delivered the modified opinion of the court upon denial of petition for rehearing:
The plaintiff, Protein Partners, brought an action against the defendant, Lincoln Provision, in Ohio to recover commissions allegedly owed to Protein Partners for services it rendered in Ohio. Lincoln Provision was served with the complaint according to the rules of Ohio civil procedure. Lincoln Provision did not file an appearance, and a default judgment was entered against it in Ohio. Protein Partners subsequently registered the Ohio judgment in the circuit court of Cook County on December 23, 2008. Thirty-seven days after the registration of the Ohio judgment in Cook County, Lincoln Provision filed a motion in the circuit court of Cook County to quash Protein Partners’ registration of the Ohio judgment. Lincoln Provision’s motion to quash was denied by the circuit court of Cook County.
Lincoln Provision filed a timely appeal to this court and raised the following issues: (1) whether an Illinois court should quash the registration of a foreign judgment because the plaintiff in the foreign state was not registered to do business in that state as required for standing under the foreign state’s law, (2) whether the Illinois Uniform Enforcement of Foreign Judgments Act (735 ILCS 5/12—650 et seq. (West 2008)) limits a party to registering a foreign judgment without any modification of the names of the parties as shown in the foreign judgment, and (3) whether an Ohio statute violates the due process clause of the United States Constitution because of the manner of service of process on corporations allowed by the Ohio statute.
Upon initial review of the opening briefs of the parties, this court on its own motion directed the parties to address specific jurisdictional issues by way of supplemental briefs on the following issues: (1) whether the circuit court of Cook County had jurisdiction to hear Lincoln Provision’s motion to quash the registration of the Ohio judgment filed 37 days after entry of the circuit court’s order, and if not, (2) whether the circuit court was revested with jurisdiction to rule on the motion to quash, (3) whether the motion to quash can be construed as a petition under section 2—1401 of the Code of Civil Procedure (735 ILCS 5/2—1401 (West 2008)), and (4) whether this court has jurisdiction to hear this appeal. Following this court’s issuance of its opinion on October 19, 2010, Lincoln Provision filed a petition for rehearing, which was denied, and this modified opinion was issued.
For the reasons that follow, we affirm the judgment of the circuit court of Cook County, which recognized the Ohio judgment upon registration of that judgment in the circuit court of Cook County by the plaintiff, Protein Partners.
BACKGROUND
The record establishes the following facts. The plaintiff-appellee, Protein Partners, LLR a food broker, filed a lawsuit in Summit County, Ohio, in December 2007 against the defendant-appellant, Lincoln Provision, Inc., d/b/a Chicago Gourmet Steaks, to recover commissions allegedly owed to Protein Partners for services rendered in Ohio regarding the sale of meats. The complaint was captioned, “Protein Partners v. Lincoln Provision, Inc. d/b/a Chicago Gourmet Steaks.” Protein Partners’ complaint recited that it was a Colorado limited liability partnership doing business in the County of Summit, State of Ohio. The complaint further stated that Lincoln Provision was, and is, an Illinois corporation that had registered an alias name of “Chicago Gourmet Steaks” with the Illinois Secretary of State.
Lincoln Provision was served with the Ohio complaint via certified mail at its company’s Chicago address. The address on the envelope in which the complaint was mailed was not addressed to a specific individual and contained only the company name as the addressee, which is allowable under applicable Ohio law. The return signature card from the post office showed that someone at Lincoln Provision’s office received the certified mail containing the Ohio complaint. Lincoln Provision did not appear nor respond to the Ohio lawsuit. On June 18, 2008, a default judgment for $16,603 plus interest and costs was entered against Lincoln Provision in the Ohio court where the lawsuit had been filed. The caption of the Ohio judgment order contained the names “Protein Partners” as the plaintiff and “Chicago Gourmet Steaks” as the defendant. The Ohio court ruled in favor of Protein Partners, and the body of the judgment order states that a judgment had been entered “for the Plaintiff and against the Defendant.” Lincoln Provision did not pay the judgment.
On December 23, 2008, Protein Partners filed an action in the circuit court of Cook County captioned “Protein Partners, LLP” versus “Lincoln Provision, Inc. d/b/a Chicago Gourmet Steaks,” in which it registered the Ohio judgment in Cook County. Notice of the filing and registration of the Ohio judgment was sent via certified mail specifically addressed to the president of Lincoln Provision (who was also the company’s registered agent), at the company’s Chicago address, in accordance with the Illinois Uniform Enforcement of Foreign Judgments Act (Foreign Judgments Act) (735 ILCS 5/12—650 et seq. (West 2008)). On January 5, 2009, Protein Partners initiated two citations to discover assets of Lincoln Provision.
