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Sarkissian v. Chicago Board of Education

January 29, 2001

SAM SARKISSIAN, AS PARENT AND GUARDIAN OF SONYA SARKISSIAN, A MINOR, APPELLEE,
v.
THE CHICAGO BOARD OF EDUCATION, APPELLANT.



The opinion of the court was delivered by: Justice Miller

Docket No. 88530-Agenda 14-May 2000.

The plaintiff, Sam Sarkissian, as parent and guardian of Sonya Sarkissian, a minor, obtained a default judgment against the defendant, the Chicago Board of Education, in the circuit court of Cook County after the Board failed to appear in this personal injury action. The circuit court later vacated the default judgment as void, finding that the Board had not been properly served with summons. The appellate court reversed, holding that service was proper. 308 Ill. App. 3d 137. We allowed the Board's petition for leave to appeal (177 Ill. 2d R. 315(a)), and we now reverse the judgment of the appellate court and affirm the judgment of the circuit court.

The procedural history of this case requires only a brief recitation. Sam Sarkissian, as parent and guardian of Sonya Sarkissian, a minor, commenced the present action on January 26, 1988, by filing a complaint in the circuit court of Cook County. The complaint alleged that Sonya sustained injuries while a student at a Chicago public school on September 24, 1985, when school authorities failed to promptly summon or render appropriate medical assistance after Sonya had an epileptic seizure. According to the complaint, the Board and its agents were aware, prior to that time, that Sonya had epilepsy. A copy of the plaintiff's complaint was left with the receptionist for the Board's attorney on February 1, 1988. The Board never answered the complaint or otherwise entered an appearance, however, and a default judgment was entered against it on April 17, 1990, awarding the plaintiff $10 million in damages.

After a lengthy and unexplained delay, the plaintiff moved to revive the default judgment on August 25, 1997. See 735 ILCS 5/12-108(a) (West 1998) (requiring plaintiff to file petition to revive judgment that is more than seven years old). It appears that the Board did not receive notice of the default judgment until September 2, 1997, when it received a copy of the plaintiff's revival petition. The Board then moved to vacate the default judgment as void. The Board argued that the circuit court lacked jurisdiction in this case because the Board had never been properly served with summons. Section 2-211 of the Code of Civil Procedure required that, with respect to an entity like the Board, summons be served on "the president, clerk, or officer corresponding thereto." In the present case, the summons was not addressed to any specific individual, and apparently it was left with a receptionist in the Board's law department. The Board contended that service did not comply with the requirements of section 2-211, and that the circuit court therefore never acquired jurisdiction over it.

The circuit court agreed with the Board, concluding that service in this case was not in compliance with the statute. In the alternative, the plaintiff argued that the Board was equitably estopped from challenging service in this case because of the Board's frequent acceptance of service at its law department in the past. The circuit judge rejected this contention as well. In an order entered July 21, 1998, the court vacated the default judgment previously entered against the Board. At the same time, the court authorized the issuance of an alias summons to the Board. That summons, addressed to the president of the Board, was apparently served the following week.

The plaintiff appealed from the order of the circuit court vacating the default judgment. As a preliminary matter, the appellate court rejected the Board's objection that the court lacked jurisdiction over the appeal; unlike the Board, the appellate court believed that the order vacating the default judgment was a final, appealable order. On the merits of the case, the appellate court held that the Board had been properly served under section 2-211 of the Code of Civil Procedure. Finding the statute to be ambiguous, the appellate court analyzed the position and duties of the Board's attorney and concluded that the attorney qualified as a person who could be served under that provision. The appellate court further believed that the attorney could delegate to the receptionist for the law department the duty of receiving process. 308 Ill. App. 3d at 151-52. The appellate court therefore reversed the circuit court order vacating the default judgment and remanded the cause for further proceedings. We allowed the Board's petition for leave to appeal (177 Ill. 2d R. 315(a)). We granted leave to the Illinois Association of School Boards, the Illinois Association of Park Districts, the Illinois Library Association, and the Illinois Governmental Association of Pools to submit a joint brief as amici curiae in support of the Board. 155 Ill. 2d R. 345.

We are met at the outset with a challenge to our jurisdiction in this appeal. The Board renews here its argument that the order of the circuit court vacating the default judgment was not a final, appealable order. In support of its jurisdictional objection, the Board observes that the plaintiff's complaint was still pending in the circuit court at the time the plaintiff purported to appeal from the adverse order. In the proceedings below, the circuit judge entered an order on July 21, 1998, vacating the default judgment as void. At the same time, the judge authorized the issuance of an alias summons, and one addressed to the Board president apparently was left with an employee of the Board on July 28, 1998. After that, the plaintiff filed a notice of appeal on August 17, 1998, under Rule 303 (155 Ill. 2d R. 303). Thus, at the same time the plaintiff filed the appeal from the circuit court order vacating the default judgment, the plaintiff's action was pending in the circuit court. For these reasons, the Board contends that the order entered by the circuit court vacating the default judgment should not in this case be considered a final, appealable order.

