Sutton v. Ekong ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Sutton v. Ekong, 2013 IL App (1st) 121975
Appellate Court SHERRIE SUTTON, Plaintiff-Appellee, v. EDWIN EKONG, Defendant-
Caption Appellant (Anthony Norris and James Major, Defendants).
District & No. First District, Second Division
Docket Nos. 1-12-1975, 1-12-2730 cons.
Filed July 9, 2013
Held The default judgment entered against defendant in connection with an
(Note: This syllabus automobile accident was vacated, notwithstanding the fact that defendant
constitutes no part of was served pursuant to an order for service through the Secretary of State
the opinion of the court after six unsuccessful attempts to serve defendant at his residence, since
but has been prepared service through the Secretary of State was improper where, inter alia,
by the Reporter of plaintiff did not first attempt to serve defendant at his easily obtainable
Decisions for the business address and defendant was personally served with the motion for
convenience of the a default judgment, notice of the prove-up hearing, and a citation to
reader.)
discover assets at that address.
Decision Under Appeal from the Circuit Court of Cook County, No. 08-L-13983; the
Review Hon. Deborah M. Dooling and the Hon. Drella C. Savage, Judges,
presiding.
Judgment Order vacated.
Counsel on Mark L. Karno, of Mark L. Karno & Associates, of Chicago, for
Appeal appellant.
Hugh C. Griffin and Matthew W. McElligott, both of Hall, Prangle &
Schoonveld LLC, of Chicago, for appellee.
Panel JUSTICE SIMON delivered the judgment of the court, with opinion.
Justices Quinn and Connors concurred in the judgment and opinion.
OPINION
¶1 Defendant, Edwin Ekong (Ekong), appeals from various orders of the circuit court of
Cook County concerning the entry of a default judgment in favor of plaintiff, Sherrie Sutton,
and against Ekong. On appeal, Ekong contends that the default judgment is void because the
court did not obtain personal jurisdiction over him and that the court erred in striking his
motion to vacate the judgment under section 2-1301(e) of the Illinois Code of Civil
Procedure (Code of Civil Procedure) (735 ILCS 5/2-1301(e) (West 2010)) and denying his
petition to vacate the judgment under section 2-1401 of the Code of Civil Procedure (735
ILCS 5/2-1401 (West 2010)). For the reasons that follow, we vacate the court’s order
entering a default judgment in favor of plaintiff and against Ekong.
¶2 BACKGROUND
¶3 On December 19, 2008, plaintiff filed a complaint against defendants, Ekong, Anthony
Norris and James Major, asserting that, on July 26, 2007, plaintiff was driving in the vicinity
of 103rd Street and Forest Avenue in Chicago when she came to a stop to avoid another
vehicle, but that defendants failed to stop their vehicles such that a chain of collisions
occurred involving plaintiff’s vehicle, thereby causing injuries to plaintiff. Plaintiff alleged
that defendants breached their duties to exercise due care and caution in the operation of their
vehicles so as to avoid injuring her and that she was severely injured as a direct and
proximate result of their negligent acts. A summons was issued for Ekong that same day.
¶4 On January 2, 2009, a deputy sheriff attempted to serve Ekong with the summons and
complaint at his residence on South Oglesby Avenue in Chicago, but was unable to do so and
marked “no contact” as the reason those documents were not served on Ekong. On January
23, 2009, plaintiff filed a motion for the appointment of Stern Process and Investigations,
LLC (Stern), a private detective agency, as a special process server, and the circuit court
entered an order granting the motion that same day.
¶5 On March 10, 2009, Joanne Stoklasa, a special process server for Stern, filed an affidavit
relating that she attempted to serve Ekong with the summons and complaint at his residence
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five times between February 7 and February 15, 2009, but was unable to do so because
Ekong was avoiding service. Stoklasa related that she received no answer on February 7, 8,
and 12; that on February 10 a man answered on the intercom and said “go away, I’m not
coming downstairs for anything”; and that on February 15 a man answered on the intercom,
said that Ekong was not home and refused to go to the main door. Stoklasa further related
that Ekong’s residence was a secure building and a visitor must be buzzed in by the tenant
and that she spoke with a neighbor who said that Ekong resided at that building and was
frequently at home.
