Hyman v. Club Meadows Realty, LLC

2023 IL App (1st) 211480-U

• Court: Appellate Court of Illinois
• Decided: March 24, 2023
• Docket: 1-21-1480
• Status: Unpublished

Opinion

2023 IL App (1st) 211480-U

No. 1-21-1480

Order filed March 24, 2023

FIFTH 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 JUDICIAL DISTRICT

DANIEL HYMAN, RECEIVER, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 2019 M1 715305 ) CLUB MEADOWS REALTY, LLC, ) Honorable ) Sondra N. Denmark, Defendant-Appellant. ) Judge presiding.

JUSTICE MITCHELL delivered the judgment of the court. Presiding Justice Delort and Justice Lyle concurred in the judgment.

ORDER

¶1 Held: We affirm the trial court’s denial of defendant’s section 2-1401 petition because it presented no basis to collaterally attack the trial court’s eviction order for lack of jurisdiction. Further, the trial court acted within its discretion in concluding that defendant failed to exercise due diligence where the record established that 17 months had elapsed and defendant articulated no legitimate reason for the delay.

¶2 Defendant Club Meadows Realty, LLC appeals the trial court’s order denying its

postjudgment petition to vacate an eviction order pursuant to section 2-1401 of the Illinois Code

of Civil Procedure. 735 ILCS 5/2-1401 (West 2020). Club Meadows Realty argues that

deficiencies in the 10-day notice and demand for possession of the property render the trial court’s

eviction order void or voidable. The appeal raises the following issues: (1) does a landlord’s failure No. 1-21-1480

to provide notice of default in strict compliance with section 9-209 of the Forcible Entry and

Detainer Act (735 ILCS 5/9-209 (2018)) deprive the trial court of jurisdiction to enter an eviction

order; and (2) did the trial court abuse its discretion in denying postjudgment relief to Club

Meadows Realty for failure to exercise due diligence in filing a section 2-1401 petition (735 ILCS

5/2-1401 (West 2020))? Because the answer to both questions is “no,” we affirm.

¶3 BACKGROUND

¶4 Club Meadows Realty executed a five-year lease commencing on April 1, 2015, for

commercial property located at 2950 West Golf Road in Rolling Meadows, Illinois. Under the

lease, Club Meadows Realty owed $30,000 before the fifth day of each month. In 2019, Daniel

Hyman, the count-appointed receiver for the property, gave Club Meadows Realty notice that

failure to pay seven months’ rent within 10 days would result in the lease’s termination. In total,

Club Meadows Realty owed $210,000. The 10-day notice provided:

“Only FULL PAYMENT OF THE ABOVE AMOUNT DUE WILL WAIVE THE

LANDORD’S RIGHT TO TERMINATE THE LEASE UNDER THIS NOTICE.”

¶5 After Club Meadows Realty failed to cure the default, Hyman filed a complaint in the trial

court to evict Club Meadows Realty. Despite having been served with copies of the summons and

complaint, Club Meadows Realty neither responded to the allegations nor appeared by counsel at

the scheduled hearing. A representative for Club Meadows Realty, Madan Kulkarni, attests to

having been present for the hearing, but he did not hear the trial court call his case. In Club Meadow

Realty’s absence, the trial court entered an eviction order.

¶6 Over the next several months, Club Meadows Realty filed several motions to vacate the

eviction order, to stay its enforcement, and to restore possession of the property—all of which the

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trial court denied. 1 Seventeen months later, Club Meadows Realty filed a postjudgment petition

to vacate the eviction order pursuant to section 2-1401 of the Illinois Code of Civil Procedure,

challenging the trial court’s authority to enter the order because of defects in the 10-day notice.

See 735 ILCS 5/2-1401(a), (f) (West 2020). Specifically, Club Meadows Realty argued that the

notice omitted statutorily prescribed language concerning the effect of partial repayment and

prematurely claimed rent in excess of the amount actually owed under the lease. The trial court

heard arguments and, on October 10, 2021, denied postjudgment relief, reasoning that Club

Meadows Realty “failed to demonstrate diligence in filing [the] Petition.” This timely appeal

followed. Ill. S. Ct. R. 304(b)(3) (eff. Mar. 8, 2016).

¶7 ANALYSIS

¶8 Club Meadows Realty argues that it was not required to show due diligence because its

postjudgment petition challenged the trial court’s authority to enter the order, thus raising a pure

question of law. Plaintiff responds that any alleged defect in the 10-day notice would not have

deprived the trial court of jurisdiction to enter the eviction order. Although a section 2-1401

petition ordinarily brings facts to the attention of the trial court that, if known at the time of

judgment, would have precluded its entry, a petitioner may also raise a purely legal issue. 735

ILCS 5/2-1401(f); Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 94 (2006). We

review de novo a trial court’s denial of a postjudgment petition that raises a purely legal challenge

to a final order. Warren County Soil & Water Conservation Dist. v. Walters, 2015 IL 117783, ¶ 47.

