Ryan v. Zoning Board of Appeals of the City of Chicago

2018 IL App (1st) 172669
FOURTH DIVISION
November 8, 2018
No. 1-17-2669
______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
SHEILA RYAN )
) Appeal from
Plaintiff-Appellant, ) the Circuit Court
) of Cook County
v. )
) 2016-CH-09800
THE ZONING BOARD OF APPEALS OF THE CITY OF )
CHICAGO, RAYMOND T. DeGRAZIA, LAURA ) Honorable
SHEEHAN, AND 636-638 WEST 37TH STREET, INC., ) Anna Helen Demacopoulos,
) Judge Presiding
Defendants-Appellees. )
PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justices Gordon and Reyes concurred in the judgment and opinion.
OPINION
¶1 Over Sheila Ryan’s objection, the Zoning Board of Appeals of the City of Chicago
(Zoning Board of Appeals) granted a 2.5-inch reduction to the standard 24-inch setback required
between the side of her home and the new home next door that was purchased by Laura Sheehan
from building contractor Raymond T. DeGrazia and his corporation, 636-638 West 37th Street,
Inc. Ryan attempted to overturn the board’s decision by a judicial review in the circuit court of
Cook County. The circuit court, however, granted Sheehan’s motion to dismiss Ryan’s
complaint because the caption of her summons of service listed only “Zoning Board of Appeals
of the City of Chicago, et al” as defendants and did not expressly include Sheehan. On appeal,
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Ryan contends that the summons adequately notified Sheehan of the legal action and that the
decision to dismiss elevated form over substance. She asks us to reverse and remand for a
resolution on the merits rather than on the basis of a minor, technical error.
¶2 Ryan’s property is located at 640 West 37th Street. For simplicity, we will use “638
West” to refer to the new construction at 638 West 37th Street and “636-38 corporation” to refer
to home builder DeGrazia’s company.
¶3 The record compiled before the Zoning Board of Appeals indicates the encroachment into
the side setback was caused when the location for the new concrete foundation at 638 West was
mismarked by a subcontractor. The builder testified he did not realize the error until after the
foundation, walls, and roof were complete and it was no longer cost effective to alter the
construction. The builder’s attempts to amicably resolve Ryan’s concerns about her adjacent
residence were unsuccessful. 636-38 corporation asked the municipal zoning administrator for a
variance from Chicago’s RS-3 zoning ordinance, but the administrator denied the request. The
Zoning Board of Appeals granted the variance after finding strict compliance would create a
hardship on the builder and/or the new owner; the small encroachment was a mistake, not profit-
motivated, and would not impact public safety or be injurious to other property; and a variance
would not alter the essential characteristics of the neighborhood.
¶4 Ryan timely filed for judicial review of the board’s decision dated June 22, 2016, and
timely issued a summons on or about July 26, 2016, to the board; the builder, DeGrazia; and the
new homeowner, Sheehan. The record includes a certified mail receipt that Sheehan signed at her
new home on August 8, 2016, when she accepted delivery of the complaint and summons.
Immediately below the caption was the subtitle “SUMMONS IN ADMINISTRATIVE
REVIEW” and the following:
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“To each defendant:
YOU ARE SUMMONED and required to file an answer in this case or otherwise file
your appearance in the office of the clerk of this court located in Room 801, Richard J.
Daley Center, Chicago, Illinois, within 35 days after the date of this summons.”
¶5 This was followed by six lines of contact information for petitioner Ryan’s attorney, on
the left side of the page, and to the right of the attorney contact information was a date field
which the clerk of the circuit court had completed by stamping the summons date “JUL 26
2016.” Just below this paragraph, on the bottom half of the one-page summons, was the subtitle
“CERTIFICATE OF MAILING” and the following:
“On _______________________, _____, I sent by registered mail a copy of this
summons to each defendant addressed as follows:
Defendant Address
Zoning Board of Appeals—City of 121 N. La Salle, room 905, Chicago, IL
Chicago 60602
Raymond T. DeGrazia 3207 S. Emerald, Chicago, IL 60616
Laura Sheehan 638 W. 37th Street, Chicago, IL 60609
___________________________________ ___________________________________
___________________________________ ___________________________________
___________________________________ ___________________________________
___________________________________ ___________________________________
Dated: Dorothy Brown JUL 26 2016
Clerk of the Court”
¶6 DeGrazia filed a motion to dismiss on grounds that Ryan had failed to name his
corporation as a party to her review action, despite the fact that 636-38 corporation had applied
for the zoning variance. Ryan then sought leave to amend her complaint to include the
corporation as a defendant. On February 23, 2017, the circuit court granted Ryan leave to amend
and denied DeGrazia’s motion as moot. Ryan filed her amended pleading the next day and about
two weeks later Sheehan filed a special and limited appearance for purposes of challenging the
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contents of her summons. After written briefs and oral arguments, the circuit court granted
Sheehan’s motion on June 14, 2017, and later denied a motion for reconsideration.
