In rе HALEY D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Ralph L., Respondent-Appellant)
Second District No. 2-10-0044
Second District
July 27, 2010
403 Ill. App. 3d 370
In conclusion, we find that the oral contract between plaintiff and defendants did not violate the public policy of this state as codified in the Act, and accordingly, equitable relief remains an available remedy to plaintiff, a contractor seeking to enforce the contract. Therefore, we reverse the judgment of the circuit court of Winnebago County and remand the cause for further proceedings.
Reversed and remanded.
ZENOFF, P.J., and SCHOSTOK, J., concur.
In re HALEY D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Ralph L., Respondent-Appellant).
Second District No. 2-10-0044
Opinion filed July 27, 2010.
Forrest L. Ingram, Michael V. Ohlman, and E. Philip Groben, all of Forrest L. Ingram, P.C., of Chicago, for appellant.
Joseph E. Birkett, State‘s Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State‘s Attorney, and Lawrence M. Bauer, of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), and Andrew J. Sosnowski, of Elgin, for the People.
JUSTICE MCLAREN delivered the opinion of the court:
Respondent, Ralph L., appeals from the orders of the trial court denying his petition to vacate a default judgment and his motion to amend his petition. We reverse and remand.
On April 11, 2007, the State filed a petition alleging that Haley D. was a neglected minor pursuant to
On February 19, 2008, the trial court continued guardianship and custody with DCFS and again set the permanency goal as return homе in 12 months. On October 8, 2008, Haley‘s foster parents filed a motion to be granted intervenor status. The trial court granted the motion on October 14. On that same day, the court changed the permanency goal (over Ralph‘s objection) to substitute care pending
“We have a permanency review date of February 17, 2009. And now, we have leave to file a petition to terminate, which we‘ll be doing, your Honor. And that will generate a new date.”
The State filed a petition to terminate рarental rights on February 5, 2009. The record contains no notice of motion or any other notice of when the petition was to be brought before the court. An order from the February 17 permanency hearing showed that Ralph was not present on that date. The order also showed that the case was continued to April 14, 2009, for a permanency hearing.
On February 20, the State filed an affidavit for service by publication, stating that Patricia could not be located and could not be served personally or by certified mail with the termination petition. The State attempted to serve a summons on Patricia for the April 14 court date, but it was returned unserved with the explanation that Patricia‘s mother had told the deputy that Patricia had moved to Chicago and was in “rehab.” No mention was made of an attempt to serve a summons on Ralph or of an inability to locate him. The record contains nothing regarding service on Ralph. A notice, which stated that the case was set for April 14, was subsequently published in the Daily Herald newspaper on March 3, 10, and 17, 2009.
On February 24, 2009, the office of the public defender filed a motion to withdraw as counsel for Patricia and set the case for April 14. On that date, Patricia aрpeared in court; however, Ralph did not appear. The following colloquy took place:
“THE COURT: Now, where do we stand vis-a-vis natural father, Mr. Ogan [assistant State‘s Attorney]?
MR. OGAN: Your Honor, I believe we have service on him. I‘m looking for it, though. I know we‘ve attempted service, your Honor. I‘m just looking for proof of that.
THE COURT: Okay.
MR. OGAN: I have found proof, obviously, of the natural mother‘s service. If not—I don‘t see a receipt, your Honor, although I do see numerous—
THE COURT: Okay. There has been publication concerning the petition to terminate parental rights.
MR. OGAN: I ask, then, that the natural father be defaulted.
THE COURT: Okay.
MR. OGAN: And that we set *** May 12th as a prove-up date for him.
THE COURT: Okay. So the natural father on the State‘s motion will be defaulted, he having failed to appear, answer or otherwise plead to the petition to terminate parental rights. We will set it for prove-up as to natural mother on that same date.”
Ralph first contends that the trial court erred in denying his petition to vacate the default judgment. Ralph brought his petition under
Our supreme court held in People v. Vincent, 226 Ill. 2d 1 (2007), that a trial court‘s sua sponte dismissal of a criminal defendant‘s section 2-1401 petition was “the functional equivalent of a dismissal for failure to state a cause of action” such that, as with any dismissal or
In his petition, Ralph stated that he was unable to aрpear in court on April 15, 2009, because “his car had mechanical problems and had broken down because he had incurred a flat.” In addition, he had four other children “and was unable to obtain the care and assistance for their care on the date in question.” Ralph also alleged that his attorney, Vizcaino, had multiple sclerosis such that she had to employ another attorney, Michael Rivas, to draft legal documents. Her symptoms were “episodic,” and “each day [was] unpredictable.” As a result, Vizcaino “was not physically capable to prepare the proper dоcuments to have the default judgment vacated” within 30 days.
