2025 IL App (1st) 242446-U
FIRST DIVISION December 15, 2025
No. 1-24-2446
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
JETZ SERVICE CO., INC., ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CH 18046 ) JAY & HARRY CORP., ) Honorable ) Anna M. Loftus, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court of Cook County; substantial compliance with Illinois Supreme Court Rule 13 regarding notice of defendant’s attorney’s withdrawal was sufficient; the trial court did not err when it ruled on the merits of plaintiff’s motion for summary judgment rather than enter a default for defendant’s failure to file a response to the motion; defendant did not have a right to a default judgment for failing to respond to plaintiff’s motion for summary judgment; and defendant failed to establish the trial court abused its discretion in denying the motion to reconsider the grant of summary judgment in favor of plaintiff.
¶2 Plaintiff, Jetz Service Co., Inc. (Jetz), filed a three-count complaint against defendant, Jay
& Harry Corp., (J & H), for breach of a lease for Jetz to place coin operated laundry machines in
J & H’s hotel. Both parties were successors in interest to the original lease. After years of
negotiations, Jetz filed a motion for summary judgment. Subsequently, J & H’s then-attorney 1-24-2446
filed a motion to withdraw, which the trial court granted. J & H did not answer Jetz’s motion for
summary judgment. The trial court granted summary judgment to Jetz on count I of the
complaint seeking monetary damages for breach of the lease. J & H filed a pleading styled as a
motion to vacate default judgment or in the alternative to reconsider summary judgment. The
trial court construed the pleading as a motion to reconsider and denied the motion. For the
following reasons, we affirm the trial court’s judgment and remand the case for further
proceedings.
¶3 BACKGROUND
¶4 In March 2016 plaintiff, Jetz Service Co. Inc., filed a first amended three-count complaint
against defendant, Jay & Harry Corp. (J & H) for breach of a lease. The original lease was for
“the laundry room(s) or laundry area(s) in the building(s) commonly known as *** DaysInn Elk
Grove Village” for the purpose “to install, place and operate on said premises commercial
laundry equipment for the use by the residents of said premises.” Jetz filed the complaint,
alleging that the lease term was to end on December 4, 2020. The first amended complaint
(hereinafter “complaint”) alleged that J & H attempted to terminate the lease prematurely.
Thereafter, J & H disconnected Jetz’s laundry machines and replaced them with different laundry
machines, also in violation of the lease. J & H demanded Jetz remove its laundry machines from
the premises, which Jetz did “solely for the purpose of being preserved and *** not an
abandonment of Jetz’s sole and exclusive right to occupy” the premises. Jetz demanded J & H
comply with the terms of the lease, including reinstalling Jetz’s equipment, and J & H refused.
¶5 Count I of the complaint was for breach of contract and sought “the lost income from the
time when the laundry equipment *** was disconnected *** until either (1) the date that the
laundry equipment is reconnected” or the end of the then-current lease term. Count II sought, in
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the alternative, specific performance of the lease. Count II alleged, in part, that “Jetz cannot
assume a leasehold interest at another property that would allow it access to J & H’s guests.”
Count II also alleged that “Jetz cannot replicate the circumstances present at the Property with
respect to this particular laundry room, nor can Jetz replace J & H’s guests as users for its
Equipment." Count III of the complaint sought a preliminary injunction against J & H from
violating the terms of the lease.
¶6 On May 9, 2016 J & H filed a motion to dismiss counts II and III of the complaint for
failure to state a claim. On May 25, 2016 the trial court entered a briefing schedule on J & H’s
motion to dismiss. Following briefing of the motion by the parties, on July 20, 2016 the trial
court set a hearing date (September 7, 2016) on the motion. The trial court entered and continued
the motion to dismiss by agreement several times. On July 10, 2020 the trial court entered and
continued the motion for status on settlement. The court again entered and continued the motion
for status on settlement several times over a period of years, and no settlement was reached after
numerous attempts at settlement conferences.
¶7 On March 25, 2024 the trial court entered an order stating that, the matter coming to be
heard on status, and counsel for J & H not appearing, Jetz may file a response to the motion to
dismiss and is ordered to file its motion for summary judgment on or before March 29, 2024.
The court granted J & H leave to file a reply to Jetz’s response to J & H’s motion to dismiss and
a response to Jetz’s motion for summary judgment, with Jetz having leave to file a reply. The
court set the matter for March 29, 2024 for hearing. (The court entered similar orders concerning
J & H’s counterclaim; but that counterclaim is not at issue in this appeal.)
