Mun. Trust & Sav. Bank v. Moriarty
| Decision Date | 17 June 2021 |
| Docket Number | Docket No. 126290 |
| Citation | 2021 IL 126290,183 N.E.3d 146,451 Ill.Dec. 100 |
| Parties | MUNICIPAL TRUST AND SAVINGS BANK, Appellee, v. Denis J. MORIARTY, Appellant. |
| Court | Illinois Supreme Court |
Ruth E. Wyman, of Ruth E. Wyman Law Office LLC, of Urbana, for appellant.
Marc J. Ansel, of Meyer Capel, P.C., of Champaign, and Kendra Karlock, of Bourbonnais, for appellee.
¶ 1 In this case, we consider the proper construction of section 2-202 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-202 (West 2016) ), specifically, whether a licensed or registered private detective may serve process in Cook County without special appointment in a case filed outside of Cook County. The circuit court of Kankakee County found such process proper. Therefore, it denied defendant's petition filed under section 2-1401 of the Code (id. § 2-1401), challenging the underlying judgment as void. The appellate court affirmed. 2020 IL App (3d) 190016, ¶ 25, 445 Ill.Dec. 650, 167 N.E.3d 658. For the following reasons, we reverse the judgment of the appellate court.
¶ 3 On December 14, 2016, plaintiff Municipal Trust and Savings Bank filed a complaint for mortgage foreclosure against defendant Denis J. Moriarty. The complaint was filed in Kankakee County, where the mortgaged commercial properties are located. Plaintiff had a summons issued for defendant at 5601 South County Line Road in Hinsdale, Illinois.
¶ 4 On December 28, 2016, Ryan Leggott, a registered employee of Diligent Detective Agency, Ltd., served defendant in Cook County at Rush Hospital located at 1620 East Harrison Road in Chicago. Plaintiff did not move for appointment of a process server, and the circuit court made no such appointment. Defendant never filed an answer to the complaint.
¶ 5 On January 23, 2017, plaintiff filed a motion for entry of judgment of foreclosure and sale. Plaintiff alleged that defendant had been personally served with process on December 28, 2016, and therefore the trial court had personal jurisdiction over him.
¶ 6 On January 30, 2017, the circuit court entered a judgment for foreclosure and sale. The circuit court found that defendant was personally served with process and was in default by failing to answer the complaint or otherwise appear. The circuit court also found that service of process was properly made in accordance with the Code and that the court had personal jurisdiction over him.
¶ 7 On June 28, 2017, a sheriff's sale was held on the property, and plaintiff was the successful bidder.1 Two days later, plaintiff filed a motion for confirmation of the foreclosure sale.
¶ 8 On July 17, 2017, defendant filed his appearance pro se at a hearing on plaintiff's motion for confirmation. At the hearing, defendant stated that he had not been aware of the sale. He explained that he had been in a nursing home and did not receive notice. Before the sale was confirmed, he requested that he be given 30 days to redeem the property. After reviewing the record, the circuit court stated that, because defendant was in default in the foreclosure proceedings, plaintiff had no obligation to give him notice of the public sale. Ruling that plaintiff complied with the procedures necessary to obtain a confirmation of the foreclosure sale, the court granted plaintiff's motion for confirmation.2
¶ 9 On May 21, 2018, defendant filed a section 2-1401 petition arguing that the circuit court was without personal jurisdiction to enter the default judgment in the foreclosure proceeding. Defendant asserted that under section 2-202 of the Code, a private process server cannot serve process on a defendant in Cook County without first being appointed by the circuit court. Defendant argued that process was improper because Leggott had not been appointed by the circuit court when he served defendant at Rush Hospital in Chicago. Defendant requested that the court find the default judgment void and vacate that judgment and all subsequent orders.
¶ 10 On September 21, 2018, the circuit court denied defendant's section 2-1401 petition. The circuit court found Leggott was not required to be specially appointed under section 202 of the Code because the provision allowed him to serve process on defendant without limitation in Illinois.
