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Freund Equipment, Inc. v. Fox

November 13, 1998

FREUND EQUIPMENT, INC., PLAINTIFF-APPELLEE,
v.
STEVEN FOX, D/B/A GREMLIN SOD FARMS, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Bowman

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from the Circuit Court of McHenry County.

No. 97--AR--205

Honorable Haskell M. Pitluck, Judge, Presiding.

Defendant, Steven Fox, doing business as Gremlin Sod Farms, appeals the order of the circuit court of McHenry County denying his motion to quash summons. Defendant argues that (1) the trial court erred in imposing a heightened evidentiary standard to overcome the presumption of valid service; (2) regardless of the burden of proof, the court's finding of valid service was against the manifest weight of the evidence; and (3) the court erred in finding that leaving a copy of the summons and complaint in the door constituted personal service.

Plaintiff, Freund Equipment, Inc., sued defendant for breach of contract, alleging that defendant had failed to pay for "trucking services." After numerous failed attempts to serve defendant, Terry Vinsent, a licensed private investigator, filed an affidavit stating that he personally served defendant on August 27, 1997. Vinsent averred that he served defendant at 7:25 a.m. at defendant's residence, 6N965 Roosevelt Avenue [Road], St. Charles.

Defendant filed a special and limited appearance and a motion to quash summons. At a hearing on the motion, Vinsent testified that he attempted to serve defendant several times. He received authority to conduct surveillance of defendant's home. On August 25, 1997, Vinsent spoke to neighbors and a construction crew that was building a house across the street from defendant's. They described defendant, gave the times he would usually come and go, and said that he always drove the red vehicle. Vinsent also knew the license plate numbers of two vehicles registered to defendant.

On August 27, 1997, Vinsent saw two vehicles at defendant's house, an older model pickup truck with "Gremlin" vanity plates and a red Mustang. When Vinsent arrived at 6:40 a.m., these were the only two vehicles visible on the premises. As Vinsent approached the house, he saw a man in the driveway near the driver's side door of one of the vehicles. Vinsent approached the man and got within 20 feet of him. When he asked for "Steven Fox," the man turned and walked away with Vinsent following him. Vinsent identified himself and attempted to describe the documents he had. The man then entered the house through an unlocked door.

Vinsent continued to speak to the man as he entered the house and could see his shadow inside. Vinsent asked the man if he would come to the door. Receiving no reply, Vinsent identified the documents he had, stated the court date, and said that he was going to attach the summons and complaint to the door, which he did.

Vinsent saw only the side of the man's face as he approached him in the driveway. However, Vinsent opined that the man was defendant based on his refusal to talk to him.

While being examined as an adverse witness by defense counsel, Vinsent was asked if he could identify defendant. He responded that a man wearing a flannel shirt and sitting in the front row of the courtroom fit defendant's description. He explained that the man merely resembled defendant. On direct examination by plaintiff's counsel, Vinsent stated that a man sitting at the table in court also looked similar to defendant's description.

Donald Prewitt testified that he was defendant's tenant at 6N965 Roosevelt Road. He had lived there about four months prior to August 27, 1997. No one lived there except Prewitt and defendant. On August 28, 1997, Prewitt had a conversation with defendant about someone serving papers. Prewitt told defendant that no one had approached him with papers, but he had found them in the door the night before.

Prewitt saw defendant going out the back door sometime between 6 and 6:30 a.m. on August 27. Defendant owned several cars but usually commuted with either a red Mustang or a red pickup.

Defendant testified that at 7:25 a.m. on August 27, 1997, he was at work in Berwyn. He usually arrived at work at about 7:15 a.m. and it took him about an hour to commute. Defendant said that he was the manager of D.J. Cigarette Outlet, which was open from 8 ...


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