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Mugavero v. Kenzler

November 09, 2000

PETER MUGAVERO AND MARLENE MUGAVERO, PLAINTIFFS-APPELLEES,
v.
DENNIS KENZLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County. No. 98--SC--2247 Honorable Michael T. Caldwell, Judge, Presiding.

The opinion of the court was delivered by: Justice Colwell

Defendant, Dennis Kenzler, appeals from a default judgment entered in favor of plaintiffs, Peter Mugavero and Marlene Mugavero. He argues that he was not properly served with process and that, as a result, the judgment is void for lack of personal jurisdiction. We vacate the judgment and remand the cause.

In their complaint, plaintiffs alleged that defendant negligently caused an automobile accident in which plaintiffs were injured. Each plaintiff sought $5,000 in damages. Apparently, a summons, a first alias summons, and a second alias summons were returned unserved. Daniel E. Kinnerk, a private detective, testified in an affidavit that defendant had moved from the address listed on the second alias summons and had left no forwarding address.

Plaintiffs moved orally for a third alias summons and for permission to serve defendant via the Secretary of State. On February 16, 1999, the court granted those motions, setting a return date of March 31, 1999. On the return date, the court found that service had been made. Because defendant had not filed an appearance or answer, the court entered a default.

Defendant made a special appearance and moved to quash service. He argued that service via the Secretary of State was not permitted by section 2--203.1 of the Civil Practice Law (735 ILCS 5/2--203.1 (West 1998)). On May 5, 1999, the court denied that motion.

On May 17, 1999, defendant was defaulted for failing to enter a general appearance. On June 11, 1999, the court entered judgment of $5,000 in favor of each plaintiff.

On June 30, 1999, defendant moved to reconsider his motion to quash service. He reiterated that section 2--203.1 did not permit service via the Secretary of State. He further asserted that, because he had always resided in Illinois, he was not subject to service on the Secretary of State pursuant to section 10--301 of the Illinois Vehicle Code (625 ILCS 5/10--301 (West 1998)). Defendant asked the court to void the judgment.

Defendant attached to his motion an affidavit that plaintiffs' attorney filed with the Secretary of State on February 19, 1999. In that affidavit, counsel stated that section 10--301 applied because defendant was a resident of Illinois at the time of the accident but had since become a nonresident. See 625 ILCS 5/10--301(a) (West 1998).

On October 8, 1999, after an evidentiary hearing, the court denied the motion to reconsider "pursuant to service under [section] 2--203.1." On November 8, 1999, defendant filed a notice of appeal. [Nonpublishable material removed under Supreme Court Rule 23.]

If a party is not properly served with summons, the court has no personal jurisdiction over that party. In that event, a judgment entered against that party is void, even if the party is aware of the proceedings. Because the question whether a court had personal jurisdiction is a question of law, our review is de novo. White v. Ratcliffe, 285 Ill. App. 3d 758, 763-64 (1996).

Defendant argues that he was not served in accordance with either section 2--203.1 of the Civil Practice Law or section 10--301 of the Illinois Vehicle Code. Plaintiffs do not profess that they made service under section 10--301, arguing only that they complied with section 2--203.1. When the trial court denied defendant's motion to reconsider, it expressed its agreement that service was made under section 2--203.1. Therefore, despite defendant's additional arguments, we will determine only whether plaintiffs served him in accordance with section 2--203.1 of the Civil Practice Law.

Section 2--203(a) of the Civil Practice Law states in part:

"Except as otherwise expressly provided, service of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, [or] (2) by leaving a copy at the defendant's usual place of abode, with some person of the family or a person residing ...


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