¶ 11 The appellate court affirmed, holding that the circuit court had personal jurisdiction over defendant to enter the default judgment of foreclosure and that the judgment was therefore not void. 2020 IL App (3d) 190016, ¶ 23, 445 Ill.Dec. 650, 167 N.E.3d 658. The appellate court found that, under section 2-202, a duly licensed or registered private detective may serve process, without special appointment, anywhere in the state so long as the summons was issued from a county other than Cook County. Id. ¶ 22. The appellate court found that, because the summons was issued from Kankakee County, Leggott was authorized under section 2-202 to serve defendant in Cook County. Id. ¶ 23.
¶ 12 Justice Schmidt specially concurred because he disagreed with the majority's construction of section 2-202. Id. ¶ 29 (Schmidt, J., specially concurring). He believed the majority's interpretation would render portions of subsection 2-202(a), which is intended to regulate who has the authority to serve process in Cook County, superfluous by allowing a private detective to serve process in the county without special appointment. Id. ¶¶ 29-30. Justice Schmidt believed that, to avoid inconvenience, the party requesting the summons must engage in a reasonable search to ascertain whether the party to be served is located in Cook County. Id. ¶ 31. He wrote that under section 2-202, special appointment of a licensed or registered private detective is required whenever the party knows or could reasonably discover that the party to be served is in Cook County. Id.
¶ 13 This court allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2019).
¶ 15 Defendant contends that service of process by Leggott did not comport with section 2-202 because he was not specially appointed by the court. Consequently, defendant asserts that the circuit court erred by dismissing his section 2-1401 petition because it lacked jurisdiction to enter the default judgment.
¶ 16 Section 2-1401 of the Code authorizes a party to seek relief from a final judgment, such as a default judgment entered where the trial court lacks personal jurisdiction over the defendant, when brought more than 30 days after entry of judgment. Sarkissian v. Chicago Board of Education , 201 Ill. 2d 95, 101, 267 Ill.Dec. 58, 776 N.E.2d 195 (2002).
¶ 17 A judgment entered by a court that lacks jurisdiction over the parties is void and may be challenged at any time, either directly or collaterally. BAC Home Loans Servicing, LP v. Mitchell , 2014 IL 116311, ¶ 17, 379 Ill.Dec. 85, 6 N.E.3d 162. Personal jurisdiction may be established either by service of process in accordance with statutory requirements or by a party's voluntary submission to the court's jurisdiction. Id. ¶ 18. A judgment rendered without voluntary submission or service of process in strict statutory compliance is void regardless of whether the defendant had actual knowledge of the proceedings. State Bank of Lake Zurich v. Thill , 113 Ill. 2d 294, 308, 100 Ill.Dec. 794, 497 N.E.2d 1156 (1986).
¶ 18 The issue before us turns on the proper construction of section 2-202. The fundamental rule of statutory construction is to ascertain and effectuate the legislature's intent. Comprehensive Community Solutions, Inc. v. Rockford School District No. 205 , 216 Ill. 2d 455, 473, 297 Ill.Dec. 221, 837 N.E.2d 1 (2005). The plain language of the statute remains the best indication of this intent. Id. As statutory interpretation presents a question of law, our standard of review is de novo. Board of Education of the City of Chicago v. Moore , 2021 IL 125785, ¶ 18, 450 Ill.Dec. 648, 182 N.E.3d 94. We apply the same standard to a section 2-1401 petition dismissed on purely legal grounds. People v. Thompson , 2015 IL 118151, ¶ 25, 398 Ill.Dec. 74, 43 N.E.3d 984.
¶ 19 Section 2-202 of the Code provides, in pertinent part:
¶ 20 Plaintiff asserts that, reading the two subsections together, the correct interpretation is that the county in which the lawsuit is filed controls the authority of the process server, not the county in which service is made. Because the complaint in this case was filed in Kankakee County, plaintiff believes that the restriction in subsection (a), allowing service of process in Cook County only by a private detective if he or she is appointed by the court, does not apply. We find plaintiff's construction unpersuasive.
¶ 21 Contrary to plaintiff's argument, section 2-202 is concerned with where process is...
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