Opinion
4-22-0447
04-07-2023
STEPHANIE McNAIR, n/k/a CAHO, Plaintiff-Appellant, v. AARON WARR, Defendant-Appellee.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Peoria County No. 17MR206 Honorable Sean W. Donahue, Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Justices Cavanagh and Zenoff concurred in the judgment.
ORDER
LANNERD JUSTICE.
¶ 1 Held: The appellate court affirmed, concluding (1) the trial court did not err when it denied the appellant the opportunity to raise the affirmative defense of laches and (2) the default judgment was void on the basis the relief granted exceeded the relief requested in the ad damnum clause of the petition to enforce contract terms.
¶ 2 This appeal stems from two 2017 agreements between plaintiff, Stephanie McNair, now known as Stephanie Caho (Caho), and defendant, Aaron Warr (Warr), in which Caho was to purchase a home from Warr. Following the closing, Caho attempted to contact Warr to repair certain plumbing issues in the home's bathrooms pursuant to limited warranties outlined in the initial residential sales contract and the repair amendment attached thereto. When her attempts were unsuccessful, Caho pro se filed a petition in the Peoria County circuit court to enforce the terms of the residential sales contract. In July 2018, upon Caho's motion for summary judgment, the trial court granted a default judgment in her favor, ordering that the documents held in escrow be released to Caho and title to the home be transferred to her.
¶ 3 In June 2020, Warr filed a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2020)), asserting he was never served with process and lacked notice of the proceedings against him. Accordingly, Warr asserted the default judgment against him, resulting from the granting of Caho's motion for summary judgment, was void and must be vacated.
¶ 4 In July 2021, the trial court granted Warr's petition and vacated the default judgment resulting from the granting of Caho's motion for summary judgment. Caho filed a motion to reconsider, which the court denied.
¶ 5 Caho now appeals, arguing the trial court erroneously granted Warr's petition and asserting various other errors occurred in the proceedings leading to the vacatur of the default judgment. We affirm.
¶ 6 I. BACKGROUND
¶ 7 A. Original Agreements
¶ 8 On February 13, 2017, the parties entered into a residential sales contract. Under the terms of the contract, Caho agreed to purchase a residence located at 1519 Northeast Monroe Street in Peoria, Illinois, from Warr. The contract stated the residence was to be sold in "as-is condition" with the exception that Warr was to warrant "the plumbing, well and septic systems (if any), heating, electrical, and air conditioning *** to be in reasonable working order on the date of possession." The contract further stated Caho must notify the seller within two days of taking possession if any of the aforementioned were not in reasonable working order. Attached to the contract was a repair amendment, which stated Warr, at his own expense, was to make sure the "upstairs bathroom" and "heater" were in "reasonable working order" at least five days before the date of closing.
¶ 9 On February 24, 2017, because Caho could not obtain financing required under the residential sales contract, the parties entered into an agreement for warranty deed. Under the agreement for warranty deed, Caho was to submit $5000 as a down payment, after which she agreed to pay $600 per month beginning May 1, 2017, until March 1, 2019, for a total of $39,900. When all payments were satisfied, Warr was to convey the property to Caho in fee simple absolute. Paragraph 13 of the agreement, which was titled "Adjustments to Principal Balance," stated, in relevant part, that "[a]ny *** items properly the liability of Seller paid by Buyer shall reduce the principal balance due hereunder, or, at Buyer's option, such payments may be used to set off the monthly obligations hereunder as they become due." Additionally, paragraph 23 of the agreement stated, "This document, the Escrow Agreement, Memorandum of Agreement for Warranty Deed, Warranty Deed, and Quit-Claim Deed, constitute the entire agreement of the parties hereto."
