Sarkissian v. CHICAGO BD. OF EDUC.

• Decision Date: 03 July 2002
• Docket Number: No. 88530.,88530.
• Citation: 267 Ill.Dec. 58,776 N.E.2d 195,201 Ill.2d 95
• Parties: Sam SARKISSIAN, As Parent and Guardian of Sonya Sarkissian, a Minor, Appellee, v. The CHICAGO BOARD OF EDUCATION, Appellant.
• Court: Illinois Supreme Court

776 N.E.2d 195

201 Ill.2d 95

267 Ill.Dec. 58

Sam SARKISSIAN, As Parent and Guardian of Sonya Sarkissian, a Minor, Appellee, v. The CHICAGO BOARD OF EDUCATION, Appellant.

No. 88530.

Supreme Court of Illinois.

July 3, 2002.

Rehearing Denied August 29, 2002.

Gino L. DiVito, Michael I. Rothstein, Lisa A. Martin, of Tabet, DiVito & Rothstein, L.L.C., Lisa M. Hegedus, of Quinlan & Crisham, Ltd., Chicago, for appellant.

Michael P. Barone, Carol A. Collins, Michael F. Maloney, John C. Pendergast, Gerald B. Saltzberg, of Fishman & Fishman & Saltzberg, P.C., Chicago, for appellee.

James D. Wascher, of Friedman & Holtz, P.C., Chicago, for amici curiae Illinois Association of School Boards et al.

Justice McMORROW delivered the opinion of the court:

There are two issues in this appeal. The threshold issue is whether an order vacating a default judgment on the ground that it is void for lack of proper service of process is an appealable order. The second issue is whether service of process was proper in this case. The appellate court held that the order vacating the default judgment was a final, appealable order. The appellate court also found that service of process was proper. 308 Ill.App.3d 137, 241 Ill.Dec. 364, 719 N.E.2d 225. For reasons that follow, we affirm the judgment of the appellate court, which remanded the cause to the trial court for further proceedings.

BACKGROUND

On January 26, 1988, Sam Sarkissian (Sarkissian), as parent and guardian of Sonya Sarkissian, a minor, filed a personal injury action against the Chicago board of education (the Board) in the circuit court of Cook County. The complaint alleged that, on September 24, 1985, Sonya Sarkissian suffered an epileptic seizure while attending Armstrong public school. It was further alleged that the Board and its agents, although aware that Sonya suffered from epilepsy, failed to promptly summon or render appropriate medical assistance when the seizure occurred and, as a result, Sonya sustained serious and permanent injuries.¹

On February 1, 1988, a deputy sheriff delivered a copy of the complaint and summons, addressed to "the Chicago Board of Education," to the Board's corporate offices at 1819 West Pershing in Chicago. The summons and complaint were given to, and accepted by, the receptionist of the Board's law department. The Board's appellate counsel conceded during oral argument before this court that the complaint and summons were received by the receptionist and that she transmitted the documents to a Board attorney. The Board attorney, in turn, forwarded the papers to the Martin Boyer Company, which served at that time as the Board's risk management company. It was the responsibility of the Martin Boyer Company to acquire outside counsel to defend the Board in personal injury matters. However, according to appellate counsel, the case "slipped through the cracks." No one filed an appearance on behalf of the Board and the complaint was never answered.

Notice that plaintiff would be seeking a default judgment was sent to the Board on July 28, 1988, via certified mail. The Board's time stamp appears on the certified mail receipt, showing that the Board received this notice on July 29, 1988. Still no action was taken by the Board. On August 29, 1988, an order of default was entered and, after prove-up on April 17, 1990, the trial court entered a $10 million default judgment in plaintiff's favor and against the Board.

The record further reveals that on August 25, 1997, plaintiff petitioned to revive the default judgment. See 735 ILCS 5/12-108(a) (West 2000) (a judgment that is more than seven years old must be revived prior to enforcement). The Board received notice of the plaintiff's revival petition on September 2, 1997. Notice of the revival petition was served on the Board in exactly the same manner as when the Board had been served with notice of plaintiff's complaint—by leaving a copy of the petition and summons with the receptionist at the law department. On October 1, 1997, the Board filed a general appearance. Then, on November 5, 1997, the Board filed a motion to vacate the default judgment as void, claiming that under section 2-211 of the Code of Civil Procedure, a summons issued to the Board must be served on "the president or clerk or other officer corresponding thereto." 735 ILCS 5/2-211 (West 2000). According to the Board, service did not conform with section 2-211 because the summons was not addressed to any specific individual and was left with a receptionist in the Board's legal department, who was not designated by statute to receive service of process. Thus, the Board contended that the trial court never acquired personal jurisdiction over it and, as a result, the default judgment entered was void.

