2020 IL App (1st) 190461-U
THIRD DIVISION September 9, 2020
No. 1-19-0461
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 ______________________________________________________________________________
REAL ESTATE RESOURCE MANAGEMENT, LLC, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 06 CH 7033 ) 1000 SOUTH MICHIGAN, LLC, and ) GUY GARDNER, ) ) Defendants ) ) Honorable (Adam Wilhite, Third-Party Citation Respondent- ) Alexander P. White, Appellant). ) Judge Presiding. ______________________________________________________________________________
PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justices Ellis and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court of Cook County; the trial court’s decision finding the landlord in contempt for withholding two rent payments and a security deposit alleged to be property of a judgment debtor and its order to turnover the funds to the judgment creditor were not an abuse of discretion.
¶2 This is an appeal by a third-party citation respondent in a supplementary proceeding.
Plaintiff sought to collect on a judgment he obtained against defendant Guy Gardner in the
underlying case. Plaintiff issued a citation to discover assets to third-party citation respondent,
Adam Wilhite. In response to the citation, Wilhite denied possessing any property belonging to 1-19-0461
Guy. After an evidentiary hearing, the trial court entered an order finding Wilhite possessed
property belonging to Guy and entered an order of contempt for failure to turnover funds to
plaintiff. Wilhite appealed. For the following reasons we affirm the decision of the trial court.
¶3 BACKGROUND
¶4 On April 13, 2010, a judgment was entered against defendants, 1000 South Michigan,
LLC and Guy Gardner, in favor of plaintiff, Real Estate Resource Management, LLC, in the
amount of $956,000 stemming from a contract dispute which award was affirmed by this court in
a previously filed appeal. See Real Estate Resource Management, LLC v. 1000 South Michigan,
LLC, No. 1-10-1298 (Ill. 2011) (unpublished order under Illinois Supreme Court Rule 23).
¶5 Third-party respondent Wilhite was the owner and lessor of a townhome located in
Chicago (Townhome). He entered into a written lease which listed Guy’s wife, Ania Gardner,
and his brother, Gary Gardner, as lessees. After the term of the lease expired, Wilhite and Ania
agreed to extend the lease for two additional months on a month-to-month basis for January and
February 2016. Wilhite also held a security deposit.
¶6 On January 21, 2016, Wilhite was served with a third-party citation to discover assets
(Citation) in the supplementary proceeding pursuant to section 2-1402 of the Illinois Code of
Civil Procedure (Code), 735 ILCS 5/2-1402 (West 2016).
¶7 In response to the Citation, Wilhite denied he possessed any property owned by Guy.
Wilhite tendered copies of certain checks he received from Guy’s brother Gary which he
identified as rent payments on the Townhome as well as a security deposit. On May 2, 2017,
Wilhite also sat for his deposition.
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¶8 On June 13, 2017, plaintiff filed a petition for rule to show cause against Wilhite seeking
a finding of contempt and immediate turnover of January and February 2016 rents on the
Townhome as well as the security deposit.
¶9 On September 21, 2017, the trial court commenced a hearing on plaintiff’s contempt
petition. The record in this matter does not contain a record of proceedings or a bystander’s
report of the September 21, 2017 proceedings. After hearing testimony and argument, the trial
court entered an order denying the request for turnover of February 2016 rent and continued the
balance of plaintiff’s contempt petition to a future date for further proceedings.
¶ 10 On May 8, 2018, at the hearing on plaintiff’s contempt petition, both testimony and
argument were again heard by the trial court. On this date, Wilhite testified as the sole witness.
¶ 11 Wilhite testified that at all relevant times, he was the owner of the Townhome located at
1240 W. Monroe Street, Chicago, Illinois. On September 29, 2014, Wilhite rented the
Townhome pursuant to a lease agreement executed by Guy’s brother Gary and Guy’s wife Ania.
The approved occupants of the Townhome were Guy’s wife and children.
¶ 12 The parties stipulated that the security deposit for the Townhome was paid by Guy’s
brother Gary in the amount of $2,750 and certain rental payments were made to Wilhite by
Guy’s brother.
¶ 13 Wilhite testified without objection to various email communications between him and
Guy’s wife Ania. On January 17, 2016, Wilhite received email correspondence from Ania
stating:
“Thank you, [Wilhite]. I’ll let you know by the end of the day. I just want to
confirm budget with Guy and let [Guy’s brother Gary] know about our decision.”
