Tamerlane Homeowner's Ass'n v. Schwelnus ( 2019 )

2019 IL App (1st) 190708-UTHIRD DIVISION
December 26, 2019
No. 1-19-0708
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
TAMERLANE HOMEOWNERS’ ASSOCIATION, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 16 M1 703628
)
ERIKA SCHWELNUS and UNKNOWN OCCUPANTS, ) Honorable
) Martin Paul Moltz,
Defendants-Appellants. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Ellis and Justice McBride concurred in the judgment.
ORDER
¶1 Held: The order of the circuit court of Cook County denying defendant’s motion to
quash service is vacated; this cause is remanded for an evidentiary hearing to determine
whether plaintiff conducted a due and diligent inquiry to determine the residence and
whereabouts of plaintiff before submitting an affidavit for service by posting.
¶2 Plaintiff, Tamerlane Homeowner’s Association, filed a complaint for an order of
possession and damages against defendant, Erika Schwelnus and unknown occupants of a
condominium in Chicago. Plaintiff first attempted to serve defendant with summons by sheriff’s
service and later by special process server before filing a motion for service by posting. The trial
court granted the motion for service by posting and entered an ex parte judgment against
defendant. Defendant filed a motion to vacate judgment which the trial court denied.
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¶3 For the following reasons, we reverse the trial court’s judgment and remand for further
proceedings not inconsistent with this order.
¶4 BACKGROUND
¶5 On February 25, 2016, Tamerlane Homeowners’ Association, plaintiff (or “association”),
filed a complaint for possession and common expenses against Erika Schwelnus, defendant, and
all unknown occupants. The complaint alleged defendant was the legal owner of the property
commonly known as 2671 N. Greenview Avenue, Unit F, Chicago, Illinois 60614, which was
subject to the association’s governing documents. The complaint alleged defendant had failed to
pay common expenses in violation of the declaration of the association and in count I sought
possession of the unit and unpaid common expenses pursuant to section 9-102 and 9-104.1 of the
Code of Civil Procedure (Code) (735 ILCS 5/9-102, 9-104.4 (West 2014)). Count I of the
complaint alleged, in part, that plaintiff had caused to be sent to defendant a notice and demand
for possession “by certified mail with return receipt requested to the last known address of the
[d]efendant[].” The notice and demand was attached to the complaint and listed defendant’s
address as 2671 N. Greenview Avenue, Unit F, Chicago, Illinois 60614 (hereinafter, “the
Greenview address” or “Greenview”). (The record does not contain a copy of a return receipt for
the notice.) Count II of the complaint sought the unpaid common expenses under a breach of
contract theory. On the same day plaintiff filed the complaint, plaintiff’s attorney issued a
summons to defendant for service by the sheriff. The summons listed defendant’s address as the
Greenview address.
¶6 On March 16, 2016, the Sheriff’s Office of Cook County, Illinois filed an Affidavit of
Service stating defendant was not served due to “no contact.” The affidavit stated that the sheriff
attempted service at 2:00 p.m. on March 9 and March 11.
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¶7 On March 22, 2016, plaintiff filed a motion for service of process by a special process
server and asked the trial court to order service of process by Illinois Process Service, Inc. The
same day, the trial court granted the motion for special process and leave to plaintiff’s attorney to
issue an alias summons to defendant, which plaintiff’s attorney did the same day.
¶8 On April 19, 2016, plaintiff filed an affidavit for service by posting pursuant to section 2-
206 and 9-107 of the Code (735 ILCS 5/2-206, 9-107 (West 2014)). Plaintiff’s affidavit states
defendant “cannot be found after diligent inquiry” and that defendant’s place of residence
“cannot be ascertained after diligent inquiry. [Defendant’s] last known place of residence is: [the
Greenview address.]” The same day the trial court issued an order for “posting notice” to
defendant and set the matter for prove-up on May 3, 2016. On April 25, 2016, the sheriff issued
an affidavit of service by posting to defendant. The affidavit of service by posting stated that on
April 21, 2016, the sheriff served a notice to appear in court to defendant by posting the notice in
“public places in the neighborhood of the named court and municipality.” The affidavit of
service by posting stated the sheriff posted the notice at the (1) Cook County Government
Building, 118 N. Clark Street, Chicago, Illinois 60602; (2) Chicago City Hall, 121 N. LaSalle
Street, Chicago, Illinois 60602; and (3) Daley Center, 50 W. Washington, Room 701, Chicago,
Illinois 60602. The affidavit of service by posting also stated that a copy of the notice was
mailed to defendant at the Greenview address.
¶9 On May 3, 2016, the trial court issued a judgment and order of possession in rem against
the Greenview address granting plaintiff possession of the property and a monetary judgment for
unpaid common expenses, attorney fees, and costs. The order assigned defendant’s interest in
any lease of the property to plaintiff and ordered any rents due to defendant to be paid to
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plaintiff. The court stayed enforcement of the possession order until July 2, 2016 and directed
the sheriff to evict defendant upon the expiration of the stay.
