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03/18/94 MARY E. WEIERMAN v. WOOD LANDSCAPING

March 18, 1994

MARY E. WEIERMAN, PLAINTIFF-APPELLANT,
v.
WOOD LANDSCAPING, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 93 L 5123. Honorable Edward Masters, Judge Presiding

Released for Publication April 21, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Mccuskey

Justice McCUSKEY delivered the opinion of the court:

The plaintiff, Mary E. Weierman (Weierman), appeals from an order of the circuit court of Will County quashing a defective service of summons upon the defendant, Wood Landscaping, Inc. (Wood). Weierman argues that Wood's initial pleading to vacate default judgments and requesting leave to file an answer or otherwise plead constituted a general appearance, thereby waiving any objection to faulty service of process and submitting Wood to the court's jurisdiction. We agree and vacate the trial court's order quashing service of process. We remand this cause to the circuit court of Will County to allow the case to proceed against Wood.

Wood is an Illinois corporation with its principal place of business in Joliet, Illinois. On April 26, 1993, Weierman filed a complaint against Wood for injuries allegedly sustained when Wood's truck collided with Weierman's car. On May 10, 1993, a deputy sheriff served a copy of the summons and complaint upon Donald L. Cordano, Wood's former registered agent.

In early July 1993, Wood filed its first pleading. This pleading was entitled "MOTION TO VACATE DEFAULTS AND FOR LEAVE TO FILE APPEARANCE INSTANTER" and requested the following of the trial court:

"To vacate all defaults, technical or otherwise, which may have been previously entered against the Defendant; for leave to file its appearance on behalf of the Defendant instanter and further for leave to answer or otherwise plead on behalf of the Defendant within twenty eight days."

On July 9, 1993, the court granted Wood's attorney leave to file an instanter appearance on Wood's behalf and ordered Wood to answer or otherwise plead within 28 days. Because the trial court had not entered any default judgments against Wood, this portion of the motion was denied.

On July 29, 1993, Wood filed two additional pleadings with the trial court. The first pleading was a special and limited appearance for the purpose of contesting jurisdiction. The second was a motion to quash service of process and to dismiss for want of personal jurisdiction. This motion asserted that at the time Cordano was served with the summons and complaint, he was not Wood's registered agent. Cordano had resigned as Wood's agent on July 14, 1989. The motion also stated that Cordano had no other connections to Wood. Finally, Cordano's affidavit corroborating these matters was attached to the motion. On August 6, 1993, the trial court granted Wood's motion and entered an order quashing service of process. On September 3, 1993, Weierman filed a timely notice of appeal.

The sole issue before us is whether Wood's initial appearance in early July 1993 constituted a general appearance. For the reasons which follow, we conclude that it was a general appearance. As a consequence, Wood's first appearance acceded to the trial court's jurisdiction and waived all objections to defective service. Accordingly, we hold that Wood's July 29, 1993 special and limited appearance to contest jurisdiction was untimely filed. Therefore, the trial court committed error in quashing service of process.

Section 2-301(a) of the Code of Civil Procedure governs the entry of special appearances and provides in relevant part:

"(a) Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. * * * Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance." (735 ILCS 5/2-301(a) (West 1992).)

A special and limited appearance is confined solely to the purpose of contesting jurisdiction. ( Charles v. Gore (1993), 248 Ill. App. 3d 441, 446, 618 N.E.2d 554, 557, 187 Ill. Dec. 963.) A special and limited appearance must be designated as such to avoid its construction as a general appearance. ( Ahart v. Young (1990), 194 Ill. App. 3d 461, 464, 551 N.E.2d 685, 688, 141 Ill. Dec. 498.) Any action taken by a litigant which recognizes the case as being in court will constitute a general appearance unless such action was for the sole purpose of contesting jurisdiction. ( Lord v. Hubert (1957), 12 Ill. 2d 83, 87, 145 N.E.2d 77; In re Estate of Zoglauer (1992), 229 Ill. App. 3d 394, 397, 593 N.E.2d 93, ...


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