¶ 14 On January 18, 2016, Ania sent Wilhite email correspondence stating:
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“Guy and I would like to continue our lease at [the Townhome] another month,
until the end of February, 2016, at $2,700 per month. Guy, please confirm this
information to [Wilhite] via email. Thank you.”
¶ 15 On January 25, 2016, Wilhite sent Ania email correspondence stating:
“Ania, I wanted to reach out regarding payment of rent for February. I would ask
that if you’re paying me by check that it is not a check from an account shared by
you and Guy. If that is all you can provide, then I would ask you to get me a
cashier’s check from the bank. Reason being is that I do not want to be receiving
anything from an account Guy is associated with. I have received multiple
subpoenas from some attorney asking that I appear in court, and getting a check
from an account Guy is associated with will cause me problems that I don’t want.
He is technically not on the lease as you know, so it needs to come from you or
[Guy’s brother Gary]. Not sure what the plan was there, but I just wanted to make
sure we are all on the same page. Give me a call if you would like to discuss.
Thanks.”
¶ 16 That same day, Ania sent responsive email correspondence to Wilhite’s email stating:
“[Wilhite], I understand. I told Guy that we need to pay cash and that was the
only way we could have stayed here another month. It’s been very challenging
living with Guy, and the main reason for me moving is to physically separate
myself from him and his problems. I wasn’t aware of until recently.”
¶ 17 Wilhite sent a responsive email to Ania the same day thanking her and stating:
“I’m just getting subpoenas almost every week and I don’t want to get pulled into
it. Glad we’re on the same page.”
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¶ 18 The Townhome was vacated around March 7, 2016. Wilhite held the security deposit
totaling $2,750 for approximately a year. Wilhite testified there were a lot of damages and the
costs of repair for these damages exceeded the security deposit. Wilhite also testified that he
made some improvements to the Townhome in advance of listing it for sale.
¶ 19 Wilhite testified he never received payments or assets from Guy.
¶ 20 On June 12, 2018, the trial court issued its memorandum decision and judgment
(Judgment) granting plaintiff’s contempt petition and ordering immediate turnover of the
security deposit; in an apparent reversal of its earlier ruling, ordered the turnover of January 2016
rent for $2,750.00; and ordered turnover of the February of 2016 rent for $2,750.00. Thereafter,
Wilhite filed a motion to reconsider which was denied on February 7, 2019 and Wilhite’s timely
appeal followed.
¶ 21 ANALYSIS
¶ 22 On appeal, Wilhite argues the trial court erred because (1) he never had possession of an
asset belonging to Guy; and (2) the trial court’s September 21, 2017 order stating “request for
turnover of Feb ’16 rent is denied” precluded the trial court from subsequently awarding turnover
of both the January and February 2016 rental payments.
¶ 23 Jurisdiction
¶ 24 Before we can proceed on the merits of Wilhite’s appeal, this court has a duty to consider
our own jurisdiction, regardless of whether the parties have raised it as an issue. Daewoo
International v. Monterio, 2014 IL App (1st) 140573, ¶ 72. “Wilhite filed a petition for Supreme
Court Rule 137 Sanctions which remained pending and unresolved as of the filing of this appeal.
Thus, the June 12, 2018 order cannot be appealed “unless the particular order comes within one
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of the specified exceptions set forth by Supreme Court rule.” Mexicali Club, Inc. v. Illinois
Liquor Control Commission, 37 Ill. App. 3d 797, 799 (1976).
¶ 25 Supreme Court Rule 304(b)(5) provides that “[a]n order finding a person or entity in
contempt of court which imposes a monetary or other penalty” is appealable without a Rule
304(a) finding. Ill. S. Ct. R. 304(b)(5) (eff. March 8, 2016).
“It is clear from the language of the rule that only contempt judgments that
impose a penalty are final, appealable orders. Until the entry of a contempt order
imposing a sanction, a contempt petition provides no basis for obtaining
immediate appellate jurisdiction over any part of the case under Rule 304(b)(5).”
In re Marriage of Gutman, 232 Ill. 2d 145, 153 (2008).
¶ 26 Rule 304(b)(3) provides for such exception allowing appellate review from orders and
judgments that do not dispose of an entire proceeding and states:
“The following judgments and orders are appealable without [a Rule 304(a)
finding] ***
(3) A final judgment or order entered in a proceeding under section 2-1402
of the Code of Civil Procedure.” Ill. Sup. Ct. R. 304(b)(3) (eff. March 8,
2016).
