Sterne v. Forrest

• Citation: 145 Ill.App.3d 268,495 N.E.2d 1304,99 Ill.Dec. 569
• Decision Date: 10 July 1986
• Docket Number: No. 2-84-0517,2-84-0517
• Parties: , 99 Ill.Dec. 569 Scott STERNE d/b/a Sterne Concrete Construction, Plaintiff-Appellee, v. Randy FORREST, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1304

495 N.E.2d 1304

145 Ill.App.3d 268, 99 Ill.Dec. 569

Scott STERNE d/b/a Sterne Concrete Construction, Plaintiff-Appellee, v. Randy FORREST, Defendant-Appellant.

No. 2-84-0517.

Appellate Court of Illinois Second District.

July 10, 1986.

Rehearing Denied Aug. 15, 1986.

Robert L. Marsh, Wheaton, for defendant-appellant.

Barclay, Damisch & Sinson, Thomas Swabowski, Chicago, for plaintiff-appellee.

Justice STROUSE delivered the opinion of the court:

The defendant, Randy Forrest, appeals from the default judgment entered against him and from successive denials of his motions to vacate the default judgment for improper service of summons.

The plaintiff, Scott Sterne, doing business as Sterne Concrete Construction, brought a breach of contract action against the defendant, Randy Forrest, seeking damages of $19,259.64, plus costs, interest and reasonable attorney fees. The complaint was filed on April 7, 1982, and on May 11, 1982, plaintiff issued an alias summons against defendant. The sheriff's return of service by Deputy J. Sisco indicates that on May 14, 1982, at 8:05 p.m., he served defendant by abode service on "Carl Pedersen, Roommate" at 29 W 381 Garden Drive, Bartlett, Illinois. No appearance or answer was thereafter filed on behalf of defendant. On August 9, 1982, the trial court entered an order of default, and on August 16, 1982, it entered judgment against defendant in the amount of $19,259.64. On August 25, 1982, plaintiff sent notice of the default judgment to defendant at the Garden Drive address. A wage deduction summons was served upon defendant's employer on January 13, 1983.

On February 9, 1983, defendant filed a motion to quash service of summons and to vacate the default judgment, with a supporting affidavit, stating that on or about the date of service of the alias summons, defendant resided at 2832 W. Ainslie in Chicago. He stated that at no relevant time was 29 W 381 Garden Drive in Bartlett his usual place of abode, that Carl Pedersen was not defendant's roommate but was a tenant of defendant on a month-to-month basis, that the purported service of summons was thereby improper, and that defendant had no knowledge of the proceedings against him until November 18, 1982, when he was served with a copy of the judgment order by the sheriff of DuPage County.

A hearing was held on December 28, 1983, on the question of the validity of the service of summons. The defendant presented three witnesses. Carl Pedersen testified that he rented the residence at 29 W 381 Garden Drive in Bartlett from defendant beginning in early April 1982. They entered into a verbal agreement wherein Pedersen rented on a month-to-month basis. The rent was $450 per month including utilities, and the utilities were in defendant's name. Mark Edwards moved into the house shortly before Pedersen, and he moved out in mid-May, sometime after May 13. Pedersen moved out of the house in October 1982. Defendant claimed he did not occupy the premises with Pedersen at any time.

Pedersen further testified that on May 13, 1982, a deputy from the DuPage County sheriff's department came to the house and asked if it was the Forrest residence; Pedersen responded, "yes, he own[s] the residence." The deputy then asked if Mr. Forrest was home, to which Pedersen responded in the negative. Pedersen told the deputy that he "was renting the house with a roommate from Mr. Forrest." The deputy then asked Pedersen his name, handed him a legal document, and asked him to deliver it to defendant. Pedersen put the papers on his desk. Later that evening he looked them over and tried unsuccessfully to reach defendant's mother by phone. The next morning Pedersen called the sheriff's department, and thereafter mailed the papers back to the sheriff. Pedersen saw defendant approximately three times from April to October of 1982, but he never told him about the papers.

Defendant's mother, Lorraine Forrest, testified that she resides at 2832 W. Ainslie in Chicago in the basement apartment and that in 1982 her mother resided in the first floor apartment. In late March 1982, defendant moved into the first floor apartment with his grandmother who was terminally ill with cancer. Defendant had previously resided with his grandmother from 1965 to 1977, when he got married. When defendant moved into the premises in 1982, he brought with him his clothing and personal effects, but no furniture or other items. Mrs. Forrest had observed mail being addressed to defendant at the Ainslie address during his stay there. The grandmother died in August 1982, and defendant moved out of the house in November 1982.

