Lamarca v. Che Ce Ce Corp.

2019 IL App (1st) 182718

FIRST DIVISION
September 16, 2019

No. 1-18-2718

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT

JOE LAMARCA, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 17 M1 718829
)
CHE CE CE CORPORATION d/b/a La Notte and JOHN ) The Honorable
MANCINI, ) Martin P. Moltz and
) David A. Skyrd,
Defendants-Appellants. ) Judges Presiding.

JUSTICE PIERCE delivered the judgment of the court, with opinion.
Presiding Justice Griffin and Justice Hyman concurred in the judgment and opinion.

OPINION

¶1 Defendants Che Ce Ce Corp. d/b/a La Notte, and John Mancini (collectively, defendants)

appeal from the circuit court of Cook County’s denial of their 2-1401 petition (735 ILCS 5/2-

1401 (West 2018)) to vacate a $10,000 money judgment entered in a forcible entry and detainer

action. On appeal, defendants argue that the money judgment is void because plaintiff Joe

Lamarca’s forcible entry and detainer complaint did not seek a money judgment, and because

defendants were never served with an amended complaint seeking a money judgment. Plaintiff

has not filed an appellee brief, and we therefore consider this appeal solely on defendants’ brief

and the record on appeal under the principles set forth in First Capitol Mortgage Corp. v.
No. 1-18-2718

Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (“[I]f the record is simple and the

claimed errors are such that the court can easily decide them without the aid of an appellee’s

brief, the court of review should decide the merits of the appeal. In other cases if the appellant’s

brief demonstrates prima facie reversible error and the contentions of the brief find support in the

record the judgment of the trial court may be reversed.”). For the reasons that follow, we reverse

the circuit court’s judgment denying defendants’ 2-1401 petition, grant defendants’ petition, and

vacate the circuit court’s money judgment in favor of plaintiff and against defendants.

¶2 I. BACKGROUND

¶3 On November 7, 2017, plaintiff filed a complaint for forcible entry and detainer against

defendants for unlawfully withholding possession of a property located at 6822 Windsor

Avenue, Berwyn, Illinois (subject property). Plaintiff used the Clerk of the Circuit Court of Cook

County’s form “Complaint For Possession Only – Forcible Detainer.” See http://

www.cookcountyclerkofcourt.org/Forms/pdf_files/CCMN021_SAMPLE.pdf (last visited

September 6, 2019). Plaintiff’s complaint only sought possession of the subject property;

nowhere in the complaint did plaintiff indicate that he would be seeking money damages. The

summons issued by the clerk of court stated that the trial date was December 5, 2017. The

summons contains a line “Rent Amount Claimed: $______,” which plaintiff left blank.

Defendants were served with the summons and forcible complaint, but did not file an

appearance, file an answer, or otherwise plead. On December 5, 2017, the circuit court entered

an order granting plaintiff possession of the subject property. 1 The circuit court’s order also

entered a $10,000 judgment “and costs” in favor of plaintiff and against defendants. 2

1
Redacted versions of the complaint, summons, and judgment order are appended to this opinion.
Infra ¶ 20.
2
Plaintiff was free to pursue a claim for unpaid rent against defendants under the Forcible Entry
and Detainer Act (735 ILCS 9-106 (West 2016)). Due to the absence of an amended complaint or any

2
No. 1-18-2718

¶4 On October 3, 2018, defendants filed a 2-1401 petition. Defendants acknowledged that

they had not filed an appearance or answer in response to plaintiff’s complaint because “neither

party was opposed to the entry of an order of possession with respect to the [subject property].”

Defendants argued, however, that the money judgment was void pursuant to Illinois Supreme

Court Rule 105 (eff. Jan. 1, 1989) because plaintiff’s complaint only sought an order of

possession and did not seek any money damages. Defendants’ petition was supported by

Mancini’s affidavit. Mancini averred that he was served with a summons and complaint. He

contacted his attorney, who advised him that the only relief sought in the complaint was for

possession of the subject property and that no monetary relief was requested. Mancini therefore

directed his attorney not to take any action because he was not opposed to the entry of an order

of possession. He further averred that “at no time did I receive and [sic] Amended Complaint or

a Notice that a monetary judgment was sought against CHE CE CE Corporation or me

personally in connection with the above-captioned case.”

¶5 Plaintiff responded to defendants’ petition. Plaintiff asserted that on December 5, 2017,

plaintiff appeared before the circuit court “and orally moved to amend the complaint to included

[sic] money damages against the guarantor and the Corporation. The court granted the motion

and entered an order for possession and money judgment against both defendants.” Plaintiff

argued that defendants failed to establish due diligence in filing their petition, and that the

petition failed to set forth a meritorious defense to plaintiff’s complaint. Defendants replied that

they did not need to establish due diligence or a meritorious defense because the money

judgment was void due to plaintiff’s failure to serve an amended complaint pursuant to Rule 105

upon seeking new or additional relief.

report of proceedings before the circuit court, we do not know whether the $10,000 judgment was for
unpaid rent.

3
No. 1-18-2718

¶6 On December 27, 2018, the circuit court entered a handwritten order denying defendants’

petition. The circuit court’s order states, in full, “Defendant’s 2-1401 motion is denied based on

People v. Bailey.” The circuit court’s reference to “People v. Bailey” was not accompanied by

any specific citation. There is no indication in the record that the circuit court heard oral

argument on defendants’ petition, and the circuit court’s order does not state that defendants’

petition was denied for the reasons stated in open court. Defendants filed their notice of appeal

from the circuit court’s order on December 27, 2018.

¶7 II. ANALYSIS

¶8 On appeal, defendants argue that the circuit court erred by denying their 2-1401 petition

because the $10,000 money judgment is void pursuant to Rule 105. We agree that the circuit

court’s money judgment is void for lack of personal jurisdiction because plaintiff failed to serve

defendants with notice that it amended its complaint to seek new or additional relief in the form

of a money judgment.