¶ 10 B. Petition to Enforce Contract Terms
¶ 11 On March 17, 2017, Caho pro se filed a document in the trial court entitled "Petition for Enforcement of Contract Terms." In the petition, Caho alleged she and Warr entered into the residential sales contract on February 13, 2017, and proceeded to closing on February 24, 2017. Caho further alleged upon taking possession of the residence, she discovered water service had been disconnected, rendering her unable to immediately inspect the plumbing. When water service was restored on February 28, 2017, Caho discovered several issues with the plumbing.
¶ 12 On March 1, 2017, Caho contacted her realtor, Dawn Purple, to report the plumbing issues. Two weeks later, Warr responded to his own relator-not to Caho directly- that to his knowledge, the plumbing was in working order. He further stated that if Caho "[wa]s not happy with the property," she could "forfeit all of the money put on this property thus far and move out." Caho alleged she promptly responded, setting forth specific demands, and Warr failed to respond. Caho requested the court order Warr to (1) fulfill his obligations under the residential sales contract by "addressing all plumbing issues," (2) reimburse Caho for related expenses, (3) prorate amounts for "rent" during the time the property's plumbing facilities were not in working order and crediting such back to Caho, and (4) award Caho any court or attorney fees incurred in the proceedings. Caho attached to the petition (1) the second page of the residential sales contract, which contained the limited warranties, and (2) the repair amendment. Caho did not reference or attach the agreement for warranty deed.
¶ 13 In May and June 2017, Caho pro se filed first and second notices of "authorized payment offsets," respectively, in the trial court. In the notices, Caho asserted she incurred authorized expenses, consisting of various repairs to the plumbing that was warranted by Warr, and was entitled to reductions in the principal balance under the terms of the agreement for warranty deed. Caho attached to the notices receipts for the alleged expenses she incurred, which totaled approximately $2000.
¶ 14 In June and November 2017, Caho pro se filed in the trial court two notices of "documents received." Attached to the notices were (1) a copy of a document titled "Landlord's Five Day Notice" and (2) a copy of correspondence she received from Peoria Title LLC (Peoria Title). The landlord's five-day notice, which was ostensibly signed by Warr, stated Caho owed $600 in rent to Warr. However, the notice was not dated. In the correspondence, attorney Joseph P. Gilfillan notified Caho that Peoria Title had received a request from Warr's attorney, Colt Johnson, to deliver the quit claim deed that Peoria Title was holding in escrow. Caho also attached the original request from Johnson to Peoria Title that was attached to the letter from Gilfillan, as well as her response to Gilfillan. In her response, Caho objected to the release of the quit claim deed to Warr and advised Gilfillan of the proceedings in this case. Additionally, Caho attached a letter she purportedly sent to Johnson regarding the correspondence from Peoria Title, the release of the quit claim deed, and the pending proceedings in this case.
¶ 15 C. Motion for Summary Judgment and Default
¶ 16 On June 18, 2018, Caho filed a motion for summary judgment, which contained a request for delivery of documents. In the motion, Caho alleged Warr had "accepted delivery of [Caho's] Petition for Enforcement of Contract Terms, Summons, Notice of Authorized Payment Offset, and Notice of Documents Received on June 24, 201[7] at 9:21 [a.m.] via USPS Certified Restricted Mail." Caho further alleged Warr had failed to attend the August 21, 2017, hearing in the matter, and had not entered any appearance at any point in the case.
¶ 17 Caho asserted she had "fully complied with the terms and conditions" of their agreement for warranty deed and "considering the fraud [Warr] engaged in when completing certain disclosures prior to the sale of [the] property," was entitled to release of the documents currently held in escrow, namely the: (1) agreement for warranty deed, (2) warranty deed, (3) executed Illinois Department of Revenue declaration, (4) executed quit claim deed, and (5) escrow agreement. This is the first time that Caho raised any issue of fraud. Further, Caho maintained no genuine issue of fact existed and requested a summary judgment be granted in her favor. In the amended proof of delivery attached to her motion for summary judgment, Caho indicated she had sent the motion to Warr via the court's electronic filing manager. She also checked the box indicating she had sent the motion "By: Regular, First-Class Mail" to Warr's P.O. box in Peoria.