¶8 The trial court continued the matter to April 22, 2024. On April 15, 2024 Jetz filed its
motion for summary judgment. The motion noted that J & H had not responded to (count I of)
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Jetz’s first amended complaint, and Jetz only sought summary judgment as to count I. The
motion for summary judgment prayed for $98,303.66 “in damages through the current lease term
(2030)” plus attorney fees and costs pursuant to a provision in the lease. In support of the motion
for summary judgment Jetz attached an affidavit by its president. Jetz’s president averred, in
pertinent part, that Jetz is entitled to $41,565.00 in lost income.
¶9 On April 22, 2024 with Jetz’s counsel present but J & H’s counsel not present, the trial
court entered and continued the motion for summary judgment (and Jetz’s motion to dismiss the
counterclaim and J & H’s motion to dismiss) to April 25, 2024. On April 25, 2024, with J & H’s
attorney not present, the trial court continued the matter to May 3, 2024. On April 30, 2024, the
attorney for J & H filed a motion to withdraw as counsel. The motion to withdraw stated, in part,
as follows:
“NOTICE TO DEFENDANT: Please be advised, in accordance with Supreme
Court Rule 13, that to insure notice of any action in said cause, you should retain
other counsel herein or file with the clerk of the court, within 21 days after entry
of the order of withdrawal, your supplementary appearance stating therein an
address at which service of notices or other documents may be had upon you.”
¶ 10 Attached to the motion to withdraw is a document titled “Acknowledgment Of Receipt”
signed by a representative of J & H. The document states, “The undersigned, Vipul Patel,
principal of [J & H] hereby acknowledges receipt of the amount [sic] of the above Motion to
Withdraw on the below date” (April 30, 2024). J & H’s attorney also filed a Notice Of Motion to
Withdraw stating that on April 30, 2024, J & H’s attorney served Patel with the notice by hand
delivery. The Notice of Motion also includes an Acknowledgement of Receipt signed by Patel on
April 30, 2024.
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¶ 11 The May 3, 2024 hearing was conducted remotely by Zoom. The trial court entered an
order granting the motion to withdraw. The order states that Patel was “personally served with
the Motion to Withdraw.” The order directs J & H “to file within 21 days a supplementary
appearance.” The order also reads as follows:
“As Defendant did not appear in person or through substitute counsel at today’s
hearing, then, within three days of the entry of this order, the withdrawing
attorney shall serve the order upon the party in the manner provided in paragraph
(c)(2) of Rule 13 and file proof of service of the Order.”
¶ 12 The trial court continued all motions to June 4, 2024, and later continued the matter to
June 20, 2024, for ruling. On June 20, 2024 the court entered an order granting Jetz’s motion to
dismiss J & H’s counterclaim with prejudice, striking J & H’s motion to dismiss, and continuing
the motion for summary judgment.
¶ 13 On June 24, 2024 Jetz filed a Supplemental Memorandum In Support of Its Motion for
Summary Judgment. Jetz stated that J & H “sold the Property without warning.” The
supplemental memorandum asserted that for “years” J & H’s counsel had “represented during
settlement discussion that [J & H] intended to place Jetz either at the subject Property” or at
another possible hotel. The supplemental memorandum continued:
J & H “even allowed the Lease to renew for an additional term, rather than
terminate the lease as was its right. Jetz relied upon these representations and
actions to believe that it would be resolving its lost income rights and addressing
future income opportunities with either a resumed or a new tenancy.”
¶ 14 Jetz’s supplemental memorandum argued that it should not be penalized and prevented
from seeking monetary damages and sought damages through the end of the lease term or, “at
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the very least *** damages through the date of judgment, and from that point Jetz would seek to
mitigate for the remaining term on the Lease.”
¶ 15 On June 25, 2024 the trial court entered a Memorandum of Judgment in favor of Jetz and
against J & H in the amount of $86,600.48 and an order of judgment. The order states that the
damages include lost income calculated at $6.52 per day for 4,016 days, from June 27, 2013 until
June 25, 2024, and $60,416.16 in costs, expenses, and attorney fees though May 28, 2024. The
court entered an order voluntarily dismissing counts II and III of the complaint without
prejudice.
¶ 16 On July 22, 2024 an attorney filed an appearance on behalf of J & H, and the following
day J & H’s new attorney filed a Motion To Vacate judgment, Or In The Alternative, Motion For
Reconsideration. In support of the motion to vacate or reconsider, J & H attached an affidavit by
Patel, who identified himself as the manager and operator of J & H and the subject motel. The
affidavit contains the following averments that are relevant to this appeal:
“5. Since 2014, when this lawsuit commenced, I have been offering Plaintiff to
return its coin operating [sic] laundry machines back into the DaysInn motel or
other motels I have been managing, but Plaintiff refused. Plaintiff wanted an
unreasonable amount of cash money that I did not have and still do not have to
this date.
