No. 1-02-0338

MARBLE EMPORIUM, INC., 				   )	Appeal from the

								   )	Circuit Court of

		Plaintiff-Appellee,				   )	Cook County.

								   )

		v.						   )	

								   )

DEJAN L. VUKSANOVIC, 					   )

								   )

		Defendant-Appellant				   )	No. 98 CH 01079

								   )

(Richard E. Swin, Jr., First National Bank of		 	   )	

Chicago, Lehman Home Equity, Trust No.     	   	   )

1995-1, K&B Arts, Inc., Unknown Owners and	   	   )

Unknown Lien Claimants,				   	   )	Honorable

								   )	Cyril Watson, 

		Defendants).					   )	Judge Presiding.

     	JUSTICE REID delivered the opinion of the court:

	The case involves a mechanic’s lien.  The trial court entered a default judgment against

Dejan Vuksanovic but failed to include language of finality pursuant to Supreme Court Rule

304(a).  155 Ill. 2d R. 304(a).  Despite the entry of the default judgment, the complaint remained

pending against another defendant for the next 31⁄2 years.  The trial court permitted supplementary

proceedings  pursuant to Supreme Court Rule 277 (134 Ill. 2d R. 277) and section 2-1402 of the

Illinois Code of Civil Procedure (735 ILCS 5/2-1402 (West 2000)).  The trial court eventually

entered an order with Rule 304(a) language, but only after the supplementary proceedings had

taken place.  For the reasons that follow, we reverse the decision of the trial court. 

	BACKGROUND

	Marble Emporium, Inc. (Marble Emporium), filed a complaint to foreclose a mechanic’s

lien against Richard Swin, First National Bank of Chicago (First Bank), Lehman Home Equity,

trust No. 1995-1 (Lehman), K&B Arts, Inc. (K&B), Vuksanovic, unknown owners and unknown

lien claimants.  Marble Emporium is a masonry supplier and installer that supplied materials and

services for the 155 Harbor Point Drive, Unit 5212 construction project (Project).  The complaint

alleges that Swin is the owner of the property.  Swin authorized K&B to contract with others for

construction services pertaining to the project.  Swin and K&B allegedly entered into several

agreements.  When all the work was completed on January 26, 1996, Marble Emporium was

owed $18,635 plus interest.  Marble Emporium claims that debt has never been paid. 

Vuksanovic, as president of K&B, allegedly personally guaranteed collection of the $18,635.  The

alleged personal guarantee amounts to Vuksanovic writing “I guarantee this statement

personally.”  The statement to which Vuksanovic refers is an invoice stating that materials were

sold to K&B Arts.  

	The complaint contains a copy of the notice and claim for lien that was recorded with the

Cook County recorder of deeds as document No. 97886094.  The notice and claim for lien name

Swin, First Bank and unknown owners and nonrecord lien claimants, but do not name K&B or

Vuksanovic as respondent.  First Bank and Lehman were properly served.   K&B, Swin and

Vuksanovic were not served.  The trial court subsequently authorized a special process server to

effect service on Swin, K&B, and Vuksanovic.

	On April 6, 1998, Swin appeared through counsel and moved to dismiss on the grounds

that Swin and Marble Emporium had entered into a release whereby Marble Emporium agreed to release Swin from any and all claims in exchange for the payment of $13,824.  On April 16, 1998,

Marble Emporium moved for default judgment as to First Bank and Lehman as well as

Vuksanovic, though he had not been served.  Vuksanovic filed a motion to quash, after which an

allegedly improperly notarized proof of service surfaced.  The proof of service claims that

Vuksanovic was personally served on March 14, 1998.  The document was signed by Joseph A.

Tolomeo and contained a purported attestation by Tilia Tolomeo.  That signature was not

properly notarized.  

