Opinion
2-20-0211 20-0465
09-24-2021
WILMINGTON TRUST COMPANY, As Owner Trustee for and on Behalf of PMC REO Financing, Plaintiff-Appellee, v. JOSEPH VARAN; UNKNOWN OCCUPANTS; STEVEN D. BAGBY; ROSE J. BAGBY, a/k/a Rose Bagby; CLOUD VIEW LLC, a/k/a Cloud View LLC 1415020913405029000; WOODLAND PARK CLUB HOMEOWNERS ASSOCIATION, f/k/a County Line Club Homeowners Association; SJ 1900 SPRING ROAD, LLC; BANK OF AMERICA, N.A.; UNKNOWN OWNERS and NONRECORD CLAIMANTS, Defendants Joseph Varan and Cloud View LLC, Defendants-Appellants.
This order was filed under Supreme Court Rule 23(c)(2) and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Du Page County Nos. 15-CH-148, 16-LM-2688 Honorable James D. Orel and Timothy J. McJoynt, Judges, Presiding.
JUSTICE McLAREN delivered the judgment of the court. Justices Jorgensen and Schostok concurred in the judgment.
ORDER
McLAREN, JUSTICE
¶ 1 This consolidated appeal involves the same parcel of property. In appeal number 2-20- 0211, defendant, Joseph Varan, appeals the dismissal of an agreed order in a forcible entry and detainer action. In appeal number 2-20-0465, defendant, Cloud View LLC, purportedly represented by RAI Law, LLC, appeals the dismissal of its 2-1401 petition to vacate a foreclosure judgment entered against it. We dismiss Varan's appeal for lack of jurisdiction, in accordance with Supreme Court Rule 23(c)(1) (eff. Jan. 1, 2021), and affirm the trial court's judgment dismissing the 2-1401 petition to vacate the foreclosure judgment, in accordance with Supreme Court Rule 23(c)(2) (eff. Jan. 1, 2021).
¶ 2 I. Appeal No. 2-20-0211
¶ 3 Varan argues that he was denied due process regarding his dismissal from a forcible action filed by plaintiff, Wilmington Trust Company, as owner trustee for and on behalf of PMC REO Financing (Wilmington). Wilmington argues that we do not have jurisdiction to review the trial court's dismissal order because it was an agreed order, and therefore, is not appealable.
¶ 4 Our law is clear that once an agreed order is entered, it is not appealable unless it was the result of fraud, coercion, or inequities between the parties. See McGrath v. Price, 342 Ill.App.3d 19, 31 (2003) ("we do not have jurisdiction to review the [trial court's] order, because it is an agreed order"). See also Olsen v. Staniak, 260 Ill.App.3d 856, 861 (1994).
¶ 5 Here, in February 2020, the trial court entered an order stating:
"Plaintiff's forcible detainer complaint against Joseph Varan, and all counterclaims asserted by Defendant Joseph Varan in the above-captioned suit, are dismissed by agreement of the parties, without prejudice, and without costs to any party. As previously ordered, Plaintiff has possession of the Property. The outstanding issues having been resolved, this matter is concluded and shall be taken off the call."
Varan did not challenge this agreed order before the trial court, and he does not now allege that the order was the result of fraud or coercion. Thus, the February 18, 2020, order is an agreed order and not subject to appellate review. See McGrath, 342 Ill.App.3d at 31. Accordingly, Varan's appeal is dismissed for lack of jurisdiction.
¶ 6 Varan contends that he is appealing the court's November 2019 nunc pro tunc October 2019 order awarding Wilmington possession of the property. However, the agreed order acknowledges that Wilmington has possession of the property. Therefore, the November 2019 order is not subject to appellate review.
¶ 7 Varan cites Eckel v. MacNeal, 256 Ill.App.3d 292 (1992), to support his argument that he was denied due process in the forcible action. Eckel involved a pro se tenant who had judgment entered against her, without trial, after she failed to appear in court on a hearing date. Id. at 295. Here, the record shows that Varan was not a tenant and did not reside on the property. Further, no judgment was entered against Varan and, while represented by counsel, Varan agreed to the dismissal order. Thus, Eckel is distinguishable from this case.
¶ 8 II. Appeal No. 2-20-0465
¶ 9 Cloud View purportedly argues that the trial court erred by dismissing the section 2-1401 petition filed by RAI Law to vacate the foreclosure judgment against it.