6. Upon information and belief, Plaintiff took its coin-operated laundry machines
out of the motel and placed them somewhere else.
7. I have been willing to have Plaintiff return its laundry machines into DaysInn
motel since 2014, but the motel no longer exists because the building was
demolished by the Elk Grove Village in 2021.
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***
9. On April 30, 2024, I went to my former counsel’s office, Mr. Dragos B.
Boscoianu, where he informed me that there was nothing else that he could do for
me in this action and that he wanted to withdraw from this action.
11. I informed Mr. Boscoianu that I will search for another attorney to represent
the Defendant Company in this case and I signed a document for Mr. Boscoianu
to permit him to withdraw.
12. Mr. Boscoianu did not inform me of the next court date or how long I have to
obtain a new attorney. Although Mr. Boscoianu’s Motion to Withdraw did ask for
21 days to obtain new counsel, I was not made aware of it or when the 21 days
started to run.
13. I never received this Court’s May 3, 2024, Order that gave me 21 days to
obtain a new counsel.
14. At some time in the end of June or the start of the month of July, 2024, I
received from Plaintiff’s attorney, via regular mail *** court documents some of
which are dated June 25, 2024. *** These documents caused me to hasten my
search for a new counsel to represent the Defendant Company.
15. During the week of July 15, 2024, I consulted with Attorney Basil Salem
regarding this case and on July 19, 2024, I signed a Retainer Agreement with Mr.
Salem on behalf of the Defendant Company, Jay & Harry Corp.” (Emphasis in
original.)
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¶ 17 On October 10, 2024 Jetz filed a Response In Objection to Defendant’s Motion to
Vacate/For Reconsideration.” Jetz attached to its response a printout of an email sent on May 3,
2024, from J & H’s former attorney to the trial judge and copied to Jetz’s attorney regarding the
motion to withdraw. The email reads in pertinent part as follows:
“Dear Judge:
Attached please find the draft order.
My client just walked in the office and I hand delivered him the draft.”
¶ 18 On October 24, 2024 J & H filed a reply in support of its motion to vacate or to
reconsider. The reply argues, “[a]n email claiming to have handed a proposed draft order is not
an affidavit of services [sic] of the actual entered order.” The reply also argues, “[e]ven assuming
that Defendant was handed the proposed draft order, whether he knew what the document he
received was and whether he had 21 days to obtain counsel is also problematic, particularly when
the Defendant cannot read English.” (However, J & H’s motion to vacate included an affidavit
from Patel’s nephew stating that he had acted as Patel’s translator for Patel’s affidavit.)
¶ 19 The trial court conducted an evidentiary hearing on the Motion To Vacate Judgment Or
In The Alternative Motion For Reconsideration. There is no transcript of the hearing in the
record nor a bystander’s report. However, the court order recited that J & H’s former attorney
testified, as well as J & H’s agent. After the evidentiary hearing the court entered an order
finding that J & H’s agent did in fact receive a copy of the order allowing a withdrawal although
it was not stamped. The court construed the motion as a motion to reconsider and found J & H
“failed to establish a viable basis for the Court to reconsider its June 25, 2024 Order.” The court
found, based on testimony from J & H’s prior counsel, that J & H
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“had actual notice of the presentment date of [its] prior counsel’s Motion to
Withdraw as counsel (having received copies of the notice of Motion and the
Motion itself with a pre-determined date and time given by the Court and
Defendant signed an acknowledgment of receipt thereto), the time within which
[it] had to obtain new counsel, and the subsequent court date (having received by
hand delivery a copy of the draft court order that was ultimately entered). Strict
compliance with Supreme Court Rule 13(c)(2) and 13(c)(4) is not required given
the intent of the Rule was met.”
¶ 20 The trial court’s order also found that J & H improperly attempted to assert affirmative
defenses for the first time in a motion to reconsider, and that even if not waived, the affirmative
defense of mitigation of damages is not well taken. The court found:
“[J & H’s] argument that [Jetz] should have agreed to [its] terms to return the
equipment to the original location (without acknowledging [its] breach and the
associated damages to [Jetz]) to limit damages is not supported by the law. [J &
H’s] alternative argument that [Jetz] should have attempted to place its equipment
with a third party to mitigate damages, when [J & H] lulled [Jetz] into thinking it
could return the equipment to the original location or place the equipment in a
new hotel to be purchased by [J & H] (which never materialized) fails to support
the affirmative defense.”
¶ 21 This appeal followed.