¶ 18 In July 2018, the trial court entered a written order finding Warr had failed to appear and allowing Caho's motion for summary judgment. The written order stated Caho had (1) fulfilled her obligations under the agreement for warranty deed; (2) the plumbing and electrical work was the responsibility of Warr as the seller; (3) after reducing the balance pursuant to paragraph 13 of the agreement for warranty deed, Caho had complied with the terms of the agreement for warranty deed; and (5) Caho was entitled to the delivery of the documents held in escrow.
¶ 19 D. Section 2-1401 Petition for Relief from Judgment
¶ 20 1. Warr's Petition
¶ 21 On June 29, 2020, Warr filed a petition under section 2-1401 of the Code, requesting that the default judgment entered following the trial court's granting of Caho's motion for summary judgment be vacated. In the petition, Warr alleged he was entitled to relief because (1) a meritorious defense existed to the allegations in Caho's complaint and (2) he acted with due diligence in presenting the defense to the court.
¶ 22 Specifically, the petition alleged he had a meritorious defense because Caho's allegations in the initial petition to enforce the contract terms were based upon the residential sales contract, which was "cancelled" by the parties upon the signing of their agreement for warranty deed. The agreement for warranty deed, which stated it constituted the "entire agreement" of the parties, did not provide limited warranties regarding the plumbing. Furthermore, the offsets claimed by Caho under paragraph 13 of the agreement for warranty deed constituted "at most, $2,230.62," which was "far less than the total balance owed" on the principal. Warr claimed Caho had not shown she had fulfilled all her obligations under the agreement for warranty deed and was therefore not entitled to ownership of the property.
¶ 23 Additionally, Warr asserted he had been diligent in the presentation of the petition and his defense because he had never been served with process. Warr attached his affidavit to the petition, in which he averred that contrary to the record, he had not been served a summons on September 1, 2017, at the Peoria County circuit court. According to Warr, he was living in Chicago at that time and did not come to Peoria on that date. He further averred he neither received (1) notice of the July 18, 2018, court date on Caho's summary judgment motion or (2) proof of delivery of the default judgment filed on that date. Warr first learned of the proceedings in this case in May 2020 "after an attorney, who he had retained to evict [Caho] for failure to make payments pursuant to the Agreement for Warranty Deed, discovered that the property had been transferred to her." Upon being notified of the transfer, Warr requested the attorney prepare the instant petition.
¶ 24 Accordingly, Warr requested the trial court (1) vacate the default judgment against him and (2) order Caho to take all actions necessary to transfer Warr the property.
¶ 25 2. Caho's Answer, Combined Motion, and Notice of Affirmative Defense
¶ 26 On October 5, 2020, Cahopro se filed an answer to Warr's petition for relief from judgment. In her answer, Caho asserted Warr demonstrated neither a meritorious defense to the allegations against him nor due diligence in presenting his defense to the court. She contested Warr's allegation that he had never been served with process and insisted he had not exercised due diligence in bringing forth his claim because he waited until June 29, 2020, "a full three (3) years following his acceptance of service," to file any responsive pleadings to Caho's petition to enforce the contract terms. Accordingly, Caho requested Warr's section 2-1401 petition be denied with prejudice.
¶ 27 On March 4, 2021, Caho pro se filed a "Combined Motion for Summary Judgment, Motion to Dismiss, &Motion to Expunge," which contained a second motion for summary judgment. Following an April 9, 2021, hearing the trial court denied the combined motion. Subsequently, Cahopro se filed a motion to reconsider the trial court's denial of her motion for summary judgment, which after hearing, the trial court denied. At the conclusion of the hearing, attorney Donald R. Jackson notified the court he would be entering an appearance on Caho's behalf. The record shows Jackson employed Caho as his paralegal.
