*1 Illinois Official Reports
Appellate Court
Municipal Trust & Savings Bank v. Moriarty
,
BANK, as Trustee Under Provisions of a Trust Agreement Dated January 8, 2014, and Known as Trust No. 2487; LUCIEN SHERROD; THE CITY OF KANKAKEE; KANKAKEE ENVIRONMENT UTILITY SERVICE; UNKNOWN OWNERS; and NONRECORD CLAIMANTS, Defendants (Denis J. Moriarty, Defendant-Appellant).
District & No. Third District
No. 3-19-0016 Filed May 4, 2020
Rehearing denied June 6, 2020
Decision Under Appeal from the Circuit Court of Kankakee County, No. 16-CH-258; the Hon. Ronald J. Gertz, Judge, presiding. Review Judgment Affirmed.
Counsel on Ruth E. Wyman, of Ruth E. Wyman Law Office LLC, of Urbana, for appellant. Appeal
Kendra Karlock, of Bourbonnais, for appellee.
Panel JUSTICE McDADE delivered the judgment of the court, with opinion.
Justice Holdridge concurred in the judgment and opinion. Justice Schmidt specially concurred, with opinion.
OPINION ¶ 1 This appeal concerns whether defendant, Denis J. Moriarty, was properly served under
section 2-202 of the Code of Civil Proсedure (Code) (735 ILCS 5/2-202 (West 2016)). Plaintiff, Municipal Trust and Savings Bank, filed a complaint to foreclose a mortgage against, inter alia , defendant. Plaintiff issued summons from Kankakee County, listing defendant’s residence in Kankakee County. The trial court entered a default judgment against defendant when he did not file an answer and failed to appear. Defendant filed a notice of appeal, which he later dismissed. Seven months after the confirmation of the foreclosure sale, defendant filed a section 2-
1401 (735 ILCS 5/2-1401 (West 2016)) petition challenging the judgment as void. He argued that service of process was improper, and therefore, the trial court lacked jurisdiction to enter thе void judgment. He also argued that all subsequent decisions were also void. The trial court found that process was proper and denied defendant’s petition. Defendant now appeals. We affirm. I. BACKGROUND On December 14, 2016, plaintiff filed a complaint for foreclosure against defendant. The
complaint was filed in Kankakee Cоunty, where defendant resided and where the mortgaged real estate is located. Ryan Leggott, a registered employee of Diligent Detective Agency, Ltd., served defendant on December 28, 2016 at Rush Hospital in Cook County, Illinois. Plaintiff made no motion for appointment of process server, and the trial court had made no appointment. Defendant never filed an answer to the complaint. Plaintiff filed a motion for entry of
judgment of foreclosure and sale on January 23, 2017. On January 30, 2017, the trial court entered a judgment, finding, inter alia , that defendant was personally served with process and was in default by failing to answer the complaint or otherwise appeаr. The court specifically found that service of process was properly made in accordance with the Code. The court also entered a personal money judgment in plaintiff’s favor and against defendant in the amount of $54,383.85, with an additional $5936 in attorney fees and costs. The redemption period was set to еnd on June 19, 2017. On June 30, 2017, plaintiff filed a motion for confirmation of foreclosure sale. Defendant
entered his appearance pro se on July 17, 2017, at a hearing on plaintiff’s motion. At the confirmation hearing, defendant stated that he had not been aware of the sale. He explained that he had been in a nursing home for the past 10 months and did not received notice of the sale. He requested that he be given 30 days to pay plaintiff. After reviewing the record, the trial court explained that because defendant was in default
in the original foreclosure proceedings, plaintiff had no obligation to give him notice of the public sale. Nonetheless, plaintiff had mailed defendant a notice at the address where he had *3 been served. The court ruled that plaintiff complied with the procedure necessary to obtain a confirmation of the foreclosure sale. The court then granted plaintiff’s motion for confirmation. ¶ 9 Defendant filed a notice of appeal on September 25, 2017. On April 26, 2018, this court
allоwed defendant’s motion to voluntarily dismiss the appeal. ¶ 10 On May 21, 2018, defendant filed a section 2-1401 petition, arguing that the trial court was
without personal jurisdiction to enter the default judgment in the original foreclosure proceeding. Defendant explained that under subsection 2-202(a) of the Code, a private process server сannot serve process on a defendant in Cook County without first being appointed by the trial court. 735 ILCS 5/2-202(a) (West 2016). Defendant contended that process was improper because Leggott had not been appointed by the trial court when he served him at Rush Hospital in Chicago. Defendant requested that the court set asidе the default judgment and foreclosure sale as void. The trial court denied defendant’s section 2-1401 petition on September 21, 2018. The
court explained:
“The private process server was not required by 202(a) to be specially appointed. He was allowed by § 202(b) to serve that process ‘outside his or her county’ without limitation in this State. The court must assume that if the legislator [ sic ] chose to limit that power to serve summons, the legislator [ sic ] would have said so.” Defendant filed a motion to reconsider on October 22, 2018, which was denied on December 17, 2018. This appeal follows. II. ANALYSIS The issue before this Court is whether the trial court was vested with personal jurisdiction
over defendant when private detective Leggott served him with process. Defendant contends that Leggott was without authority to serve him in Cook County, a county with a population of more than 2 million persons, and therefore, process was not proper. In response, plaintiff asserts that Leggott was authorized to serve process in Kankakeе County where the case was pending and, thus, could serve defendant anywhere in this state. An order, judgment, or decree entered by a court without jurisdiction of the subject matter
or the parties is void and may be attacked, directly or indirectly, in any court at any time.
Sarkissian v. Chicago Board of Education
,
subject to
de novo
review on appeal.
Jayko v. Fraczek
,
the intent of the legislature.”
