{ "id": 894472, "name": "THE ROCKFORD HOUSING AUTHORITY, Plaintiff-Appellee, v. DOROTHY DONAHUE, Defendant-Appellant", "name_abbreviation": "Rockford Housing Authority v. Donahue", "decision_date": "2003-02-28", "docket_number": "No. 2-01-1129", "first_page": "571", "last_page": "576", "citations": [ { "type": "official", "cite": "337 Ill. App. 3d 571" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "186 Ill. App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2657905 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "155-56" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0151-01" ] }, { "cite": "235 Ill. App. 3d 1053", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5784931 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "1056-57" }, { "page": "1057-58" }, { "page": "1059" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/1053-01" ] }, { "cite": "277 Ill. App. 3d 844", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172358 ], "year": 1996, "pin_cites": [ { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0844-01" ] } ], "analysis": { "cardinality": 549, "char_count": 10830, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.031562844011369 }, "sha256": "005f7448a999edb8b1f251165f1d6879f518755a0765bc190cbf592c1ff2ede7", "simhash": "1:fe9b93cd4c03cc6f", "word_count": 1796 }, "last_updated": "2023-07-14T14:38:38.563173+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE ROCKFORD HOUSING AUTHORITY, Plaintiff-Appellee, v. DOROTHY DONAHUE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nPlaintiff, the Rockford Housing Authority, filed a forcible entry and detainer complaint against defendant, Dorothy Donahue. The trial court defaulted defendant because she did not file a written appearance or pay the required filing fee before trial. The court refused to vacate the default judgment. Defendant appeals, contending that (1) Supreme Court Rule 181(b) (166 Ill. 2d R. 181(b)) does not require a written appearance in a forcible entry and detainer action; (2) because no written appearance was required, the court erred in defaulting plaintiff for not filing one; and (3) the court erred by refusing to vacate the default judgment. Because we agree with defendant\u2019s third contention, we reverse the judgment on that basis without deciding the other two issues.\nPlaintiff is a public housing agency. Defendant and her two children live in an apartment pursuant to a lease with plaintiff, which receives a rental subsidy from the United States Department of Housing and Urban Development.\nPlaintiff filed a complaint against defendant alleging that she breached a lease provision prohibiting criminal conduct by tenants when she was arrested for disorderly conduct after fighting with Leticia Chears. On July 23, 2001, defendant was served with a summons that required her to \u201cappear\u201d on August 16, 2001. Defendant appeared in court pro se on that date, denied the complaint\u2019s allegations, and requested a trial.\nWhile in court, defendant was given a \u201cNOTICE TO FORCIBLE DETAINER DEFENDANTS.\u201d The notice states that if defendant did not pay a fee of $70 at least 48 hours before the next court date she would be defaulted and prevented from participating in the trial. It states that the fee could be waived for financial need. The notice does not mention filing an appearance or answer and is not signed by the judge. Trial was set for September 13, 2001.\nOn September 13, defendant again appeared pro se and requested additional time to pay the filing fee. However, the court found her in default for failing to file an appearance and entered judgment against her. Later that day, defendant filed a pro se motion requesting additional time to pay the filing fee.\nDefendant then retained Prairie State Legal Services (Prairie State), which, on September 20, 2001, filed a verified motion to vacate the default judgment. The motion alleges that defendant was acting in self-defense when she fought with Chears. Prairie State also filed a certification pursuant to section 5 \u2014 105.5(b) of the Code of Civil Procedure (735 ILCS 5/5 \u2014 105.5(b) (West 2000)) that resulted in waiving all fees for defendant.\nOn September 27, 2001, the court denied the motion to vacate. The court\u2019s written order states that \u201cDefendant\u2019s verified motion to vacate is denied for the same reasons she was originally defaulted on September 13, 2001.\u201d Defendant timely appeals.\nThe parties dispute whether defendant should have been required to file a written appearance at all. See 166 Ill. 2d R. 181. Defendant contends that no written appearance was required and, therefore, the court erred in defaulting her for not filing one. However, we need not resolve these issues because, even if the court properly defaulted defendant, it should have exercised its discretion to vacate the default.\nAlthough the court may enter a default judgment for want of an appearance, a default judgment is a drastic measure, not to be encouraged and to be employed only as a last resort. Biscan v. Village of Melrose Park Board of Fire & Police Commissioners, 277 Ill. App. 3d 844, 848 (1996). Once the court does enter a default judgment, it may exercise its discretion to set aside the default \u201cupon any terms and conditions that shall be reasonable.\u201d 735 ILCS 5/2 \u2014 1301(e) (West 2000).\nA trial court\u2019s refusal to vacate a default judgment may be reversed because of a denial of substantial justice or for an abuse of discretion. Venzor v. Carmen\u2019s Pizza Corp., 235 Ill. App. 3d 1053, 1056-57 (1992). Factors in deciding whether a default order accomplishes substantial justice include the severity of the penalty to the defendant and the attendant hardship on the plaintiff if it is forced to proceed to trial. Venzor, 235 Ill. App. 3d at 1057-58.\nHere, defendant received a summons that instructed her to appear on August 16. It did not require defendant to do anything else. She appeared in court on August 16 but received a \u201cnotice\u201d stating that she had to file a written appearance and pay a filing fee before trial. The legal efficacy of this notice is not clear, given that no local rule specifically authorizes this notice and it is not signed by a judge.\nDefendant then appeared on the trial date but was defaulted because she had not paid the appearance fee. Defendant\u2019s subsequent pleadings make it appear that the only reason she failed to pay the appearance fee was that she could not afford to do so. Plaintiff does not dispute this fact.