¶9 Section 2-1401 of the Code allows a party to file a petition in the circuit court seeking

relief from a final order or judgment more than 30 days after the entry of that order or judgment,

provided that the petition is filed within two years of the complained of order or judgment. 735

ILCS 5/2-1401(a), (c) (West 2018). A section 2-1401 petition must be filed in the original case

and constitutes a new proceeding rather than a continuation of the underlying proceedings that

culminated in a final judgment. Id. § 2-1401(b). A section 2-1401 petition may assert either a

purely legal challenge to a final judgment or raise a fact-dependent challenge to the judgment.

Warren County Soil & Conservation District v. Walters, 2015 IL 117783, ¶ 31. In order to obtain

relief pursuant to section 2-1401 of the Code, the petition must set forth specific factual

allegations supporting three elements: (1) the existence of a meritorious defense or claim; (2) due

4
No. 1-18-2718

that “whether a judgment is void or voidable presents a question of jurisdiction.” LVNV Funding,

LLC v. Trice, 2015 IL 116129, ¶ 27 (citing In re Marriage of Mitchell, 181 Ill. 2d 169, 174

(1998)). A judgment is void if the circuit court lacked jurisdiction over the subject matter or over

the parties. Mitchell, 181 Ill. 2d at 174. “A voidable judgment, on the other hand, is an erroneous

judgment entered by a court that possesses jurisdiction.” LVNV Funding, 2015 IL 116129, ¶ 27.

We have previously held that a party’s failure to comply with Rule 105 renders void any relief

obtained that exceeds what was requested in the complaint. See Cook, 341 Ill. App. 3d at 663

(“in cases of default, a court that grants an award in excess of the ad damnum without prior

notice to the defendant exceeds its authority, and that portion of the decree in excess of the

ad damnum is void.”); see also Dils v. City of Chicago, 62 Ill. App. 3d 474, 482 (1978) (“cases

have uniformly held that in cases of default the trial court in granting an award in excess of the

[a]d damnum exceeds its authority and that that portion of the decree in excess of the

[a]d damnum is void.”).

¶ 14 Defendants do not dispute that the circuit court had subject-matter jurisdiction over

plaintiff’s claim for possession of the subject property, and any such assertion would fail. The

Illinois Constitution provides that “Circuit Courts shall have original jurisdiction of all justiciable

matters” except for two exceptions not present here. Ill. Const. 1970, art. VI, § 9. Subject-matter

jurisdiction refers to the circuit court’s “power to hear and to determine cases of the general class

to which the proceeding in question belongs.” Urban Partnership Bank v. Chicago Title Land

Trust Co., 2017 IL App (1st) 162086, ¶ 12. “Generally, a justiciable matter is a controversy

appropriate for review by the [circuit] court, in that it is definite and concrete, as opposed to

hypothetical or moot, touching upon the legal relationship of parties having adverse legal

7
No. 1-18-2718

interests.” Id. Here, there is no question that the circuit court has the power to hear disputes

between landlords and tenants over possession of a property.

¶ 15 Defendants’ contention that the circuit court’s money judgment is void due to plaintiff’s

failure to serve notice of an amended pleading seeking new or additional relief, however, is

properly understood as a challenge to the circuit court’s personal jurisdiction over defendants. “A

judgment rendered without service of process, either by summons or by publication and mailing,

where there has been neither a waiver of process nor a general appearance by the defendant, is

void regardless of whether the defendant had actual knowledge of the proceedings.” State Bank

of Lake Zurich v. Thill, 113 Ill. 2d 294, 308 (1986). Rule 105 provides the method by which an

amended pleading must be served against a party in default. Eckel v. Bynum, 204 Ill. App. 3d

867, 875 (1992).

¶ 16 Here, plaintiff’s failure to serve an amended pleading seeking new or additional relief

against defendants deprived the circuit court of personal jurisdiction over the defendants for any

new or additional relief that was not sought in the initial complaint. Plaintiff’s initial complaint

only sought possession of the subject property; nowhere in his complaint did he seek a money

judgment against defendants. The summons served on defendants did not indicate that plaintiff

was seeking any money damages. And there can be no dispute that on December 5, 2017,

defendants were in default: they did not file an appearance, file an answer, or otherwise plead to

plaintiff’s complaint, and there is nothing in the record to suggest that they appeared before the

circuit court for trial on December 5, 2017. Finally, there is nothing in the record to suggest that

plaintiff gave defendants any notice that he would be seeking any relief beyond possession of the

property, the only relief that was sought in his complaint. When plaintiff made an oral motion to

amend his complaint to seek additional relief against defendants in the form of a money

8
No. 1-18-2718

judgment, plaintiff was required to serve defendants with notice of the amendment. 735 ILCS

5/2-604 (West 2018); Ill. S. Ct. R. 105. Because plaintiff failed to serve the defaulted defendants

with notice of a pleading seeking new or additional relief, the circuit court lacked personal

jurisdiction over defendants, and thus could not enter a valid money judgment against them.

¶ 17 III. CONCLUSION

¶ 18 For the foregoing reasons, the judgment of the circuit court of Cook County denying

defendants’ section 2-1401 petition is reversed. Pursuant to Illinois Supreme Court Rule

366(a)(5) (eff. Feb. 1, 1994), we grant defendants’ 2-1401 petition, and vacate the portion of

circuit court’s December 5, 2017, order entering a $10,000 judgment and costs in favor of

plaintiff and against defendants.

¶ 19 Reversed; judgment entered for defendants.

9
No. 1-18-2718

¶ 20 IV. APPENDIX

10
No. 1-18-2718

12