¶7 Ryan contends the circuit court misapplied Illinois law in concluding that it lacked
jurisdiction over Sheehan and was required to dismiss the complaint seeking administrative
review. We review the circuit court’s ruling de novo. McGaw Medical Center of Northwestern
University v. Department of Employment Security, 369 Ill. App. 3d 37, 39, 860 N.E.2d 471, 474
(2006).
¶8 “In a general sense, ‘jurisdiction’ refers to the ‘right or power to interpret and apply the
law,’ or to a court’s ‘sphere of authority or control.’ ” In re M.W., 232 Ill. 2d 408, 414, 905
N.E.2d 757, 763 (2009) (quoting Webster’s II New Collegiate Dictionary 601 (1999)). “In a
technical, legal sense, however, jurisdiction is composed of two distinct elements: subject matter
jurisdiction and personal jurisdiction.” In re M.W., 232 Ill. 2d at 414. A court can enter a valid
judgment only if the court has subject matter jurisdiction to hear the type of claim and personal
jurisdiction over the parties. In re M.W., 232 Ill. 2d at 415.
¶9 The Administrative Review Law (Act) grants special statutory jurisdiction to circuit
courts to review final decisions of administrative agencies such as the Zoning Board of Appeals
“within the time and in the manner herein provided,” i.e., as provided in the statute. 735 ILCS
5/3-102 (West 2016). Because the Act is a departure from common law, the procedures it
establishes must be strictly followed. Lockett v. Chicago Police Board, 133 Ill. 2d 349, 353, 549
N.E.2d 1266, 1267 (1990). Accord McGaw Medical Center, 369 Ill. App. 3d at 42 (a circuit
court’s jurisdiction to review administrative decisions is derived solely from statute and if the
statute’s procedures are not “strictly pursued,” then no jurisdiction is conferred on the circuit
court (internal quotation marks omitted)). “The court may not resort to other law, either statutory
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or common law, that either expands or limits the provisions of the [Act] to obtain a different
result.” McGaw Medical Center, 369 Ill. App. 3d at 43.
¶ 10 Litigants, however, have struggled to follow the terms of the Act and vest the court with
jurisdiction. The harsh consequences of seemingly minor errors have prompted the legislature to
clarify the language of the Act and create exceptions for certain errors. See, e.g., Fragakis v.
Police & Fire Comm’n of the Village of Schiller Park, 303 Ill. App. 3d 141, 142-43, 707 N.E.2d
660, 661-62 (1999) (outlining numerous amendments to the Act and referring to the practice area
as a “dangerous minefield”).
¶ 11 For instance, rules abound on when to file, whom to name as defendants, and how to
serve notice of an action. Section 3-103 of the Act requires an action for administrative review to
be filed within 35 days from the date the decision sought to be reviewed was served on the
affected party. 735 ILCS 5/3-103 (West 2016); Nudell v. Forest Preserve District of Cook
County, 207 Ill. 2d 409, 411, 799 N.E.2d 260, 261 (2003). Unless the action is filed in the 35 day
period, the circuit court lacks subject matter jurisdiction and the party is forever barred from
obtaining judicial review. Nudell, 207 Ill. 2d at 423. Section 3-107 of the Act provides that the
complaint must name as defendants “the administrative agency and all persons, other than the
plaintiff, who were parties of record to the proceedings before the administrative agency.” 735
ILCS 5/3-107 (West 2016). This requirement, however, has been deemed mandatory, instead of
jurisdictional, and the legislature has created exceptions so that a petitioner may correct his or
her complaint rather than seeing it dismissed for lack of subject matter jurisdiction. See McGaw
Medical Center, 369 Ill. App. 3d at 43 (regarding the statutory amendment permitting the
addition of an “employee, agent, or member of an administrative agency, board, committee, or
government entity” (internal quotation marks omitted)).