	On May 5, 1998, Swin filed a motion to dismiss claiming that Marble Emporium’s

execution of a release in exchange for $13,824 and the simultaneous execution of a lien waiver

mandated dismissal of the complaint.  Marble Emporium responded that the payment of $13,824

had never been made.  The trial court denied that motion to dismiss but approved a settlement

four months later.  In that settlement order, Swin was to pay plaintiff $5,000 in full settlement of

the claims made against him.  That order, entered December 14, 1998, did not contain Supreme

Court Rule 304(a) language.  

	A citation to discover Vuksanovic’s assets was filed on May 21, 1999.  Because

Vuksanovic failed to appear, the trial court entertained a rule to show cause.  On July 22, 1999,

the trial court continued the hearing on the rule to show cause to make time for Vuksanovic to be

served.  

	On August 5, 1999, Vuksanovic filed a special and limited appearance to challenge the

trial court’s jurisdiction over him.  He claimed that, because he lived alone, it was impossible for

substitute service to be effectuated.  When confronted with the purported affidavit of the special process server, Vuksanovic moved to strike it, arguing that the affidavit was neither properly

notarized nor certified under the rules.  The trial court denied the motion to strike the Tolomeo

affidavit and denied the motion to quash for lack of in personam jurisdiction.  The trial court further granted Vuksanovic leave to file a motion to vacate a void judgment and to continue the

citation to discover assets.  

	The motion to vacate a void judgment claimed that the 1996 release between Swin and

Marble Emporium extinguished the enforceability  of Vuksanovic’s alleged personal guarantee on

the grounds that, under Illinois law, the discharge of the principal’s obligation ends the liability of

the guarantor.  The motion also argued that the lien was filed against Swin and First Bank and not

Vuksanovic. The trial court denied this motion.  

	On October 24, 2001, Marble Emporium filed a motion for the turnover of a painting

collection that was discovered during a second citation to discover assets.  Vuksanovic filed a

motion to strike the motion to turn over the painting collection.  Vuksanovic argues that, pursuant

to Supreme Court Rule 277(f), a citation proceeding automatically terminates six months from the

date of (1) the respondent’s first personal appearance pursuant to the citation or (2) the

respondent’s first personal appearance pursuant to subsequent process issued before the citation,

whichever is sooner.  134 Ill. 2d R. 277(f).  Because the citation was filed on January 25, 2001,

Vuksanovic argues that it terminated automatically on July 25, 2001.  Vuksanovic claims the trial

court had no authority to enter any orders collateral to the citation examination.  Vuksanovic also

claims that, because the trial court never made a Rule 304(a) finding, the case was still pending

against K&B such that Marble Emporium could not execute on the judgment.  

	On November 7, 2001, K&B filed a motion to dismiss the case against it.  This was based

on K&B’s belief that no judgment had been entered against it and that no prosecution of the case

against it had taken place for over three years.  By November 15, 2001, Swin had replaced

Marble Emporium as the litigating party.  Swin moved for leave to voluntarily dismiss K&B and

for a finding of finality pursuant to Rule 304(a) as to the trial court’s April 23, 1998, default

judgment order.  This was premised on a claimed scrivener’s error whereby K&B was left out of

the order along with the Rule 304(a) language.  

	On November 20, 2001, Vuksanovic moved “for certain relief” in the nature of a motion

for reconsideration of the motion for turnover of the painting collection.  The trial court ruled that

Vuksanovic’s position was without merit.  On December 4, 2001, the trial court granted Swin’s

motion to voluntarily dismiss K&B.  The order also denied Vuksanovic’s motion for certain relief,

namely, the motion to strike the turnover motion and the motion to quash citation to third parties. 

The trial court barred Vuksanovic from selling the paintings.  Execution of the turnover order was

stayed.  On January 3, 2002, the trial court vacated its stay of execution of the order granting the

turnover motion.

