Appeal from the Circuit Court of Union County. No. 10-L-25 Honorable Mark M. Boie, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Chapman and Wexstten concurred in the judgment and opinion.
¶ 1 On November 12, 2010, Ron E. Kosydor filed in the circuit court of Union County a complaint against the defendants, American Express Centurion Services Corporation and American Express Bank, F.S.B. (hereinafter referred to collectively as American Express), and Baker, Miller, Markoff & Krasny, LLC (hereinafter referred to as the law firm). The complaint alleged that American Express and its law firm had violated the Illinois Consumer Fraud and Deceptive Business Practices Act (the Act) (815 ILCS 505/1 to 12 (West 2008)) by engaging in debt collection activities against the plaintiff which were malicious and fraudulent because the defendants knew that the plaintiff did not owe them any money.
¶ 2 The defendants filed a motion to dismiss the plaintiff's complaint pursuant to sections 2-619(a)(4) and (a)(9) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2- 619(a)(4), (a)(9) (West 2010)). The motion argued that the plaintiff's claim against the law firm must be dismissed pursuant to section 2-619(a)(9) of the Code because the Act does not apply to attorneys. The motion further argued that the plaintiff's claim against American Express must be dismissed pursuant to section 2-619(a)(4) of the Code because it is barred by res judicata. American Express had previously obtained a judgment against the plaintiff in the circuit court of Union County, and it was this judgment that American Express was attempting to collect. The defendants argue that the plaintiff's complaint is actually attacking the validity of the underlying judgment based on a defense which could have been presented in that earlier lawsuit and the action is therefore barred.
¶ 3 The plaintiff filed a response to the motion to dismiss in which he argues that the judgment obtained by the defendants against "Ron Kosydor" had actually been entered against his father, Ron L. Kosydor. Accordingly, there was no identity of parties between the two actions, as required for the doctrine of res judicata to apply, nor was there an identity of causes of action. The plaintiff further explained that the court had obtained no personal jurisdiction over the plaintiff in the original action and he had not been a party to that case. That case was against his father and the judgment was obtained against the father. Accordingly, the plaintiff argues, he is not attacking that underlying judgment, there is no identity of causes of action, and res judicata does not apply.
¶ 4 The plaintiff's response to the motion to dismiss further alleges that the plaintiff, Ron E. Kosydor, resides at 3677 Milligan Hill Road, Alto Pass, Illinois. His father, Ron L. Kosydor, resides at 3805 Milligan Hill Road, Alto Pass, Illinois. The response also indicates that the plaintiff's social security number does not end in 3691 and is not the social security number listed on citations to discover assets in enforcement of the judgment. In an affidavit attached to his response, the plaintiff states that at all relevant times he has resided at 3677 Milligan Road. It asserts that the plaintiff had never applied "in my individual capacity" for any of the American Express credit cards on which the action was based and that the Ron Kosydor named in the original action was not him but his father. It asserts that the social security number listed on the citation to discover assets does not belong to him.
¶ 5 The defendants filed a reply to the plaintiff's response, and the plaintiff filed a response to the defendants' reply. We note that this plaintiff's response has a file stamp showing it was filed on March 20, 2012, long after the entry of the court's final order. However, the certificate of service shows that it was served on the defendants by mail on December 14, 2011, just two days prior to the December 16, 2011, hearing on the motion to dismiss. Attached to the response is a second affidavit of the plaintiff that was signed and notarized on November 30, 2011, again, prior to the hearing on the motion to dismiss. We conclude, then, that the pleading was properly presented to the circuit court by hand delivery at the hearing held December 16, 2011, and that it was considered by the circuit court in rendering its decision on December 19, 2011. Accordingly, we also will consider it.
¶ 6 The second affidavit of the plaintiff states that the plaintiff is the registered agent of HighRPMracer, Inc., and was served with the summons and complaint in the original action only in his capacity as registered agent of the corporate defendant. Only HighRPMracer, Inc., and the plaintiff's father, Ron L. Kosydor, were liable for any of the charges on the credit cards at issue.
¶ 7 A hearing was held on the motion to dismiss on December 16, 2011, but the hearing was not transcribed and has not been included in the record on appeal. The pertinent docket entry indicates that the court heard "statements from counsel" but does not indicate that evidence was taken.
¶ 8 On December 19, 2011, the circuit court of Union County entered an order dismissing with prejudice the plaintiff's complaint. Relying on Cripe v. Leiter, 184 Ill. 2d 185 (1998), the court ruled that the Act does not apply to attorneys. The court further ruled that res judicata did apply to bar the action against American Express. The court found that the plaintiff in the instant case was the same named defendant in the original case who had been personally served with summons in that case. Although he had been personally served with summons, he had taken no action at that time and a judgment had been entered against him. Accordingly, the court found, the parties are the same in both suits, as are the causes of action. The plaintiff could have raised as a defense in the original action what he was now arguing in response to the motion to dismiss: that the original debt had been incurred by his father and that the plaintiff had been the wrong defendant in the original suit. Accordingly, the plaintiff's complaint was dismissed with prejudice.
¶ 9 The plaintiff filed a motion for reconsideration in which, relying on Capital One Bank, N.A. v. Czekala, 379 Ill. App. 3d 737, 743 (2008), he argued that in a case of mistaken identity, as opposed to mere misnomer, the court does not obtain personal jurisdiction over the person named by mistake but served, and any judgment is void ab initio. This motion was denied, and the plaintiff now appeals.
¶ 10 In order to resolve this dispute, we must examine the proceedings in the original action. On November 9, 2007, American Express, through the law firm, filed a verified complaint in the circuit court of Union County against "Ron Kosydor and HighRPMracer, Inc." It alleged that "Defendant Kosydor" resided at 3677 Milligan Hill Road, Alto Pass, Illinois. This was, in fact, the plaintiff's address. HighRPMracer, Inc., was an Illinois corporation of which the plaintiff was admittedly the registered agent. The debt sought to be collected was accrued on business credit cards issued to Ron Kosydor and HighRPMracer, Inc., at the plaintiff's address.
¶ 11 On November 9, 2007, summons was issued to "Ron Kosydor and HighRPMracer, Inc." at 3677 Milligan Hill Road, Alto Pass, Illinois. This summons was returned unserved. On October 30, 2008, an alias summons was issued to "Ron Kosydor" at 3677 Milligan Hill Road, Alto Pass, Illinois. This summons was served on "Ron Kosydor" at Zaks ATV Zone, Carbondale, Illinois, on January 7, 2009. There is no dispute that this Ron Kosydor was the plaintiff. The plaintiff filed no answer or other pleading responsive to the complaint.
¶ 12 On April 14, 2009, an alias summons was issued to "HighRPMracer, Inc." at 3665 Milligan Hill Road, Alto Pass, Illinois. ...