On cross-examination Mrs. Forrest testified that she was the owner of Forrest Builders and that several months earlier defendant had conveyed the Garden Drive property to the company. She agreed that if the judgment in the case was vacated her company would own the property free of any liens of judgment entered against defendant.

The defendant then testified that he contracted for the construction of his house on Garden Drive. Construction on the house began in May 1981 and the occupancy permit was issued in late January 1982. Defendant moved into the house on February 1, 1982, with a roommate, Mark Edwards, and during the middle or end of March 1982, defendant moved into his grandmother's apartment at 2832 Ainslie in Chicago. Edwards remained in the Garden Drive house until May 1982; approximately April 1, 1982, Carl Pedersen moved in. Defendant rented the house fully furnished to Edwards and Pedersen, but they were responsible for paying the utility bills. They paid the rent to a neighbor and friend of defendant, and from April to October of 1982 defendant saw Pedersen on only a few occasions. Defendant did not notify his employer of a change of address when he moved to the apartment on Ainslie in March 1982 because he thought he was going to be there for only a month or so. He continued to live in the apartment until November 1982 when he moved back to the Garden Drive house. Defendant first learned of the present lawsuit in November 1982 when a deputy sheriff served him with an execution of judgment.

On cross-examination defendant testified that on April 20, 1982, he informed his employer of a change of address to P.O. Box 148, Wayne, Illinois. He explained that, while presently residing at the Garden Drive house in Bartlett, he occasionally picks up mail from the Wayne post office box. Wayne, a DuPage County suburb, is four to five miles away from Bartlett and is not in the vicinity of 2832 W. Ainslie in Chicago. On July 9, 1982, defendant certified to the Internal Revenue Service, by way of a W-4 form, that his residential address was 29 W 381 Garden Drive, Bartlett, Illinois. Throughout the year of 1982, utility bills were in the name of defendant; the telephone at the Garden Drive address was listed in defendant's name, and his driver's license showed the Garden Drive address. A checking account at the Community Bank listed the Garden Drive address. Defendant never notified the U.S. Post Office of a change of address from the house on Garden Drive. Defendant further testified that after he received the execution of judgment in November 1982 he conveyed his interest in the Garden Drive property to his mother's corporation and the corporation still owns the property.

Defendant introduced three items of correspondence addressed to him at the Ainslie address, dated May 1, 1982, May 12, 1982, and July 3, 1982, as evidence of mail being received at this address.

At the close of this hearing, the court found that defendant's usual place of abode was the residence at 29 W 381 Garden Drive in Bartlett and that the service of summons was proper. The court thereby denied defendant's motion to quash service.

Defendant filed a motion to reconsider the denial of the motion to quash service of summons, asserting that the Garden Drive address was not his abode for purposes of substitute service and that Carl Pedersen was merely a month-to-month tenant and not a member of defendant's family.

On February 21, 1984, the court denied defendant's motion to reconsider its denial of the motion to quash service of summons. The evidentiary hearing on defendant's petition to vacate the default judgment orders was continued to March 19, 1984. On March 19, an agreed order was entered which continued the hearing to March 28, 1984, at 1:30 p.m.

At 9:30 a.m. on March 28, counsel for both parties appeared before the court. Counsel for defendant presented two motions to the court; one was for leave to withdraw as defense counsel and the other was an emergency motion to continue the hearing which was scheduled for that afternoon. Counsel stated to the court that defendant knew about the March 28 hearing date but that he could not attend the hearing because he was in Michigan. Counsel argued that he was seeking leave to withdraw because defendant was unwilling to cooperate. The court granted defense counsel's motion for leave to withdraw and denied the motion to continue, finding that defendant had notice that the hearing was set for 1:30 on March 28.

When the case was called at 1:30 p.m. on March 28 defendant failed to appear. Plaintiff appeared, had three witnesses present in court, and was ready to proceed. The court denied defendant's petition to vacate the default order and judgment. The order to that effect recited not only that defendant's petition to vacate was denied, but also that the sums held by defendant's employer pursuant to wage deduction proceedings be immediately released to plaintiff and that an additional judgment of $176 be entered against defendant.

On April 27, 1984, defendant, by his newly retained counsel, filed a motion to vacate the March 28 order (which denied defendant's petition to vacate the August 1982 default orders) and for hearing instanter. Following a hearing on May 14, the court denied the motion to vacate.

Defendant...