¶ 28 On June 24, 2021, Caho, through her new counsel, filed a "Notice of Affirmative Defense of Laches." The notice stated Caho "puts all parties on notice that she is asserting the affirmative defense of Laches, precluding [Warr] from asserting any claim he may have as his unreasonable delay has prejudiced [Caho], in her defense of his claim."
¶ 29 3. Hearing on Section 2-1401 Petition
¶ 30 The trial court commenced the hearing on Warr's section 2-1401 petition on June 29, 2021. At the beginning of the hearing, the trial court found Caho's notice of her affirmative defense of laches was not properly pleaded under section 2-613(d) of the Code (735 ILCS 5/2-613(d) (West 2020)) because Caho failed to raise the defense in her original answer to Warr's petition and it was untimely under the circumstances.
¶ 31 a. Warr's Testimony
¶ 32 Warr testified in substantial conformity with the affidavit attached to his petition to vacate the default judgment. Specifically, Warr testified that after Caho provided $5000 at closing, she failed to make any payments pursuant to the agreement for warranty deed. Additionally, it was Warr's understanding that the agreement for warranty deed, the memorandum of agreement of the warranty deed, the warranty deed, and the quit claim deed constituted the entire agreement between him and Caho. Warr denied ever receiving a demand for repairs from Caho or that there were any plumbing or electrical issues with the residence at the time of closing. According to Warr, when Caho's first payment became due in May 2017, he had someone check his post office box (P.O. box) in Peoria, which he had set up after closing. Warr claimed he did not receive any payment that month. Instead, Caho had sent him a "20-page memorandum of madness and saying lots of fabrications about things being wrong with the house." Warr testified he was never served with process in this case and was not aware of any of the proceedings against him until 2020.
¶ 33 b. Caho's Testimony
¶ 34 Caho testified on her own behalf. After closing on the residence, she "moved in right away" but was unable to inspect the plumbing because the water had been shut off. As soon as the water service was restored, she discovered various plumbing issues with the home. After attempting to contact Warr through his realtor to repair the issues, which she believed were Warr's responsibility, Caho filed the petition to enforce the contract terms. When asked what actions she took to serve Warr with process in this case, Caho testified she had the circuit clerk issue a summons, which she gave to the sheriffs office along with Warr's P.O. box address. The trial court took judicial notice of the summons itself, which had been filed with the court. A return of service was filed on September 6, 2017, stating Warr had been served on September 1, 2017, at 2:42 p.m. at the sheriffs office. The return of service described the person served as a black male of undetermined age. When asked about filing suit to have the property transferred to her, Caho testified:
"When I first filed the petition, it was just to enforce the contract terms. But then after Mr. Warr was served and months and months passed and more repairs came up, I filed a motion for summary judgment and asked that the deed be returned to me so that I could file it."
¶ 35 c. Trial Court's Judgment
¶ 36 Following the parties' arguments on Warr's 2-1401 petition, the trial court found Warr proved "by a preponderance" that he was not served and the default judgment was therefore void for lack of personal jurisdiction. Furthermore, the court found that even if Warr was served with process, he had a meritorious defense to Caho's complaint and acted with due diligence in presenting it to the court.
¶ 37 Caho filed a motion to reconsider, which the trial court denied after a hearing. In denying the motion, the trial court specifically stated it had used the wrong standard when it concluded Warr had proven a lack of service by "a preponderance," rather by clear and convincing evidence. Although neither party raised the issue, the trial court clarified it found Warr had proven a lack of service by clear and convincing evidence. The court further stated,
"Apparently, although I did not say this on the record, and I'm aware of that, that is controlled by a Supreme Court rule that [Warr's counsel] identified in his pleading[-]Supreme Court Rule 105 or 735 ILCS 54/2-604.2.
While I did not name those statutes or that Supreme Court rule in my ruling, those two statutory citations certainly would apply to what my inquiry was or my ruling was which was the prayer for relief in the original pleading. Even if [Caho's original] pleading had been served upon *** Mr. Warr, he in no way could have ever known that failure to appear for a court date after being defaulted
would then result in the transfer of a deed *** to [Caho]. At most, he would have believed that money damages in the amount claimed in the original pleading of approximately $2,000 could have been awarded to [Caho] against him."