¶ 22 ANALYSIS
¶ 23 This is an appeal from an order denying a motion to reconsider an order granting
summary judgment on a claim of breach of contract. J & H also argues that the trial court should
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have entered a default judgment rather than summary judgment, and that the trial court erred in
denying its motion to vacate a default judgment. “Our standard of review for a motion to
reconsider is determined by the basis of the motion. [Citation.] Where, as here, the motion was
based on new matters, whether additional facts or new legal theories, the standard of review is
abuse of discretion. [Citation.]” Zahdan v. Frontline Business Enterprise Inc., 2024 IL App (1st)
221351, ¶ 45. “The decision to grant or deny a motion to vacate a default judgment lies within
the sound discretion of the trial court, and we will reverse only if the trial court abused its
discretion.” Marren Builders, Inc. v. Lampert, 307 Ill. App. 3d 937, 941 (1999).
¶ 24 First, J & H argues that no appearance was on file and there was no response to Jetz’s
motion for summary judgment; therefore, as a matter of law, the only judgment the trial court
could enter on Jetz’s motion for summary judgment was a default judgment. J & H argues that
the absence of an appearance or response was due to its former attorney failing to strictly comply
with Illinois Supreme Court Rule 13. J & H argues that Illinois Supreme Court Rule 13 requires
strict compliance and implies that in the absence of strict compliance, the judgment should be
vacated. J & H also argues that since the judgment should have been a default judgment, the trial
court erred in denying its motion to vacate. “This issue concerns compliance with a supreme
court rule and, therefore, our standard of review is de novo.” People v. Elders, 349 Ill. App. 3d
573, 586 (2004).
¶ 25 “Supreme court rules ‘have the force of law and are to be construed in the same manner
as statutes.’ [Citation.]” In re Willow M., 2020 IL App (2d) 200237, ¶ 20. Generally, our
supreme court requires strict compliance with its rules and presumes that the rules “will be
obeyed and enforced as written.” People v. Gawlak, 2019 IL 123182, ¶ 34. However, “some
rules require only substantial compliance ([citations]).” Babcock v. Wallace, 2012 IL App (1st)
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111090, ¶ 10 (and cases cited therein). A trial court “need only substantially comply” when the
defendant “has no constitutional right to [the] admonishments.” People v. Hietschold, 2025 IL
130716, ¶ 20. “Substantial compliance ‘does not require a strict verbatim reading’ of the
admonishments, but rather ‘the court must impart to a defendant largely that which is specified in
the’ [rule.] [Citation.]” Hietschold, 2025 IL 130716, ¶ 20. This court has found specifically with
regard to Rule 13 that strict compliance is not always required. In In re T.A., 2023 IL App (5th)
220572-U, ¶ 25, the court recognized that “[t]he formal requirements of Rule 13(c)(2) may be
waived in certain situations.” See In re T.A., 2023 IL App (5th) 220572-U, ¶ 25 (citing In re
Willow M., 2020 IL App (2d) 200237, ¶ 22), People v. Bowman, 138 Ill. 2d 131, 146 (1990)
(construing Rule 13(c) and observing that “formal procedures may be waived if it appears that
the court has considered the merits of the motion”).
¶ 26 It is undisputed that defendant was not present at the hearing when its attorney was
granted leave to withdraw.
¶ 27 Rule 13(c)(4) states, “If the party does not appear at the time the motion for withdrawal is
granted, either in person or by substitute counsel, then, within three days of the entry of the order
of withdrawal, the withdrawing attorney shall serve the order upon the party in the manner
provided in paragraph (c)(2) of this rule and file proof of service of the order.” (Emphases
added.) Ill. S. Ct. R. 13(c)(4) (eff. Jan. 1, 2023). Paragraph (c)(2) states that that notice shall be
given “by personal service, certified mail, or a third-party carrier” or “electronically, if receipt is
acknowledged by the party.” Ill. S. Ct. R. 13(c)(2).
¶ 28 It is clear that there was no strict compliance.
¶ 29 However, before withdrawing from the case, J & H’s former attorney served J & H with
notice of the motion to withdraw advising it that it “should retain other counsel” or, “within 21
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days after entry of the order of withdrawal, [file] a supplementary appearance.” Ill. S. Ct. R.