¶ 27 As to a “final judgment or order” in the context of a supplementary proceeding pursuant
to section 2-1402 of the Code we note that:
“[f]ew cases discuss which orders in supplementary proceedings are final orders.
[Citation.] Generally, a final order is one that disposes of the parties’ rights with
respect to either the entire controversy or some definite and separate portion of
the controversy. [Citation.] An order in as section 2-1042 proceeding is said to
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be final when the citation petitioner is in a position to collect against the judgment
debtor or third party, or the citation petitioner has been ultimately foreclosed from
doing so. [Citation.]” (Internal quotation marks omitted.) PNC Bank, N.A. v.
Hoffmann, 2015 IL App (2d) 141172, ¶ 24.
¶ 28 Here the trial court’s June 12, 2018 order resolved plaintiff’s contempt petition and
further required Wilhite to immediately turnover the January and February 2016 rents as well as
the security deposit to plaintiff. Because this order had the effect of placing plaintiff in a
position to collect against Wilhite – the third-party citation respondent – the Judgment was a
final order (after the trial court denied Wilhite’s motion to reconsider on February 7, 2019).
Thus, review of the Judgment is appropriate pursuant to Rule 304(b)(3) notwithstanding the
pending sanctions motion. See Williams Montgomery & John Limited v. Broaddus, 2017 IL App
(1st) 161063, ¶ 35; see also Ill. Sup. Ct. R. 304(b)(3) (eff. March 8, 2016).
¶ 29 Standard of Review
¶ 30 When a contempt appeal is filed, the standard of review is an abuse of discretion. Illinois
Emcasco Insurance Co. v. Nationwide Mutual Insurance Co., 393 Ill. App. 3d 782, 785 (2009).
“A trial court abuses its discretion only when no reasonable person would take the view adopted
by the trial court.” (Internal quotation marks omitted.) Wilbourn v. Cavalenes, 398 Ill. App. 3d
837, 848 (2010) (quoting Foley v. Fletcher, 361 Ill. App. 3d 39, 46 (2005)). An abuse of
discretion may also be found where the wrong legal standard is applied. Zavell & Associates,
Inc. v. CCA Industries, Inc., 257 Ill. App. 3d 319, 322 (1993). We may affirm a decision of the
trial court on any basis supported by the record. Windy City Limousine Company, LLC v.
Milazzo, 2018 IL (1st) 162827, ¶ 77.
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¶ 31 The trial court entered its contempt order to compel compliance with its turnover order.
“Civil contempt is designed to compel future compliance with a court order and is avoidable
through obedience.” (Internal quotation marks omitted.) Emery v. Northeast Illinois Regional
Transportation Company, 374 Ill. App. 3d 974, 977 (2007) (quoting In re Marriage of Sharp,
369 Ill. App. 3d 271, 279 (2006).
¶ 32 Third-Party Citations
¶ 33 In addressing Wilhite’s claim on appeal that he could not be found in contempt because
he was never in possession of Guy’s assets, we begin by looking to the mechanism by which this
supplementary proceeding was commenced – specifically section 2-1402 of the Code which
allowed plaintiff to file the third-party citation to discover assets naming Wilhite as the third-
party citation respondent. 735 ILCS 5/2-1402 (West 2016).
¶ 34 Section 2-1402 of the Code permits a judgment creditor to initiate supplementary
proceedings and “endows the court with broad powers to compel the application of discovered
assets to satisfy a judgment.” Workforce Solutions v. Urban Services of America, Inc., 2012 IL
App (1st) 111410, ¶ 39. “After the citation is served, the judgment becomes a lien on all
nonexempt personal property belonging to the judgment debtor. Gataric v. Colak, 2016 IL App
(1st) 151281, ¶ 15. The trial court’s powers include the power to compel a third-party citation
respondent to “turn over assets belonging to the judgment debtor.” Workforce Solutions, 2012 IL
App (1st) 111410, ¶ 39. Specifically, “[i]f the record contains some evidence that the third party
holds assets of the judgment debtor, ‘[o]nly then does the citation court have the jurisdiction to
order that party to produce those assets to satisfy the judgment.’ ” Hayward v. Scorte, 2020 IL
App (1st) 190476, ¶ 30.
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¶ 35 Section 2-1402(f)(1) of the Code also allows for restrictive language on a citation
preventing the recipient from “interfering with[] any property not exempt from the enforcement
of a judgment therefrom *** belonging to the judgment debtor or to which he or she may be
entitled or which may thereafter be acquired by or become due to him or her *** and from
paying over or otherwise disposing of any moneys not so exempt which are due or to become
due to the judgment debtor, until the further order of the court or the termination of the
proceeding, whichever occurs first.” 735 ILCS 5/2-1402(f)(1) (West 2016).