¶ 10 On June 29, 2016, Spencer Roman, indicating he was appearing pro se, filed a motion in
this case to vacate service. Roman’s motion is signed by Dr. Erika Schwelnus and asks the trial
court to quash service by “publication upon which the plaintiff and authorized individual
attempting to serve process on [her] failed to carry out the strict requirements of 735 ILCS 5/206
by nonperformance of due diligence standards attempting to ascertain [defendant’s] permanent
residence in Chicago either by researching the Land Records, *** the Driving License
maintained by the Secretary of State, the Cook County Voting Registration or the State or
National Medical License Records maintained by the State of Illinois Department of Professional
Registration.” Attached to the motion was Dr. Schwelnus’s affidavit which stated as follows:
“Comes now Dr. Erika Schwelnus a resident of Cook County, Illinois and
respectfully states that title to the residential property located at 2671 F North
Greenview, Chicago, Illinois was duly made in late December and succeeding in
recording on the Recorder of Deeds in January 2016. Said property was made to
satisfy payments of legal debts accumulated by Spencer Roman during the course
of litigation between John and Ellyn Bank and 2671F LLC.
I was made aware of pending litigation after title was transferred by Third
Party Legal Services who attempted to advertise their services.
I have resided in Chicago on North Talman since 1999 and was never
personally served in the matter currently before this Court, nor have I attempted to
in any way to evade service either by registered mail or authorized agent of the
court.”
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¶ 11 On July 14, 2016, the trial court entered an agreed order striking the motion to vacate
service. The order states: “Spencer Roman present in court, stating he appears pro se on behalf
of Erika Schwelnus, his wife, defendant’s motion to vacate service is stricken.”
¶ 12 On September 16, 2016, the sheriff executed the possession order on the Greenview
property. The sheriff’s “eviction unit worksheet” was filed with the trial court on November 16,
2016.
¶ 13 On November 21, 2016, defendant, appearing pro se, filed an emergency motion to quash
service arguing the trial court failed to obtain jurisdiction over her. Defendant’s November
motion to quash states defendant “objects to the jurisdiction of the court *** in so far as there
appears [to be] an unsubstantiated affidavit regarding the requirements under 735 ILCS 5/2-
203.1 for service by special order of the court.” Defendant’s motion stated she questions “the
extent to which the court appointed process server made the requisite diligent inquiry along with
the necessary affidavit outlining attempts at personal service before submitting to the court that
[defendant] was unreachable.”
¶ 14 Defendant attached an affidavit to the November motion to quash “outlining at least 6
methods of locating her ***.” Defendant’s affidavit states she has resided at 2844 North Talman
Avenue in Chicago since 2000, she has “maintained active registration on the Cook County voter
roles, [has] a valid Illinois Driver’s License, and [her] personal residence appears on the Cook
County Property Tax ID.” Defendant’s affidavit also states that she can be located with an
internet search for her professional position at Rush University Medical Center and the College
of Nursing. Defendant stated she has a valid license as a registered nurse and advanced care
nursing registration and, therefore, she is “clearly accessible to anyone.”
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¶ 15 On August 15, 2017, plaintiff filed a motion to extend the enforceability of the May 3,
2016 order for possession. Plaintiff’s August 2017 motion states that “[d]espite rent payments
having been assigned to [plaintiff,] the common expenses owed *** have not been satisfied.”
Plaintiff’s motion asks the court to extend the order for possession to permit plaintiff to recover
the remaining balance due. On September 11, 2017, the trial court granted plaintiff’s August
2017 motion and extended the enforceability of the May 2016 order for possession for 13
months.
¶ 16 On August 14, 2018, defendant, represented by counsel, filed a petition pursuant to
section 2-1401(f) of the Code (735 ILCS 5/2-1401(f) (West 2018)) to vacate the orders of May 3,
2016 and September 11, 2017. Defendant’s August 2018 petition pursuant to section 2-1401
asserts the court file in this case “does not reveal information relating to any attempt by [the
special process server] to serve [defendant] including where service was made, how many times
service was attempted, the time of day, or why service was unsuccessful.” The petition also
states that the court file shows that the court appointed a special process server but “there is no
other information relating to what efforts and attempts were made to serve [defendant] and, or,
investigate her principal place of residence or employment.” The petition notes that,
notwithstanding, the “affidavit for service by posting” attests that defendant “could not be found
after diligent inquiry, that her current place of residence could not be ascertained after diligent
inquiry, and that her last known place of residence was [the Greenview address]” but does not
state when, how, or who attempted service. The petition also states that defendant’s June 2016
motion to vacate service was presented to the court on July 14, 2016, by her husband, Roman
Spencer, but the merits of the motion were not heard and the motion was stricken because neither
defendant nor an attorney on her behalf appeared. Defendant’s petition argues that plaintiff
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failed to make due inquiry into defendant’s whereabouts and a diligent inquiry into defendant’s
place of residence but defendant’s whereabouts could have been discovered through a diligent
investigation. Defendant argued constructive service was not proper and jurisdiction was not
conferred on the trial court.
