Purgatory Cellars, LLC v. Neighbors

1

2024 IL App (5th) 230154-U

PURGATORY CELLARS, LLC, Plaintiff-Appellee, v. KENNETH R. NEIGHBORS, PATRICIA H. NEIGHBORS, BRIAN K. NEIGHBORS, and JOY NEIGHBORS, Defendants-Appellants.

No. 5-23-0154

Court of Appeals of Illinois, Fifth District

August 26, 2024

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 Lawrence County. No. 20-LM-10 Honorable Robert Hopkins and Mark Shaner, Judges, presiding.

JUSTICE MOORE delivered the judgment of the court. Justices McHaney and Sholar concurred in the judgment.

ORDER

MOORE JUSTICE

¶ 1 Held: The trial court correctly determined that three of the pro se defendants failed to enter timely appearances, and the court did not abuse its discretion in entering default ejectment orders against them. The court's award of mesne profits was not against the manifest weight of the evidence. The award of damages for missing property was likewise not against the manifest weight of the evidence. The award of damages for cleanup of the premises was against the manifest weight of the evidence where the award was calculated based on a bid for cleaning the property and where the plaintiff acknowledged that, due to a subsequent sale of the property, it did not and would not incur this cost.

¶ 2 The plaintiff, Purgatory Cellars, LLC, filed a complaint seeking ejectment and damages for the unauthorized use of its property by the defendants, Brian and Joy Neighbors and Kenneth and Patricia Neighbors. The complaint alleged that the defendants, neighboring landowners, had been storing lumber and equipment related to a lumber business on the plaintiff's property without authorization. The defendants acted pro se, and only Brian Neighbors appeared at all hearings or filed a timely written appearance in the matter. Early in the proceedings the court entered an ejectment order against Brian and default ejectment orders against the other three defendants. It subsequently awarded damages for mesne profits, the value of missing boxes of empty wine bottles, and the cost of cleaning up the property. The defendants appeal, arguing that (1) the court abused its discretion in entering a default order against three of the defendants and (2) the court erred in awarding all three types of damages. The defendants filed a motion to strike portions of the plaintiff s brief, arguing that the plaintiff improperly cited to a proposed bystander's report that was not certified by the trial court or stipulated to by the parties. We grant the defendants' motion to strike. We reverse the portion of the court's judgment awarding damages for cleanup costs; however, we affirm all other portions of the judgment.

¶ 3 I. BACKGROUND

¶ 4 This case comes to us after a complicated factual background and procedural history. The property at issue has since been sold, but it was previously owned by the plaintiff. Brian Neighbors and his wife, Joy, own property adjacent to the plaintiff's property to the south. Kenneth and Patricia Neighbors, Brian's parents, jointly owned a different parcel, which is adjacent to the plaintiff's property to the northeast. Patricia passed away in May 2021, while this litigation was pending. Because the defendants share a last name, we will refer to them by the first names throughout this decision.

¶ 5 The plaintiff's predecessor, Flat Rock Holdings, LLC purchased the property at issue in 2006. The plaintiff's parent company is Forsythe Land Company (Forsythe). Prior to the sale, the property was used as a winery operated by its previous owner, White Owl Winery. The plaintiff continued that use until 2011. Brian was employed by the plaintiff as its winery manager. Although the winery closed in 2011, the plaintiff did not sell the property for several years.

¶ 6 The dispute leading to this lawsuit arose in the fall of 2019, when the plaintiff decided to sell the property. In contemplation of listing the property for sale, Forsythe's property manager, Amie Kennedy, visited the premises. She discovered piles of lumber, tractors, and vehicles that did not belong to the plaintiff.

¶ 7 Kennedy contacted Barry Sloss, an attorney representing Forsythe, who in turn contacted Brian Neighbors. On October 10, 2019, Brian told Sloss that the Neighbors's use of the property was pursuant to an agreement with Forsythe's farm manager, Allen Hollingsworth. He explained that under this agreement, Hollingsworth allowed them to store equipment on the plaintiff's property in exchange for mowing the grass and keeping an eye on the property. Sloss informed Brian that Hollingsworth did not have the authority to make such an agreement, that any agreement to that effect was now terminated, and that the defendants must remove their lumber and equipment from the property.