13(c)(2). J & H signed a receipt acknowledging that it received a copy of the motion to withdraw
and a principal of the company signed a consent for the attorney to withdraw. The purpose of the
rule is to insure that a party receives notice of court proceedings and has an opportunity to secure
replacement representation. The rule states that it is intended “to insure notice [to the former
client] of any action in said cause.” Ill. S. Ct. R. 13(c)(2). This court has further recognized that
“the purpose of Rule 13 is to ensure that the client of withdrawing counsel is not left in a position
where he is prejudiced.” Jastrzebski v. Farnik, 2017 IL App (1st) 160434-U, ¶ 37. These
purposes can be achieved without strict compliance. See, e.g., In re Davion R., 2019 IL App (1st)
170426, ¶¶ 70-71 (finding that Rule 13 did not apply because the respondent initiated the
withdrawal rather than the attorney), In re S.P., 2019 IL App (3d) 180476, ¶ 44 (stating reasons
why the risk of an erroneous deprivation of the client’s rights was minimal without compliance
with Rule 13 including that the client was aware of the proceedings).
¶ 30 We find that in this case substantial compliance with Rule 13(c) was permissible and that
J & H’s former attorney demonstrated such compliance. Jetz asserts that J & H received actual
notice that the trial court granted J & H’s former attorney’s motion to withdraw and the trial
court’s order to file a supplementary appearance within 21 days. Jetz relies on J & H’s former
attorney’s email to the court, which was attached to the objections to the motion for
reconsideration. The email stated that his client had entered his office and had been handed the
draft order and the trial court’s findings after the hearing. The trial court conducted an
evidentiary hearing on J & H’s motion to vacate or for reconsideration where J & H’s former
attorney testified and J & H’s agent testified. After the evidentiary hearing, the trial court made a
finding that J & H received a copy of the unstamped draft order in the attorney’s office on May
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3, 2024, the date it was entered. The language in the trial court’s order denying the motion to
vacate finds J & H “received by hand delivery a copy of the draft court order that was ultimately
entered.” (Emphases added.)
¶ 31 Although there is no transcript of the hearing, based on the order, logically we may
conclude the attorney testified consistently with the contents of his email that he gave a copy of
the proposed order personally to defendant on May 3, 2024.
“As the appellant on this issue, [J & H] is responsible for presenting a full
record supporting [its] claim of error. In the absence of a complete record, we
must presume that the trial court’s judgment conformed with the law and had
sufficient factual basis. Foutch, 99 Ill. 2d at 391-92. Without a transcript of the
hearing at which the motion was argued and ruled upon, we have no basis to hold
that the trial court abused its discretion ***. Accordingly, any doubts arising from
the incomplete record must be resolved against [J & H] on this issue.” O'Malley v.
Udo, 2022 IL App (1st) 200007, ¶ 68.
¶ 32 Generally, where “the question before us is whether substantial, rather than strict,
compliance with a mandatory statutory requirement *** is permissible and, if so, whether [the
party] demonstrated such compliance *** we conduct a twofold analysis. First, we look to the
purpose of the [provision] to determine whether the purpose was achieved without strict
compliance. Next, we decide whether [a party] suffered any prejudice from [the] failure to
strictly comply ***.” Behl v. Gingerich, 396 Ill. App. 3d 1078, 1086 (2009).
¶ 33 “[S]ubstantial compliance requires communicating the [rule’s] ‘ “essence,” ’ rather than ‘
“wholly” what is specified’ in the [rule]. [Citation.]” Hietschold, 2025 IL 130716, ¶ 32. The trial
court heard the testimony of the former attorney and defendant’s agent. After hearing the
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testimony, the court concluded that J & H received a copy of the order stating that counsel’s
motion to withdraw was granted and that J & H had to obtain substitute counsel or file a
supplemental appearance, regardless of the exact date the 21-day period expired. The purpose of
the 21-day deadline is to prevent the trial court from taking action to prejudice an unrepresented
party (which, as discussed below, it did not), not to establish a deadline by which a party must
obtain an attorney. In re Marriage of Pavlovich, 2019 IL App (1st) 172859, ¶ 19 (“courts have
held that the spirit of Rule 13 requires that a party be given a 21-day transition period following
the withdrawal of their attorney to obtain new counsel or file their own supplementary
appearance and that the trial court take no action during that period that might prejudice the
party’s rights.”). Under Foutch, this court cannot conclude that the trial court’s finding was
erroneous. We find that the trial court properly found that the “intent of the Rule was met”
because J & H’s former counsel achieved the purpose of the rule. See Behl, 396 Ill. App. 3d at
1090.
¶ 34 We also find that J & H was not prejudiced by the failure to strictly comply with the rule.