¶ 36 This section further provides for certain remedies in the event of a violation of the above
prohibitions and states:
“The court may punish any party who violates the restraining provisions of a
citation as and for a contempt, or if the party is a third party may enter judgment
against him or her in the amount of the unpaid portion of the judgment and costs
allowable under this Section, or in the amount of the value of the property
transferred, whichever is lesser.” Id.
¶ 37 In examining the purpose of this section, this court recently stated:
“Subsection (f)(1) ensures that such person who ‘ “attempt[s] to impede the
administration of justice, and places the [judgment debtor’s] property beyond the
reach of the court, *** will be punished either by having a judgment entered
against him for the amount of the unpaid judgment creditor’s claim or the value of
the property, whichever is less, or may be punished as and for contempt.” ’ ”
Hayward, 2020 IL App (1st) 190476, ¶ 28, quoting Bank of Aspen v. Fox
Cartage, Inc., 126 Ill. 2d 307, 314-15 (1989).
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¶ 38 Supreme Court Rule 277(h) which governs section 2-1402 supplementary proceedings
further provides for sanctions for the violation of a citation and states as follows:
“Any person who fails to obey a citation, subpoena, or order or other direction of
the court issued pursuant to any provision of this rule may be punished for
contempt. Any person who refuses to obey any order to deliver up or convey or
assign any personal property or in an appropriate case its proceeds or value or title
to lands, or choses in action, or evidences of debt may be committed until he has
complied with the order or is discharged by due course of law. The court may
also enforce its order against the real and personal property of that person.” Ill. S.
Ct. R. 277(h) (eff. Jan. 4, 2013).
¶ 39 Contempt proceedings provide a means to address dissatisfaction with a third-party
respondent’s compliance in response to a citation. Hayward, 2020 IL App (1st) 190476, ¶ 36.
¶ 40 The Citation at issue here was served on Wilhite on January 21, 2016. The Citation
contained restraining language as provided for in section 2-1402(f)(1) and specifically prevented
the interference with any property belonging to Guy.
¶ 41 2016 Rent Payments
¶ 42 In its order, the trial court highlighted the January and February 2016 rent payments and
Wilhite’s testimony concerning email correspondence dated January 25, 2016. Wilhite sent the
email to Guy’s wife after receiving the Citation requesting a cashier’s check for the rent unless it
could be paid from an account on which Guy was not associated. In that correspondence,
Wilhite identified the basis for this request being the “multiple subpoenas from some attorneys
asking that [he] appear in court [in the instant proceeding]” and further noting that “getting a
check from an account Guy was associated with [would] cause [him] problems that [he did not]
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want.” Wilhite also testified to Guy’s wife’s responsive email correspondence confirming her
conversation with Guy that in order to stay in the Townhome they would need to pay the rent in
cash. Wilhite testified to his responsive email stating he was glad they were on the “same page”
and referencing not wanting to get “pulled into it” stating he was “getting subpoenas almost
every week[.]”
¶ 43 Additionally, Wilhite’s testimony concerning earlier email correspondence established
that the lease for the months of January and February 2016 were for Guy and his wife.
Specifically, the January 18, 2016 email correspondence from Guy’s wife stated “Guy and I
would like to continue our lease at [the Townhome] another month, until February, 2016, at
$2,700 per month.” Further, in a January 25, 2016 email to Wilhite, Guy’s wife noted “living
with Guy” and wanting to “physically separate” from him.
¶ 44 With respect to its contempt finding, the trial court concluded that:
“Wilhite’s [January 25, 2016] email is evidence of hindering[] [plaintiff’s]
citation examination to determine Guy’s assets” and “[h]ad Wilhite not instructed
[Guy’s wife] to pay in cash as stated in the email, there would be no attempt to
hinder the citation examination, and [plaintiff] could find out exactly which joint
account holder made [the] payment to Wilhite at issue here.”
¶ 45 Furthermore, in its Judgment, the trial court concluded that the funds for the rents at issue
came from Guy and his wife’s joint account basing its reasoning on the aforementioned email
exchanges and concluding there would be no need to pay the rents in cash unless the funds came
from Guy and his wife’s joint account.