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¶ 12 As for personal jurisdiction, a plaintiff or petitioner submits to the personal jurisdiction of
the court by the act of filing a petition or complaint. In re M.W., 232 Ill. 2d at 426. A respondent
or defendant becomes subject to the court’s personal jurisdiction by consenting to personal
jurisdiction by appearing in the action, or may have personal jurisdiction imposed upon him or
her by the effective service of a summons. In re M.W., 232 Ill. 2d at 426. The objectives of
service of process on a defendant are, first, to notify a defendant of pending litigation so that she
or he may appear and defend, and second, to vest personal jurisdiction in the court. Charter Bank
& Trust of Illinois v. Novak, 218 Ill. App. 3d 548, 552, 578 N.E.2d 629, 631 (1991); White v.
Ratcliffe, 285 Ill. App. 3d 758, 763-64, 674 N.E.2d 906, 911 (1996) (“[p]roper service of
summons is a prerequisite for obtaining [personal] jurisdiction over a party,” and “a judgment
entered without proper service of process is void even if the party against whom a judgment is
entered had notice of the proceedings”); In re M.W., 232 Ill. 2d at 426.
¶ 13 Looking further into the procedures that must be followed to effectively invoke the
personal jurisdiction of the circuit court, section 3-105 of the Act specifies the use of registered
or certified mail to serve a summons for administrative review on the administrative agency and
each of the defendants. 735 ILCS 5/3-105 (West 2016). Section 3-105 also provides, “The form
of the summons *** shall be according to rules of the Supreme Court.” 735 ILCS 5/3-105 (West
2016). Illinois Supreme Court Rule 101 requires that a summons be “directed to each defendant”
and that the format “substantially” follow the sample summons that is included in the rule. Ill. S.
Ct. R. 101 (eff. Jan. 1, 2016). 1 The caption of the sample form directs “naming all defendants.”
Ill. S. Ct. R. 101(b) (eff. Jan. 1, 2016). Also relevant is Illinois Supreme Court Rule 131(c) (eff.
1
The relevant version of Rule 101 included the sample form within the rule (Ill. S. Ct. R. 101(b)
(eff. Jan. 1, 2016)), but as of 2018, the sample form was moved to the Article II Forms Appendix (Ill. S.
Ct. R. 101 (eff. Jan. 1, 2018), Art. II Forms Appendix).
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Jan. 1, 2016), which concerns pleadings and other documents that are filed and served, and
provides that, in cases where there are multiple parties, “it is sufficient in entitling documents,
except a summons, to name the first-named plaintiff and the first-named defendant with the usual
indication of other parties.” (Emphasis added.)
¶ 14 Sheehan persuaded the circuit court that Ryan’s summons did not comply with these
requirements and that these requirements were jurisdictional and could not be corrected by
amending the complaint.
¶ 15 Long-standing precedent indicates a summons “which does not name a person on its face
and notify him to appear, is no summons at all, so far as the unnamed person is concerned.” Ohio
Millers Mutual Insurance Co. v. Inter-Insurance Exchange of the Illinois Automobile Club, 367
Ill. 44, 56, 10 N.E.2d 393, 398 (1937). The summons in Ohio Millers Mutual was declared
invalid because it failed to name approximately 3000 people and business entities on its face.
Ohio Millers Mutual, 367 Ill. at 45, 56. The summons was directed only to “ ‘Inter Insurance
Exchange of the Illinois Automobile Club, David Rosenbach, as attorney in fact of the Inter
Insurance Exchange of the Illinois Automobile Club, and;’ ” Ohio Millers Mutual, 367 Ill. at 45.
Attached to the back of the summons was a list of 3000 names without any further information
about those people, corporations, and other firms, and the sheriff had made no attempt to serve
anyone on the list. Ohio Millers Mutual, 367 Ill. at 45-46. The fatal defect in Goodkind v.