¶ 17 On August 14, 2018, defendant also filed an affidavit stating, in part:
“3. I have been a resident of Cook County, Illinois for the past twenty-five
years, and, since 2000, I have lived at 2844 North Talman Avenue, Chicago,
Illinois.
4. The foregoing residential address appears on certain identification
records such as my Illinois driver’s license, my Cook County voter registration
information, and my Cook County property tax information.
5. I am licensed as a Registered Nurse and as an Advanced Care Nurse
Practitioner. Due to my licenses, I am required to maintain a current registration
with the Food and Drug Administration.
6. I am employed by Rush University Medical Center and the College of
Nursing at Rush University. A Google search of my name, ‘Erika Schwelnus,’
displays my faculty profile at the College of Nursing on the Rush University
website. My profile page shows my picture and contact information, which
includes a telephone number, an email address, and street address. A Google
search also shows that I am employed as a nurse practitioner at Rush University
Medical Center and contact information that relates to my role as a nurse
practitioner.”
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Defendant averred she was never personally served at her residence or at her place of
employment.
¶ 18 On August 22, 2018, defendant re-filed the 2-1401 petition to vacate the trial court’s May
3, 2016, and September 11, 2017 orders and her affidavit making the same arguments and
averments. Defendant’s August 22, 2018 filing includes a summons issued by defendant’s
attorney to plaintiff for service by the sheriff. The summons directs the sheriff to serve
“Tamerland Homeowners’ Ass’n, Agent: Michael Rutkowski” and lists plaintiff’s address. The
sheriff executed an affidavit of service stating the sheriff served plaintiff on August 31, 2018 by
leaving the petition and summons with the “registered agent, authorized person, or partner.” The
“explanation” section of the sheriff’s affidavit of service indicates that the person the sheriff
served refused to provide their name and describes that person as an approximately 30-year old
white female.
¶ 19 The trial court entered an order setting a briefing schedule on defendant’s 2-1401
petition. The court’s order states that plaintiff “does not waive its objection to service by the
sheriff of Cook County on 8/31/18.”
¶ 20 On November 6, 2018, plaintiff filed its response in opposition to defendant’s 2-1401
petition to vacate. Plaintiff’s response argued that defendant failed to properly serve the petition
on plaintiff and as such the trial court lacked jurisdiction to hear the petition and it should be
denied. Plaintiff’s response asserted “[a]lternatively and subject to [plaintiff’s] objection to [the]
court’s jurisdiction, the [petition] is not well-founded as this court already reviewed the propriety
of constructive service and granted [plaintiff] leave to serve defendant pursuant to 735 ILCS 5/9-
107.” Plaintiff’s response argued, in part, that the sheriff’s affidavit of service of defendant’s
petition does not show it was served on plaintiff’s registered agent because the affidavit states it
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was served on an unidentified white female.” Plaintiff’s response argued section 2-204 of the
Code (735 ILCS 5/2-204 (West 2018)) does not “ ‘provide that service can be had on an
employee of the registered agent.’ Mason v. Freeman National Printing Equipment Co., 51 Ill.
App. 3d 581, 538 (1977).” Plaintiff argued “[a]s service of process was not effectuated on
[plaintiff’s] registered agent or some other authorized agent, this court does not have jurisdiction
to consider the [petition.]” Alternatively, plaintiff argued the summons was deficient because it
did not provide “a date, time and location for the party being summoned to appear.” Plaintiff’s
response argued the service by posting should stand and defendant’s 2-1401 petition should be
denied.
¶ 21 Plaintiff’s response to defendant’s petition to vacate also argued defendant failed to
timely call the petition for hearing in violation of Circuit Court of Cook County Local Rule 2.3.
Plaintiff’s response asserted defendant’s “motion” was originally filed on June 29, 2016, but was
stricken. Plaintiff claimed defendant did not call “this motion” (referencing defendant’s 2-1401
petition) for hearing “until it was restyled in its current form on or about September 24, 2018,
more than two years after the original motion was filed.” Plaintiff’s response re-asserted that the
original filing date of defendant’s 2-1401 petition was June 29, 2016 and argued alternatively
that the petition should be denied pursuant to the doctrine of laches. Plaintiff asserted that
defendant believed she had a right to assert in June 2016, and that plaintiff had “relied, to its
detriment, on the failure of defendant to enforce these alleged rights when it took certain post-
judgment actions resulting in it incurring additional attorney’s fees [sic] and costs.” Plaintiff
argued defendant’s delay in bringing this “motion” for hearing was unreasonable and its reliance
on this failure was reasonable and justified.