J & H argues that it was prejudiced by the failure to strictly comply with Rule 13(c)(4) because
that is what allegedly caused it to fail to respond to Jetz’s motion for summary judgment. We
disagree. Prejudice in this context means a lack of notice to the party of an action in the case
and/or the deprivation of an opportunity to appear or to obtain counsel. See In re M.B., 2019 IL
App (2d) 181008, ¶¶ 25-26 (discussing In re S.P., 2019 IL App (3d) 180476, and In re Robert S.,
357 Ill. App. 3d 214 (2005)). The M.B. court distinguished S.P. on the basis that, unlike in S.P.
there was no opportunity for the party who’s counsel withdrew to reappear or for new counsel to
be appointed. In re M.B., 2019 IL App (2d) 181008, ¶ 25. The M.B. court found that “this case
lacks two critical facts that allowed the court in S.P. to find that the Rule 13(c) violations
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resulted in only a minimal risk of an erroneous deprivation of rights.” Id. In Robert S., the court
found that “the trial court erred by granting counsel’s motion to withdraw and then immediately
conducting a hearing.” In re Robert S., 357 Ill. App. 3d at 218.
¶ 35 In this case, Jetz filed its motion for summary judgment prior to J & H’s attorney’s
withdrawal. Thus, J & H was aware of the pending motion for summary judgment. While the
motion was pending, J & H was aware that it would no longer be represented by its former
attorney, likely as of May 3. Nor did the trial court rule on the motion within the 21-day
prohibition on trial court action after the withdrawal of a party’s attorney. In re Marriage of
Pavlovich, 2019 IL App (1st) 172859, ¶ 19. J & H’s counsel withdrew on May 3, 2024. More
than 21-days later, on May 28, 2024, Jetz’s attorney filed a supplemental affidavit stating Jetz’s
additional attorney fees. On June 4, 2024, the trial court continued all pending matters to June
20, 2024. On June 24, 2024, Jetz filed a supplemental brief in support of its motion for summary
judgment. On June 25, 2024 the trial court ruled on the motion. J & H knew it should find a new
attorney and J & H had ample opportunity, well beyond 21 days, to obtain substitute counsel.
¶ 36 We find that J & H’s former attorney substantially complied with Rule 13(c) because
counsel achieved the purpose of the rule; we also find that substantial compliance was
permissible in this case because J & H was not prejudiced. Behl, 396 Ill. App. 3d at 1086. Strict
compliance was not required in this case; therefore, J & H’s argument fails.
¶ 37 Having found that the failure of strict compliance with Rule 13(c) does not require this
court to reverse the trial court’s judgment, we turn to J & H’s argument that the trial court should
have entered a default judgment, rather than summary judgment. J & H only states that, “since
there was no attorney appearance on the record for the corporate Defendant [J & H] and no
response was ever filed to the summary judgment, then as a matter of law, the only judgment the
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lower court could have entered was a default judgment, [not] a summary judgment as was done
in this case.” Jetz argues that it “had the ability to move for summary judgment at the time it did”
and that J & H “provided *** no authority stating why the circuit court could not have proceeded
with summary judgment.”
¶ 38 We agree that J & H’s opening brief offers no legal support or argument in support of its
claim. “The appellate court is not a depository in which the appellant may dump the burden of
argument and research. [Citations.] Supreme Court Rule 341(h)(7) ([citation]) requires the
appellant to clearly set out the issues raised, supported by relevant authority. [Citation.]” Willaby
v. Bendersky, 383 Ill. App. 3d 853, 861 (2008). “Arguments presented without citation to
authority are [forfeited.] [Citation.]” Universal Casualty Co. v. Lopez, 376 Ill. App. 3d 459, 465
(2007). J & H’s argument that the only judgment the trial court could enter was a default
judgment is forfeited.
¶ 39 Forfeiture aside, we find that the trial court was not required, “as a matter of law,” to
enter a default judgment in this case.
“[A]n order of default is simply an interlocutory order that precludes the
defaulting party from making any additional defenses to liability but in itself
determines no rights or remedies. [Citation.] An order of default may be entered
for want of an appearance, or for failure to plead ([citation]) and is within the
sound discretion of the circuit court to enter ([citation]).” (Internal quotation
marks omitted.) CitiMortgage, Inc. v. Moran, 2014 IL App (1st) 132430, ¶ 22.
As for summary judgment, the Code of Civil Procedure provides that, “[a]ny time after the
opposite party has appeared or after the time within which he or she is required to appear has
expired, a plaintiff may move with or without supporting affidavits for a summary judgment in
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his or her favor for all or any part of the relief sought.” 735 ILCS 5/2-1005(a) (West 2024),
Medrano v. Production Engineering Co., 332 Ill. App. 3d 562, 570 (2002) (“a party may file a
motion for summary judgment at any time”).