¶ 46 The trial court further concluded that the January 2016 rent payment and February 2016
cash rent payment were Guy’s assets. On this point, we note that rules governing a joint bank
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account establish that “a party to a joint bank account may withdraw and dispense with all of the
funds from that account, and neither he nor his estate is liable to the other joint depositors for the
withdrawn funds.” In re Estate of Vogel, 291 Ill. App. 3d 1044, 1048 (1997). Accordingly, the
trial court’s determination that the rents were Guy’s assets which Wilhite received after the
service of the Citation was supported by the record and we cannot say no reasonable court would
come to the same conclusion. Therefore, we find no abuse of discretion.
¶ 47 The trial court’s conclusion is further supported by the fact that the record contains no
checks to Wilhite from any source after November 5, 2015 for the amount of $2,700 – the agreed
rent amount for January and February 2016 as established by Guy’s wife’s January 18, 2016
email correspondence. While we note the record does contain a check from Guy’s brother to
Wilhite dated January 29, 2016 in the amount of $2,950, this check was not introduced at the
hearing nor was there testimony explaining the purpose of the check. Accordingly, we cannot
say the trial court’s conclusion was unsupported by the evidence and was an abuse of discretion,
particularly where the email communications between Guy’s wife and Wilhite support the trial
court’s determination.
¶ 48 We also note that the record does not contain a transcript of the proceedings or a
bystander’s report with respect to the September 21, 2017 hearing at which evidence and
argument was elicited with respect to plaintiff’s contempt petition. Because Wilhite failed to
provide a complete record, we presume the trial court correctly found the rents to be Guy’s
assets. See Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984) (holding “[a]ny doubts which may
arise from the incompleteness of the record will be resolved against the appellant.”).
¶ 49 Based on this contemptuous interference with the Citation, the trial court ordered Wilhite
to immediately turn over the January and February 2016 rent payments totaling $2,700 each. We
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do not find this punishment to constitute an abuse of discretion particularly where section 2-1402
of the Code expressly prescribes such relief. See 735 ILCS 5/2-1402(f)(1) (West 2016). Section
2-1402 of the Code and Rule 277(h) allow for punishment for contempt upon violation of a
Citation. See id.; see also Ill. S. Ct. R. 277(h) (eff. Jan. 4, 2013). Section 2-1402(f)(1) allows for
punishment of a third-party respondent “in the amount of the unpaid portion of the judgment and
costs allowable under this Section, or in the amount of the value of the property transferred,
whichever is lesser.” 735 ILCS 5/2-1402(f)(1) (West 2016). Consistent with section 2-
1402(f)(1) of the Code, here the January and February 2016 rents totaled $5,400 which (even
with the security deposit) was substantially less than the unpaid judgment totaling $956,0000 and
thus was not an abuse of discretion. See id.; see also Ill. S. Ct. R. 277(h) (eff. Jan. 4, 2013).
¶ 50 Security Deposit
¶ 51 Although there was no direct evidence concerning payment of the security deposit in the
incomplete record before us, the trial court made a finding the funds paid for the apartment were
funds that belonged to Guy. There was evidence the apartment was rented for the benefit of Guy
and his family and apparently this finding included the security deposit payment. In this case it
is undisputed that Wilhite, the landlord, retained the security deposit for more than a year after
the lease ended. Plaintiff points out and it is undisputed that Wilhite did not give written notice
of his intent to keep the security deposit money. Although Wilhite claims he performed repair
work, there is no evidence that he complied with the requirements of the Chicago Residential
Landlord and Tenant Ordinance (RLTO) in regard to giving notice to the tenants of his intent to
keep the security deposit.
¶ 52 Section 5-12-080(d) of the RLTO provides for the use of a security deposit for repairs
necessitated by the tenant and states in relevant part as follows:
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“The landlord shall, within 45 days after the date that the tenant vacates the
dwelling unit ***, return to the tenant the security deposit or any balance thereof
***; provided, however, that the landlord, *** may deduct from such security
deposit or interest due thereon for the following:
****
(2) A reasonable amount necessary to repair any damage caused
to the premises by the tenant or any person under the tenant’s
control or on the premises with the tenant’s consent, reasonable
wear and tear excluded. In case of such damage, the landlord shall
deliver or mail to the last known address of the tenant within 30
days an itemized statement of the damages allegedly caused to the
premises and the estimated or actual cost for repairing or replacing
each item on that statement, attaching copies of the paid receipts
for the repair or replacement. If estimated cost is given, the
landlord shall furnish the tenant with copies of paid receipts or a
certification of actual costs of repairs of damage if the work was
performed by the landlord’s employees within 30 days from the
date the statement showing estimated cost was furnished to the
tenant.” Chicago Municipal Code § 5-5-12-080(d).