\nAfter being defaulted, defendant immediately filed a pro se motion seeking more time to pay the filing fee. Within a week, she contacted Prairie State, which filed a written appearance and obtained a waiver of the fee.\nThis sequence of events does not demonstrate the repeated flouting of the court\u2019s authority or deliberate indifference to its commands that will justify a default judgment. In Wilkin Insulation Co. v. Holtz, 186 Ill. App. 3d 151 (1989), which plaintiff cites, the court had already entered and vacated three default judgments against the third-party defendant before declining to vacate the fourth one. In affirming, the appellate court observed that repeated violations of a court\u2019s orders would justify a default. Wilkin, 186 Ill. App. 3d at 155-56.\nIn Venzor, defendant stated that he failed to respond to the summons because of \u201cignorance.\u201d While we termed this a \u201cpoor excuse\u201d (Venzor, 234 Ill. App. 3d at 1058), we nevertheless reversed the $100,000 default judgment against defendant. We stated, \u201cWe fail to see how justice demands [that defendant] pay such an amount for his default, particularly where no evidence has been presented indicating that his failure to respond to the summons amounted to a contumacious flouting of judicial authority ***.\u201d Venzor, 235 Ill. App. 3d at 1059.\nThe same reasoning applies here. Defendant appeared in court each time the case was called. There is absolutely no evidence that she was deliberately indifferent to the court\u2019s authority. Apparently, she failed to pay the filing fee because she could not afford it. The notice she received does not explain how to obtain a fee waiver. This conduct does not warrant the ultimate sanction of a default judgment.\nPlaintiff argues that forcible entry actions are meant to be expeditious proceedings and that tolerating even minimal delays will destroy the efficacy of this procedure. The problem with this argument is that defendant never sought to delay the proceedings. Indeed, she appeared on the date specified and requested a trial. She appeared on the trial date. Apparently, had the court been willing to waive the appearance fee, a trial could have proceeded at that time. It was only after she was defaulted that defendant sought more time to pay the filing fee. Within a week, she moved to vacate the default judgment. Defendant simply did nothing to delay the proceedings.\nPlaintiff contends that the court was justified in refusing to vacate the default judgment because defendant was aware of what she needed to do to contest the case but failed to do so. Of course, the entry of a default judgment presupposes that a defendant was aware of what needed to be done and failed to do it. However, section 2 \u2014 1301(e) gives the court discretion to vacate the default upon terms that are \u201creasonable.\u201d 735 ILCS 5/2 \u2014 1301(e) (West 2000). If the same failure to act that caused the default in the first place automatically justified the failure to vacate the default, section 2 \u2014 1301(e) would be meaningless: there would never be a situation where a default judgment was vacated.\nPlaintiffs argument is ironic because plaintiff all but concedes that the summons it served on defendant did not comply with Supreme Court Rule 101(b) (166 Ill. 2d R. 101(b)). Rule 101(b) requires that a summons contain a \u201cNOTICE TO DEFENDANTS,\u201d where simple and specific instructions outlining the procedure for an appearance \u201cshall be set out.\u201d 166 Ill. 2d R. 101(b). As plaintiff acknowledges, the summons in this case does not contain such a notice, but plaintiff argues that the notice given to defendant on the appearance date was a belated attempt to comply with the rule. However, while plaintiff reminds defendant that \u201c[cjourt rules are not merely suggestions to be complied with if convenient\u201d and insists that the harshest possible penalty is appropriate for the pro se defendant for her single failure to comply with the instructions on the notice form, plaintiff asks us to overlook its own failure to comply with Rule 101(b) because the court belatedly attempted to correct the mistake.\nA summons is a formal document that must be served in one of the specified ways to ensure that a defendant actually receives it. See 735 ILCS 5/2 \u2014 203 (West 2000). The notice to defendants is an informal slip of paper that could easily be lost or disregarded in the often chaotic conditions of a busy courtroom. Presumably for this reason, the supreme court chose to require that the information on how to appear and contest the case be included in the summons, not merely given to a defendant whenever convenient.\nPlaintiffs double standard is further reflected in its argument that, although defendant will lose her home if the default judgment is affirmed, \u201c[l]oss of housing can be no more drastic to a defendant than a money judgment.\u201d Plaintiff also suggests that defendant\u2019s case should not receive \u201cheightened scrutiny\u201d merely because she and her children will be left homeless. However, in the next paragraph of its brief, plaintiff complains that it will suffer numerous \u201chardships\u201d if it is forced to present its case on the merits. We disagree and find that defendant will suffer a greater hardship if she is evicted from her home without receiving her day in court than will plaintiff if it is merely required to prove the merits of its case.\nThe judgment of the circuit court of Winnebago County is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nHUTCHINSON, EJ., and BOWMAN, J., concur.", "type": "majority", "author": "JUSTICE O\u2019MALLEY" } ], "attorneys": [ "Grant Nyhammer, of Prairie State Legal Services, Inc., of Rockford, for appellant.", "Timothy F. Horning, of Meyer & Horning, P.C., of Rockford, for appellee." ], "corrections": "", "head_matter": "THE ROCKFORD HOUSING AUTHORITY, Plaintiff-Appellee, v. DOROTHY DONAHUE, Defendant-Appellant.\nSecond District\nNo. 2\u201401\u20141129\nOpinion filed February 28, 2003.\nGrant Nyhammer, of Prairie State Legal Services, Inc., of Rockford, for appellant.\nTimothy F. Horning, of Meyer & Horning, P.C., of Rockford, for appellee." }, "file_name": "0571-01", "first_page_order": 589, "last_page_order": 594 }