White v. Ratcliffe

• Decision Date: 19 December 1996
• Docket Number: No. 2-96-0213,2-96-0213
• Citation: 221 Ill.Dec. 113,285 Ill.App.3d 758,674 N.E.2d 906
• Parties: , 221 Ill.Dec. 113 John WHITE and Barbara White, Plaintiffs-Appellees, v. Robert RATCLIFFE III, Defendant-Appellant (Farrell Michael Putman, Defendant).
• Court: United States Appellate Court of Illinois

Page 906

674 N.E.2d 906

285 Ill.App.3d 758, 221 Ill.Dec. 113

John WHITE and Barbara White, Plaintiffs-Appellees, v. Robert RATCLIFFE III, Defendant-Appellant (Farrell Michael Putman, Defendant).

No. 2-96-0213.

Appellate Court of Illinois Second District.

Dec. 19, 1996.

Robert J. Fox, Ori, Fox, Lunardi & Zeit, Waukegan, James A. Borrasso, Waukegan, for Robert Ratcliffe III.

Stephen D. Sharp, Chicago, for Barbara White and John White.

Justice GEIGER delivered the opinion of the court:

The defendant, Robert Ratcliffe III, appeals from the January 17, 1996, order of the circuit court of Lake County denying his petition to vacate a default judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)). Ratcliffe, a resident of London, England, argues that the trial court lacked jurisdiction to enter the default judgment because he was not served process in a manner authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention). We affirm.

On September 23, 1993, the plaintiffs, John White and Barbara White, filed a conversion action in the circuit court of Lake County, alleging that the defendants, Ratcliffe and Farrell Michael Putman, burglarized their home in December 1989. On November 15, 1993, the plaintiffs filed an amended complaint, containing the same allegations.

Also on November 15, 1993, summons issued on the amended complaint. On November 24, 1993, Putman was served, and on January 7, 1994, an appearance was filed on his behalf.

On November 16, 1993, in an attempt to serve Ratcliffe, the plaintiffs' attorney mailed the summons and a copy of the amended complaint via international registered mail to Ratcliffe's last known address, 7 King Frederick IX Towers, Finland Street, Surrey Quays, London, England, SE161TH. The plaintiffs' attorney subsequently received a return receipt indicating that the documents were received and signed for by "V. Ratcliffe." Although the return receipt did not specify the date of delivery, the postmark was dated December 16, 1993.

On or about December 16, 1993, Ratcliffe telephoned the plaintiffs' attorney and stated that he would be visiting Illinois before the end of 1993 and that he would retain a lawyer to defend the action at that time. No appearance, however, was filed on the defendant's behalf during the remainder of 1993. On January 6, 1994, the plaintiffs' attorney wrote Ratcliffe to advise him that a default would be entered against him at the January 19, 1994, status hearing if no appearance was filed before that time. In response to the letter, Ratcliffe telephoned the plaintiffs' attorney and stated that he was not hiring an attorney and that he would file a pro se appearance and answer.

At the January 19, 1994, status hearing, the plaintiffs' attorney advised the trial court that he had been in contact with Ratcliffe and that it was Ratcliffe's intention to file a pro se appearance and answer. The trial court continued the case to April 13, 1994, for another status hearing. On February 11, 1994, the plaintiffs' attorney again wrote to Ratcliffe, advising him that if he failed to file an appearance prior to the April 13, 1994, status hearing, a default would be entered against him. Ratcliffe, however, took no action to defend the case.

On April 13, 1994, the trial court entered a default against Ratcliffe and set the case for prove up on June 13, 1994. On April 13, 1994, the plaintiffs' attorney sent copies of the default order via both international registered mail and regular airmail. The plaintiffs' attorney also sent a letter advising Ratcliffe that if he desired to defend the case he would have to file a motion to vacate the default judgment as soon as possible. Ratcliffe again took no action to defend the case.

In order to avoid any potential future attack by Ratcliffe on service of process, the plaintiffs' attorney requested that the default judgment entered against Ratcliffe be vacated. The plaintiffs' attorney then proceeded to serve Ratcliffe again using the following alternate methods: On June 13, 1994, another alias summons was issued. The plaintiffs' attorney then retained an English process server through a London solicitor. The process server attempted personal service several times in June and July, but was unsuccessful; in the process, however, Ratcliffe was alerted to these attempts to effect service on him. On July 14, 1994, Ratcliffe telephoned the plaintiffs' attorney to reiterate that he would be filing a pro se appearance and answer.