	ANALYSIS

	Proceedings Without Rule 304(a) Language

	Vuksanovic argues that the absence of Rule 304(a) language means there was no final

judgment to serve as the predicate for supplementary proceedings under Supreme Court Rule 277

and section 2-1402 of the Illinois Code of Civil Procedure.  Vuksanovic argues that under Rule

277,  supplementary proceedings are only available to a party when there is a judgment that is subject to enforcement.  Vuksanovic argues that this court must conclude that the supplementary

proceedings in the case at bar, from the initial citation to discover assets filed on May 21, 1999,

through the November 30, 2000, citation and the October 24, 2001, turnover order that was

predicated upon it, were all void.  Vuksanovic’s premise, that supplementary proceedings can

only be pursued after a judgment has been entered, means that the right to such proceedings only

gets conferred on judgment creditors and judgment debtors.  735 ILCS 5/2-1402(a) (West 2000). 

Vuksanovic urges this court to apply the plain meaning of the statute such that, without Rule

304(a) language, the judgment is unenforceable and unappealable.  According to Vuksanovic, the

trial court was allowing a party to attempt to seize assets in enforcement proceedings on the basis

of a judgment that could not be appealed under Rule 304(a).  Vuksanovic claims this court must

reverse the two orders dated December 4, 2001.  Vuksanovic also argues that the belated addition

of Rule 304(a) language does not retrospectively validate the supplementary proceedings because

the proceedings were void at the time they were commenced.

	Marble Emporium responds that determining that the supplementary proceedings against

Vuksanovic were void because of the absence of Rule 304(a) language defies the principles of

judicial economy.  If this court finds that the supplementary proceedings were void, the case

would be remanded to the trial court and Swin would be able to initiate supplementary

proceedings because there is now a Rule 304(a) finding in place.  Marble Emporium argues that

Vuksanovic has failed to suggest the supplementary proceedings would have been any different

had there been a Rule 304(a) finding in place prior to commencement.  Put another way, Marble

Emporium claims any error occasioned by the omission of Rule 304(a) language is harmless.

	Vuksanovic also claims that the motion for turnover of the artwork was also invalid

because it occurred more than six months after Vuksanovic entered his first appearance pursuant

to the initial citation.  His claim is based on the plain language of Supreme Court Rule 277(f).

Vuksanovic claims that the trial court had no authority to enter orders collateral to the citation

examination.

	Marble Emporium responds that, although more than six months had elapsed after

Vuksanovic appeared on the citation, Rule 277(f) grants the trial court the discretion to extend

the time period when justice requires.  In this case, according to Marble Emporium, the trial court

continued the turnover proceedings because justice required.  

	Supreme Court Rule 304(a) reads as follows:

			“(a) Judgments As To Fewer Than All Parties or

Claims--Necessity for Special Finding.   If multiple parties or

multiple claims for relief are involved in an action, an appeal may be

taken from a final judgment as to one or more but fewer than all of

the parties or claims only if the trial court has made an express

written finding that there is no just reason for delaying either

enforcement or appeal or both.  Such a finding may be made at the

time of the entry of the judgment or thereafter on the court's own

motion or on motion of any party.  The time for filing a notice of

appeal shall be as provided in Rule 303.  In computing the time

provided in Rule 303 for filing the notice of appeal, the entry of the required finding shall be treated as the date of the entry of final

judgment.  In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of

fewer than all the parties is not enforceable or appealable and is

subject to revision at any time before the entry of a judgment

adjudicating all the claims, rights, and liabilities of all the parties.”  (Emphasis Added.)  155 Ill. 2d R. 304(a).

	Supreme Court Rule 277(a)  reads, in relevant part, as follows:

			“A supplementary proceeding authorized by section 2-1402

of the Code of Civil Procedure  may be commenced at any time

with respect to a judgment which is subject to enforcement.”  134

Ill. 2d R. 277(a).

	Supreme Court Rule 277(f), dealing with the termination of a proceeding properly

constituted under the whole of Rule 277,  reads as follows:

			“A proceeding under this rule continues until terminated by

motion of the judgment creditor, order of the court, or satisfaction

of the judgment, but terminates automatically 6 months from the

date of (1) the respondent's first personal appearance pursuant to

the citation or (2) the respondent's first personal appearance

pursuant to subsequent process issued to enforce the citation,

whichever is sooner.  The court may, however, grant extensions beyond the 6 months, as justice may require.  Orders for the

payment of money continue in effect notwithstanding the

termination of the proceedings until the judgment is satisfied or the

court orders otherwise.”  134 Ill. 2d R. 277(f).

