AAA Group Contractors, Inc. v. Alkilani

2024 IL App (1st) 230366-U

• Court: Appellate Court of Illinois
• Decided: December 27, 2024
• Docket: 1-23-0366
• Status: Unpublished

Opinion

2024 IL App (1st) 230366-U No. 1-23-0366 Order filed December 27, 2024 Sixth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ AAA GROUP CONTRACTORS, INC., ) Appeal from the Circuit Court an Illinois Corporation, BASEL ALSHWAIT ) of Cook County. an Individual, and ABEDMAWAF ALSHWAIT ) an Individual, ) ) Plaintiff-Appellees, ) No. 2021L010541 ) v. ) ) AHMED ALKILANI, an individual, ) Honorable ) John J. Curry, Jr., Defendant-Appellant. ) Judge, presiding.

JUSTICE C.A. WALKER delivered the judgment of the court. Justices Hyman and Gamrath concurred in the judgment.

ORDER

¶1 Held: We reverse the circuit court’s denial of the defendant’s Petition to Vacate Default Judgment where the record indicates (1) the notice of motion for default was not in compliance with Illinois Supreme Court Rule 12 and should have been struck per local rules; and (2) the default judgment order failed to delineate that a prove up hearing occurred prior to entry of judgment. No. 1-23-0366

¶2 On April 12, 2022, the circuit court entered a default judgment against Appellant-Defendant

Ahmed Alkilani. Counsel for Alkilani first appeared on May 25, 2022, and was to investigate a

possible conflict. On July 6, 2022, the court granted Alkilani’s motion to substitute counsel and

on August 19, 2022, Sweis Law Firm, P.C. filed its appearance on his behalf. Alkilani filed a 2-

1401 Petition for Relief from Judgment on September 28, 2022, and on January 25, 2023, the

circuit court denied the petition stating that Alkilani was not diligent in opposing the entry of

default judgment even though he knew of the case since December of 2021. On appeal, Alkilani

argues default judgment was improper as the motion for default was not properly noticed to him

and the circuit court did not schedule a prove up hearing. For the following reasons, we reverse.

¶3 BACKGROUND

¶4 On October 27, 2021, AAA Group Contractors, Incorporated (AAA), Basel Alshwait, and

Abedmawaf Alshwait (collectively Plaintiffs), filed a two-count complaint against Ahmed

Alkilani and Kamal Woods 1 (collectively Defendants). In their complaint, Plaintiffs allege

Alkilani breached an oral agreement to construct a carwash and entered into a separate agreement

with Woods to operate the carwash and exclude Plaintiffs from any monies due them for their

initial construction work.

¶5 Plaintiffs state that in October 2017, they entered into an oral agreement with Alkilani to

build a carwash at 132-136 East Sibley Boulevard in Dolton, Illinois. Alkilani would pay $176,000

for the work. The parties further agreed in the alternative to payment that at Plaintiffs’ sole option,

Basel and Abedmawaf would become equal partners with Alkilani in the property and carwash

business. Construction on the property was completed in October 2020, after which, Alkilani failed

1 Woods is not a party to this appeal.

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to pay Plaintiffs. Basel and Abedmawaf then exercised their option to become equal partners.

Alkilani refused and instead agreed with Woods to operate the car wash and split the profits

between themselves but represented to Plaintiffs that he leased the carwash to Woods with one

year of free rent.

¶6 Alkilani was served with the complaint on November 23, 2021, but Plaintiffs’ attorney

failed to sign the complaint, and it did not contain a certificate of verification. 2 The caption in the

summons contained two misspellings: Basel’s name was shortened to “Bas,” and Alkilani’s last

name was misspelled as “Akilani.” Alkilani’s name was spelled correctly throughout the remainder

of the summons. In addition, on the second page of the summons, Abedmawaf’s first name was

misspelled as “Abedmanaf.”

¶7 On January 5, 2022, Plaintiffs filed a motion for default against both Defendants. 3 Plaintiffs

refiled their motion only against Alkilani on March 9, 2022, but noticed the motion to Alkilani,

Woods, and Attorney Fadi Rafati. While the “Certification of Service” in the notice of motion

indicated Plaintiffs mailed the motion to the Defendants, it did not state on which day it was placed

in the mailbox. On April 12, 2022, the circuit court found both Defendants in default. 4 The court

further entered a default judgment against Alkilani in the amount of $176,500 in compensatory

damages and $250,000 in punitive damages.