Bartlett, 153 Ill. 419, 38 N.E. 1045 (1894), was that one of the defendants was not identified by
name at all but was merely described as the person married to another of the defendants. The
summons and complaint named “John N. Hummer and……Hummer, his wife” as defendants.
Goodkind, 153 Ill. at 423. The court held that absent a statute permitting it, “persons, natural or
artificial, cannot be made parties litigant by mere descriptio personae, but must be designated by
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name, both in the process and in the judgment.” Goodkind, 153 Ill. at 423. The court
distinguished the situation where the party has been identified by the wrong name, holding that
“in case of misnomer, if the summons is served on the party intended, and he fails to appear, or,
appearing, fails to object, the judgment against him will be binding.” Goodkind, 153 Ill. at 423.
The summons in Theodorakakis v. Kogut, 194 Ill. App. 3d 586, 588-89, 551 N.E.2d 261, 270
(1990), was deemed invalid because a trust was designated with the wrong number, “4289,” even
though the body of the complaint contained the correct number, “44289.” The face of the
summons did not name a legally existent party and a complaint is not considered part of the
summons. Theodorakakis, 194 Ill. App. 3d at 589.
¶ 16 These principles were restated in Arch Bay Holdings, LLC-Series 2010B v. Perez, 2015
IL App (2d) 141117, 43 N.E.3d 562—a case that the circuit court expressly relied on in
dismissing Ryan’s complaint for administrative review. The defendant’s name was omitted from
the face of the summons and appeared only on an attached list that instructed the process server
to serve certain individuals. Arch Bay Holdings, 2015 IL App (2d) 141117, ¶ 16. Under Ohio
Millers Mutual, the failure to include the defendant’s name on the face of the summons rendered
it “no summons at all.” Arch Bay Holdings, 2015 IL App (2d) 141117, ¶ 16. The court further
noted that a summons is to be evaluated on its own, not in conjunction with the contents of the
complaint. Arch Bay Holdings, 2015 IL App (2d) 141117, ¶ 19. Also, actual knowledge of an
action through a flawed summons does not vest the court with personal jurisdiction. Arch Bay
Holdings, 2015 IL App (2d) 141117, ¶ 19; U.S. Bank National Ass’n v. Johnston, 2016 IL App
(2d) 150128, ¶ 28, 55 N.E.3d 742 (service of an invalid summons is ineffective).
¶ 17 Even so, courts “should not elevate form over substance, but should construe a summons
liberally.” Novak, 218 Ill. App. 3d at 552. The summons in Novak correctly named the
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defendant, provided the correct address for the courthouse, and was personally served on the
defendant a month prior to the hearing. Novak, 218 Ill. App. 3d at 551. The summons’ only flaw
was that it did not specify a date for the defendant to appear. Novak, 218 Ill. App. 3d at 551. The
court found that despite this failing, the summons adequately supported personal jurisdiction
over the defendant because the document gave notice that a legal action had been brought against
her and that a hearing would be conducted. Novak, 218 Ill. App. 3d at 551. When the defendant
received the summons, she contacted the clerk of the court and was told the date, time, and
courtroom number where the case would be heard. Novak, 218 Ill. App. 3d at 550. She went to
that courtroom on the correct day and time. Novak, 218 Ill. App. 3d at 550. In a subsequent
motion to quash service of process, she swore the case was not called while she was in the
courtroom and that two days later she received a letter from the plaintiff’s attorney informing her
that a judgment had been entered against her that day. Novak, 218 Ill. App. 3d at 550. The court
acknowledged that the document was “ ‘imperfect’ ” but found that the omitted information was
“not so serious a deficiency” as to invalidate the summons. Novak, 218 Ill. App. 3d at 551-52.
Despite its imperfection, the face of the summons achieved its intended purposes of (1) notifying
the defendant of the pending litigation and enabling her to appear and defend and (2) vesting
personal jurisdiction in the trying court. See Novak, 218 Ill. App. 3d at 552; Johnston, 2016 IL
App (2d) 150128, ¶ 28 (service of process protects an individual’s right to due process by
providing notice and an opportunity to be heard and it vests jurisdiction over the individual). The
fact that the defendant did not hear the case being called in the courtroom, or did not step
forward and question the clerk about the case, could have occurred even if the defendant had
received a summons that was technically perfect. Novak, 218 Ill. App. 3d at 551.