¶ 38 After the denial of the motion to reconsider, this appeal followed.
¶ 39 II. ANALYSIS
¶ 40 On appeal, Caho raises seven arguments. Caho first contends the trial court erred in denying her the opportunity to raise the affirmative defense of laches on the grounds her motion to assert the defense was untimely and not raised in her answer. She also claims the court erred in concluding the default judgment was void on the basis the relief granted to Caho exceeded what she initially requested. For the reasons that follow, we conclude the court (1) did not err when it denied Caho the opportunity to raise the affirmative defense of laches and (2) properly concluded the default judgment was void on the basis the relief granted exceeded that raised in the ad damnum clause of Caho's petition to enforce the contract terms.
¶ 41 Because we find the latter conclusion is dispositive in this case, we affirm the trial court's judgment and decline to address the remaining issues raised in this appeal. Specifically, we decline to address whether (1) the court erroneously shifted the burden of proving service to Caho, (2) the court's conclusion Warr's testimony showed a lack of service was against the manifest weight of the evidence; (3) the court erroneously concluded Caho's filing of the warranty deed with the Peoria County recorder's office did not constitute constructive notice on Warr; (4) the court erred in concluding Warr exercised due diligence; and (5) the cumulative effect of the errors throughout the proceedings rendered the court's rulings an abuse of discretion.
¶ 42 A. Denial of Motion to Raise Affirmative Defense of Laches
¶ 43 Caho first argues the trial court erred when it denied her motion to raise the affirmative defense of laches. Warr contends Caho's motion to assert the defense was untimely and the court's decision was proper. We agree with Warr.
¶ 44 Here, the trial court denied Caho's motion to assert the affirmative defense of laches on the basis she failed to properly plead the defense by not raising it in her answer to Warr's section 2-1401 petition. Section 2-613(d) of the Code (735 ILCS 5/2-613(d) (West 2020)) states, in relevant part, that "any affirmative defense, such as *** laches ***, and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply." If a party fails to raise a defense in her answer, she may file a motion to amend her pleadings, which "the court shall permit *** upon just and reasonable terms." 735 ILCS 5/2-1005(g) (West 2020).
"It is correct that the trial court has discretion, as with other amendments, to allow a party to plead an affirmative defense any time prior to final judgment. However, there is no absolute right to amend pleadings and the determination of the timeliness of a request to amend is within the purview of the sound discretion of the trial court." United Air Lines, Inc. v. Conductron Corp., 69 Ill.App.3d 847, 858 (1979).Accordingly," '[permission to file an amendment rests within the discretion of the trial court and its rulings will not be disturbed on review unless its discretion has been manifestly abused.'" Id. (quoting Hastings v. Abernathy TaxiAss'n, Inc., 16 Ill.App.3d 671, 674 (1972)). Our supreme court has held a reviewing court should consider the following four factors to determine whether a trial court's denial of a motion to amend the pleadings constituted an abuse of discretion: "(1) whether the proposed amendment will cure the defective pleading; (2) whether the proposed amendment would surprise or prejudice the opposing party; (3) whether the proposed amendment was timely filed; and (4) whether the movant had previous opportunities to amend." In re Estate of Hoover, 155 Ill.2d 402, 416 (1993).