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¶ 22 Substantively, plaintiff’s response in opposition to defendant’s petition to vacate argued
the trial court has already ruled that constructive service was appropriate in this case. Plaintiff’s
response complains that defendant’s affidavit is stated in terms of the present and how she may
be located at present rather than at the time service was attempted. Plaintiff argued the trial court
was in a better position at the time service was originally attempted “to consider the service
attempts and the due inquiry performed at the time than it is now.” Plaintiff argued that nothing
in defendant’s affidavit claims “what would have come up in a Google search in 2016.” Plaintiff
argued that “shortly before the filing of the complaint in this matter, the public records indicated
that the subject property *** was her address.” In support of that argument plaintiff relied on the
deed for the subject property and stated that according to the property tax bill for the subject
property the address for the taxpayer was the Greenview address. (Plaintiff’s response does not
assert that the special process server viewed any of those records in 2016. Plaintiff only argued
that “[a]s such, and contrary to defendant’s assertions, [a] search the property tax records for the
subject property, both then and now, would provide the address of the subject property.)”
¶ 23 Plaintiff also claimed “the service by posting was supported by the appropriate affidavit
of diligence.” Plaintiff’s response claimed the special process server found the Greenview
address unoccupied and in a state of “rehab.” Plaintiff referenced an exhibit to its response and
claimed that this information “was considered by [the trial court] in granting service pursuant to
735 ILCS 5/9-107.” Plaintiff attached to its response an affidavit of special process server
averring that on March 26, 2016, the special process server spoke to the condominium president
who told the special process server that the Greenview address had been quit claimed to Roman
Spencer for one year. The affidavit further states that the unit appears to be in a state of rehab
and that a neighbor stated that the new owner was not residing in the unit. The quit claim deed
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attached to plaintiff’s response actually lists Spencer Roman as the grantor and states that he quit
claimed all interest in the Greenview address to defendant. Moreover, the property tax bills
attached to the response (one is a printout from the Cook County Treasurer’s website and another
is a copy of an electronic Cook County property tax bill) states the “mailing information” for the
property, which does list the Greenview address, is for “Roman Spencer” not defendant.
¶ 24 On November 20, 2018, defendant filed her reply in support of her 2-1401 petition to
vacate the May 3, 2016 and September 11, 2017 orders. Defendant first argued that plaintiff
failed to show that service of her petition on plaintiff was insufficient. Plaintiff acknowledged
that “the agency of the person who received process *** may be challenged by the affidavit of
the defendant,” but argued that in this case defendant only relied upon “the return of the officer
itself to challenge the issue of agency, nothing more.” Defendant argued this is not enough to
challenge the agency of the individual served; rather, an affidavit from defendant or the
individual who accepted service was required, but is lacking. Defendant also argued the form of
the summons was sufficient because “a return date conspicuously appeared on the top left corner
of the summons.” Defendant also argued she did not violate Circuit Court of Cook County Local
Rule 2.3 because the June 29, 2016 motion was timely presented on July 14, 2016, then stricken
without a hearing on the merits. Defendant argued that “sequence of events does not preclude
the filing of a section 2-1401 petition” and plaintiff failed to cite authority to the contrary.
Defendant further argued her petition is not barred by laches because a void judgment may be
attacked at any time.
¶ 25 Substantively, defendant argued plaintiff’s attempts to show it conducted a diligent
inquiry and investigation into her whereabouts at the time the action was filed are unpersuasive.
In support of her reply, defendant attached her own property tax bill from her Talman address
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which does list her name and evidence that she has been in her current employment since 1991.
Defendant also argued that the averments in the special process server’s affidavit should have
raised a doubt that anyone lived at the Greenview address and that this is “exactly the type of
effort” this court has “called into question.”
¶ 26 On December 6, 2018, the trial court entered an order stating that, the matter coming on
for a hearing, the court referred the parties to the decision of our supreme court in “People v.
Bailey (2014) and granted leave to defendant-petitioner to file an amended petition by December
20, 2018.”
¶ 27 On December 21, 2018, defendant filed a document titled amended motion to vacate the
orders of May 3, 2016 and September 11, 2017. This “motion” argued a void order may be
attacked at any time, the trial court entered the orders without personal jurisdiction over the
defendant, and the orders are therefore void. Defendant’s amended motion is identical in
substance to defendant’s August 2018 2-1401 petition to vacate and states as an alternative count
that defendant seeks to vacate the subject orders pursuant to section 2-1401(f) for the same
reasons stated in the motion and that defendant submits that a section 2-1401(f) petition is not
preempted by People v. Bailey, 2014 IL 115459, or the revestment doctrine.
¶ 28 On January 10, 2019, the trial court entered an order on defendant’s motion to vacate the
subject orders, which the court treated as a motion to quash, granting the motion.
¶ 29 The following day plaintiff filed a motion to vacate the January 10, 2019 order granting
defendant’s motion to vacate the May 3, 2016 and September 11, 2017 orders. Plaintiff’s motion
states that according to the December 6, 2018 order granting defendant leave to amend her
petition to address Bailey and setting the matter for a hearing, the matter was to be heard in one
courtroom, where plaintiff’s attorney appeared, but defendant’s attorney appeared in a different
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courtroom and obtained the January 19, 2019 order granting defendant’s motion to vacate.