¶ 40 First, we reject J & H’s argument that “the only way the lower court could have
determined that there was no genuine issue of material fact is if [the] opposing party filed
something in response.” This court, when construing an administrative agency’s procedural
rules, observed that “the standard for granting summary judgment is not whether a party filed a
response but whether the right of the moving party is clear and free from doubt. [Citation.] ***
When a motion for summary judgment is unopposed, the court must nonetheless conduct an
examination to determine whether the moving party is entitled to summary judgment.” Forest
Preserve District of Cook County v. Illinois Labor Relations Board, 369 Ill. App. 3d 733, 750-51
(2006) (citing Midfirst Bank v. Abney, 365 Ill. App. 3d 636, 643 (2006)), 23 Ill. Law and Prac.
Judgments § 74.
¶ 41 Second, we reject J & H’s argument that the trial court had to enter a default because J &
H did not respond to the motion for summary judgment. “[T]he [Code] contemplates that in an
action for summary judgment the opposite party should have some reasonable time to prepare a
response.” (Internal quotation marks omitted.) Deaton v. Lloyd’s Jewelry Co., 7 Ill. App. 3d 926,
929 (1972) (quoting now 735 ILCS 5/2-1005(c) (West 2024)). We have found that the failure to
strictly comply with Rule 13(c) did not deprive J & H of reasonable time to prepare a response to
Jetz’s motion for summary judgment. J & H’s argument is contrary to law where default
judgment is proper based on a party’s failure to answer or plead (Moran, 2014 IL App (1st)
132430, ¶ 22, 735 ILCS 5/2-1301(d) (West 2024)), but our law expressly authorizes summary
judgment even prior to a party’s answer, so long as the party had a reasonable opportunity to
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respond to the motion for summary judgment, which J & H had in this case. There is no legal
basis for requiring that a default judgment be issued under these circumstances. J & H’s
argument fails.
¶ 42 Next, to the extent J & H’s postjudgment motion was a motion to reconsider the summary
judgment, J & H argues that a material question of fact as to damages exists to preclude
summary judgment. A material question of fact concerning damages may preclude summary
judgment. Corlett v. Caserta, 204 Ill. App. 3d 403, 415 (1990) (“Issues of *** mitigation of
damages [is] generally *** to be determined by the trier of fact, and summary judgment *** is
appropriate only where reasonable minds would agree that the facts and their reasonable
inferences demonstrate that the moving party is entitled to judgment as a matter of law.”),
Sarnoff v. De Graf Brothers, Inc., 196 Ill. App. 3d 535, 543 (1990) (“Defendant has not factually
supported his argument that plaintiff could have mitigated his damages ***. An issue of material
fact is not created by the mere allegation of its existence without a presentation of a statement of
fact to contradict the movant’s version.”).
“Under common law, a plaintiff asserting a breach of contract claim
cannot recover damages it could have reasonably avoided. [Citation.] ‘In other
words, where an injured party permits [its] loss to be unnecessarily enhanced
through [its] own negligence or willfulness, that increased loss will be borne by
the injured party.’ [Citation.] ***
Generally, the defendant must plead the plaintiff’s failure to mitigate
damages as an affirmative defense, and the defendant bears the burden of proof.
[Citation.]” Kulhanek v. Casper, 2023 IL App (1st) 221454, ¶¶ 35-36.
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¶ 43 We find that the trial court properly denied J & H’s motion to reconsider on the grounds a
genuine issue of material facts exists with respect to mitigation of damages. First, J & H forfeited
the issue by raising the affirmative defense of mitigation of damages (id.) for the first time in a
motion to reconsider. “Arguments raised for the first time in a motion for reconsideration in the
circuit court are forfeited.” Zander v. Carlson, 2020 IL 125691, ¶ 34. “Fairness dictates that
affirmative defenses that are neither pled nor argued at a hearing on the merits may not be raised
later in a motion to reconsider.” People v. Keegan, 334 Ill. App. 3d 1061, 1063 (2002) (citing
Harmon Insurance Agency, Inc. v. Thorson, 226 Ill. App. 3d 1050 (1992)). J & H forfeited this
argument. J & H argues that it did not forfeit its mitigation of damages defense because the trial
court should have entered a default judgment rather than granting summary judgment. However,
as previously found, the argument that the trial court was required to enter a default judgment
fails.
¶ 44 Second, assuming arguendo that the issue is not forfeited because the trial court
considered the issue by considering Jetz’s supplemental memorandum addressing mitigation of
damages, J & H has offered no grounds to reverse the trial court’s judgment denying the motion
to reconsider. “The purpose of a motion to reconsider is to bring to the court’s attention newly
discovered evidence that was not available at the time of the original hearing, changes in existing
law, or errors in the court’s application of the law.” Evanston Insurance Co. v. Riseborough,
2014 IL 114271, ¶ 36. J & H failed to demonstrate, or even to argue, the existence of newly
discovered evidence, a change in existing law, or any error in the trial court’s application of the
law.