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¶ 18 Additionally, in the context of the stricter service requirements imposed under the Act,
the Illinois Supreme Court has emphasized that an established rule of statutory construction is to
“liberally construe a right to appeal so as to permit a case to be considered on its merits.”
(Internal quotation marks omitted.) Cox v. Board of Fire & Police Commissioners, 96 Ill. 2d 399,
403, 451 N.E.2d 842, 844 (1983). Moreover, “[t]he underlying spirit of our system of civil
justice is that controversies should be determined according to the substantive rights of the
parties. This notion is not only intuitive—it is the articulated public policy of the State. See 735
ILCS 5/1-106 (West 1996).” Smith v. City of Chicago, 299 Ill. App. 3d 1048, 1054-55, 702
N.E.2d 274, 279 (1998).
¶ 19 Notably, the legislature recently amended the law concerning civil summons in order to
clarify that technical errors do not deprive the circuit court of personal jurisdiction, which the
trial judge did not have the benefit of prior to ruling on Sheehan’s motion to dismiss. During the
pendency of this appeal, the legislature amended section 2-201 of the Code of Civil Procedure by
adding paragraph (c):
Ҥ 2-201. Commencement of actions-Forms of process.
(a) Every action, unless otherwise expressly provided by statute, shall be commenced
by the filing of a complaint. The clerk shall issue summons upon request of the plaintiff.
The form and substance of the summons, and of all other process, and the issuance of
alias process, and the service of copies of pleadings shall be according to rules.
(b) One or more duplicate original summonses may be issued, marked ‘First
Duplicate,’ ‘Second Duplicate,’ etc., as the case may be, whenever it will facilitate the
service of summons in any one or more counties, including the county of venue.
(c) A court’s jurisdiction is not affected by a technical error in format of a summons if
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the summons has been issued by a clerk of the court, the person or entity to be served is
identified as a defendant on the summons, and the summons is properly served. This
subsection is declarative of existing law.” (Emphasis in original.) Pub. Act 100-1048, § 5
(eff. Aug. 23, 2018) (amending 735 ILCS 5/2-201).
¶ 20 Although section 2-201 is part of article II and thus concerns civil actions, rather than
article III which is specific to administrative review actions, the amendment was to clarify
existing law, rather than change it. We are confident that the legislature intended for summons to
be evaluated consistently, rather than for special standards to be read into the language directly
applicable to administrative review actions.
¶ 21 On appeal, Ryan contends that the face of the summons she sent to Sheehan for judicial
review complied with the Act and the rules of the supreme court, despite the fact that the caption
of the summons listed only “Zoning Board of Appeals of the City of Chicago, et al” as
defendants and did not expressly include Sheehan. Ryan makes this argument because of the
additional information on the face of the summons, which we set out above. Sheehan responds
that a party seeking administrative review must strictly adhere to the procedures set out in the
Act, but she “was named only parenthetically on the certificate of mailing [section of the
summons],” and that case law supports the conclusion that the court lacked jurisdiction over
Sheehan and properly dismissed Ryan’s action. The three other parties, Zoning Board of
Appeals, DeGrazia, and 636-38 corporation, filed appellate appearances, but not briefs.
¶ 22 We have evaluated the summons in light of the Act, rules of the Illinois Supreme Court,
and objectives of service of process. In our opinion, the format and contents of this summons
adequately notified Sheehan of the pending administrative review action and her opportunity to
respond and also vested the circuit court with personal jurisdiction over Sheehan. The caption
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included “et al.,” in lieu of defendant Sheehan’s (or defendant DeGrazia’s) actual name, but this
was followed by clear statements on the face of the summons that Sheehan was a “defendant” to
an administrative review action Ryan filed in the circuit court and summoned Sheehan to
respond to the proceeding in that new forum. Just below the caption was the direction “[t]o each
defendant *** to file an answer in this case or otherwise file your appearance *** within 35 days
after the date of this summons;” and Sheehan’s full name and mailing address was printed just
slightly lower on the same page, under the columns “Defendant” and “Address,” and
immediately below the clerk’s statement, “On [JUL 26 2016], I sent by registered mail a copy of
this summons to each defendant addressed as follows.” All of this information appeared on the
face of the summons. This one-page summons repeatedly and clearly identified Sheehan as a
“defendant” in an action in the circuit court of Cook County and summoned the defendant to
respond to the proceeding in that new forum. Despite the use of “et al.” in the caption, this
summons adequately informed Sheehan of the pending action against her and what she needed to
do in order to appear and defend her interests. See Novak, 218 Ill. App. 3d at 552. When looking
at the face of this particular summons, we find that the use of the word “et al.” in the caption,
rather than expressly listing all the defendants in the caption, was a minor and inconsequential
violation of the requirements of the Act and rules of the Illinois Supreme Court. There was no
due process violation here. The circuit court obtained personal jurisdiction over Sheehan when
she accepted certified mail delivery of Ryan’s one-page summons and attached complaint for
administrative review.