2 Plaintiffs refiled their complaint on November 3, 2021. Plaintiffs’ attorney signed this copy of the complaint and attached a certificate of verification. Plaintiffs did not serve this version of the complaint. 3 The Cook County Sheriff attempted and failed to serve Woods on November 17, 2021. Plaintiffs attempted to serve Woods through a special process server on January 4, 2022, which also failed. Plaintiffs moved to serve Woods through the Illinois Secretary of State on May 4, 2022, yet the court did not rule on the motion as Rafati appeared on his behalf on May 25, 2022. 4 On February 22, 2023, the circuit court amended its default judgment order nunc pro tunc to April 12, 2022, removing Woods from its finding of default. 3 No. 1-23-0366

¶8 Rafati filed his appearance on behalf of the Defendants on May 25, 2022. That same day,

the circuit court gave Alkilani fourteen days, or until June 8, 2022, to file a motion to vacate the

default judgment, and Woods fourteen days to file a motion to dismiss. Neither defendant filed a

motion within the timeframe. On July 6, 2022, Defendants orally moved to substitute counsel. The

court granted the motion and gave Defendants seven days, or until July 13, 2022, to file “any

motions they deem appropriate. . .with no further extensions to be granted.” Neither defendant

filed a motion before the deadline.

¶9 Attorney David Sweis filed his appearance on behalf of the Defendants on August 19, 2022.

On September 28, 2022, Alkilani filed a petition to vacate the circuit court’s April 12, 2022 default

judgment order under Section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS

5/2-1401 (West 2022)) 5. In his petition, Alkilani first argued the court’s judgment was legally

defective, as Plaintiffs served him with an unsigned complaint without a verification certificate

and a defective summons that failed to properly identify the Plaintiffs or correctly spell his name.

Second, Alkilani argued the judgment was improper as Plaintiffs’ motion for default did not

comply with the court’s standing order which required it to be supported by various

documentation, nor did the court schedule the motion for prove-up.

¶ 10 Alkilani attached a series of affidavits asserting the Plaintiffs did not perform under the

agreement. He also alleged that he and Woods did the work alleged in the complaint. Alkilani

contended the affidavits served as new evidence that was not part of the record at the time the court

entered its judgment, and as such, the court must vacate the judgment, citing Paul v. Gerald

Adelman & Associates, Ltd., 223 Ill.2d 85, 94 (2006). Alkilani further argued he exercised due

5 Woods filed a separate motion to dismiss himself from this action pursuant to Section 2-615 of the Code (735 ILCS 5/2-615 (West 2022)). The circuit court granted the motion on January 19, 2023. 4 No. 1-23-0366

diligence under the circumstances in presenting these defenses, as Rafati withdrew from the case

due to an unknown conflict. Subsequently, Alkilani retained Sweis and argued, as a matter of

equity, the court should not consider his conduct as lacking in due diligence.

¶ 11 The circuit court denied Alkilani’s petition on January 25, 2023. First, the court found the

summons was not defective as the misspellings in the document were not substantial such that

Alkilani would not have been on notice about the lawsuit. Second, the court found that Plaintiffs’

motion complied with the court’s standing order, as Plaintiffs supplied the court with the

documents and were not required to file them along with the motion.

¶ 12 Finally, the circuit court found Alkilani did not exercise due diligence in responding to the

complaint because Alkilani’s affidavit states that he learned of the lawsuit in December 2021, but

did not give any grounds to support the reasonableness of his delay in responding. The court

likened Alkilani’s behavior to McGinley Partners, LLC v. Royalty Properties, LLC, 2018 IL App

(1st) 172976, ¶ 30, where a different panel of this court found movants did not exercise due

diligence in presenting their defense because they had knowledge of the action but did not file

responsive pleadings before the circuit court entered judgment. Here, the circuit court noted Sweis

was diligent in raising these defenses, but the diligence of Sweis did not excuse the behavior of

Rafati. This appeal followed.

¶ 13 JURISDICTION

¶ 14 Alkilani appeals the circuit court’s January 25, 2023, order denying his petition to vacate

the default judgment entered on April 12, 2022. Alkilani filed his notice of appeal on February 24,

2023. Therefore, this court has jurisdiction pursuant to Illinois Supreme Court Rule 303 (eff. July

1, 2017).

¶ 15 ANALYSIS

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¶ 16 Section 2-1401 of the Code allows vacatur of a judgment older than 30 days or one that is

void. 735 ILCS 5/2-1401 (West 2022). Under the statute, a party must file their petition in the

same proceeding in which the judgment was entered no later than 2 years after its entry. Id § 2-

1401(b), (c). Section 2-1401 constitutes an exception to the general rule that the trial court loses

jurisdiction after 30 days, and this exception is a limited one. Lofendo v. Ozog, 118 Ill. App. 3d

237, 240 (1983). The purpose of a Section 2-1401 petition is to bring before the court matters not

appearing in the record, which if known to the court at the time the judgment was entered, would

have prevented its rendition. Universal Outdoor, Inc. v. Des Plaines, 236 Ill. App. 3d 75, 81

(1992). Section 2-1401 does not afford litigants a remedy whereby they may be relieved of the

consequences of their own mistakes or negligence. Hirsch v. Optima, Inc., 397 Ill. App. 3d 102,

110 (2009).