Plaintiff argued the trial court’s December 6, 2018 order controls, counsel for plaintiff did not
receive adequate notice of a change in courtroom as required by the order, and without such
notice, hearing on defendant’s motion should not have occurred without plaintiff’s counsel’s
presence.
¶ 30 Defendant responded to plaintiff’s motion to vacate the January 10, 2019 order by
asserting that after issuing its written order on December 6, 2018, the trial court orally advised
the attorneys for the parties to contact his chambers to find out what courtroom he would be
occupying on the hearing date. Defendant’s attorney says he did so, learned where the trial judge
who entered the December 6, 2010 order would be sitting and did in fact so inform plaintiff’s
attorney the day before the hearing. Defendant also argued plaintiff did not have a defense to her
motion to vacate and that a hearing on the motion would result in the motion being granted.
¶ 31 On February 19, 2019, plaintiff filed a reply in support of its motion to vacate the January
10, 2019 order. Plaintiff argued the trial court’s written order, stating that the hearing on
defendant’s motion would be heard in the courtroom in which plaintiff’s attorney appeared,
should control.
¶ 32 On March 6, 2019, the parties appeared for a hearing. The trial court granted plaintiffs
motion to vacate the January 10, 2019 order. The parties proceeded with a hearing on
defendant’s motion to vacate the May 3, 2016 and September 11, 2017 orders. Following a
hearing, the trial court found:
“[T]here isn’t really anything that I can look at in this case and say that in 2016
the special process server should have done more. There’s certainly—as you
pointed out, he could have done more. But I don’t think there’s any case that
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really mandated that they do any more than they did. So for that reason, I’m
going to deny the motion to quash.”
¶ 33 The trial court entered an order denying defendant’s “amended motion to quash service.”
¶ 34 This appeal followed.
¶ 35 ANALYSIS
¶ 36 On appeal defendant again argues the trial court’s May 3, 2016 and September 11, 2017
orders are void due to a lack of personal jurisdiction because plaintiff failed to comply with
section 9-107 of the Code. First, however, we must address plaintiff’s argument defendant never
properly invoked the trial court’s jurisdiction to consider whether those orders are void. Plaintiff
argues the trial court lacked jurisdiction to consider defendant’s petition attacking the orders at
issue because defendant failed to comply with local rules and her “amended motion” to vacate is
barred by the doctrine of laches. Whether there has been compliance with a statutory provision
is a question of law, and our review is de novo. Pennymac Corp. v. Jenkins, 2018 IL App (1st)
171191, ¶ 36. Both of plaintiff’s arguments attacking the trial court’s jurisdiction to consider
defendant’s amended motion to vacate fail.
¶ 37 First, plaintiff argues that defendant failed to comply with Circuit Court of Cook County
Local Rule 2.3. Rule 2.3 reads as follows: “The burden of calling for hearing any motion
previously filed is on the party making the motion. If any such motion is not called for hearing
within 90 days from the date it is filed, the court may enter an order overruling or denying the
motion by reason of the delay.” Ill. Cook County Cir. R. 2.3. Plaintiff argues defendant
originally filed what the court ruled on as her amended motion to vacate on June 29, 2016.
Plaintiff argues the trial court struck the June 2016 motion from the call in July 2016, then
defendant “did not re-call her motion for hearing until it was re-filed and subsequently presented
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by her attorney as the section 2-1401 petition to vacate *** on or about September 24, 2018
[sic] 1, more than two years after the original motion was filed.” Plaintiff concludes, “[as]
[defendant] failed to call her petition to vacate for hearing for over two years, it was within the
[trial court’s] discretion to deny the petition.” This argument fails twice. First, plaintiff has cited
no authority for why defendant’s August 14, 2018 section 2-1401 petition can or must be treated
as a refiling of her June 2016 motion to quash service of process. We find this court’s decision
in Belluomini v. Lancome, 207 Ill. App. 3d 583 (1990) instructive.
¶ 38 In Lancome, all of the defendants’ arguments on appeal assumed that the trial court’s
order “striking the plaintiff’s motion to vacate was a denial or dismissal of the motion which
constituted an adjudication on the merits of the cause.” Id. at 585. This court wrote: “When it is
necessary to construe a court order, it should be interpreted in the context of the record of
proceedings and the situation which existed at the time of its rendition.” Id. at 586. In that case,
the plaintiff had noticed its motion to vacate for hearing, then failed to appear. Id. The trial
court entered an order using “the term stricken rather than denied or dismissed.” Id. This court
found that under the circumstances, the trial court’s order should be interpreted “as meaning that
the motion, although stricken from the court call, remained pending.” Id. The court
distinguished another case relied upon for the proposition that striking the motion resulted in its
denial on the ground that in the other case the trial court’s order “provided that the motion was
‘stricken with prejudice.’ [Citation.]” Id., quoting B-G Associates, Inc. v. Giron, 194 Ill. App.