Both Ralph and Vizcaino attached to the petition affidavits along those lines. Both referred to the court date as scheduled for April 15, 2009, instead of April 14. Vizcaino also stated that she arrived late for court on April 15. In arguing the petition to the court, both Vizcaino and Rivas argued that the State had failed to provide evidence that it had attempted to serve Ralph with a copy of the termination petition.
In denying the petition, the trial court noted the improper date alleged in the petition and the affidavits. The court then found that the petition “fails utterly to set forth any facts to establish a meritorious defense to the underlying petition to terminate parental rights.” Likewise, the court found no allegations establishing due diligence “in pursuing the defense, if any,” to the termination petition. The court denied the petition and Ralph‘s oral motion to amend it.
Ralph first argues that the trial court lacked personal jurisdiction over him because of improper service. According to Ralph, a petition to change a permanency goal “is a new proceeding which demands notice to all parties.
We first note that Ralph‘s citation to
However, the fact that the trial court still had jurisdiction over Ralph does not end the inquiry. Much confusion arises from
“shall contain a notice that the parties will not be entitled to further written notices or publication notices of proceedings in this case, including the filing of an amended petition or a motion to terminate parental rights, except as required by Supreme Court Rule 11.” (Emphasis added.)
705 ILCS 405/2-15(3) (West 2008) .
The summons served on Ralph contained a notice, in substantially the same words, printed in bold type. However, the State‘s position in this case, and the opinions of the appellate cоurt in two cases, neglect the Illinois Supreme Court Rule 11 (eff. Dec. 29, 2009) portion of the warning required by section 2-15(3). In reaching its conclusion that jurisdiction over a respondent need not be reestablished once it has been properly established in an existing juvenile case, the court in In re D.J. relied extensively on the analysis in In re Abner P., 347 Ill. App. 3d 903 (2004). Both courts concluded that, since prior service on the respondents contained the required section 2-15(3) language, the respondents were not entitled to notice of the filing of petitions to terminate parental rights. See In re D.J., 361 Ill. App. 3d at 124; In re Abner P., 347 Ill. App. 3d at 908. However, no analysis was made of the service “required by Supreme Court Rule 11.”
Supreme Court Rule 11 addresses the “Manner of Serving Papers Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts.” Ill. S. Ct. R. 11 (eff. Dec. 29, 2009). Rule 11 lays out on whom service shall be made and the acceptable methods of service, depending on whether a party is represented by counsel or not. Supreme court rules are not suggestions; they have the force of law, and the presumption must be that they will be obeyed and enforced as written. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 116 (2004).
We find an analogous situation in the realm of civil law. When a party in a civil case seeking damages is defaulted:
“[I]f relief is sought, whether by amendment, counterclaim, or otherwise, beyond that prayed in the pleading to which the party is in default, notice shall be given the defaulted party as provided by rule.”
735 ILCS 5/2-604 (West 2008) .
The content of the required notice, along with the acceptable methods of service, is included in Supreme Court Rule 105 (134 Ill. 2d R. 105). In a case of default, a court that grants an award in excess of the ad damnum without prior notice to the defendant exceeds its authority, and that portiоn of the decree in excess of the ad damnum is void. Cook, 341 Ill. App. 3d at 663.
While the dissent cannot subscribe to this analogy, we find it particularly apt. The relief that the State initially sought was that of an adjudication of neglect. The State then sought termination of parental rights, additional relief (“excess damages“) that was not inherent in the original neglect petition. This additional relief was not merely money damages; the State sought to interfere with a fundamen-
The State attempted to personally serve Patricia with a summons on February 20. The record contains proof of the attempt made by a Du Page County sheriff‘s deputy. However, there is nothing of record to show a similar attempt to serve Ralph. The State‘s affidavit for service by publication stated that Patricia‘s address could not “be ascertained upon diligent inquiry” such that “process cannot be served upon his [sic] either personally or by certified mail.” However, there is no such affidavit attesting to a diligent inquiry into and an inability to ascertain Ralph‘s address. In any event, such an affidavit would, upon review, be suspect, as the record shows that Ralph still resided at the address that the State listed for him on the termination petition itself. In its brief, the State asserts that it unsuccessfully attempted to serve Ralph, and it disingenuously follows the assertion with a citation, not to evidence of record showing an attempt at service, but to another of the State‘s filings in which the State asserts, without citation to evidence of record, that it attempted service.
