Background
Tamerlane Homeowners’ Association obtained a 2016 default judgment and possession order against unit owner Erika Schwelnus after receiving leave to serve her by posting. The sheriff executed the possession order in September 2016. Schwelnus and her husband, Spencer Roman, later alleged that the Association improperly obtained the order, removed or disposed of their personal property, and failed to maintain the unit while it possessed it.
In 2021, after an evidentiary hearing on remand from an earlier appeal, the circuit court vacated the default judgment and possession orders as void because Schwelnus had not been properly served. Roman and Schwelnus then brought this 2023 damages action. The circuit court dismissed most claims, including conversion, trespass to chattels, wrongful eviction, and abuse of process, largely as untimely.
The Court’s Holding
The appellate court affirmed in part, reversed in part, and remanded. It held that defendants had not established that the conversion and trespass-to-chattels claims accrued more than five years before the April 2023 suit. The 2016 letter stating that plaintiffs could retrieve their property and that remaining property would be disposed of after November 1 did not establish when property was actually removed, disposed of, sold, or wrongfully withheld.
The court also held that the wrongful-eviction claim, as pleaded, accrued on April 19, 2021, when the possession judgment was declared void for lack of personal jurisdiction. The abuse-of-process claim was likewise not shown untimely as to law firm Fullett Swanson, because its pleaded theory depended on the later determination that the judgment and possession order were void. But dismissal of that claim against the Association remained affirmed because plaintiffs did not challenge the separate ruling that the pleading failed to state an abuse-of-process claim.
Key Takeaways
- A defendant seeking limitations dismissal must establish when the particular claim accrued.
- Possession of a residence does not by itself establish a conversion claim accrued as to personal property left inside.
- A claim premised on a void possession order may accrue when the jurisdictional defect is adjudicated, not necessarily when the eviction occurs.
Why It Matters
The decision underscores that a limitations defense cannot rest on an assumed date of injury where the record does not show when the alleged interference with personal property occurred. It also distinguishes a pending case that merely makes recovery more certain from one that resolves a legal right necessary to pursue the later damages claim.
This Rule 23 order is nonprecedential except in the limited circumstances permitted by Illinois Supreme Court Rule 23(e)(1).