¶ 45 Considering the aforementioned factors, the trial court did not abuse its discretion in denying Caho's request to assert a laches defense. To begin, Caho styled her request as a motion to assert the affirmative defense rather than a motion to amend her answer, which would be the typical procedure. Further, even if the court construed her motion as one to amend the answer, the record shows Caho's request was not timely. Caho filed her answer to Warr's petition on October 5, 2020, and did not file her motion to assert the affirmative defense until Thursday, June 24, 2021-just five days before Warr's petition was to be heard on the merits. Caho barely provided Warr with even two full business days to prepare any sort of response or rebuttal to the defense. As stated above, section 2-613(d) of the Code was specifically designed to prevent this type of unfair surprise to the complainant. Caho had several months to amend her answer, and the fact she was pro se until May 2021 does not excuse her failure to have done so. Even accepting Caho's assertion now on appeal that her attorney "filed [Caho's] affirmative defense as soon as practicable," it was not timely in the context of the procedural posture of the case. Finally, Caho's argument that she had no previous opportunity to amend "due to the timing of [her attorney's] entry of appearance," is not well-taken, as her pro se status did not alleviate her obligation to comply with the same rules of procedure required of attorneys. See Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 78. Based on the factors outlined in Hoover, the court's denial of Caho's motion to assert an affirmative defense was not an abuse of discretion.
¶ 46 B. Whether the Default Judgment Was Void
¶ 47 Caho raises several arguments concerning whether the trial court erroneously found the default judgment was void. Specifically, Caho contends Warr failed to prove the judgment was void because (1) he did not impeach the presumption of service with clear and convincing evidence and (2) the relief granted to Caho in the default judgment did not exceed what she requested in the ad damnum clause of her initial petition to enforce the contract terms. Warr responds that he demonstrated the judgment was both void (1) for lack of personal jurisdiction, as he was never served with process, and (2) the transfer of the deed to Caho in the default judgment exceeded the request for relief in her petition to enforce the contract terms and payment offset notices. Because the relief granted to Caho in the default judgment exceeded that of which she requested in the ad damnum clause of her petition to enforce the contract terms and payment offset notices, the court properly determined the judgment was void.
¶ 48 1. General Principles
¶ 49 Section 2-1401 of the Code provides a mechanism for a party to challenge a final judgment more than 30 days after its entry. 735 ILCS 5/2-1401 (West 2020)); MB Financial Bank, N.A. v. Ted &Paul, LLC, 2013 IL App (1st) 122077, ¶ 12. Generally, to be entitled to relief under section 2-1401, the petitioner must set forth specific factual allegations supporting the following elements: "(1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the trial court in the original action, and (3) due diligence in filing the section 2-1401 petition for relief." Cavalry Portfolio Services v. Rocha, 2012 IL App (1st) 111690, ¶ 8. However, "a section 2-1401 petition alleging that the underlying judgment was void is not subject to the time, due-diligence, or meritorious-defense requirements applicable to other section 2-1401 petitions." PNC Bank, National Association v. Kusmierz, 2020 IL App (2d) 190521, ¶ 22.
¶ 50 Typically, a judgment is considered void if (1) the trial court lacked either personal or subject matter jurisdiction or (2) is based on a facially unconstitutional statute. People v. Thompson, 2015 IL 118151, ¶¶ 31-32. Additionally, "in cases of default, a court that grants an award in excess of the ad damnum without prior notice to the defendant exceeds its authority, and that portion of the decree in excess of the ad damnum is void." Cook v. Burnette, 341 Ill.App.3d 652, 663 (2003).
¶ 51 The proper standard of review on appeal from the grant or denial of a section 2-1401 petition depends on the nature of the challenge presented in the petition. See Warren County Soil and Water District v. Walters, 2015 IL 117783, ¶¶ 45-51. A section 2-1401 petition seeking to vacate a void judgment is a question of law, which we review de novo. Id. ¶¶ 45-48. If the trial court has held an evidentiary hearing and made factual findings, this court will only disturb those findings if they are against the manifest weight of the evidence. Construx of Illinois, Inc. v. Kaiserman, 345 Ill.App.3d 847, 858 (2003). This is because" '[t]he trial judge, as the trier of fact, is in a position superior to a reviewing court to observe witnesses while testifying, to judge their credibility, and to determine the weight their testimony should receive.'" Id. (quoting Bazydlo v. Volant, 164 Ill.2d 207, 214-15 (1995)). This court may affirm the trial court's judgment on any basis supported by the record. See Illinois Municipal League Risk Management Ass'n v. City of Collinsville, 2018 IL App (4th) 170015, ¶ 29.