	“Rule 304(a) explicitly states that in the absence of such a finding by the trial court  [that

there is no juistust cause to delay inforenforcement or appeal0], a judgment as to fewer than all parties or

claims involved ‛is not enforceable.’ ”  Bank of Matteson v. Brown, 283 Ill. App. 3d 599, 603 (1996), quoting 155 Ill. 2d R. 304(a).  “Reviewing courts in Illinois have consistently dismissed

appeals from orders that disposed of fewer than all the parties or claims yet lacked a finding that

there was no just cause to delay enforcement or appeal.”  Bank of Matteson, 283 Ill. App. 3d at 603, citing Ferguson v. Riverside Medical Center, 111 Ill. 2d 436 (1985); Pettie v. Williams Brothers Construction, Inc., 216 Ill. App. 3d 801 (1991); Hamer v. Lentz, 155 Ill. App. 3d 692 (1987).  “‛[T]he absence of a Rule 304 finding in a judgment--for whatever reason – leaves the judgment final but unenforceable and unappealable.’ ”  Bank of Matteson, 283 Ill. App. 3d at 603, quoting Hamer, 155 Ill. App. 3d at 695.  

	Both Supreme Court Rule 277 and section 2-1402 of the Illinois Code of Civil Procedure

require there to be a judgment before supplementary proceedings may be commenced.  Rule 277

mandates that “[a] supplementary proceeding authorized by section 2-1402 of the Code of Civil

Procedure may be commenced at any time with respect to a judgment which is subject to

enforcement.”  134 Ill. 2d R. 277(a).  Similarly, section 2-1402 authorizes that “[a] judgment

creditor, or his or her successor in interest when that interest is made to appear of record, is entitled to prosecute supplementary proceedings for the purposes of examining the judgment

debtor or any other person to discover assets or income of the debtor not exempt from the

enforcement of the judgment, a deduction order or garnishment, and of compelling the application

of non-exempt assets or income discovered toward the payment of the amount due under the

judgment.”  735 ILCS 5/2-1402(a) (West 2000).  Section 2-1402 proceedings are unavailable to

creditors until after judgment capable of enforcement has first been entered in their favor.  Bank of Matteson, 283 Ill. App. 3d at 602, citing State Bank v. A Way, Inc., 135 Ill. App. 3d 1010 (1985), aff’d, 115 Ill. 2d 401 (1987); Ericksen v. Rush-Presbyterian-St. Luke’s Medical Center, 289 Ill. App. 3d 159, 166 (1997) (section 2-1402 “proceedings may be initiated only after the

circuit court enters a judgment”).

	In the present case, by application of the clear, unambiguous language of Supreme Court

Rule 304(a), without an enforceable judgment to serve as a predicate, no supplementary

proceedings may properly be held.  Here there was no enforceable and/or appealable judgment

when the supplementary proceedings were commenced.  Under our reading of the relevant

authority, the default judgment order entered by the trial court on April 23, 1998, did not confer

the requisite enforceability or appealability necessary to legitimize the supplementary proceedings

that were mistakenly allowed to take place.  This includes the motion to turn over the artwork

that is also tied to the original order without the Rule 304(a) language.  The failure to give Rule

304(a) language is an infirmity that could not have been corrected by the subsequent entry of the

December 4, 2001, order purporting to add the missing Rule 304(a) language. The trial court

exceeded its statutory authority.  Even though it might seem wasteful in terms of judicial resources to make these parties return to the trial court and start again, that is the intention of the

legislature as evidenced by the plain, unambiguous language of the applicable statutes and

supreme court rules.  As to the termination language in Rule 277(f), it is unnecessary for us to

discuss whether the trial court could have extended the time for supplementary proceedings when

the trial court lacked authority to conduct the supplementary proceedings in toto.  The jurisdictional prerequisite of an enforceable and appealable judgment dealing with whether a trial

court can hold a supplementary proceeding trumps the procedural niceties of how that proceeding

might be held and/or stopped.  To hold otherwise would violate the intent of the rules and would

defy logic. 