3d 52, 56 (1990). “The term ‘with prejudice’ clearly denoted a finality lacking in the instant
cause.” Id.1
Defendant filed the petition on August 14, 2018. The trial court entered a status order on September
24, 2018 continuing the matter to October 15, 2018 for status.
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¶ 39 In this case, the trial court’s order striking defendant’s August 2018 motion to quash
service does not provide that the motion was stricken “with prejudice.” Nonetheless, we must
interpret the order “in the context of the *** situation which existed at the time of its rendition.”
Id. Here, the situation at the time defendant’s August 2018 motion to quash was stricken was
that defendant had not appeared in court and the motion had been prepared and filed by her
husband, a non-attorney. “Illinois law requires that all who represent others in courts of law be
attorneys at law ([citations]), i.e., that they be admitted to the practice of law ([citation]). A
layman may only appear in his own behalf. [Citations.]” Paddock v. Department of Employment
Security, 184 Ill. App. 3d 945, 948-49 (1989). The motion Spencer Roman filed was of no
effect. See Blue v. People, 223 Ill. App. 3d 594, 596 (1992). In Blue, the court held:
“One not duly authorized to practice law may not represent another in a
court of law. ([Citations]) Lay people may appear only in their ‘proper persons’
([citation]), i.e., only on their own behalf. ([Citation.]) A pleading signed by a
person who is not licensed to practice law in this State is a nullity even if a duly
licensed attorney subsequently appears in court. ([Citation.]) Where one not
licensed to practice law has instituted legal proceedings on behalf of another, the
suit should be dismissed; if the suit has proceeded to judgment, the judgment is
void and will be reversed. [Citation.]” Id. at 596.
¶ 40 In this case, we must construe the trial court’s order striking the June 2016 motion to
quash service of process as “with prejudice” and a final adjudication of that matter because the
motion was a nullity as a matter of law. Cf., Lancome, 207 Ill. App. 3d at 586. We hold the June
2016 motion was not pending when defendant filed the August 2018 petition and, thus, the
August 2018 petition was not a refiling of the June 2016 motion. Moreover, “[t]he filing of a
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section 2-1401 petition is considered a new proceeding, not a continuation of the old one.”
Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 102 (2002), citing 735 ILCS 5/2–
1401(b) (West 2000); Mitchell v. Fiat–Allis, Inc., 158 Ill.2d 143, 149 (1994).
¶ 41 Accordingly, plaintiff’s argument defendant failed to comply with Local Rule 2.3 must
fail. So too, plaintiff’s argument based on laches, premised on a “delay of more than two years
in bringing the motion for hearing” must fail. Plaintiff’s factual premise for its argument is false.
Defendant did not fail to re-file her motion for two years. Instead, she filed a petition pursuant to
section 2-1401 of the Code 11 months after the trial court entered an order extending the
enforceability of the May 3, 2016 order for possession. Even if we were to consider a different
period of delay 2 plaintiff’s laches argument would fail. Plaintiff has not argued it was prejudiced
based on any other period of delay thus forfeiting any such argument.
“Consistent with the plain language [Illinois Supreme Court Rule 341],
this court has repeatedly held that the failure to argue a point in the appellant's
opening brief results in forfeiture of the issue. [Citations.] Both argument and
citation to relevant authority are required. An issue that is merely listed or
included in a vague allegation of error is not ‘argued’ and will not satisfy the
requirements of the rule.” Vancura v. Katris, 238 Ill. 2d 352, 369-70 (2010). 3
2
On November 21, 2016, defendant filed a pro se emergency motion to quash service, over a year-
and-a-half before she filed the 2-1401 petition.
3
For the same reason, plaintiff’s argument premised on Local Rule 2.3 would have also failed
because plaintiff admitted that under Local Rule 2.3 the trial court “may” overrule or deny the motion by
reason of the delay making it a matter within the trial court’s discretion but then failed to argue how
considering the motion more than 90 days later was an abuse of that discretion.
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More importantly, however, a void judgment may be attacked at any time. “It is well settled that
a void judgment may be set aside at any time. [Citations.] Laches do not apply in setting aside a
void judgment for if the judgment is void, it is without any legal effect. [Citations.]” Johnson v.
Hawkins, 4 Ill. App. 3d 29, 31 (1972).