On January 29, 2009, which was 37 days after the Ohio judgment had been registered in Illinois, Lincoln Provision filed a “Motion to Quash and for Sanctions.” In its motion, Lincoln Provision alleged that: (1) it was not served properly in the original Ohio case, and (2) the Ohio judgment was against “Chicago Gourmet Steaks,” an alias of Lincoln Provision’s, and therefore the judgment was not valid. Lincoln Provision requested that Protein Partners’ action to register the Ohio judgment in Illinois be quashed. Protein Partners responded to Lincoln Provision’s motion by alleging that: (1) Lincoln Provision was legally and admittedly served in the Ohio case; and (2) the Ohio judgment properly identified Lincoln Provision in the lawsuit.
In its subsequent “Reply in Support of Motion to Quash,” Lincoln Provision alleged several issues which are summarized as follows: (1) Protein Partners was attempting to use fraud since the Ohio judgment was void ab initio because Protein Partners was not registered to do business in Ohio and Ohio law prohibits a foreign partnership which is not registered in Ohio from maintaining a lawsuit in Ohio courts; (2) the plaintiff “Protein Partners” does not exist and that fact was implicitly acknowledged by Protein Partners when it changed its name to “Protein Partners, LLP” in registering the Ohio judgment in Illinois; (3) the defendant named in the Ohio judgment does not exist; (4) it was impermissible for Protein Partners to attempt to modify the Ohio judgment by changing the names of the parties after the entry of the judgment by the Ohio court and before registering the judgment in Illinois; and (5) although service to Lincoln Provision by certified mail was valid under Ohio law, this type of service offends Illinois law and public policy including due process and should therefore be held to be void.
Lincoln Provision’s motion to quash was denied by the circuit court of Cook County on February 27, 2009, without explanation. The record on appeal does not contain a transcript of the hearing and there is no agreed stipulation of facts or a bystander’s report.
On March 27, 2009, Lincoln Provision appealed the circuit court’s denial of its motion to quash registration and entry of the Ohio judgment. In its initial brief on appeal, Lincoln Provision claimed that the appellate court has jurisdiction over this case pursuant to Illinois Supreme Court Rules 303 (appeals from final judgments) and 304(b)(3) (appeal from a judgment or order denying relief requested under section 2—1401 of the Code of Civil Procedure). 210 Ill. 2d Rs. 303, 304(b)(3).
On appeal, Lincoln Provision raised the following issues: (1) whether an Illinois court should quash the registration of a foreign judgment because the plaintiff in the foreign state was not registered to do business in that state as required for standing under the foreign state’s law; (2) whether the Foreign Judgments Act limits a party to registering a foreign judgment without any modification of the names of the parties as shown in the foreign judgment; and (3) whether the Ohio statute violates the due process clause of the United States Constitution because it permits service of process on corporations by certified United States mail with an envelope addressed to the corporation in general, with no specific person named.
After reviewing the parties’ briefs and the record, this court ordered supplemental briefing by the parties on the following issues: (1) whether the trial court had jurisdiction to hear Lincoln Provision’s motion to quash the registration and entry of the Ohio judgment filed 37 days after entry of the court’s order allowing registration, and if not, (2) whether the trial court was revested with jurisdiction to rule on the motion to quash, (3) whether the motion to quash can be construed as a section 2—1401 petition, and (4) whether this court has jurisdiction to hear this appeal.
ANALYSIS
We note that the purpose of the Foreign Judgments Act is to implement the full faith and credit clause of the federal constitution and to facilitate interstate enforcement of judgments in a jurisdiction where the judgment debtor is found. Ace Metal Fabricating Co. v. Arvid C. Walberg & Co.,
This court requested that the parties address whether the circuit court of Cook County had jurisdiction to hear Lincoln Provision’s motion to quash the registration and entry of the Ohio judgment. The record reveals that Protein Partners filed an action registering the Ohio judgment in Illinois on December 23, 2008. Subsequently Protein Partners issued two citations to discover assets, one to Lincoln Provision and the other to a third-party bank. Both citations had a return date of January 29, 2009. The bank acknowledged that it held funds belonging to Lincoln Provision, and Protein Partners’ motion for an order compelling the bank to turn over the funds was to be presented to the circuit court of Cook County on January 29, 2009. That same day, which was 37 days after the Ohio judgment had been filed in the circuit court of Cook County, Lincoln Provision filed its appearance 1 and motion to quash registration of the Ohio judgment. Protein Partners did not object to Lincoln Provision’s motion on the ground that it was untimely.