¶ 17 The nature of a Section 2-1401 petition is critical, as it dictates the proper standard of review

on appeal. Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 15.

A petitioner may seek vacatur of a judgment due to errors of law apparent on the face of the record.

The Illinois Supreme Court’s decision in Collins v. Collins, 14 Ill. 2d 178, 182-83 (1958), best

illustrates this kind of petition. Harris Bank N.A. v. Harris, 2015 IL App (1st) 133017, ¶ 51. In

Collins, the court noted when a judgment is contrary to a rule of law or statutory provision, Section

2-1401 allows a petitioner to seek vacatur for error apparent on the face of the record. Collins, 14

Ill.2d at 182-83. The error alleged must be apparent from an examination of the record as the court

will not examine the evidence in the case. Collins, 14 Ill. 2d at 183. The inquiry is whether the

circuit court’s ruling was legally inconsistent with the undisputed facts. Aurora, 2012 IL App (2d)

110899, ¶ 21. Because the petition is based on obvious legal errors, the petitioner does not need to

show due diligence. Id. ¶ 19. The question of whether there is an error apparent on the face of the

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record is a question of law. Aurora, 2012 IL App (2d) 110899, ¶ 21 (citing Regner v. Hoover, 318

Ill. 169, 171 (1925)). When presented with an issue that is purely a question of law, our review is

de novo. People v. Caballero, 206 Ill. 2d 65, 87-88 (2002).

¶ 18 Alkilani presents two arguments alleging errors apparent on the face of the record. First, he

argues the record shows the circuit court failed to properly examine the summons and complaint.

He notes that the complaint served was an unsigned pleading and should have been stricken under

Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018). Alkilani asserts because the record does not

show that Plaintiffs issued a new summons with the amended complaint, the circuit court

improperly entered a default judgment against him. Second, he claims the judgment should be

vacated as the court did not follow its procedures regarding the motion for default. Alkilani notes

his petition alleged the Plaintiffs’ notice of motion was improper and that the circuit court failed

to conduct a prove up hearing prior to entering judgment.

¶ 19 While not statutes, Illinois Supreme Court rules have the force of law and should be

followed. People v. Glasper, 234 Ill. 2d 173, 189 (2009). Rule 137 requires every pleading of a

party represented by an attorney to be signed by at least one attorney of record in the attorney’s

individual name. Ill. S. Ct. R. 137(a) (eff. Jan. 1, 2018). If the pleading is not signed, it shall be

stricken unless it is signed promptly after the omission is called to the attention of the pleader or

movant. Id. The plain text of Rule 137 allows an attorney to cure a pleading in violation of the rule

when it is brought to their attention. See Gershak v. Feign, 317 Ill. App. 3d 14, 24 (2000) (the trial

court erred in not allowing attorneys to cure a defective signature in their filed rejection of

arbitration award).

¶ 20 Here, Plaintiffs filed their initial unsigned complaint on October 27, 2021. On November 3,

2021, Plaintiffs refiled their complaint, which was signed by their attorney of record. Illinois courts

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have granted parties leave to sign papers previously out of compliance with Rule 137. Brown and

Keer, Inc. v. American Stores Properties, Inc., 306 Ill. App. 3d 1023, 1029 (1999) (circuit court

granted defendants leave to sign a motion to reconsider two months after it was initially filed). We

find Plaintiffs filing their signed complaint a week after filing an unsigned one is compliant with

Rule 137.

¶ 21 Alkilani’s contention that Plaintiffs were required to issue a new summons with the

November 3, 2021, complaint is misguided. The November 3, 2021, complaint was a pleading

filed subsequent to the initial October 27, 2021, complaint. Rule 104(b) requires pleadings, written

motions, and other required documents to be filed with a certificate of counsel or other proof that

they were served on all parties who have appeared and not found in default. Ill. Sup. Ct. R. 104(b)

(eff. Jan. 4, 2018). The plain text of Rule 104 does not require a new summons to issue when a

plaintiff files a new pleading, such as a complaint curing a prior Rule 137 defect. Furthermore,

Rule 104(d) states that plaintiff’s failure to serve a subsequent pleading does not impair the

jurisdiction of the court, nor render the court’s holding void. J.P. Morgan Mortgage Acquisition

Corp. v. Straus, 2012 IL App (1st) 112401, ¶ 13 (quoting Ill. S. Ct. R 104(d) (eff. Jan. 4, 2018)).