¶ 42 Plaintiff also argues defendant failed to properly serve the petition to quash because the
sheriff’s return of service indicates the sheriff served an unknown white female rather than
plaintiff’s registered agent Michael Rutkowski. Plaintiff cites Mason v. Freeman National
Printing Equipment Co., Ltd., 51 Ill. App. 3d 581, 583 (1977), which noted that “[n]owhere does
the statute provide that service can be had on an employee of the registered agent.” Defendant
argues plaintiff had the burden to prove the person served was not authorized to receive service
and that plaintiff’s reliance on the sheriff’s return is insufficient for that purpose. Defendant
relies on Island Terrace Apartments v. Keystone Service Co., Div. of Cole Coin Operated
Laundry Equipment, Inc., 35 Ill. App. 3d 95, 98 (1975), in which this court wrote as follows:
“Generally, the sheriff's return is prima facie evidence of service which
can be set aside only by clear and satisfactory evidence. ([Citations.]) When a
corporation is sued, however, a sheriff's return as to the fact of agency is not
conclusive. Agency involves matters presumptively not within the personal
knowledge of the officer, and may be placed in issue by a denial. ([Citations.])
Where the agency of the person named on the return is disputed, the defendant
has the burden of proving that the individual served was not a proper person to
receive service.” Island Terrace Apartments, 35 Ill. App. 3d at 98.
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“We review de novo whether the trial court obtained personal jurisdiction.” Aspen American
Insurance Co. v. Interstate Warehousing, Inc., 2016 IL App (1st) 151876, ¶ 24, reversed on other
grounds, 2017 IL 121281, ¶ 24.
¶ 43 Initially we note plaintiff failed to obtain a ruling on the question of whether the trial
court obtained jurisdiction to hear defendant’s motion due to the allegedly defective service on
plaintiff. “[P]ersonal jurisdiction, unlike subject-matter jurisdiction, can be waived.” Stone St.
Partners, LLC v. City of Chicago Department of Administrative Hearings, 2017 IL 117720, ¶ 46
(Freeman, J., dissenting.) At the hearing on defendant’s amended motion to vacate judgment,
the parties argued the issue, but the trial court vacated the January 10, 2019 order that initially
granted defendant’s motion to vacate judgment then, following a hearing on the merits, denied
defendant’s “motion to quash” without ruling on plaintiff’s argument the trial court “hasn’t been
revested with jurisdiction to even hear [defendant’s] motion.” “An alleged error is not preserved
for review if the trial court fails to rule upon it.” PNC Bank, National Ass'n v. Wilson, 2017 IL
App (2d) 151189, ¶ 29. Accordingly, this issue is forfeited. Id.¶ 44 Even were it not forfeited, plaintiff’s argument would fail.
“A party can serve a private corporation by leaving a copy of the
summons and complaint with the registered agent or any officer or agent of the
corporation found anywhere in the State. [Citation.] An affidavit of service
constitutes prima facie evidence of proper service. [Citation.] Courts entertain
every reasonable presumption in favor of the return of service. [Citation.] To
attack a default judgment for lack of personal jurisdiction, the challenging party
must produce evidence impeaching the return of service by clear and convincing
evidence. [Citation.] An uncorroborated affidavit merely saying that the
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defendant had not been personally served is not enough to refute the return of
service. [Citation.]” Charles Austin, Ltd. v. A-1 Food Servs., Inc., 2014 IL App
(1st) 132384, ¶ 16.
In this case, the affidavit states the sheriff served “the registered agent, authorized person or
partner of the defendant corporation.” The record indicates the sheriff did not serve the
registered agent. Nonetheless, plaintiff has presented no evidence the sheriff did not serve an
“authorized person or partner of the defendant corporation” just because the person who was
served “refused” to give their name. Plaintiff did not provide an “uncorroborated affidavit” or
anything else to refute the return of service other than the return of service itself. Here, we have
no evidence the person served was not an employee of the corporation (although the sheriff’s
affidavit indicates she was because she was “authorized”) and we have no evidence of her
understanding of the import of the documents she received. Plaintiff has fallen far short of clear
and convincing evidence to refute service and the affidavit of service is facially sufficient to
serve as prima facie evidence of proper service. Accordingly, we hold plaintiff has failed to
satisfy its burden to prove the person served was not its agent for purposes of accepting service.
Island Terrace Apartments, 35 Ill. App. 3d at 98.
¶ 45 We now turn to defendant’s argument the trial court’s May 3, 2016 and September 11,
2017 orders are void for lack of personal jurisdiction. Section 9-107 of the Code reads, in
pertinent part, as follows:
“If the plaintiff *** is unable to obtain personal service on the defendant
or unknown occupant and a summons duly issued in such action is returned
without service stating that service can not be obtained, then the plaintiff, ***
may file an affidavit stating that the defendant or unknown occupant is not a
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resident of this State, or has departed from this State, or on due inquiry cannot be
found, or is concealed within this State so that process cannot be served upon him
or her, and also stating the place of residence of the defendant or unknown
occupant, if known, or if not known, that upon diligent inquiry the affiant has not
been able to ascertain the defendant's or unknown occupant's place of residence,
then *** the defendant or unknown occupant may be notified by posting and
mailing of notices; or by publication and mailing, as provided for in Section 2-206
of this Act.” (Emphases added.) 735 ILCS 5/9-107 (West 2016).
We will review the trial judge's ruling de novo.” Equity Residential Properties Management
Corp. v. Nasolo, 364 Ill. App. 3d 26, 31 (2006).