¶ 52 2. Ad Damnum Clause
¶ 53 The ad damnum clause refers to the "clause in a prayer for relief stating the amount of damages claimed." Black's Law Dictionary (11th ed. 2019). Regarding a plaintiff's request for relief, section 2-604.2(c) of the Code provides as follows:
"Except in the case of default, the remedies requested from the court do not limit the remedies available. Except in the case of default, if a party seeks remedies other than those listed in the complaint or counterclaim, the court may, by proper order, and upon terms that may be just, protect the adverse party against prejudice by reason of surprise.
In the case of default, if a remedy is sought in the pleading, whether by amendment, counterclaim, or otherwise, that is beyond what [was] requested, notice shall be given to the defaulted party as provided by Illinois Supreme Court Rule 105." (Emphases added.) 735 ILCS 5/2-604.2(c) (West 2020).
¶ 54 In cases of default, Illinois Supreme Court Rule 105 (eff. Jan 1, 2018) provides that the complaining party must notify the defaulting party of any new or additional relief not included in its initial prayer for relief by (1) any method provided by law for service of summons, (2) prepaid certified or registered mail addressed to the party, or (3) publication. If notice is provided via prepaid certified or registered mail to a natural person, the notice must be sent "restricted delivery," and "[s]ervice is not complete until the notice is received by the defendant." Id. Under this method, the registry receipt isprimafacie evidence of notice. Id. "[T]he notice requirements of Rule 105 are designed to prevent a litigant from obtaining new or additional relief without first giving the defaulted party a renewed opportunity to appear and defend." People v. Carter, 2015 IL 117709, ¶ 15. Whether a party complied with the requirements of Rule 105 is a question of law that is generally reviewed de novo. See, e.g., id. ¶ 13 ("We review de novo the dismissal of a section 2-1401 petition [citation], the interpretation of court rules [citation], and questions of law generally [citation].").
¶ 55 First, the court's factual finding that the relief granted to Caho in the default judgment exceeded what she requested in her initial petition for enforcement of the contract terms and in her payment offset notices was not against the manifest weight of the evidence. In the prayer for relief in Caho's initial petition, which was solely based on the residential sales contract and repair amendment, she sought an order requiring Warr to (1) contract professionals to repair the plumbing issues in the home, (2) reimburse her for dumpster fees, (3) prorate her rental payments for the time period the plumbing was not in working order, and (4) pay court and attorney fees. The two payment offset notices did not include prayers for relief but claimed Caho was entitled to reductions in the principal balance due to the costs of the repairs to the plumbing. The order granting the default judgment provided Caho the following relief:
"[Caho] has fulfilled her obligations pursuant to the Agreement for Warranty Deed; the plumbing and electrical work is the responsibility of the Defendant; after reducing the balance pursuant to Section 13, the Plaintiff has complied with the terms of the Agreement for Warranty Deed; the Plaintiff is entitled to the delivery of the documents pursuant to the Agreement for Warranty Deed."
At no point prior to filing her motion for summary judgment did Caho request the documents in escrow be released and the property transferred to her. In her own testimony at the hearing on Warr's section 2-1401 petition, Caho acknowledged that when she first initiated this case, "it was just to enforce the contract terms," but when more repairs came up, she filed the motion for summary judgment to have the deed transferred to her. The relief granted to Caho was based primarily on the agreement for warranty deed, which was not even mentioned in her initial petition to enforce the contract terms. The court's finding that transfer of title to the property to Caho in the default judgment exceeded her initial request for repairs and payment offsets was not against the manifest weight of the evidence.