A foreign judgment filed in the circuit court of Cook County under the Foreign Judgments Act is treated as any other Illinois judgment and is subject to the same procedures and defenses as any judgment entered in the circuit court of Cook County. 735 ILCS 5/12—652(a) (West 2008). A posttrial motion, such as a motion to quash a judgment, must be filed within 30 days of the date that the judgment is entered. 735 ILCS 5/2—1203(a) (West 2008). In this case, Lincoln Provision did not file its motion to quash until 37 days after the Ohio judgment was registered and entered by the circuit court of Cook County.
Lincoln Provision argues that a judgment entered by an Illinois court can be attacked for lack of service at any time and cites State Bank of Lake Zurich v. Thill,
Lincoln Provision admits that service in the Ohio lawsuit was valid under Ohio law, but argues that this type of service offends Illinois law and public policy as well as due process. However, we note that Lincoln Provision’s argument, which relies on Thill, is not based upon defective service in the original Ohio lawsuit, since service was proper under Ohio law, the original venue of the lawsuit and judgment. Thus the Thill case is not applicable to these facts.
Another issue that we asked the parties to address was whether Lincoln Provision’s motion to quash can be construed as a section 2—1401 petition. 735 ILCS 5/2—1401 (West 2008). Lincoln Provision notes that courts have consistently held that the controlling issue is the substance of a motion and the caption does not matter. It cites Schuman v. Department of Revenue,
Protein Partners admits in its brief that Lincoln Provision’s motion to quash could be characterized as a section 2—1401 petition. 2 However, Protein Partners argues that the only issue that the circuit court of Cook County obtained jurisdiction over was the issue of whether the Ohio judgment was void because the defendant claimed that the Ohio court did not have personal jurisdiction over the defendant.
We examine the case of Sarkissian v. Chicago Board of Education,
Next, we examine each of the defenses Lincoln Provision invokes as grounds for defeating the Ohio judgment. The case of Doctor’s Associates, Inc. v. Duree,
In the case at hand, the record shows that the Ohio court had jurisdiction over Lincoln Provision because it was served according to Ohio law. Someone at Lincoln Provision’s corporate offices signed for the envelope containing the summons and complaint regarding the Ohio lawsuit. There is no dispute that the judgment has not been satisfied. Thus, we turn to Lincoln Provision’s argument that Protein Partners committed fraud in procuring the judgment. It is well settled that where extrinsic fraud existed in the procurement of a judgment, the court acquired only colorable jurisdiction. Doctor’s Associates,
We must determine whether Lincoln Provision has successfully pleaded extrinsic fraud to serve as a basis for its collateral attack upon the Ohio judgment. Lincoln Provision argues that the underlying judgment is void because: (1) the Ohio judgment was void ab initio since Protein Partners was not registered to do business in Ohio, a requirement for initiating a lawsuit in Ohio, (2) “Protein Partners” as an entity did not exist, (3) the defendant named in the Ohio judgment, “Chicago Gourmet Steaks,” did not exist, (4) Protein Partners was attempting to modify the Ohio judgment before registering it in Illinois by changing the names of the parties, and (5) although service upon Lincoln Provision by certified mail was valid under Ohio law, this type of service offends Illinois law, public policy and due process.
We first address the argument that Lincoln Provision advances that Protein Partners was not registered to do business in Ohio and that Ohio civil procedure requires a plaintiff corporation to be registered in Ohio before it can maintain a lawsuit in Ohio courts. Lincoln Provision relies on this argument in concluding that we should find the Ohio judgment void ab initio. We characterize this allegation as intrinsic fraud in the procurement of the Ohio judgment. As such it is a defense that Lincoln Provision can advance in an Ohio court of competent jurisdiction to defeat the judgment. It has been long held in our state that “a judgment debtor may defend against a foreign judgment sought to be enforced in an Illinois court, but not on grounds which could have been presented in the action in which the judgment was rendered.” Thompson v. Safeway Enterprises, Inc.,
Protein Partners cites Falcon v. Faulkner,
Lincoln Provision also argues that the differences among the names of the parties as shown in the caption of the original Ohio complaint, in the caption of the Ohio judgment order, in the body of the judgment order and in the lawsuit initiated in the circuit court of Cook County to register the Ohio judgment show that Protein Partners committed fraud by attempting to modify the Ohio judgment before registering it in Cook County. Protein Partners added the designation “LLP” to its name in the lawsuit that it filed in the circuit court of Cook County when registering the Ohio judgment. The Ohio judgment showed “Protein Partners” as the plaintiff without the “LLP” designation. Also, in the Ohio lawsuit the named defendant was “Lincoln Provision, Inc. d/b/a Chicago Gourmet Steaks.” The order that was entered by the Ohio court following the default judgment shows the defendant as “Chicago Gourmet Steaks.” Lincoln Provision argues that the manner in which Protein Partners named the parties when it registered the Ohio judgment in the circuit court of Cook County was an outrageous attempt to modify the Ohio judgment.