The State‘s brief is replete with such incorrect references to the record. The State asserts that Ralph was present on October 14, 2008, when the State was granted leave to file the petition to terminate and that “the next court date on this matter was set for February 17, 2009.” The State fails to acknowledge that the February 17 date for permanency review had already been set and that Mr. Ogan, the assistant State‘s Attorney, stated in Ralph‘s presence that the filing of the petition to terminate “will generate a new date.” The State then waited almost four months to file its petition and set no new date. How Ralph was to know when, if ever, the State would file the petition to terminate, and what the new date was to be, is left unsaid. The State goes on to argue that, at the February 17 hearing, “the April 14, 2009, hearing to consider the petition to permanently terminate [Ralph‘s] parental rights as to Haley D. was set.” However, the order to which the State cites shows that the matter was set on April 14, 2009, for a “Permanency Hearing” and that the box for “Termination of Parental Rights Hearing” was not checked.
Thеse termination proceedings started improperly when the State never even attempted to serve Ralph with notice of the petition. Things only got worse when, on April 14, 2009, the court granted the
For these reasons, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings.
Reversed and remanded; default judgment vacated.
HUTCHINSON, J., concurs.
PRESIDING JUSTICE ZENOFF, dissenting:
While I agree with the majority that the trial court did not lose personal jurisdiction over Ralph, I disagree with the majority‘s analysis and the ultimate result it reaches. Accordingly, I respectfully dissent.
While the majority cites to People v. Vincent, 226 Ill. 2d 1 (2007), and the supreme court‘s admonition that under the procedural circumstances here a de novo standard of review applies, it reaches a result based on equitable principles rather than the applicable statutory requirements. This approach is, in my view, inconsistent with the analysis in Vincent and this court‘s recent opinion in Mills v. McDuffa, 393 Ill. App. 3d 940 (2009). It is well settled that an appellate court must follow the law as set forth by the supreme court. Nelson v. Aurora Equipment Co., 391 Ill. App. 3d 1036, 1038 (2009).
Vincent explicitly states that it is incorrect for courts to continue to view section 2-1401 petitions as a matter of judicial discretion, subject to an abuse-of-discretion review on appeal. Vincent, 226 Ill. 2d at 15. The application of the abuse-of-discretion standard is a result of appellate courts maintaining the belief that section 2-1401 petitions remain rooted in equitable principles. As the Vincent court stated:
“[T]he operation of the abuse of discretion standard is the result of an erroneous belief that a section 2-1401 petition ‘invokes the equitable powers of the court ***.’ [Citation.] *** When the legislature abolished the writs in favor of today‘s statutory remedy, it became inaccurate to continue to view the relief in strictly equitable terms. *** Because relief is no longer purely discretion-
ary, it makes little sense to continue to apply an abuse of discretion standard on review.” Vincent, 226 Ill. 2d at 15-16.
Following Vincent, in Mills, we also emphasized the change in sеction 2-1401 relief from equitable to statutory. Mills, 393 Ill. App. 3d at 947, 949 (“When the legislature abolished the common-law writs in favor of the statutory remedy [of section 2-1401], it became inaccurate to continue to view the relief in strictly equitable terms” and “it is not appropriate to view section 2—1401 relief in strictly equitable terms“).
The Vincent court essentially held that the standard by which we should review the trial court‘s disposition of a section 2-1401 petition depends upon the manner in which it was disposed. See Vincent, 226 Ill. 2d at 15-17. Five types of final dispositions are possible in section 2-1401 litigation: “the trial judge may dismiss the petition; the trial judge may grant or deny the petition on the рleadings alone (summary judgment); or the trial judge may grant or deny relief after holding a hearing at which factual disputes are resolved.” Vincent, 226 Ill. 2d at 9, relying on D. Simko, Updating the Standard of Review for Petitions to Vacate Final Judgments, 86 Ill. B.J. 34 (1998) (listing the five possible dispositions as dismissing, granting relief without an evidentiary hearing, denying relief without an evidentiary hearing, granting relief after an evidentiary hearing, and denying relief after an evidentiary hearing). Vincent mandates that, where a trial court enters a judgment on the pleadings or a summary judgment in a section 2—1401 proceeding, that judgment will be reviewed de novo on appeal. Vincent, 226 Ill. 2d at 18. Although Vincent dealt with the dismissal of a section 2-1401 petition (рossibility number one), the court stated that future analyses regarding the standard of review for a grant or denial of a section 2-1401 petition should be “grounded in the notion that each of the dispositions available in a section 2-1401 action is borrowed from our civil practice and pleadings.” Vincent, 226 Ill. 2d at 17.