¶6 On May 15, 2009, plaintiff filed a motion for service of Ekong by special order of the
court under section 2-203.1 of the Code of Civil Procedure (735 ILCS 5/2-203.1 (West
2008)). Plaintiff asserted that she had been diligent in attempting to serve Ekong and that the
inability to effect service upon him showed that he was evading service. Plaintiff pointed out
that section 10-301 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/10-301 (West
2008)) provided that a defendant could be served through the Secretary of State if the
defendant resided outside of Illinois and requested that the court grant her leave to serve
Ekong in accordance with the rules for service set forth in section 10-301 of the Vehicle
Code even though Ekong resided in Illinois because that manner of service was consistent
with due process. On May 22, 2009, the court entered an order granting plaintiff’s motion
and granting plaintiff leave to serve Ekong in accordance with the rules for service through
the Secretary of State set forth in section 10-301 of the Vehicle Code. On June 8, 2009, the
Secretary of State accepted service on Ekong’s behalf. On November 1, 2010, the cause of
action between plaintiff and Norris was dismissed because the parties had reached a
settlement agreement that Norris would pay damages of $60,000 to plaintiff.
¶7 On January 13, 2011, plaintiff filed a motion for default judgment against Ekong because
he had been served through the Secretary of State and had failed to timely appear, answer,
or otherwise plead. On April 13, 2011, the court entered a default judgment in favor of
plaintiff and against Ekong. On May 23, 2011, the court entered an order awarding plaintiff
$199,998.32 in damages. On August 3, 2011, plaintiff filed a citation to discover Ekong’s
assets, and Ekong was personally served with that citation on August 10, 2011, at 10830
South Halsted Street in Chicago. Ekong filed his appearance on September 13, 2011.
¶8 On October 31, 2011, Ekong filed a combined petition to vacate the default judgment
under section 2-1401 of the Code of Civil Procedure and motion to quash service, asserting
that the court did not have personal jurisdiction over him because service through the
Secretary of State was improper and that, even if it did, he had a meritorious defense to
plaintiff’s negligence claim and had exercised due diligence in filing his appearance and
petition to vacate. Ekong attached a number of documents to his petition, including an
investigation report dated June 29, 2009, prepared for plaintiff by Subrotech, LLC, a debtor
location and asset research company. In that report, Subrotech related that although it was
unable to contact Ekong to determine if he had auto insurance, it had learned that Ekong was
a self-employed doctor of osteopathy with his own practice at 10830 South Halsted Street
in Chicago. Ekong also attached an order entered by the Secretary of State on March 4, 2010,
as part of a license revocation hearing regarding the car accident at issue and dismissing the
cause against Ekong, finding that he was not at fault for the accident and that there was not
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a reasonable possibility that a judgment of more than $500 would be entered against him.
¶9 On November 21, 2011, plaintiff filed a response asserting that special service through
the Secretary of State was proper because Ekong was evading service and plaintiff did not
know that Ekong owned a business in Chicago at that time and that Ekong did not exhibit
due diligence in presenting a meritorious defense or in bringing his petition to vacate.
Plaintiff attached documents to her response to support her claims that she sent a copy of the
summons and complaint to Ekong’s residential address on July 1, 2009, and left several
messages with Ekong’s staff at his business address after having learned of that address on
June 29, 2009, and that Ekong received a copy of the motion for default judgment at his
business address on January 28, 2011. Plaintiff also maintained that her attorney spoke with
Ekong on April 12, 2011, the day before the entry of default judgment, explained to him that
the case was set for a hearing on the motion for default judgment, and advised him to attend
the hearing, but Ekong said he had done nothing wrong and failed to appear at the hearing.
Plaintiff further maintained that Ekong received the notice of the prove-up hearing on May
18, 2011, but did not attend that hearing, and that counsel for plaintiff provided Ekong with
a copy of the judgment order and memorandum of judgment on June 13, 2011.
¶ 10 On March 19, 2012, the court entered an order denying Ekong’s petition to vacate and
motion to quash service. In doing so, the court found that service upon Ekong through the
Secretary of State was proper under section 2-203.1 of the Code of Civil Procedure because
that method of service conformed with principles of due process and that Ekong had not set
forth a meritorious defense to the default judgment, did not act diligently in presenting his
claim to the court in the original action, and did not act diligently in filing his petition to
vacate.
¶ 11 On April 16, 2012, Ekong filed a motion to reconsider the court’s ruling, asserting that
service through the Secretary of State was improper under section 2-203.1 of the Code of
Civil Procedure because plaintiff did not make a diligent inquiry as to his location, as
plaintiff did not attempt to serve him at his easily obtainable business address. Ekong also
asserted that plaintiff failed to comply with the rules for service through the Secretary of
State by failing to send him notice of service by registered mail and that he was entitled to
have the matter proceed as if he had timely appeared and no default judgment had been
entered because he petitioned the court to set aside that judgment within one year of its entry.