¶ 8 On October 15, 2019, Sloss sent a letter to Kenneth and Patricia Neighbors demanding that they remove all their personal property from the premises by October 31. Sloss also informed them that during his previous discussion with Brian, Brian had mentioned that Kenneth and Patricia might know someone interested in purchasing the property. He requested that if they knew of a potential buyer who was "interested in making an offer," they advise that individual to contact Amie Kennedy regarding the property. Brian acknowledged receiving a copy of the letter, although it was addressed only to Kenneth and Patricia.

¶ 9 In November 2019, the plaintiff entered into a contract to sell the property to Russell and Christina Neighbors. Russell is Kenneth's nephew. As we will discuss in more detail later, that contract resulted in litigation in which the plaintiff in this case filed a third-party complaint against the defendants in this case. The sale ultimately took place in the latter half of 2021, while the proceedings in this case remained pending.

¶ 10 On July 15, 2020, the plaintiff filed an ejectment complaint against all four defendants, alleging that as of July 8, 2020, they had not complied with the demand to remove their lumber and equipment from the premises owned by the plaintiff. The complaint further alleged that the defendants did not pay rent for use of the premises and did not have authorization to use the premises. In its prayer for relief, the plaintiff requested damages and an order directing the defendants to remove their lumber, equipment, and any other personal property from the premises.

¶ 11 The record indicates that the court immediately set the matter for an August 3, 2020, hearing. Returns of service were filed on July 30, demonstrating personal service of process on all four defendants on July 22 and 23.

¶ 12 On July 30, 2020, Brian filed two pro se pleadings. One was styled as a "Special and Limited Appearance." In it, he stated that he "has not had sufficient time since service to be allowed to file a proper answer or otherwise respond to the complaint." The other pleading was a motion to continue, which was purportedly filed on behalf of all four defendants but was signed only by Brian. In it, Brian alleged that none of the four defendants were able to attend the hearing scheduled for August 3. He explained that his wife, Joy, was scheduled to have surgery on that day and that he needed to be there with her. He further explained that his mother, Patricia, was recovering from cancer treatment and that Kenneth was her caregiver. The court granted the motion to continue over the plaintiff's objection and reset the matter for a September 4, 2020, hearing.

¶ 13 On September 1, 2020, the defendants filed a pro se motion to dismiss, which was signed by all four. They first argued that the plaintiff's complaint was moot, alleging that the defendants had, "in good faith, removed the logs, lumber, and equipment, and personal property from the land in question." They did not state when this had occurred. The defendants next alleged that Russell Neighbors had entered into a contract with the plaintiff for the sale of the property in November 2019; that Russell wanted to continue the arrangement previously agreed to by the defendants and Hollingsworth; and that the defendants thus believed it was "unnecessary for Kenneth to quit the property" in view of the pending sale. The defendants argued that this case was redundant because pending litigation involving the contract for sale (case number 20-CH-7) would "settle the ownership issue" and resolve the questions in this case as well. Finally, the defendants alleged that Brian and Joy had no interest in or involvement with Kenneth's lumber business. In addition, the defendants denied all allegations in the complaint. They requested either dismissal of the complaint in its entirety or "an extension until after the property ownership issue is established by this Court in case 2020-CH-7." Unlike the earlier pleadings filed by Brian, the motion to dismiss was signed by each of the four defendants.

¶ 14 On September 4, 2020, the court held an ejectment hearing. Brian was the only defendant to attend. In a docket entry dated that day, the court granted the plaintiff's claim for ejectment against Brian based on the evidence presented and entered a default order of ejectment against the other three defendants. The court ordered the defendants to remove their lumber and equipment within 30 days. According to the defendants, the court informed Brian that his wife and parents could file motions to vacate the default order against them within 30 days.

¶ 15 On September 29, 2020, Joy, Patricia, and Kenneth filed motions to vacate the default ejectment order against them. They did not notice these motions for a hearing, and the court never directly ruled on them.

¶ 16 The matter came...