In this case, the trial court denied Ralph‘s section 2-1401 petition based on the pleadings and affidavits; there was no evidentiary hearing. Therefore, just as we would review de novo the trial court‘s grant of a motion for summary judgment, we should review de novo the trial court‘s denial of Ralph‘s section 2-1401 petition.
Ralph contеnds that his section 2-1401 petition should have been granted because the trial court lacked personal jurisdiction over him due to the State‘s failure to serve him with the petition to terminate his parental rights. According to Ralph, because the trial court lacked jurisdiction over him, the default judgment terminating his parental rights was void.
Where, however, a defendant brings a section 2-1401 petition based on voidness grounds, he or she needs to neither allege a meritorious defense, demonstrate due diligence, nor file the petition within two years of the entry of judgment. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002). “‘Judgments entered in a civil proceeding may be collaterally attacked as void only where there is a total want of jurisdiction in the court whiсh entered the judgment, either as to the subject matter or as to the parties.‘” In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998), quoting Johnston v. City of Bloomington, 77 Ill. 2d 108, 112 (1979).
As previously mentioned, I agree with the majority‘s analysis of whether the trial court had personal jurisdiction over Ralph and concur in the conclusion that the failure to serve Ralph did not deprive the trial court of personal jurisdiction over Ralph. This, I believe, is where the analysis should end, however. Having failed to establish that the default order was void for lack of personal jurisdiction, Ralph makes no argument that the default order was void for any other reason. He also makes no argument that his section 2-1401 petition рresented a meritorious defense and demonstrated due diligence in discovering and presenting the meritorious defense. Accordingly, in my opinion, Ralph has failed to establish any error in the trial court‘s denial of his petition.3
Nevertheless, the majority concludes that the failure to serve Ralph with the petition to terminate his parental rights violated due
Because the default order was not void, to sucсeed on his section 2-1401 petition, Ralph was required to present a meritorious defense and demonstrate due diligence. Vincent, 226 Ill. 2d at 7-8. The majority does not explain how the due process violation constitutes either a meritorious defense or due diligence on Ralph‘s part. Instead, the majority declares that the alleged due process violation requires reversal of the trial court‘s decision because a liberty interest is involved and the default judgment against Ralph is “unfair” and “unconscionable.” 403 Ill. App. 3d at 378. Even under pre-Vincent case authority, to which the majority subscribes, a section 2-1401 petitioner was required to show a meritorious defense or claim and due diligence in presenting that defense or claim. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986). Yet, in reversing the trial court, the majority makes no mention of these requirements and whether they were met.
The majority attempts to bolster its conclusion by analogizing the situation here to one where
The majority discusses Rule 11 as laying out “on whom service shall be made and the acсeptable methods of service” and notes that supreme court rules have the force of law and must be followed. 403 Ill. App. 3d at 375. With that I do not disagree. However, Rule 11 does not require service; rather, it simply provides for the manner in which service shall be effected beyond the service of the complaint. In other words, if the State were to voluntarily serve notice of additional filings or proceedings, it would need to comply with Rule 11. Moreover, the majority cites no authority for the proposition that failure to comply with Rule 11 renders an order void. In contrast, in the section 2—604/Rule 105 scheme, the majority cites Cook v. Burnette, 341 Ill. App. 3d 652 (2003), for the proposition that failure to provide notice to a defaulting defendant that additional relief was sought renders void an award in excess of the ad damnum clause. As compelling as the majority‘s argument might be, I cannot subscribe to its analogy, given the difference in the law under section 2-15(3) of the Act, where notice is expressly not required.
Accordingly, I would affirm the trial court‘s denial of Ralph‘s section 2-1401 petition and his motion to amend his section 2-1401 petition.