1 The trial court denied Club Meadows Realty’s last motion to restore possession of the property on February 18, 2020, and Bobs, LLC replaced Hyman as the plaintiff in the proceedings on that same date.

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¶9 Club Meadows Realty argues that the eviction order is “voidable” because plaintiff omitted

the proviso, “unless the landlord agrees in writing to continue the lease in exchange for receiving

partial payment,” when giving notice that only full payment of the overdue rent within 10 days

would cure the default. See 735 ILCS 5/9-209 (West 2018). In its postjudgment petition, however,

Club Meadows Realty alleged that plaintiff’s failure to strictly comply with section 9-209 resulted

in a facially defective notice that renders the eviction order “void.” Club Meadows Realty suggests

that the terms “void” and “voidable” are interchangeable. This is not so.

¶ 10 A final judgment is void only where it is entered by a court without jurisdiction, either as

to the subject matter or as to the parties. LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶¶ 38-39;

In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998). A void judgment is a nullity and subject

to a collateral attack at any time, and a defendant seeking postjudgment relief in such a case is not

required to demonstrate a meritorious defense or due diligence in a section 2-1401 petition. Warren

County, 2015 IL 117783, ¶ 48. A voidable judgment, in contrast, is an erroneous judgment entered

by a court with jurisdiction (Mitchell, 181 Ill. 2d at 174), and to be subject to collateral attack, a

defendant must demonstrate: (1) the existence of a meritorious defense or claim; (2) due diligence

presenting the defense or claim to the trial court; and (3) due diligence in filing the section 2-1401

petition (735 ILCS 5/2-1401(a); Warren County, 2015 IL 117783, ¶ 51).

¶ 11 Here, any facial defect in plaintiff’s 10-day notice did not deprive the trial court of

jurisdiction to enter the eviction order. Illinois courts have original jurisdiction over all justiciable

matters (Ill. Const. 1970, art. VI, § 9), and a plaintiff’s failure to satisfy a statutory prerequisite

cannot deprive the trial court of its authority to hear a cause of action (Trice, 2015 IL 116129, ¶¶

33-34 (citing Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335-37

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(2002)). “With 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.” Belleview Toyota, 199 Ill. 2d at 334. While a defect in a landlord’s notice, if properly

raised before the trial court, can defeat a landlord’s right to dispossess a tenant of leased property,

section 9-209 does not impose a condition precedent to the trial court’s exercise of jurisdiction.

Goodwin v. Matthews, 2018 IL App (1st) 172141, ¶¶ 19-20; Prairie Management Corp. v. Bell,

289 Ill. App. 3d 746, 752 (1997) (citing Morris v. Martin-Trigona, 89 Ill. App. 3d 85 (1980))

(“[T]he failure to comply with the statutory notice requirements may serve as a defense but it does

not deprive the court of subject-matter jurisdiction.”).

¶ 12 Club Meadows Realty points to no defects in the service of the summons and complaint

from which we may conclude that the trial court’s entry of the eviction order violated its due

process rights (see Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 109 (2002) (defective

service of process may deprive a trial court of personal jurisdiction over a defendant)). The

complaint presented a definite and concrete controversy, establishing the existence of a justiciable

matter over which the trial court had jurisdiction. Thus, the eviction order is not void.

¶ 13 Now Club Meadows Realty contends that it challenged the trial court’s authority, not its

jurisdiction. For the first time on appeal, it asserts that the order was voidable based on the omitted

language in plaintiff’s notice. Club Meadows Realty never presented this argument to the trial

court. Club Meadows Realty argued below that the alleged defects deprived the trial court of

“jurisdictional authority” to enter the eviction order. Thus, this argument is forfeited. Smith v.

Airoom, Inc., 114 Ill. 2d 209, 229 (1986) (arguments not raised as meritorious defense in a

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postjudgment petition are forfeited on appeal); Calvary Portfolio Services v. Rocha, 2012 IL App

(1st) 111690, ¶ 19 (same). Forfeiture aside, the argument fails on the merits.

¶ 14 The trial court concluded that Club Meadows Realty failed to demonstrate due diligence in

filing the petition. A petitioner’s due diligence is judged by the reasonableness of the petitioner’s

conduct under the circumstances, and relevant to that inquiry is any delay in seeking postjudgment

relief and the underlying reasons for the delay. Gerald Adelman & Associates, 223 Ill. 2d at 99-

100. Where a petitioner presents a fact-dependent basis for vacating a judgment, the question of

whether postjudgment relief should be granted depends on the facts and equities presented, and

we will not disturb the trial court’s discretion where reasonable persons could differ as to its

decision. Warren County, 2015 IL 117783, ¶ 51.