Ekong maintained that the default judgment against him was void and unenforceable for lack
of personal jurisdiction and, regardless, that he had a meritorious defense to plaintiff’s
negligence claim and had been diligent in filing his petition to vacate.
¶ 12 On July 2, 2012, the court entered an order denying Ekong’s motion to reconsider. In
doing so, the court declined to consider Ekong’s claims regarding plaintiff’s alleged failure
to send notice of service by registered mail and Ekong’s alleged right to have the matter
proceed as if he had timely appeared because those claims were not included in Ekong’s
petition to vacate and, therefore, were not proper matters for a motion to reconsider. In
addition, the court determined that it had not misconstrued existing law in considering
whether plaintiff had made a diligent inquiry into Ekong’s whereabouts prior to requesting
special service or whether Ekong had established a meritorious defense. Regarding plaintiff’s
diligent inquiry into Ekong’s whereabouts, the court found that plaintiff succeeded in
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locating Ekong’s residence and attempted service at his residence six times before requesting
leave for service by special order of the court.
¶ 13 On July 6, 2012, Ekong filed a notice of appeal from the court’s orders denying his
petition to vacate the default judgment, motion to quash service, and motion to reconsider.
Because Major was then deceased, plaintiff filed a motion to voluntarily dismiss him from
the lawsuit on July 24, 2012. On July 31, 2012, the court entered an order granting plaintiff’s
motion and dismissed Major from the case.
¶ 14 On August 7, 2012, Ekong filed a motion to vacate the default judgment against him and
quash service pursuant to sections 2-1301(e) and 2-1203 of the Code of Civil Procedure (735
ILCS 5/2-1301(e), 2-1203 (West 2010)), asserting that his motion was timely because the
default judgment did not become final and appealable until Major was dismissed from the
case on July 31, 2012. Ekong maintained that the default judgment was void because plaintiff
did not conduct a diligent inquiry as to his location prior to seeking substitute service,
plaintiff did not send him notice of service by registered mail, and service through the
Secretary of State was improper because Ekong was a resident of Illinois. Ekong also
maintained that, even if the default judgment was not void, he was entitled to an opportunity
to answer plaintiff’s allegations because he did not receive notice of service by registered
mail and he petitioned the court to be heard regarding the default judgment within one year
of the entry of that judgment. Ekong further maintained that he had a meritorious defense to
plaintiff’s negligence claim and that substantial justice required that the default judgment be
vacated and the case be tried on the merits.
¶ 15 On August 30, 2012, the court entered an order striking Ekong’s motion, finding that his
filing of a timely notice of appeal from the court’s prior orders denying his previous petition
to vacate the judgment, motion to quash service, and motion to reconsider deprived the court
of jurisdiction to entertain the motion. On September 7, 2012, Ekong filed a notice of appeal
from the court’s orders granting plaintiff leave to effect service upon Ekong through the
Secretary of State, entering the default judgment in favor of plaintiff and striking Ekong’s
August 7, 2012, motions to vacate the judgment and quash service. On October 5, 2012,
Ekong sought leave of this court to file an additional notice of appeal from those same orders
under Illinois Supreme Court Rule 303(d) (eff. June 4, 2008). On October 16, 2012, this
court consolidated Ekong’s appeals.
¶ 16 ANALYSIS
¶ 17 Ekong contends that the default judgment entered against him is void and must be
vacated because the circuit court did not have personal jurisdiction over him. A court may
only impose a judgment against a party over whom it has obtained personal jurisdiction. In
re Dar. C., 2011 IL 111083, ¶ 60. A plaintiff submits to the court’s jurisdiction by filing a
complaint, and a defendant may consent to the court’s jurisdiction by his appearance or may
have personal jurisdiction imposed upon him by the effective service of summons. In re
M.W., 232 Ill. 2d 408, 426 (2009). Providing effective service is a means of protecting the
defendant’s right to due process by allowing for proper notification and an opportunity to be
heard, and inadequate service of summons divests the court of personal jurisdiction over the
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defendant. Dar. C., 2011 IL 111083, ¶ 61. The issue of whether the court obtained personal
jurisdiction over a defendant presents a legal question, which this court will review de novo.
Id. ¶ 60.