We do not find an error on the face of the record with respect to the unsigned complaint from

October 27, 2021.

¶ 22 We do find errors in the record as it pertains to Plaintiffs’ refiled motion for default and the

circuit court’s judgment order. While Plaintiffs assert that they served Alkilani notice of their

motion for default, the notice of motion was not in compliance with Illinois Supreme Court Rules.

Illinois Supreme Court Rule 11(a) states that if a party is represented by an attorney of record,

service shall be made upon the attorney and, otherwise, service shall be made upon the party. BAC

Home Loans Servicing, LP v. Popa, 2015 IL App (1st) 142053 ¶ 19. Here, when the Motion for

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Default Judgment and Notice of Motion for Default were filed and allegedly served, Alkilani was

not represented by counsel. Yet, the only proposed legitimate form of service was by email to

Rafati who had not appeared as counsel. Such attempt at service of the motion and notice of motion

to Rafati was a violation of Rule 11(a) because Plaintiffs were required to serve Alkilani as a party.

Ill. Sup. Ct. R. 11(a).

¶ 23 Illinois Supreme Court Rule 12(a) states when service of a paper is required, a party shall

file proof of service with the clerk. Secura Ins. Co. v. Illinois Farmers Ins. Co, 232 Ill.2d 209, 216

(2009). Illinois Supreme Court Rule 12(b)(5) provides where service is by mail, a party proves

service by certifying who placed the document in the mail, along with the time and place of

mailing. Ill. Sup. Ct. R. 12(b)(5). Proof of proper service of mail must be made in substantial

compliance with the requirements of Rule 12. CitiMortgage Inc. v. Lewis, 2014 IL App (1st)

131272, ¶ 39. The reason for the requirement in Rule 12(b)(5) is elementary – if there is no proof

of mailing on file, there is nothing in the record to establish the date the document was timely

mailed. Secura Ins. Co.232 Ill.2d at 216.

¶ 24 Here, Plaintiffs’ March 9, 2022, Notice of Motion for Default states that Plaintiffs emailed

and mailed the motion and notice to Alkilani, Woods, and Rafati, but the notice only provides an

email address for Rafati, who did not file an appearance until May 25, 2022. As previously stated,

Rafati did not represent Alkilani on the date that notice was allegedly served, or on the date the

default judgment order was entered. We also note that the Notice of Motion for Default Judgment

does not indicate the date on which the motion and notice of motion were deposited in the mailbox.

The notice of motion leaves a blank space for the date in “March 2022.” While Plaintiffs seek to

state they served Alkilani the motion for default via mail prior to the April 12, 2022, hearing, the

record does not indicate when, or if at all, it was sent. We find that the record does not show

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Alkilani was served the motion for default as Plaintiffs’ notice of motion is out of compliance with

Rule 12(b)(5). The circuit court’s local rule requires motions, pleadings or other papers filed with

the clerk of the court and not in compliance with Rules 11 and 12 to be struck (Cook County Cir.

Ct. R. 1.1(b) (July 1, 1976). Upon review of the face of the record, we find the entry of default

judgment was improper as Plaintiffs’ notice of motion was out of compliance with Rule 12(b)(5).

¶ 25 In addition to the error in the Notice of Motion for Default, it is imperative to note that the

record does not indicate that a prove up hearing occurred prior to the court entering judgment. It

is not a prerequisite that a default judgment be preceded by an order of default – a court may

simultaneously enter the default and judgment. Wilson v. TelOptic Cable Const. Co., Inc., 314

Ill.App.3d 107, 130 (2000). An order for default is not a final judgment as it does not dispose of

the case and determine the rights of the parties. Fidelity Nat. Title Ins. Co. of New York v.

Westhaven Properties Partnership, 386 Ill.App.3d 201, 211 (2007). A default judgment is

comprised of two factors: (1) a finding of the issues for the movant; and (2) an assessment of

damages. Jackson v. Hooker, 397 Ill.App.3d 614, 620-21 (2010). Even where there has been a

default order entered; a plaintiff is still required to prove up its default damages. Illinois

Neurospine Institute, P.C., v. Carson, 2017 IL App (1st) 163386, ¶ 33. There is no report of

proceedings or other record of the April 12, 2022, hearing other than the court’s order. The court’s

order does not indicate if a prove up hearing was scheduled or if it occurred on April 12, 2022, and

the order does not acknowledge a prove up. We find that the entry of default judgment was

improper.

¶ 26 CONCLUSION

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¶ 27 For the above reasons, we reverse the judgment of the circuit court, vacate the default

judgment order entered April 12, 2022, and remand for further proceedings consistent with this

order.

¶ 28 Reversed and remanded.