¶ 15 Here, the record reflects that 17 months had elapsed from when the trial court denied its

motion to restore possession of the property before Club Meadows Realty sought postjudgment

relief. Club Meadows Realty broadly references COVID-19 and the governor’s emergency

declarations but does not explain, in any detail, how they prevented prompter presentation of its

postjudgment petition. On the contrary, Club Meadows Realty acknowledges that it was actively

litigating a related matter throughout those 17 months. See, e.g., NP SCH MSB, LLC v. Pain

Treatment Centers, 2021 IL App (1st) 210198, ¶ 31 (defendant’s postjudgment petition denied

where he failed to elaborate how his COVID-19 diagnosis affected his diligence in pursuing his

defense below); Harris Bank, N.A. v. Harris, 2015 IL App (1st) 133017, ¶ 65 (due diligence was

lacking where defendant waited 15 months to seek postjudgment relief from an order confirming

a foreclosure sale). Club Meadow Realty’s naked assertion “COVID-19 pandemic” is no more

persuasive than that time-honored but fabricated excuse of schoolchildren, “The dog ate my

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homework.” On this record, we cannot say that the trial court abused its discretion in concluding

that Club Meadows Realty failed to show due diligence in seeking postjudgment relief.

¶ 16 Club Meadows Realty was also required to set forth specific factual allegations supporting

the existence of a meritorious defense to the eviction action. Warren County, 2015 IL

117783, ¶ 51. Club Meadows Realty asserted that plaintiff prematurely claimed rent in excess of

what was owed under the lease and that plaintiff was required to make a new demand once other

payments became overdue. Plaintiff’s section 9-209 notice demanded $210,000 for rent owed over

seven months from March through September 2019. Though the notice was dated and

acknowledged by a notary on September 5, 2019, plaintiff averred to personally serving Club

Meadows Realty with the notice on April 3, 2019. According to Club Meadows Realty, only the

rent due in March 2019 could have been overdue by that date.

¶ 17 Regardless of any amount by which the notice might have overstated the overdue rent, “the

fact that the 10-day notice may have demanded more than the plaintiff was entitled does not

invalidate the notice.” Burnham Management Co. v. Davis, 302 Ill. App. 3d 363, 272 (1998). Nor

would a landlord’s failure to include additional delinquent payments preclude a landlord’s

recovery if the evidence at trial establishes that the amount is owed. American Management

Consultant, LLC v. Carter, 392 Ill. App. 3d 39, 52 (2009). The purpose of a section 9-209 notice

is to adequately inform the tenant of the landlord’s intent to end the tenancy. Bell, 289 Ill. App. 3d

at 750. Here, Club Meadows Realty did not deny receipt of the notice or challenge its default under

the lease. Nor did Club Meadows Realty indicate that it tendered any rental payments from March

through September 2019. Plaintiff demanded possession of the property, not damages, and Club

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Meadows Realty failed to allege facts that would have defeated plaintiff’s rights to terminate the

lease and to regain possession of the land.

¶ 18 Club Meadow Realty’s argument that the omitted language in plaintiff’s notice rendered it

voidable also fails. Plaintiff put Club Meadows Realty on notice that unless it paid $210,000 within

10 days, plaintiff would deem the lease terminated. Under section 9-209, to prevent invalidation

of the notice where a tenant partially repays the amount demanded during the notice period, “the

notice must prominently state: ‘Only FULL PAYMENT of the rent demanded in this notice will

waive the landlord’s right to terminate the lease under this notice, unless the landlord agrees in

writing to continue the lease in exchange for receiving partial payment.” 735 ILCS 5/9-209; see

also Davis, 302 Ill. App. 3d at 273 (“[I]t is well settled that the defendant must pay the entire

amount due to escape the effect of the effect of a five-day notice.”). As noted above, Club

Meadows Realty made no averments of subsequent rental payments, which might have indicated

that plaintiff waived its right to terminate the lease. See Midland Management Co. v. Helgason,

158 Ill. 2d 98, 102 (1994) (“[E]vidence of acts inconsistent with a declaration of a termination of

the lease may prove waiver of the breach, which operates to reinstate the lease.”). Thus, Club

Meadows Realty’s postjudgment petition presented no facts supporting a meritorious defense to

plaintiff’s eviction action.

¶ 19 CONCLUSION

¶ 20 For the reasons explained above, we affirm the trial court’s judgment.

¶ 21 Affirmed.

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