¶ 18 Ekong asserts that he was never properly served because service through the Secretary
of State is only permitted upon nonresidents of Illinois and he was a resident of Illinois at all
relevant times. Plaintiff filed a motion for service by special order of the court under section
2-203.1 of the Code of Civil Procedure, which provides that, if it is impractical to serve a
defendant personally or at his or her place of abode, the court may direct a comparable
method of service in any manner consistent with due process. 735 ILCS 5/2-203.1 (West
2008). The court then granted that motion, allowing plaintiff to serve Ekong through the
Secretary of State and in accordance with the rules governing that method of service set forth
in section 10-301 of the Vehicle Code (625 ILCS 5/10-301 (West 2008)). Therefore,
although plaintiff was required to comply with the rules in section 10-301 of the Vehicle
Code for serving a defendant through the Secretary of State, service was effectuated under
section 2-203.1 of the Code of Civil Procedure, which is not limited in scope to nonresidents
of Illinois. To the extent Ekong cites a number of cases to support the proposition that an
Illinois resident may not be served through the Secretary of State (DiNardo v. Lamela, 183
Ill. App. 3d 1098, 1103 (1989); Viking Dodge Inc. v. Hoffman, 147 Ill. App. 3d 203, 205
(1986); Giralamo v. O’Connell, 145 Ill. App. 3d 527, 529 (1986); Allied American Insurance
Co. v. Mickiewicz, 124 Ill. App. 3d 705, 708 (1984); Hatcher v. Anders, 117 Ill. App. 3d 236,
240 (1983); Carter v. Williams, 361 F.2d 189, 196 (7th Cir. 1966)), those cases only hold
that an Illinois resident may not be served through the Secretary of State under section 10-
301 of the Vehicle Code, not that an Illinois resident may not be served through the Secretary
of State under section 2-203.1 of the Code of Civil Procedure. As such, the fact that Ekong
was an Illinois resident does not alone render the service provided in this case improper.
¶ 19 Ekong, citing In re Dar. C., 2011 IL 111083, also asserts that service was improper
because plaintiff did not make a diligent inquiry as to his location prior to requesting service
by special order of the court where plaintiff did not attempt to serve him at his easily
obtainable and publically accessible business address. A motion for service by special order
of the court must be accompanied by an affidavit “including a specific statement showing
that a diligent inquiry as to the location of the individual defendant was made.” 735 ILCS
5/2-203.1 (West 2008). A plaintiff seeking to serve a defendant pursuant to section 2-203.1
must strictly comply with the requirements of that provision, and a failure to conduct a
diligent inquiry of the defendant’s location will result in improper service. Mugavero v.
Kenzler, 317 Ill. App. 3d 162, 166 (2000).
¶ 20 In Dar. C., 2011 IL 111083, ¶ 83, our supreme court held that the State failed to perform
a diligent inquiry to ascertain the respondent’s current and last known address, as required
for service by publication under the relevant statute. The court determined that the State had
not performed “the type of search or investigation that an earnest and attentive person
seeking to learn a fact would ordinarily make” because it failed to investigate a number of
opportunities to acquire the respondent’s contact information. Id. ¶ 75. Specifically, the State
only mailed letters to potential addresses that were discovered by a computer search, did not
visit those locations or conduct further inquiry, failed to verify the source of Social Security
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benefits being received by the minors and their mother, and did not attempt to obtain the
respondent’s phone number from the minors’ mother after learning that the respondent had
called her. Id. ¶¶ 76-79, 81-82. In addition, the complaint in a separate child support action
involving the respondent included a case detail report that contained the respondent’s mailing
address, causing the court to note that “the State’s ability to obtain respondent’s contact
information in the separate child support action casts significant doubt on the diligence of
the State’s inquiry into respondent’s location in the termination proceedings here.” Id. ¶¶ 80,
82. The court ultimately concluded that “relying on a computerized database search of a
parent’s name while ignoring, or otherwise not investigating, other potentially useful
information does not constitute a diligent inquiry.” Id. ¶ 83.
¶ 21 In this case, plaintiff made six attempts to serve Ekong at his residence, but was not able
to effectuate service on him any of those times. While the process server did not make
contact with anyone during four of the attempts, Stoklasa averred in her affidavit that she
spoke with a man over the building’s intercom on two other occasions. On February 10,
2009, the man said “go away, I’m not coming downstairs for anything,” and on February 15,
2009, the man said that Ekong was not home and refused to go to the main door. While
Stoklasa spoke to a neighbor who said that Ekong resided at that building and was frequently
at home, it does not appear from the record that plaintiff took any further steps to verify that
the man Stoklasa spoke to was Ekong or that Ekong was living there at the time. Plaintiff did
not attempt to serve Ekong at his business address and, while there is no evidence that
plaintiff was aware of that address prior to filing her motion for service by special order of
the court, she does not dispute that Ekong’s business address was in the phone book and
could have easily been obtained.
