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Sarkinssian v. Chicago Board of Education

September 30, 1999

SAM SARKISSIAN, AS PARENT AND GUARDIAN OF SONYA SARKISSIAN, A MINOR, PLAINTIFF-APPELLANT,
V.
CHICAGO BOARD OF EDUCATION, DEFENDANT-APPELLEE



The opinion of the court was delivered by: Justice Greiman

Appeal from the Circuit Court of Cook County Honorable Joseph N. Casciato, Judge Presiding.

In January 1988, plaintiff Sam Sarkissian, as parent and guardian of Sonya Sarkissian, a minor, filed a personal injury action against defendant Chicago Board of Education (Board), delivered a summons and a copy of the complaint to the sheriff of Cook County, upon which the sheriff acknowledged service of summons. After the Board failed to file an appearance, plaintiff notified the Board, by certified mail, return receipt requested, that he would be seeking the entry of a default judgment. Subsequently, on three different and independent occasions, the trial court found the Board to be in default. The trial court then entered a default judgment against the Board in the amount of $10 million.

Plaintiff filed a petition to revive the $10 million default 1judgment in 1997. In response, the Board contested the entry of the judgment, asserting that the service of process for the underlying personal injury complaint in 1988 was defective. Plaintiff now appeals the trial court's order vacating the default judgment as void for lack of jurisdiction based on defective service of summons upon the Board.

The primary and dispositive issue on appeal is whether the service of process on the Board in February 1988 was effectuated in accordance with the governing statute, i.e., section 2-211 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-211 (now 735 ILCS 5/2-211 (West 1998)). In the alternative, plaintiff asserts that the doctrine of equitable estoppel applies to the facts of this case and precludes the Board from contesting the service of process. We find that the service of summons and complaint was valid and, thus, need not address plaintiff's alternative position based on equitable estoppel. Accordingly, we reverse the trial court's order vacating the default judgment and remand the matter to the circuit court for consideration of plaintiff's petition to revive the default judgment.

On January 26, 1988, plaintiff filed a personal injury action against the Board. The complaint alleged that the minor, Sonya Sarkissian, was an eight-year-old student enrolled in special classes and on September 24, 1985, she suffered an epileptic seizure while attending school. Before the minor's seizure, the Board was aware that the minor was an epileptic. The complaint further alleged that, at the time of the minor's seizure, the Board failed to contact or provide proper medical authorities. The record further reveals that, as a result of her seizure, the minor suffered brain damage and is now a quadriplegic.

On February 1, 1988, a deputy sheriff, Marvin Thomas, delivered a summons addressed to the Chicago Board of Education at 1819 West Pershing in Chicago, i.e., the Board's corporate headquarters. The summons was given to and accepted by Yolanda Chavez, who was then working as the receptionist in the Board's law department. The return of summons establishes that Thomas served the summons on February 1, 1988, to "M. Chavez." The summons was then date stamped "Feb 03 1987 [sic]" (1988). In turn, the summons was routed to one of the Board's assistant attorneys, John Wren.

Wren testified in his deposition that he reviewed the documents, determined that the matter involved a personal injury action, and wrote the words "personal injury" on the documents for the purpose of directing it to the law division's workers' compensation/personal injury division at 188 West Randolph. Wren forwarded the complaint on or about February 4, 1988. Wren recalled that in 1988, Robert Wilson was in charge of the workers' compensation/personal injury division.

Wilson testified in his deposition that, after he reviewed the matter, he routed the documents (summons and complaint) to Martin Boyer Company (hereinafter Martin Boyer) by letter dated February 9, 1988. Martin Boyer was the Board's third-party claims administrator and claims adjustor. Martin Boyer was in charge of the Board's personal injury cases and was responsible for referring the cases to outside counsel for handling. Wilson testified that a daily pickup and delivery system existed from the 188 West Randolph office to Martin Boyer.

After the Board failed to file an appearance, plaintiff, on July 28, 1988, sent the Board notice of his motion that he would be seeking the entry of a default against the Board "as the [Board] was served on February 1, 1988, but has failed to appear or answer." Plaintiff sent this notice via certified mail and the Board received it on July 29, 1988.

On three separate subsequent occasions, defendant was found in default. On August 29, 1988, the trial court (Judge Willard J. Lassers) granted plaintiff's motion to enter a default judgment against defendant, stating that defendant was served on February 1, 1988, but failed to appear or answer. Judge Lassers also ordered the matter for prove-up. On January 29, 1990, Judge Lester D. Foreman held defendant in default, finding that defendant failed to appear to answer the trial call. On March 27, 1990, Judge Angelo D. Mistretta entered an order holding defendant to be in default. Finally, on April 17, 1990, the trial court entered a default judgment against defendant in the amount of $10 million.

On August 25, 1997, plaintiff filed a petition to revive the default judgment entered on April 17, 1990. On September 2, 1997, defendant was served with summons in connection with the petition for revival of judgment. It is interesting to note that this summons was served in the same manner as the previous summons, i.e., not being served on the president or secretary of the Board but, rather, on a receptionist (June McBride). On October 1, 1997, defendant filed an appearance.

On November 5, 1997, defendant filed its motion to vacate the default judgment, which was the subject of plaintiff's revival petition, on the grounds that the service of process performed on February 1, 1988, was defective and did not comply with the statutory requirements of section 2-211. Based on its assertion that service was improper, defendant maintained that the trial court had lacked jurisdiction to enter a default judgment.

