or to tender a written appearance as of record, supports plaintiff's assertion that defendant was not diligent in defending this matter. We shall address plaintiff's contention of lack of diligence below when we discuss the denial of defendant's final request for a continuance, and its motion to vacate the judgment order.

Defendant characterizes the trial court order entered on March 31, 1988 as an ex parte default order. Defendant points to the half-sheet of record, which contains "XP" next to the entry for March 31, 1988, apparently indicating that the order was entered ex parte. Further, defendant asserts that the judgment order was a default judgment, since any judgment entered when the defendant has failed to answer constitutes a default judgment (Columbus Savings & Loan Association v. Century Title Co. (1977), 45 Ill.App.3d 550, 4 Ill.Dec. 199, 359 N.E.2d 1151). Plaintiff responds that the order was not an ex parte order, since counsel for defendant was present in court on March 31, 1988. Further, plaintiff asserts that nothing in the record indicates that a default order was entered.

We find that the order entered was in effect a default order, since defendant did not answer plaintiff's complaint. Defendant asserts that the trial court's refusal to vacate the default order was erroneous and violated fundamental fairness. Further, defendant asserts, its motion to vacate the judgment, while entitled a section 2-1401 motion, is actually a section 2-1301(e) motion, since it was filed within 30 days after entry of the judgment. Further, defendant asserts that no prejudice would result to plaintiff if the default judgment were vacated. Defendant asserts that trial of the matter was continued only once, from March 24, to March 31, 1988. Further, defendant notes that plaintiff's counsel appeared in court regarding the suit only three times over 17 days, and that plaintiff's counsel did not present a motion to default defendant.

Section 2-1401 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1401) provides for relief from judgments after 30 days from the entry of the judgment. On the other hand, section 2-1301 (Ill.Rev.Stat.1987, ch. 110, par. 2-1301(e)) provides:

"The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable."

Defendant's post-trial motion in the instant case, filed within four days of the entry of the judgment order, is properly characterized as a section 2-1301 motion. Under the provisions of section 2-1301, we find that defendant presented sufficient grounds for vacating the trial court's March 31, 1988 order. Further, regardless of whether the March 31, 1988 order constituted a default order, we believe that the trial court abused its discretion in denying defendant's request for a continuance of the trial on March 31, 1988. Therefore, we find that the motion to vacate should have been granted.

The trial court abused its discretion in refusing to grant defendant's request for a continuance on March 31, 1988. (See Mireles v. Indiana Harbor Belt R.R. Corp. (1987), 154 Ill.App.3d 547, 107 Ill.Dec. 465 507 N.E.2d 129.) Counsel for defendant contended on that date that he was not prepared to conduct meaningful cross-examination of plaintiff's witnesses, since he had just received from plaintiff a new schedule of damages....