¶ 22 We determine that plaintiff did not perform the type of search or investigation that an
earnest person seeking to locate a defendant to effectuate service on him would make, as
plaintiff failed to discover Ekong’s easily obtainable business address or attempt to serve him
at that location prior to requesting service by special order of the court. By requiring plaintiff
to perform the type of basic search that would have revealed Ekong’s business address, we
are asking no more of plaintiff than the court required of the State in Dar. C., 2011 IL
111083, ¶¶ 78-79, where the court faulted the State for failing to investigate the receipt of
Social Security benefits by the minors and their mother or attempt to obtain the respondent’s
phone number from the minors’ mother. Just as the court in Dar. C., 2011 IL 111083, ¶ 82,
found that the State’s ability to obtain the respondent’s contact information in a separate
action cast significant doubt on the State’s inquiry into the respondent’s location in the
proceedings at issue, plaintiff’s ability to obtain Ekong’s business address shortly after the
court granted her leave to serve Ekong through the Secretary of State casts doubt on her prior
inquiry into Ekong’s whereabouts.
¶ 23 While this case is dissimilar from Dar. C. in that here plaintiff did not know Ekong’s
business address at the time she attempted to serve him, whereas the State in Dar. C. was
aware of some potential addresses at which the respondent might be reached, had plaintiff
conducted a diligent inquiry in this case, she likely would have discovered Ekong’s easily
obtainable business address. Also, while Ekong does not dispute that he resided at the
address at which plaintiff attempted to serve him and there is evidence to support Stoklasa’s
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belief that Ekong was evading service, plaintiff could not have been certain that Ekong was
evading service or was the person who spoke to Stoklasa over the intercom. An earnest and
attentive person seeking to locate Ekong would have at least conducted the kind of basic
search that would have revealed Ekong’s business address in an attempt to verify that he was
the person who spoke to Stoklasa and was evading service. Further, while it is not certain
that Ekong would have accepted service at his business address, the record shows that
plaintiff was able to personally serve him at that address with the citation to discover assets
and provide him with the motion for default judgment and notice of the prove-up hearing.
Regardless, an earnest and attentive person would have attempted to serve Ekong at his
business address. As such, we conclude that plaintiff did not conduct a diligent inquiry as to
Ekong’s whereabouts prior to requesting service by special order of the court and that service
through the Secretary of State pursuant to section 2-203.1 of the Code of Civil Procedure was
improper.
¶ 24 In reaching that conclusion, we have considered In re Marriage of Schmitt, 321 Ill. App.
3d 360 (2001), and Mugavero v. Kenzler, 317 Ill. App. 3d 162 (2000), in which this court has
considered the “diligent inquiry” requirement of section 2-203.1 of the Code of Civil
Procedure. In Schmitt, 321 Ill. App. 3d at 369, we held that the petitioner had conducted a
diligent inquiry to locate the respondent where the process server made approximately 11
unsuccessful attempts to serve the respondent at various locations, including the respondent’s
Aurora business, the respondent’s Chicago business, a local bar, and the Kane County
courthouse. In Mugavero, 317 Ill. App. 3d at 165, we held that the plaintiff had not
established that he made a diligent inquiry to locate the defendant where the plaintiff merely
stated that the defendant had moved from the address on the summons and left no forwarding
address. In this case, plaintiff did not try to serve Ekong at various locations as did the
petitioner in Schmitt, but only tried to serve Ekong at his residence. Similar to the plaintiff
in Mugavero, plaintiff did not try to serve Ekong at an additional location after plaintiff’s
attempts to serve him at his residence were unsuccessful. To the extent plaintiff claims that
Ekong nonetheless received notice of the proceedings prior to the entry of default judgment,
a judgment rendered by a court without personal jurisdiction is void irrespective of whether
the defendant had actual knowledge of the proceedings (Citimortgage, Inc. v. Cotton, 2012
IL App (1st) 102438, ¶ 12).
¶ 25 As service through the Secretary of State by special order of the court was improper, the
court did not have personal jurisdiction over Ekong when it entered default judgment and
that judgment is, therefore, void ab initio. Dar. C., 2011 IL 111083, ¶ 60. Having concluded
that the default judgment entered against Ekong is void for lack of personal jurisdiction, we
need not consider his additional claims raised in this appeal.
¶ 26 CONCLUSION
¶ 27 Accordingly, we vacate the order of the circuit court of Cook County granting default
judgment in favor of plaintiff and against Ekong.
¶ 28 Order vacated.
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