¶ 56 Next, in our de novo review, we further agree Caho failed to notify Warr of the additional relief requested in her motion for summary judgment as required by section 2-604.2(c) of the Code and Rule 105. Caho asserts she provided adequate notice of the proceedings to Warr's previous attorney, Johnson, and Gilfillan from Peoria Title on November 16, 2017, after receiving the letter from Gilfillan stating Johnson had requested the documents held in escrow be delivered to Warr. However, in these communications to Johnson and Gilfillan, Caho did not specifically indicate that she had requested the court to transfer title of the property to her in releasing the documents held in escrow. Instead, she merely indicated her objection to the delivery of the documents to Warr and that she had initiated the instant litigation. It was not until June 2018 in Caho's motion for summary judgment that she requested delivery of the documents and title of the property be transferred to her. In the amended proof of delivery attached to her motion for summary judgment, Caho indicated she had sent the motion to Warr via the court's electronic filing manager. She also checked the box indicating she had sent the motion "By: Regular, First-Class Mail" to Warr's P.O. box in Peoria. This proof of delivery does not constitute prima facie evidence of notice under Rule 105 because it does not indicate delivery via registered or certified mail with restricted delivery. Caho admits in her brief that her motion for summary judgment was "in fact, the only document [Warr] was never formally served with." Furthermore, Warr averred in his affidavit, and later testified at the hearing on his petition, that he had never received notice of the proceedings in this case. The court ostensibly found this testimony was credible. Deferring to that credibility finding and considering the record in this case, the court properly found Caho failed to comply with Rule 105.
¶ 57 Finally, Caho's failure to comply with the notice requirements of section 2-604.2(c) of the Code and Rule 105 rendered the default judgment void in its entirety. As stated above, "in cases of default, a court that grants an award in excess of the ad damnum without prior notice to the defendant exceeds its authority, and that portion of the decree in excess of the ad damnum is void." Cook, 341 Ill.App.3d at 663. The trial court correctly noted that "[e]ven if [Caho's petition to enforce the contract terms] had been served upon *** Mr. Warr, he in no way could have ever known that failure to appear for a court date after being defaulted would then result in the transfer of a deed to [Caho.]" Caho's initial requests for various monetary relief and performance of repairs were not just substantially but entirely different from the relief granted- i.e., an order finding she fulfilled all of her obligations under the contract and was entitled to the transfer of the warranty deed. Accordingly, the default judgment was void in its entirety.
¶ 58 Because the relief granted to Caho in the default judgment exceeded and substantially differed from that requested in the ad damnum clause of her petition to enforce the contract terms, the trial court properly determined the judgment was void. See id. The trial court therefore did not err in granting Warr's section 2-1401 petition. See Kusmierz, 2020 IL App (2d) 190521, ¶ 22.
¶ 59 C. Caho's Remaining Arguments
¶ 60 As stated above, this court may affirm the trial court's judgment on any basis supported by the record. See Illinois Municipal League Risk Management Ass n, 2018 IL App (4th) 170015, ¶ 29. Because we have concluded the court properly granted Warr's section 2-1401 petition on the basis of voidness, we need not address Caho's remaining arguments on appeal regarding whether (1) the court erroneously shifted the burden of proving service to Caho, (2) Warr's testimony regarding lack of service was against the manifest weight of the evidence, (3) Warr demonstrated due diligence in bringing his section 2-1401 petition, (4) filing of the warranty deed with the Peoria County recorder's office constituted constructive notice on Warr, and (5) the court's cumulative errors rendered the judgment an abuse of discretion. See, e.g., Green v. Papa, 2014 IL App (5th) 130029, ¶ 30 (declining to address issue of whether the defendant breached its duty to the plaintiff after concluding the trial court properly found the plaintiff failed to prove the element of proximate cause, which defeated her claim). Accordingly, we affirm the court's judgment.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, consistent with Illinois Supreme Court Rule 23(b) (eff. Jan. 1, 2021), we affirm the trial court's judgment.
¶ 63 Affirmed.