During the course of discovery, the depositions of 12 persons, including former and current officers and employees of the Board, were taken. The deponents and their respective positions in February 1988 were: (1) Frank Gardner, the president of the Board; (2) Patricia Whitten, the chief counsel of the Board; (3) John Wren, the first assistant attorney for the Board; (4) Thomas Corcoran, the secretary for the Board; (5) Norma L. Tsuhako, the assistant secretary for the Board; (6) Robert A. Wilson, an assistant attorney for the Board; and (7) Yolanda Chavez, the receptionist for the Board's law department. Two former Board employees testified: Nancy Faulk, a former receptionist and clerical clerk in the law department, and Corkye Wills, a former office manager in the law department. Two deponents testified as to their separate investigations into the matter: William Morgan, a current assistant attorney for the Board and the successor of Wilson, and John Patton, an account manager at Martin Boyer. In addition, Marvin Thomas, the deputy sheriff who served the subject summons and complaint, testified.

The record, based upon these depositions, reveals that at the time of the contested service (February 1988), the Board and its law department shared premises at 1819 West Pershing Road in Chicago. The president of the Board, the secretary of the Board and support personnel were located on the sixth floor. The Board's law department, including its chief counsel, was located on the fifth floor. The law department also maintained offices at 188 West Randolph Street, which included the divisions for personal injury and workers' compensation.

The documents and testimony establish the route taken by the subject summons and complaint. A deputy sheriff (Thomas) delivered the subject summons and complaint to the fifth floor at Pershing Road. The receptionist for the law department (Chavez) accepted and date-stamped the documents. The first assistant attorney for the Board (Wren) reviewed the summons and complaint, wrote "personal injury" on the documents, and designated that the case be sent to the West Randolph Street office for handling. An assistant attorney in the West Randolph Street office (Wilson) received the subject documents and forwarded the case to Martin Boyer by letter dated February 9, 1988. A daily pickup and delivery system was in effect between the 188 West Randolph Street office and Martin Boyer. On July 29, 1988, the Board was notified by certified mail that plaintiff would be seeking a default judgment because the Board never filed an appearance. In 1991, when he was hired to succeed Wilson as an assistant attorney for the Board in the West Randolph Street office, Morgan was assigned to review the status of cases that had been sent to Martin Boyer. In his investigation, Morgan found that the file on the subject claim had been closed on September 22, 1989. Martin Boyer no longer has any paper records of the case because the files were destroyed pursuant to a record retention policy.

In her deposition, Whitten, the chief counsel for the Board, testified that she "was in charge of the law department and in charge of all litigation and legal matters concerning the Board of Education." As the Board's attorney, Whitten "reported directly to the Board by statute." Whitten testified that the receptionist in the law department had the authority to accept service of summons on behalf of the Board and it was part of her duties and that the law department "would accept service as a matter of accommodation." This practice was in existence when Whitten became the Board's attorney and is not aware of how it came into effect. Although Whitten "never received any specific authority" to accept service of summons for the Board, she continued the practice during her tenure as it existed since at least 1980. When asked whether she was ever informed or made aware "that the law department was acting outside of its scope of authority to accept service of summons on behalf of the" Board, Whitten responded: "I think it has statutory authority. *** I think the statute left that up to the attorney for the Board. *** What I think is that the attorney had the authority to determine the practice that was used. *** I think that was within the attorney's discretion." The practice in the office was for the person sitting at the receptionist desk to accept incoming summons. Whitten further testified that she, as an attorney for the Board, was one of its agents.

Whitten testified that Martin Boyer was "a vendor hired by the Board to handle claims." When Martin Boyer received the summons and complaint, it was required "to investigate it and assign outside counsel to it." Once the documents were submitted to Martin Boyer, the law department had no direct responsibility; however, on some particular cases, there might have been some consultation. Whitten is not aware of the present case and does not know what Martin Boyer did with it. Whitten is not aware of any personal injury case where the Board contested jurisdiction on the grounds of improper service after the law department was served with summons and complaint. To her knowledge, the Board was unaware of the procedure going on in the law department concerning acceptance of summonses. When asked whether she considered it inappropriate for the receptionist to accept service of summons, Whitten replied: "I can't answer the word inappropriate. I mean, it did not comply with the statute, but it was a practice of ours to do so for accommodation reasons."

Frank Gardner was president of the Board from about 1987 to 1989. The position of Board president was a volunteer position. Gardner did not recall ever receiving a service of summons and acknowledged that it was one of his duties as president. In his absence, Gardner believed that several other persons could accept service of summons, including the vice-president, any officer of the Board, the secretary of the Board, and Whitten:

"Q. Now in February of 1988, did Patricia Whitten have authority to accept service of summons on behalf of the Chicago Board of Education? A. In her position I would suppose she would. Q. Did the secretary of the Board of Education have authority to accept service of summons? A. I would think so. Q. And if service of summons was effectuated upon either the Department of Law or the secretary of the Board of Education, you considered that to be good and valid service on the Board of Education, correct, sir? A. I would think so."

Gardner understood that Whitten's responsibilities were "[t]o handle and interpret legal matters." Gardner never delegated, either orally or in writing, any authority to anyone to accept service of summons on his behalf. Gardner did not remember ever observing any deputy sheriff serving any person in the Board with service of summons and complaint. Gardner testified that if the personnel from the law department had accepted service of summons, he ...


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