People ex rel. Webb v. Wortham
127 N.E.3d 106
Ill. App. Ct.2019Background
- In 2011 Webb obtained a plenary stalking no contact order against Wortham effective through December 1, 2013; the order advised that it "can be extended" and recommended seeking extension three weeks before expiration.
- Webb filed a form labeled "Notice of Motion" on November 26, 2013, indicating a December 5, 2013 hearing to "extend" the order and asserted service by mailing that notice to Wortham’s Elgin address; no summons under the Stalking No Contact Order Act (740 ILCS 21/1 et seq.) was served then.
- The trial court entered a plenary order dated December 5, 2013, effective until December 5, 2015; Wortham was personally served with that order later in December 2013.
- The State later charged Wortham with violating the 2013 order in 2015; Wortham moved to dismiss, arguing the 2013 order was void for lack of service as required by section 60 of the Act.
- The civil court granted Wortham’s 2-1401 petition holding the 2013 order void because the 2011 order had already expired before the December 5, 2013 proceeding, so any new plenary order required service under section 60; the criminal charges were dismissed accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Dec. 5, 2013 plenary order was void for lack of required service | State: Notice by mail under section 65 sufficed (no summons required because motion to extend was filed before expiration) | Wortham: Section 60 required summons/service for a new plenary order; no proper service was made, so any order entered after expiration is void | Court: Order was void—2011 order expired Dec. 1, 2013; post-expiration proceeding required new petition and service under §60, so §65 mail notice did not apply |
| Whether filing a motion to extend tolls the original order’s expiration | State: Implicit that filing before expiration and mailing notice preserved order | Wortham: Filing does not toll expiration; hearing after expiration cannot extend the order | Court: Filing does not toll; an order cannot be extended after it expires; petitioner must initiate a new proceeding |
| Whether Wortham’s prior 2011 appearance waived service defects for a new proceeding | State: Wortham submitted to jurisdiction in 2011 and thus waived defects | Wortham: Appearance in 2011 does not substitute for statutorily required service for a new plenary order | Court: Prior appearance did not cure failure to comply with §60 for a new proceeding; jurisdictional service required |
| Whether precedential nonbinding appellate reasoning (Griffith) controls result | State: Griffith nonprecedential and not controlling | Wortham: Griffith’s reasoning persuasive on inability to extend an expired order | Court: Adopted Griffith’s persuasive reasoning (though nonprecedential) and affirmed that nothing exists to extend after expiration |
Key Cases Cited
- Commerce Trust Co. v. Air 1st Aviation Cos., 366 Ill. App. 3d 135 (Ill. App. 2006) (standard of review for court’s jurisdictional questions)
- State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294 (Ill. 1986) (without a general appearance, personal jurisdiction requires statutory service; judgments without statutory service are void)
- Lutz v. Lutz, 313 Ill. App. 3d 286 (Ill. App. 2000) (minor, same‑day lapse in extension was treated as de minimis)
- People v. Martinez, 150 Ill. App. 3d 516 (Ill. App. 1986) (a court cannot act to revoke/extend what has already expired)
- People v. Wilson, 293 Ill. App. 3d 339 (Ill. App. 1997) (illustrates that a petition filed after the probation term has expired cannot toll or revive it)