On August 25, 1994, another alias summons was issued. The plaintiffs' attorney then requested that the trial court issue an official "Request for Service Abroad of Judicial or Extrajudicial Documents" as required for service made pursuant to the Hague Convention. These materials were sent via overnight Federal Express International Delivery to the office of Her Majesty's Principal Secretary of State for Foreign Affairs (the English Central Authority). On October 20, 1994, the English Central Authority proceeded to serve Ratcliffe the alias summons and amended complaint.

On December 6, 1994, another alias summons was issued. This alias summons was forwarded via overnight Federal Express International Delivery to Karen Beer, an English process server. On December 16, 1994, Beer personally served the alias summons and amended complaint upon Ratcliffe. Beer made the following sworn statements in the return of service:

"1. I am a person authorized under the Laws of England to serve process issued through the Courts of England and elsewhere.

2. On Friday the 16th day of December 1994 at 0830 hours at 7 King Frederick IX Towers, Finland Street, Surrey Quays, London SE161TH, England, I personally served Robert Ratcliffe III with the Summons issued in this action * * * bearing date the 6th day of December 1994, * * * said Summons[ ] being accompanied by a copy of the Amended Complaint and Jury Demand filed herein on the 15th day of November 1993.

3. At the time of service the [ ] Defendant Robert Ratcliffe III admitted his identity to me and read the proceedings served upon him."

Ratcliffe again took no action to defend the case.

On January 19, 1995, the plaintiffs filed a motion for entry of a default judgment. On January 25, 1995, the trial court entered a default judgment against the defendant and set the matter for prove up on March 6, 1995. At the prove up, the trial court heard the testimony of defendant Putman. Putman testified that Ratcliffe had planned and carried out the burglary. At the completion of Putman's testimony, the trial court entered judgment against Ratcliffe in the amount of $130,060.29. Thereafter, the action against Putman was dismissed without prejudice.

On November 1, 1995, Ratcliffe filed a special and limited appearance and a section 2-1401 petition to vacate the default judgment (see 735 ILCS 5/2-1401 (West 1994)). Ratcliffe made the following arguments in the petition: (1) that the service of the August 25, 1994, alias summons by the English Central Authority was invalid because it was not completed within the 30-day period during which the summons was valid; (2) that the service of the December 6, 1994, alias summons by Beer was invalid because the Hague Convention does not permit service by an independent process server; (3) that the August 25, 1994, alias summons served through the English Central Authority was invalid because it was not served in duplicate as required by article 3 of the Hague Convention; and (4) that the default judgment was entered in violation of article 15 of the Hague Convention, which requires a six-month waiting period between service of process and the entry of a default judgment.

The plaintiffs filed a verified answer to Ratcliffe's petition, supported by 48 pages of exhibits documenting the service attempts detailed above. The plaintiffs argued (1) that Ratcliffe had been properly served by international mail, as permitted by article 10(a) of the Hague Convention; (2) that Ratcliffe was personally served by Beer, as permitted by article 10(c) of the Convention; (3) that the Hague Convention does not require duplicate service of the documents; (4) that the six-month period required by article 15 of the Hague Convention applies only in those instances where there has been no return of service; and (5) that the trial court could not vacate the default judgment pursuant to article 16 of the Hague Convention, because Ratcliffe had been given sufficient time to defend the action. Alternatively, the plaintiffs filed a motion to extend the 30-day time period during which the English Central Authority could serve the August 25, 1994, alias summons.

On January 17, 1996, the trial court denied Ratcliffe's section 2-1401 petition to vacate the default judgment. Ratcliffe filed a timely notice of appeal.

Section 2-1401 of the Code of Civil Procedure provides a mechanism by which a final judgment may be vacated. 735 ILCS 5/2-1401 (West 1994). In order to obtain relief from a default judgment pursuant to section 2-1401, the moving party must show (1) that he has a meritorious defense to the action; (2) that he has exercised due diligence in presenting such a defense to the trial court; and (3) that he has exercised due diligence in filing a petition pursuant to section 2-1401. Halle v. Robertson, 219 Ill.App.3d 564, 568, 162 Ill.Dec. 429, 579 N.E.2d 1243 (1991).

Generally, a section 2-1401 motion to vacate a default judgment is addressed to the sound discretion of the trial court, and its denial will be reversed only if the trial court abused its discretion. Sterne v. Forrest, 145 Ill.App.3d 268, 277, 99 Ill.Dec. 569, 495 N.E.2d 1304 (1986). In the instant case, however, Ratcliffe's section 2-1401 petition challenges the jurisdiction of the trial court and argues that he was not served process in a manner...