¶ 53 “Section 2–1402 authorizes a ‘creditor to conduct an examination of a third party
[citation], and upon a showing that the third party is holding assets belonging to the judgment
debtor, empowers the court to summarily compel the application of discovered assets or income
to the satisfaction of the judgment, as long as the judgment debtor would have the right to
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recover such assets from the third party.’ ” Stonecrafters, Inc. v. Wholesale Life Insurance
Brokerage, Inc., 393 Ill. App. 3d 951, 958 (2009) (quoting Mid–American Elevator Company,
Inc. v. Norcon, Inc., 287 Ill. App. 3d 582, 587 (1996)).
¶ 54 Here, since it is undisputed that Wilhite failed to comply with the requirements of the
RLTO with regard to keeping the security deposit, we find Guy would prevail over Wilhite in a
claim for the security deposit. Therefore, the security deposit is considered an asset which can
be applied toward the outstanding debt.
¶ 55 We also note that the record does not contain a transcript of the proceedings or a
bystander’s report with respect to the September 21, 2017 hearing at which evidence and
argument was elicited with respect to plaintiff’s contempt petition. Because Wilhite failed to
provide a complete record, we presume the trial court correctly found the security deposit to be
an asset belonging to defendant. See Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984) (holding
“[a]ny doubts which may arise from the incompleteness of the record will be resolved against the
appellant.”).
¶ 56 We cannot say no reasonable court would determine that the security deposit was an asset
belonging to Guy or that Guy had a superior right to the security deposit over Wilhite.
Therefore, we cannot say the trial court abused its discretion in requiring Wilhite to turn over the
value of the security deposit. As noted above, this court may affirm the trial court on any basis
supported by the record. Windy City Limousine Company, LLC, 2018 IL (1st) 162827, ¶ 77.
¶ 57 The trial court’s order requiring turnover of the security deposit is affirmed.
¶ 58 September 21, 2017 Order
¶ 59 Wilhite next argues that the trial court’s September 21, 2017 order precludes the
Judgment requiring turnover of the January and February 2016 rent payments. We note that the
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January 21, 2017 order only addresses plaintiff’s claim for the turnover of February 2016 rent
payment. Accordingly, the September 21, 2017 order had no impact on the trial court’s order
requiring turnover of the January 2016 rent payment or the security deposit.
¶ 60 Notwithstanding, the September 21, 2017 order was an interlocutory order addressing
only one part of plaintiff’s contempt petition. “An interlocutory order may be modified or
vacated at any time before final judgment.” (Internal quotation marks omitted.) Berry v. Chade
Fashions, Inc., 383 Ill. App. 3d 1005, 1009 (2008). “Although the trial court should carefully
consider vacating a prior order, it may do so to correct an error.” Id. A trial court is also
permitted to sua sponte vacate even a final order within 30 days of the entry of judgment while it
maintains jurisdiction over the proceeding. Welch v. Ro-Mark, Inc., 79 Ill. App. 3d 652, 656
(1979). “The court’s authority to act on its own motion to amend or vacate a final order or
judgment has long been recognized” but is restricted to instances where action is required “to do
justice between the parties.” Id.
¶ 61 When the trial court sua sponte modified the September 21, 2017 order, it had
jurisdiction of the matter. There is no language in the September 21, 2017 order making it final
and appealable and the order itself continued the balance of plaintiff’s contempt petition to a
future date. Moreover, as set forth above, the trial court’s subsequent finding that the February
2017 rent was Guy’s asset was supported by the record. Furthermore, we cannot say no
reasonable court would find Wilhite in contempt and require turnnover of the February 2016
rent. Therefore, the order was not an abuse of discretion. Accordingly, the trial had authority to
vacate the interlocutory September 21, 2017 order after hearing the evidence at the May 8, 2018
hearing to do justice between the parties. See id.
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¶ 62 Again, we note the record does not contain a transcript of the proceedings or a
bystander’s report with respect to the September 21, 2017 hearing and thus, we are unable to
determine why the trial court entered the order. Because Wilhite failed to provide a complete
record, we presume the trial court correctly reversed its earlier order notwithstanding the
evidence elicited at the earlier hearing. See Foutch, 99 Ill. 2d at 392 (holding “[a]ny doubts
which may arise from the incompleteness of the record will be resolved against the appellant.”).
¶ 63 CONCLUSION
¶ 64 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 65 Affirmed.
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