	Failure of the Complaint to State a Claim

	In Vuksanovic's remaining argument, he argues that the first count of the complaint did

not state a claim against him.  Because it failed to state a cause of action, Vuksanovic argues, the

judgment was void.  He claims that a lien is only enforceable if the proceedings are commenced 

within four months of the completion of the work.  He claims that the work at issue was

completed on January 29, 1996, but the lien was not filed until November 26, 1997.  Vuksanovic

claims that the filing period is a condition of liability and not merely a limitation on the remedy.  It

is a statutory requirement intended to be strictly enforced.  Additionally, the mechanic’s lien

complaint was filed against Swin, First Bank and Lehman, not Vuksanovic.  According to

Vuksanovic, in the case of a guarantee of collection, the creditor must show that he has

proceeded against the debtor with reasonable diligence or that such attempts would be fruitless. 

Because Swin and Emporium failed to serve K&B with summons, ignored it as a defendant, then let years pass without attempting to prosecute their claim against K&B, they cannot claim

diligence.  Consequently, no valid cause of action can be stated against Vuksanovic as a guarantor

of the collection of a debt allegedly owed by K&B.  Vuksanovic further argues that the trial court

never obtained in personam jurisdiction over him.  When he did go to court, Vuksanovic argues, it was by special and limited appearance.  

	Marble Emporium responds that Vuksanovic’s argument that the default judgment against

him is void because the complaint upon which it was based failed to state a cause of action is not

properly before this court.  Nothing in the December 4, 2001, or January 3, 2002, order relates to

allegations of a void judgment because the complaint fails to state a cause of action against

Vuksanovic.  Because no ruling related to this issue is included in any of the orders to which the

trial court added Rule 304(a) language, Marble Emporium urges this court not to consider it.  In

the alternative, Marble Emporium argues that the complaint does state a cause of action.  Count I

of that complaint alleges that Vuksanovic, as president of K&B, personally guaranteed payment

of Marble Emporium’s invoice.  The complaint also alleges that he did not actually pay the debt. 

Marble Emporium also responds that in personam jurisdiction was obtained by a special process server performing an alias summons.  Marble Emporium claims this issue is not properly before

this court because the propriety of the alleged alias service was challenged below but the trial

court denied the motion in a nonfinal and nonappealable order.  

	It is undisputed that there was no valid service on K&B.  Marble Emporium failed to

pursue K&B in any meaningful way.  During the course of proceedings, the decision was made to

voluntarily dismiss K&B.  When the order was entered that dismissed K&B, the trial court specifically tied that order to the prior one.  It was in contemplation of the prior order that

Vuksanovic argued the failure to state a claim against him.  Because of the unique factual posture

in which we find ourselves, we can reach the issue now in order to fully resolve the issues raised

in this appeal.

	When the trial court granted the motion to voluntarily dismiss K&B, any obligation K&B

might have had was discharged.  Because Vuksanovic’s obligations as guarantor were tied to

K&B’s obligations, Vuksanovic was discharged as well.  “As a general rule discharge, satisfaction

or extinction of the principal obligation, discharges the obligation of the guarantor.”  Mazur v. Stein, 314 Ill. App. 529, 532 (1942); Exchange National Bank of Chicago v. Bergman, 153 Ill. App. 3d 470, 473 (1987), citing Du Quoin State Bank v. Daulby, 115 Ill. App. 3d 183 (1983).  As a direct result of the dismissal of K&B, Marble Emporium can no longer state a claim against

Vuksanovic.  

	CONCLUSION

	In light of the foregoing, the decision of the trial court is reversed.

	Reversed.

 	CAMPBELL, P.J., and QUINN, J., concur.