¶ 46 Defendant argues the orders are void because plaintiff failed to comply with section 9-
107 of the Code before turning to service by publication. Plaintiff responds a review of the tax
records for the property it was trying to gain possession of “in conjunction with the process
server’s return” (which stated the subject property was “in a state of rehab” and the new owner
was not residing in the unit) are “an adequate showing of diligence in light of the specific facts of
this case.” Plaintiff also argues it did not have to search the internet or attempt to serve
defendant at her place of employment to satisfy the diligence requirements of section 9-107. In
Nasolo, this court held that a diligent search is required before service by publication:
“The phrases ‘due inquiry’ and ‘diligent inquiry’ in that statute are not
intended as useless phrases but are put there for a purpose. [Citation.] Superficial
efforts at complying with the statute will not suffice. [Citations.] Instead, the law
requires an honest and well-directed effort to ascertain the whereabouts of a
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defendant by an inquiry as full as circumstances can permit. [Citation.] This is so
that if possible service of process can be had in person. [Citation.] ***
Furthermore, if the statutorily mandated inquiries are not made, a
plaintiff's affidavit for constructive service does not speak the truth and cannot
confer jurisdiction. [Citations.] The party claiming benefit of constructive
service bears the burden of showing strict compliance with every requirement of
the statute, and nothing else will confer jurisdiction to the court or grant validity
to the court's judgment. [Citation.] When a defendant has not been served with
process as required by law, the court has no jurisdiction over that defendant and a
default judgment entered against him or her is void.” (Internal quotation marks
omitted.) Nasolo, 364 Ill. App. 3d at 32.
¶ 47 The Nasolo court found on the record before it that there was “a significant question as to
whether [the plaintiff] made due inquiry into [the defendant’s] whereabouts and diligent inquiry
into her place of residence before resorting to constructive service by posting.” Id. at 32-33. The
record in this case contains even less of a showing of due inquiry and diligent inquiry on
plaintiff’s part.
¶ 48 In this case, the sheriff made two attempts at service over the course of three days. See
id. at 33. The special process server made one more attempt 15 days later. This is in comparison
to the four attempts at service made in Nasolo. Id. at 33. In Nasolo the attempts at service were
made between 8:00 a.m. and 8:00 p.m.; in this case all of the attempts were between the hours of
1:00 p.m. and 2:10 p.m. Id. Further, in this case, like in Nasolo, the special process server’s
affidavit indicates the reason attempts at service were unsuccessful were that the Greenview
address was being rehabbed and no one was living there and, like in Nasolo, “the record
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indicates neither [plaintiff’s attorney] nor [anyone else] made any attempts to find [defendant]
before tendering the affidavit for constructive service.” Id. Whereas the Nasolo court found
alleged “earlier efforts” in that case to obtain personal service—including telephoning the
plaintiff at work, sending mail to the plaintiff, and calling the plaintiff’s emergency contact
number—did “not add up to compliance with the statute” (id. at 34), in this case, based on the
record before us there were no efforts at all other than the attempts at service at the vacant
condominium. Nor is plaintiff correct that it was not required to attempt to serve defendant at
her workplace as a matter of law. See id., citing First Federal Savings and Loan Ass’n of
Chicago v. Brown, 74 Ill. App. 3d 901, 907-08 (1979). In Brown, this court found:
“Our supreme court has said that the phrases ‘due inquiry’ and ‘diligent
inquiry’ in the statute governing service by publication ‘are not intended as
useless phrases but are put there for a purpose. *** A perfunctory inquiry does
not comply with the provisions of the statute. An honest and well directed effort
must be made to ascertain the names and addresses of unknown parties. The
inquiry must be as full as the circumstances of the particular situation will
permit.’ ([Citation.]) Moreover, checking employment records and court records
may be part of the ‘due inquiry’ required of a plaintiff relying on service by
publication, depending on the circumstances. [Citations.]” (Emphasis added.)
Brown, 74 Ill. App. 3d at 907.
¶ 49 We hold in this case, as in Nasolo and Brown, there is a significant question with respect
to the truthfulness of the affidavit filed by plaintiff’s attorney for service by publication. Nasolo,
364 Ill. App. 3d at 32-33; Brown, 74 Ill. App. 3d at 907. Having so found, an evidentiary
hearing is warranted on the question of whether plaintiff made the due and diligent inquiry
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“required of a plaintiff intending to rely on constructive service.” Nasolo, 364 Ill. App. 3d at 37.
Accordingly, the order denying defendant’s petition to quash service of process and vacate the
orders of May 3, 2016 and September 11, 2017 is vacated, and the cause is remanded for further
proceedings consistent with this order. In light of this holding we have no need to address the
parties’ additional arguments.
¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, the order of the circuit court of Cook County denying the
petition to quash service and vacate judgment is vacated, and the cause remanded for further
proceedings.
¶ 52 Vacated and remanded.
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