¶ 45 First, Patel’s affidavit is not newly discovered evidence for purposes of a motion to
reconsider an order granting summary judgment. Horlacher v. Cohen, 2017 IL App (1st)
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162712, ¶ 82 (“With respect to a motion to reconsider in civil cases, newly discovered evidence
has been defined as evidence that was not available at the time of the prior order or hearing.”),
Decker v. Thao, 2023 IL App (1st) 220961-U, ¶ 32 (citing Greenhill v. REIT Management &
Research, LLC, 2019 IL App (1st) 181164, ¶ 78 for the proposition that “newly discovered
evidence for purposes of a motion to reconsider a summary judgment ruling is evidence that was
‘not available at the time of the hearing’ of the initial summary judgment motion”).
¶ 46 Second, as for the trial court’s application of the law, the court rejected J & H’s argument
that Jetz wrongfully failed to mitigate damages, because any failure to place its machines with a
third party to mitigate damages was due to J & H’s “lulling” of Jetz into thinking that it could
return the equipment to the original location or place the equipment in a new hotel to be
purchased by J & H.
“To establish equitable estoppel, the party claiming estoppel must
demonstrate that: (1) the other person misrepresented or concealed material facts;
(2) the other person knew at the time he or she made the representations that they
were untrue; (3) the party claiming estoppel did not know that the representations
were untrue when they were made and when they were acted upon; (4) the other
person intended or reasonably expected that the party claiming estoppel would act
upon the representations; (5) the party claiming estoppel reasonably relied upon
the representations in good faith to his or her detriment; and (6) the party claiming
estoppel would be prejudiced by his or her reliance on the representations if the
other person is permitted to deny the truth thereof. [Citation.]” (Internal quotation
marks and emphasis omitted.) Steinmetz v. Wolgamot, 2013 IL App (1st) 121375,
¶ 40.
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“Generally, the question of whether a plaintiff’s reliance was reasonable is a question of fact;
however, where only one conclusion can be drawn from the undisputed facts, the question
becomes one for the court to determine.” (Internal quotation marks and citation omitted.)
Steinmetz, 2013 IL App (1st) 121375, ¶ 41.
¶ 47 Jetz’s supplemental brief in support of its motion for summary judgment argued that for
“years” J & H’s counsel had “represented during settlement discussions that [J & H] intended to
place Jetz either at the subject Property” or at another possible hotel. There is no dispute of fact
that J & H did not purchase another hotel. Patel’s affidavit stating that since the lawsuit
commenced, J & H has “been offering [Jetz] to return its *** machines back into the DaysInn
*** or other motels I have been managing, but [Jetz] refused” because Jetz “wanted an
unreasonable amount of cash money ***” was not before the trial court during the proceedings
on the motion. “Affidavits may not be added by either party as a matter of right after a hearing
and decision on a motion for summary judgment, but rather the allowance of affidavits presented
for the first time in connection with a motion to vacate is within the discretion of the trial court.”
Kaplan v. Disera, 199 Ill. App. 3d 1093, 1097 (1990). “It is the appellant’s burden on appeal to
demonstrate that an abuse of discretion has occurred in the trial court warranting reversal.” In re
Marriage of Pick, 167 Ill. App. 3d 294, 307 (1988). “An abuse of discretion occurs when the trial
court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable person would take
the position adopted by the trial court. [Citation.]” (Internal quotation marks omitted.) Wolkowitz
v. Jamison, 2024 IL App (1st) 230455, ¶ 34.
¶ 48 J & H has not presented argument or evidence that the trial court abused its discretion by
not considering Patel’s affidavit to raise a genuine issue of fact. Moreover, we find that the trial
court participated in the parties’ negotiations and would be familiar with their respective
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positions on resolution of this dispute. Based on the record before this court it is not
unreasonable that the trial court could find that the only reasonable conclusion from the
undisputed facts was that J & H lulled Jetz into inaction in placing its machines elsewhere.
Therefore, not only is J & H’s mitigation of damages defense forfeited, J & H failed to establish
that the trial court abused its discretion in finding that J & H was estopped from raising it.
¶ 49 We find that J & H failed to establish that the trial court abused its discretion in denying
the motion to reconsider the trial court’s judgment granting summary judgment in favor of Jetz
or in awarding damages.
¶ 50 Jetz also seeks an award of its attorney fees and costs incurred in this appeal pursuant to
the parties’ contract. We remand the case to the trial court to consider Jetz’s petition for fees and
costs.
¶ 51 CONCLUSION
¶ 52 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed,
and the case is remanded for further proceedings.
¶ 53 Affirmed and remanded.
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