Protein Partners rebuffs Lincoln Provision’s argument and contrasts the facts at hand with a case relied upon by Lincoln Provision, Ayers Asphalt Paving, Inc. v. Allen Rose Cement & Construction Co.,
The plaintiff in the Ayers case, relying upon the principle of misnomer of a party, claimed that the real party had been served and that to amend the Ohio judgment to show the exact name would be merely to correct a misnomer. The reviewing court, however, did not agree with this argument and ruled that the plaintiff’s attempt to establish the real party in interest in the Illinois action raised issues that exceeded the scope of proper judicial inquiry by an Illinois court under the Foreign Judgments Act. Ayers,
Lincoln Provision contends that Protein Partners failed to use its own legal name in filing its Ohio lawsuit. Lincoln Provision argues that because Protein Partners did not include the designation “LLP” after the words “Protein Partners” in the original Ohio lawsuit, Protein Partners was not entitled to initiate the Ohio action or to register the judgment and collect on it in Illinois. Lincoln Provision cites Capital One Bank, N.A. v. Czekala,
“The effect of misnomer is that the party called by the wrong name is still subject to the court’s jurisdiction after receiving notice of the lawsuit. ***
On the other hand, the effect of a mistaken identity is that the court does not acquire personal jurisdiction over the person named by mistake but served. *** This is especially true when the mistaken identity involves a nonexistent business.” Czekala,379 Ill. App. 3d at 742-43 ,884 N.E.2d at 1211 .
The court held that the judgment was void ah initio because Czekala could not do business with a company that did not exist. Czekala,
The court in Czekala went on to discuss misnomers and mistaken identity in complaints as articulated in Barbour v. Fred Berglund & Sons, Inc.,
“ ‘The misnomer statute applies only to correctly joined and served, but misnamed, parties. Mistaken identity occurs when the wrong person was joined and served. The intent of the plaintiff is a pivotal inquiry in the determination of whether a particular case involves misnomer or mistaken identity.’ ” Czekala,379 Ill. App. 3d at 743 ,884 N.E.2d at 1212 , quoting Barbour,208 Ill. App. 3d at 648 ,567 N.E.2d at 512 .
In Czekala, the court determined that the plaintiffs intent was to sue the corporation, not Czekala individually. Thus, the court held that the trial court did not have jurisdiction to enter the original default judgment against Czekala alone. Czekala,
Lincoln Provision further urges us to declare the Ohio judgment void because although service upon Lincoln Provision by certified mail was valid under Ohio law, this type of service offends Illinois law, public policy, and due process. Lincoln Provision admits that the manner of service regarding Ohio lawsuits, which is the basis for its objection and argument, has been declared constitutional by the Ohio Supreme Court. In Samson Sales, Inc. v. Honeywell, Inc.,
Lincoln Provision acknowledges that the Ohio Supreme Court would affirm the validity of the service statute at issue in this case, but argues that “[ujnder the Supremacy Clause of the United States Constitution, the federal courts are charged with and have the ultimate word on the rights provided by the United States Constitution.” In sum, most of Lincoln Provision’s arguments directed to the entry of the original Ohio judgment are or were more appropriately raised in an Ohio court. Thus, we decline Lincoln Provision’s invitation to declare the subject Ohio statute unconstitutional.
Accordingly, we hold that the circuit court of Cook County did have jurisdiction to hear Lincoln Provision’s motion to quash the Ohio judgment. Therefore, the circuit court’s ruling on Lincoln Provision’s section 2—1401 petition is deemed a final order and thus is appealable under Supreme Court Rule 304(b)(3) (210 Ill. 2d R. 304(b)(3); Sarkissian,
Affirmed.
KARNEZIS and CONNORS, 3 JJ., concur.
Notes
There is no record of the filing of Lincoln Provision’s appearance in the record on appeal, but Lincoln Provision’s motion to quash states that “the defendant having filed an Appearance and a Motion to Quash.”
Section 2—1401 provides explicit methods of service to the nonmoving party. However, Protein Partners admits that it forfeited any objection to improper service by Lincoln Provision by not raising a service argument in its response to Lincoln Provision’s motion. Padilla v. Vazquez,
Then Presiding Justice Theis participated in the resolution of this case. Justice Connors has substituted for Justice Theis upon the petition for rehearing and has reviewed the record, the briefs and all aspects of the facts necessary to participate in this petition for rehearing.