¶ 23 Sheehan’s reliance on Arch Bay Holdings is misplaced, as the defendant’s name in that
case did not appear on the face of the summons at all. See Arch Bay Holdings, 2015 IL App (2d)
141117, ¶ 21 (reversing the trial court’s denial of the borrower’s motion to quash service in a
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mortgage foreclosure action where the face of the summons did not include the borrower’s
name). Here, however, Sheehan’s name does appear prominently on the face of the summons, as
a “Defendant,” and the summons notifies “each defendant” of the time and place at which she
must appear.
¶ 24 Sheehan’s reliance on Central States Trucking Co. v. Department of Employment
Security, 248 Ill. App. 3d 86, 618 N.E.2d 430 (1993), is also misplaced. In that case, a necessary
party, the director of the Department of Employment Security, was omitted entirely from the
summons and the complaint for administrative review. The director was named “only
parenthetically on the certificate of mailing” in her capacity as the head of the defendant
department and her name appeared in two exhibits attached to the complaint. Central States
Trucking, 248 Ill. App. 3d at 89. The director was served with the summons, not as a named
defendant, but in her capacity as head of the department. The reviewing court deemed both the
summons and complaint defective due to the abject omission of the director as an actual party
and affirmed the trial court’s dismissal of the proceedings. Central States Trucking, 248 Ill. App.
3d at 90. In contrast, Ryan indicated Sheehan was a defendant on the face of the summons,
named Sheehan as a party defendant in the complaint for administrative review, and served
Sheehan with the summons and complaint in her capacity as a named defendant. To be clear,
Sheehan’s name was not enclosed within parentheses, and she was not identified in a
representative capacity or by a title or other description—she was named as a defendant on the
face of the summons. This case is not like Central States Trucking, 248 Ill. App. 3d 86. For that
matter, it is not like Goodkind, 153 Ill. at 423, in which the summons and complaint named
“John N. Hummer and …… Hummer, his wife” as defendants and did not effectively include
John N. Hummer’s wife Rachael Hummer.
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¶ 25 Nor is this case like Hanke v. Department of Professional Regulation, 296 Ill. App. 3d
825, 696 N.E.2d 12 (1998), despite Sheehan’s contention that Hanke is directly on point and
supports the dismissal of Ryan’s complaint. In Hanke, the plaintiff sought administrative review
of the denial of an Illinois nursing license. Hanke, 296 Ill. App. 3d at 826. Although she
summoned the director of the Department of Professional Regulation, she failed to cause
summons to issue against the Department of Professional Regulation and on the individual
members of the committee of nurse examiners. Hanke, 296 Ill. App. 3d at 827. Thus, Hanke and
Central States Trucking are similar to each other, in that those plaintiffs made no attempt to
serve necessary parties, and dissimilar from the present case in which the plaintiff effectively
served all the necessary parties.
¶ 26 The face of this summons clearly communicated that Sheehan had been named and
served as a defendant to Ryan’s action for administrative review. Having found that the contents
of the face of this timely summons were sufficient, we do not need to address the parties’
additional arguments regarding the difference between jurisdictional and merely mandatory
requirements under the Act, and whether Ryan was entitled to a good faith exception for
noncompliance with the stated procedures. We reverse the dismissal order and remand the cause
for further proceedings.
¶ 27 Reversed and remanded.
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