Van Dyke v. White
,
“(a) Process shall be served by а sheriff, or if the sheriff is disqualified, by a coroner of some county of the State. In matters where the county or State is an interested party, process may be served by a special investigator appointed by the State’s Attorney of the county ***. A sheriff of a county with a population of less than 2,000,000 may employ civilian persоnnel to serve process. In counties with a population of less than 2,000,000, process may be served, without special appointment, by a person who is licensed or registered as a private detective under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004 *** . *** The court may, in its discrеtion upon motion, order service to be made by a private person over 18 years of age and not a party to the action. ***
* * *
(b) Summons may be served upon the defendants wherever they may be found in the State, by any person authorized to serve process. An officer may serve summons in his or her official capаcity outside his or her county, but fees for mileage outside the county of the officer cannot be taxed as costs. The person serving the process in a foreign county may make return by mail.” 735 ILCS 5/2-202(a), (b) (West 2016) Defendant relies on subsection 2-202(a) to argue that the service of process was improper and, therefore, the trial court lacked jurisdiction to enter the default judgment. However, subsection 2-202(a), read out of its context, appears ambiguous in cases where the summons was issued in a county with a population less than 2 million but the defendant was personally served in Cook County. “A statute is ambiguous if it is capable of more than one reasonable interpretation.” Nowak v. City of Country Club Hills , 2011 IL 111838, ¶ 11. The term “in counties” can refer to either the location at which the defendant is served or the venue where the case is pending. Both interpretations are reasonable—when subsection 2-202(a) is read in isolation. Subsection 2-202(b), however, is clear and unambiguous, with only one reasonable
interpretation: it empowers “any person authorized to serve process” to do so on “defendants
wherever they may be found in the State.” 735 ILCS 5/2-202(b) (West 2016). Defendant asks
us to read subsection 2-202(a) as limiting this provision. We reject defendant’s request. “ ‘No
rule of construction authorizes this court to declare that the legislature did not mean what the
plain language of the statute imports, nor may we rewrite a statute to add provisions or
limitations the legislature did not include.’ ”
Clark
,
create an inconvenience. In cases like this one, plaintiffs would have to determine whether a
*5
defendant is presently or temporarily located in Cook County before issuing a summons—even
if defendant’s residence is in a county not requiring special appointment. This outcome is
unacceptable; we must presume the legislature did not intend an inconvenience.
Clark
, 2019
IL 122891, ¶ 20. Second, it defies logic. Why would the legislature provide broad authority to
“serve defendants wherever they may be found in this state” if it intended to limit this authority
based on the population of the county where defendant is located at the time of service?
Clearly, it did not do that. When read with subsection 2-202(b), subsection 2-202(a) “governs
who may serve process in Illinois.”
West Suburban Bank v. Advantаge Financial Partners,
LLC
, 2014 IL App (2d) 131146, ¶¶ 12, 13-14. It informs subsection 2-202(b) in terms of
identifying who is a “person authorized to serve process.” It places no limitation on where
authorized persons may serve defendants. If the legislature intended to limit a process server’s
authority based on county population, it would not have added the broad authоrity to serve the
process wherever a defendant may be found in this state. Defendant’s understanding would
render subsection 2-202(b) superfluous. “No part of a statute should be rendered meaningless
or superfluous.” ,
special appointment,” аnywhere in the state so long as the summons was issued from a county
“with a population less than 2,000,000.” We note that the Second District has reached a
different outcome on this issue.
Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc.
, 172 Ill.
App. 3d 993, 998 (1988); see also
U.S. Bank National Ass’n v. Rahman
, 2016 IL App (2d)
150040, ¶ 34 (rejecting plaintiff’s “invitation to reinterpret section 2-202(a)” contrary to its
holding in
Schorsch
). We, however, find the Second District’s reasoning unpersuasive becаuse
it relies primarily on the legislative debates to limit the clear and unambiguous language of
subsection 2-202(b).
Schorsch
,
was issued from Kankakee County, a county “with a population less than 2,000,000.” Leggott was duly authorized to serve dеfendant in Cook County under subsection 2-202(b). Therefore, the trial court had personal jurisdiction over defendant to enter the default judgment of foreclosure, and that judgment is not void. Defendant voluntarily dismissed his appeal in the original proceeding. Finding no void judgment, we hold he cannot now challenge it in a section 2-1401 proceeding. III. CONCLUSION The judgment of the circuit court of Kankakee County is affirmed. Affirmed. JUSTICE SCHMIDT, specially concurring: I concur in the judgment. I do not agree with the majority’s analysis. *6 The majority holds that “a duly licensed or registered private detective may serve process,
‘without special appointment,’ anywhere in the state so long as the summons was issuеd from
a county ‘with a population less than 2,000,000.’ ”
Supra
¶ 22. I disagree. A plain reading of
subsection (a) of the statute reveals that in order to possess authorization to serve process in a
county with a population of more than 2 million, the licensed or registered private detective
must be appointed. In the following section, it states that “[s]ummons may be served upon the
defendants wherever they may be found in the State, by any person
authorized
to serve
process.” (Emphasis added and internal quotation marks omitted.)
Supra
¶ 18. “Subsection (a)
of section 2-202 is concerned with who is authorized to serve process. Subsection (b) is
concerned with the place of serviсe.”
Schorsch
,
authority to serve process in Cook County superfluous. See ,
upon the defendant in Cook County. Id. at 995. Plaintiff was aware that the defendant’s business address was located in Cook County, as even a cursory search would have revealed that fact. Id. Here, defendant’s last address was in Kankakee, as well as the property at issue in the underlying foreclosure action. The search for defendant took the process server into Cook County. In order for a licensed or registered private detective to serve process in Cook County,
without receiving special appointment by the court, a reasonable search for the individual to be served must show that a venture into Cook County is not necessary.