Plaintiff denied that process served on the Board did not satisfy the requirements of section 2-211. Plaintiff contended that the Board's attorney was an "officer" within the meaning of section 2-211 and that the attorney delegated authority to the receptionist to accept service of summonses. In support, plaintiff submitted evidence that the Board's long-standing custom, practice, and procedure was to have the receptionist of the Board's legal department accept service of summons on behalf of the Board. Plaintiff submitted the deposition testimony of 12 witnesses, including Frank Gardner, who had been the Board's president between 1987 and 1989; Patricia Whitten, who had been chief counsel for the Board from 1982 until 1990; and receptionists Nancy Faulk and Yolanda Chavez. The deposition testimony established that, for many years, the receptionist for the law department was a person authorized and designated to accept summonses for the Board. No one could recall a time when service of summonses on the Board via the receptionist of the law department had ever been contested as being improper.

The Board, however, contended that the receptionist of the law department accepted service of summonses as an "accommodation" to the public and that strict compliance with the statute could be demanded by the Board. The Board contended that its failure to contest service in other cases meant only that the Board had waived proper service in those instances.

The trial court ruled in the Board's favor, finding that the summons served on the Board in this case was not in conformity with section 2-211. The trial court vacated the default judgment, but authorized the issuance of an alias summons, addressed to the Board's president. On July 28, 1998, the alias summons—like the original summons—was accepted by a receptionist in the Board's law department. The Board has not filed an appearance in response to the alias summons.

Plaintiff appealed the trial court's order vacating the default judgment. The Board, however, moved to dismiss the appeal, arguing that appellate jurisdiction was lacking. The Board contended that the order vacating the default judgment was not final and, therefore, not appealable. The motion to dismiss was taken with the case.

The appellate court denied the motion to dismiss, finding that the order was a final order, appealable pursuant to Supreme Court Rule 303. After rejecting the Board's jurisdictional challenge, the appellate court ruled on the merits, finding that valid service on the Board had been effectuated in compliance with section 2-211. The appellate court reversed the order vacating the default judgment and remanded the cause for further proceedings. 308 Ill.App.3d 137, 241 Ill.Dec. 364, 719 N.E.2d 225.

We allowed the Board's petition for leave to appeal. 177 Ill.2d R. 315(a). In addition, we granted leave to the Illinois Association of School Boards, the Illinois Association of Park Districts, the Illinois Library Association, and the Illinois Governmental Association of Pools to submit a joint brief as amici curiae in support of the Board. 155 Ill.2d R. 345.

On January 29, 2001, this court filed an opinion, with two justices dissenting. The majority, exercising this court's supervisory authority, reversed the judgment of the appellate court and affirmed the judgment of the circuit court. Thereafter, on July 6, 2001, plaintiff's petition for rehearing was granted.

Now, having had the benefit of additional argument, we affirm the judgment of the appellate court, which remanded the cause to the circuit court for further proceedings.

ANALYSIS

Jurisdiction

It is necessary, at the outset, to identify the basis for this court's exercise of jurisdiction over this appeal. The Board argues here, as it did before the appellate court, that a court of review has no jurisdiction over a trial court's order vacating a default judgment on grounds that service of process was defective. Such orders, the Board claims, are not final orders and, thus, not appealable under our supreme court rules. Although the Board acknowledges that there is a split of authority on this issue, the Board cites to cases which support its position. See 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).

Plaintiff disputes the Board's claim that the order here is not final. Citing Cavanaugh v. Lansing Municipal Airport, 288 Ill.App.3d 239, 224 Ill.Dec. 57, 681 N.E.2d 39 (1997), and DiNardo v. Lamela, 183 Ill.App.3d 1098, 132 Ill.Dec. 500, 539 N.E.2d 1306 (1989), plaintiff argues, and the appellate court below held, that an order vacating a default judgment for lack of proper service is, in essence, an order quashing service of process. Relying on this court's opinion in Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N.E.2d 836 (1943), for the proposition that orders quashing service of process are final orders, plaintiff contends, "where the judgment is vacated due to...