¶ 10 Section 2-619 of the Code (735 ILCS 5/2-619 (West 2018)) provides a means for a moving party to obtain a summary dismissal of issues of law or easily proved issues of fact. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 115 (1993). A motion to dismiss filed under subsection 2-619(a)(9) (id. § 2-619(a)(9)) admits the legal sufficiency of the non-movant's complaint but raises an affirmative defense or other matter that avoids the legal effect of or defeats the non-movant's claims. Van Meter v. Darien Park District, 207 Ill.2d 359, 367 (2003). The affirmative matter "must be apparent on the face of the complaint" or "be supported by affidavits or certain other evidentiary materials." Id. at 377.
¶ 11 The moving party bears the initial burden of establishing the existence of an affirmative matter by providing adequate affidavits or other supporting evidence. Kedzie & 103rd Currency Exchange, Inc., 156 Ill.2d at 116. Once the moving party satisfies its burden, the burden shifts to the nonmoving party to establish that the defense is unfounded or requires the resolution of an essential element of material fact before it is proven. Id. Evidentiary facts asserted in a defense affidavit or other supporting evidence is deemed admitted unless the nonmoving party submits a counteraffidavit or other supporting documents to refute those facts. Id. All pleadings and supporting documents must be interpreted in the light most favorable to the nonmoving party. In re Chicago Flood Litigation, 176 Ill.2d 179, 189 (1997). "If, after considering the pleadings and affidavits, the trial judge finds that the [nonmoving party] has failed to carry the shifted burden of going forward, the motion may be granted and the cause of action dismissed." Kedzie & 103rd Currency Exchange, Inc., 156 Ill.2d at 116. We review de novo the trial court's order granting a section 2-619 motion to dismiss. Van Meter, 207 Ill.2d at 368.
¶ 12 Generally, where an attorney appears of record for a party, there is a presumption that the appearance in such capacity was duly authorized by the person for whom the attorney appears, but the presumption may be rebutted by evidence to the contrary. Foley v. Metropolitan Sanitary District of Greater Chicago, 213 Ill.App.3d 344, 352 (1991). An attorney has no right to appear as attorney for another without authority. Id. Without an attorney-client relationship, an attorney does not owe a duty to appear and cannot lawfully and ethically do so. Id. Although an attorney-client relationship requires no formal written agreement or payment, both the attorney and the client must express their intent to form it. People v. Shepherd, 2018 IL App (3d) 160724, ¶ 26. The relationship is voluntary and contractual; it requires both parties' consent. Rubin & Norris, LLC v. Panzarella, 2016 IL App (1st) 141315, ¶ 37. "The relationship cannot be created by an attorney alone and generally the duty falls upon a potential client to initiate contact with the attorney." In re Chicago Flood Litigation, 289 Ill.App.3d 937, 941 (1997).
¶ 13 Here, Wilmington moved to dismiss the 2-1401 petition on the ground that RAI Law's purported client, Cloud View, did not exist and, thus no attorney-client relationship existed. Wilmington supported its motion with documents establishing that the Illinois Secretary of State's Office dissolved Cloud View LLC in January 2017, 17 months before RAI Law filed its 2-1401 petition. Cloud View LLC's most recent registered agent, Cloud View IL I, was a dissolved LLC, and the most recent manager of Cloud View LLC was the same dissolved inactive entity.
¶ 14 In its response to Wilmington's motion to dismiss, RAI Law did not submit any affidavits or other proof to refute the facts established in the documents attached to Wilmington's motion to dismiss. See 735 ILCS 5/2-619(c) (West 2018). If a moving party presents adequate documents in support of its section 2-619 motion to dismiss, the burden then shifts to the nonmoving party. Kedzie & 103rd Currency Exchange, Inc, 156 Ill.2d at 116. Where, as here, RAI Law failed to file a counteraffidavit or other documents to refute the facts asserted in Wilmington's documents that the appropriate entities were dissolved, this court deems those facts admitted. Id. Thus, there was no evidence of an attorney-client relationship between RAI Law and Cloud View LLC. It follows that RAI Law attempted to act as Cloud View LLC's attorney without authority. See In re Marriage of Stephenson, 2011 IL App (2d) 101214, ¶ 36 (the attorney-client relationship is one of principal and agent and to act with proper authority on behalf of a client, an attorney must have either actual or apparent authority to do so). RAI Law alleged that it was retained by Cloud View LLC but offered nothing to establish this relationship. Accordingly, the trial court properly dismissed the 2-1401 petition filed by RAI Law with prejudice.
¶ 15 III. CONCLUSION
¶ 16 For the reasons stated, we dismiss appeal number 2-20-0211 and affirm the trial court's judgment in appeal number 2-20-0465.
¶ 17 Number 2-20-0211 is dismissed.
¶ 18 Number 2-20-0465 is affirmed.