Cavanaugh v. Lansing Mun. Airport

• Decision Date: 01 May 1997
• Docket Number: No. 1-96-1260,1-96-1260
• Citation: 681 N.E.2d 39,224 Ill.Dec. 57,288 Ill.App.3d 239
• Parties: , 224 Ill.Dec. 57 Ronald CAVANAUGH, Plaintiff-Appellant, v. LANSING MUNICIPAL AIRPORT, Defendant, and (Village of Lansing), Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 39

681 N.E.2d 39

288 Ill.App.3d 239, 224 Ill.Dec. 57

Ronald CAVANAUGH, Plaintiff-Appellant, v. LANSING MUNICIPAL AIRPORT, Defendant and (Village of Lansing), Defendant-Appellee.

No. 1-96-1260.

Appellate Court of Illinois,

First District, Fourth Division.

May 1, 1997.

Jerome A. Tatar, Richter & Jaros, Oak Brook, for Plaintiff-Appellant Ronald Cavanaugh.

Ronald S. Cope, Mark A. Balkin, Jon B. Kennett, Ancel, Glink, Diamond, Cope & Bush, P.C., Chicago, for Defendant-Appellee Village of Lansing.

Justice McNAMARA delivered the opinion of the court:

Plaintiff, Ronald Cavanaugh, appeals from the trial court's order quashing service and vacating a default judgment against defendant, Village of Lansing (Village). The trial court ruled that plaintiff did not comply with the requirements of section 2-211 of the Code of Civil Procedure (Code) (735 ILCS 5/2-211 (West 1994)) for proper service on the Village and, without proper service, the judgment order is void. The relevant facts are as follows.

On January 27, 1993, plaintiff filed a complaint naming as defendants "Lansing Municipal Airport" and "the Village of Lansing." Plaintiff's allegations collectively referred to defendants as "Lansing." Plaintiff alleged that, on October 22, 1989, his airplane was damaged on a runway at the airport when one wheel of the plane fell into a hole. Plaintiff alleged that the hole was caused "when Lansing had removed a light standard from the runway." Plaintiff sought $66,520 in damages.

Two summons were issued on January 27, 1993. One instructed the sheriff to serve "Lansing Municipal Airport," with a street address. The other summons requested service on "Village of Lansing," with a street address. On February 1, 1993, a sheriff's deputy served "Bob Malkas, Agent," at the airport administration office, and "Darlene Goncher, Agent," at the office of the Village clerk. At that time, Katherine Dahlkamp was the Village clerk, and Robert West was the president of the board of trustees of the Village.

On February 3, 1993, Dahlkamp sent a letter to the insurance companies for the Village along with copies of both the summons and the complaint. Dahlkamp intended for insurance defense to be provided for both Lansing Municipal Airport and the Village. Counsel filed an appearance only on behalf of Lansing Municipal Airport, however, and argued that plaintiff's claim was barred by the one-year statute of limitations set forth in the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/8-101 (West 1994)). On July 8, 1993, Judge Kenneth Gillis dismissed with prejudice plaintiff's claim against Lansing Municipal Airport. The order further stated that "[t]his cause shall continue to pend as to the co-defendant Village of Lansing."

Plaintiff moved for default judgment against the Village. Although plaintiff filed a notice of motion and a notice of filing, neither was served on the Village. On July 14, 1993, without any prove up, default judgment was granted in favor of plaintiff and against the Village in the amount of $66,520. Plaintiff did not provide the Village with notice of the default judgment.

On October 16, 1995, plaintiff's counsel sent the Village a letter demanding payment on the default judgment. The letter stated: "Given that more than two (2) years has [sic ] elapsed since such judgment, the judgment is final and not appealable." The Village thereafter filed a special and limited appearance, a "Motion to Quash Service and Vacate Default Judgment," a "Motion to Correct Misnomer," and a "Rule 183 Motion for Extension of Time" to file a petition for relief from judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 1994)).

On March 12, 1996, Judge Julia Nowicki granted the Village's motion to quash and vacated the default judgment on the grounds that plaintiff did not comply with the requirements for proper service on the Village. Specifically, the court held that plaintiff failed to serve either the Village clerk or the president of the Village board of trustees as required by section 2-211 of the Code (735 ILCS 5/2-211 (West 1994)), and without valid service of process, the judgment is void. This appeal followed.

While the parties do not raise the issue, we will first discuss our jurisdiction over this matter. This court is obligated to consider its own jurisdiction sua sponte. Salemi v. Klein Construction Co., 266 Ill.App.3d 110, 203 Ill.Dec. 309, 639 N.E.2d 629 (1994). The jurisdiction of the appellate court is limited to review of appeals from final judgments or orders, subject to certain statutory or supreme court exceptions. In re Petition to Incorporate the Village of Greenwood, 275 Ill.App.3d 465, 211 Ill.Dec. 813, 655 N.E.2d 1196 (1995). The fact that an order contains the requisite language that there is no just reason for delay in enforcement or appeal does not make a nonfinal order appealable. Rice v. Burnley, 230 Ill.App.3d 987, 172 Ill.Dec. 826, 596 N.E.2d 105 (1992). A judgment is considered "final" if it finally disposes of rights of parties either upon an entire controversy or upon some definite and separate branch thereof. Board of Trustees of Community College District No. 508 v. Rosewell, 262 Ill.App.3d 938, 200 Ill.Dec. 74, 635 N.E.2d 413 (1992).