Cases from the appellate court are divided on this question. Some decisions of the appellate court have ruled that an order vacating a default judgment on grounds of improper service is a final, appealable order. See Cavanaugh v. Lansing Municipal Airport, 288 Ill. App. 3d 239 (1997); DiNardo v. Lamela, 183 Ill. App. 3d 1098 (1989); In re Marriage of Kelso, 173 Ill. App. 3d 746 (1988); Connaughton v. Burke, 46 Ill. App. 3d 602 (1977). Other decisions, however, have reached the opposite conclusion. See Nelson v. United Airlines, Inc., 243 Ill. App. 3d 795 (1993); Stankowicz v. Gonzalez, 103 Ill. App. 3d 828 (1981); Mares v. Metzler, 87 Ill. App. 3d 881 (1980). The appellate court below cited the decision in Cavanaugh in support of its conclusion that it had jurisdiction over the present appeal. 308 Ill. App. 3d at 147-48.

Cavanaugh in turn relied on this court's opinion in Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569 (1943), and it is that precedent that the plaintiff cites for the contention that the order of the circuit court vacating the default judgment was a final, appealable order. In Brauer, this court considered whether an order quashing service of summons on a foreign corporation was a final, appealable order. The court concluded that the order was final and appealable, explaining:

"It is true, the order, in form, was only an order quashing the service of the summons. It was not an order dismissing the suit, nor was it in the form of a final judgment on the merits. Regardless of its form, however, it was a complete and final disposition of the case, based upon the conclusion the court had reached that appellee was not amenable to the service of process in the manner in which the summons was served. On that issue it was not only as effectual and conclusive but it was as final as any decision upon the merits. The result was the same.

If it should be held that an order of this character is not appealable, then there would be no method by which a plaintiff could obtain a review of an order of the trial court quashing the service of process." Brauer, 383 Ill. at 577-78.

The Board argues that Brauer is distinguishable from the present case, however, because in Brauer the defendant was not amenable to service of process, and the case was effectively at an end. The court stated:

"If an order quashing the service of process is not an appealable order, then the cause would be left on the docket of the trial court, undisposed of in form only, when, as a matter of fact, to all intents and purposes the cause was, in fact, finally disposed of. The plaintiff could not proceed further, except by obtaining service in some other manner. The facts alleged in this case, which must be accepted as true, show that service could not be obtained in any other manner. The order quashing the service was, therefore, as final and conclusive as any order which could have been entered. It was a decision on an issue which effectively barred any further proceedings by the plaintiff against the sole defendant in the cause. It was the only order the court was authorized to enter. To hold that no appeal would lie from such an order would be to leave appellant in the position of having its suit finally disposed of and deny to it the right to have that order reviewed." Brauer, 383 Ill. at 578.

In the present case, in contrast, the order entered by the circuit court was not a final disposition of the matter. Here, the only impediment to proper service, and obtaining jurisdiction over the defendant, was the identity of the person who received the summons. The Board of Education is amenable to service, and the circuit court in the present case authorized the issuance of an alias summons to the Board.

We do not interpret Brauer as establishing a rule that any order quashing service is a final, appealable order. Rather, we believe that the character of an order depends on the circumstances of the case. In some instances, as in Brauer, it is properly characterized as final and appealable. In other cases, however, it is not. The circuit court's action here left the entire case at issue, and it manifested the judge's intent to retain jurisdiction over the matter. See Nelson v. United Airlines, Inc., 243 Ill. App. 3d 795, 800 (1993). For these reasons, we do not believe that the order vacating the default judgment in this case may properly be characterized as a final, appealable order.

Contrary to the view expressed by Chief Justice Harrison in his dissent, the Board's motion challenging the default judgment was not based on section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401 (West 1998). That provision was not available to the Board as a remedy in this case. Although the Board refers to section 2-1401 in its motion and its brief, it does so only to distinguish the provision from the remedy it is pursuing here. See R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309-10 (1986); 735 ILCS 5/2-1401(f) (West 1998) ("Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief"). A petition for relief from judgment under section 2-1401 must be filed within two years after entry of the judgment being challenged. 735 ILCS 5/2-1401(c) (West 1998). In the present case, the Board was attacking a judgment that was more than seven years old, and therefore it could not have proceeded under section 2-1401. A void judgment may be challenged at any time, however, and the Board properly did so by motion. See State Bank v. Thill, 113 Ill. 2d 294, 308-09 (1986); Cavanaugh v. Lansing ...


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