Here, the trial court's order set forth a special finding that "[t]here is no just reason to delay enforcement or appeal of this order," and plaintiff filed a timely notice of appeal. Yet, our research has revealed a split among Illinois courts as to whether an order quashing service is final and appealable. While some appeals have been dismissed on the grounds that such an order is interlocutory and not appealable (Nelson v. United Airlines, Inc., 243 Ill.App.3d 795, 184 Ill.Dec. 104, 612 N.E.2d 980 (1993); Stankowicz v. Gonzalez, 103 Ill.App.3d 828, 59 Ill.Dec. 515, 431 N.E.2d 1272 (1981); Alexander v. Burke, 6 Ill.App.3d 919, 287 N.E.2d 53 (1972); Mabion v. Olds, 84 Ill.App.2d 291, 228 N.E.2d 188 (1967)), other decisions, including one by the Illinois Supreme Court, have determined that an order quashing service is final and appealable (Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N.E.2d 836 (1943); DiNardo v. Lamela, 183 Ill.App.3d 1098, 132 Ill.Dec. 500, 539 N.E.2d 1306 (1989); in RE marriage oF kelso, 173 ilL.app.3d 746, 123 ilL.dec. 352, 527 N.E.2d 990 (1988); Connaughton v. Burke, 46 Ill.App.3d 602, 5 Ill.Dec. 87, 361 N.E.2d 87 (1977)). In DiNardo, the second district of this court noted the disagreement among Illinois courts, but as we must do here, elected to follow the supreme court's reasoning in Brauer. DiNardo, 183 Ill.App.3d at 1103, 132 Ill.Dec. at 503, 539 N.E.2d at 1309. In Brauer, the supreme court stated:

"It is true, the order, in form, was only an order quashing the service of the summons. It was not an order dismissing the suit, nor was it in the form of a final judgment on the merits. Regardless of its form, however, it was a complete and final disposition of the case, based upon the conclusion the court had reached that appellee was not amenable to the service of process in the manner in which the summons was served. On that issue it was not only as effectual and conclusive but it was as final as any decision upon the merits. The result was the same.

If it should be held that an order of this character is not appealable, then there would be no method by which a plaintiff could obtain a review of an order of the trial court quashing the service of process." Brauer, 383 Ill. at 577-78, 50 N.E.2d at 841.

Based on this language in Brauer, the DiNardo court held that "in cases where the judgment is vacated due to improper service that the effect of that order is to quash the service of process * * * an appeal may be had from this order." DiNardo, 183 Ill.App.3d at 1103, 132 Ill.Dec. at 503, 539 N.E.2d at 1309; see also Marriage of Kelso, 173 Ill.App.3d at 749, 123 Ill.Dec. at 353, 527 N.E.2d at 991 ("an order granting a motion to quash service of process is a final and appealable order"). Notwithstanding that other decisions have overlooked Brauer or deferred to the trial court's desire to retain jurisdiction (Nelson, 243 Ill.App.3d 795, 184 Ill.Dec. 104, 612 N.E.2d 980; Stankowicz, 103 Ill.App.3d 828, 59 Ill.Dec. 515, 431 N.E.2d 1272; Alexander, 6 Ill.App.3d 919, 287 N.E.2d 53; Mabion, 84 Ill.App.2d 291, 228 N.E.2d 188), we hold, as in DiNardo, that the trial court's order vacating the default judgment due to improper service was final and appealable.

Turning to the parties' arguments on appeal, the relevant statute is section 2-211 of the Code (735 ILCS 5/2-211 (West 1994)), which states:

"In actions against public, municipal, governmental or quasi-municipal corporations, summons may be served by leaving a copy with the chairperson of the county board or county clerk in the case of a county, with the mayor or city clerk in the case of a city, with the president of the board of trustees or village clerk in the case of a village, with the supervisor or town clerk in the case of a town, and with the president or clerk or other officer corresponding thereto in the case of any other public, municipal, governmental or quasi-municipal corporation or body." (Emphasis added.) 735 ILCS 5/2-211 (West 1994).

Plaintiff contends that the Village waived any argument concerning the requirements of section 2-211 and that the default judgment should stand. Plaintiff stresses that Dahlkamp, the Village clerk, sent a letter with a copy of the summons and complaint to the Village's insurance companies two days after an employee in her office was served. Plaintiff further argues that the general appearance filed on behalf of Lansing Municipal Airport constituted a waiver of the Village's service argument. The Village responds that it is undisputed that plaintiff served neither the Village clerk nor the president of the board of trustees of the Village as required by ...