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Margaret O'halloran, As Special Administrator v. Dana Luce

March 29, 2013

MARGARET O'HALLORAN, AS SPECIAL ADMINISTRATOR
THE ESTATE OF HENRY LEGEAR, DECEASED,
PLAINTIFF-APPELLEE,
v.
DANA LUCE, AND ROBERT F. HARRIS, COOK COUNTY PUBLIC GUARDIAN, AS LIMITED GUARDIAN OF THE ESTATE OF
A DISABLED PERSON, IRWIN J. SOLGANICK AND WILLIAM D. MADDUX, DEFENDANT-APPELLANT.



Appeal from the of Circuit Court of Cook County. No. 08 L 12620 Honorable Dana Luce, Judges Presiding.

The opinion of the court was delivered by: Justice Cunningham

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Delort concurred in the judgment and opinion.

OPINION

¶ 1 This appeal arises from a December 12, 2011 order entered by the circuit court of Cook County which denied the motion to reconsider an order denying the defendant's motion to quash service filed by defendant-appellant Robert F. Harris, Cook County Public Guardian (Public Guardian), as limited guardian of the estate of Dana Luce, a disabled person. The appeal arose prior to the resolution of the underlying case and presented a certified question to this court pursuant to Illinois Supreme Court Rule 308 (Rule 308) (eff. Feb. 26, 2010). Specifically:

"Whether service by publication pursuant to and upheld by this court's September 13, 2010 and November 3, 2011 orders under section 2-203.1 of the Illinois Code of Civil Procedure satisfies due process under all of the circumstances in this case."

This case presents a procedurally interesting and complicated set of facts and circumstances of first impression. On appeal, the Public Guardian argues that: (1) he has standing to challenge the trial court orders that authorized service by publication; and (2) service by publication on a mentally disabled individual does not satisfy due process. For the following reasons, we answer the certified question in the negative and remand the matter to the circuit court of Cook County for further proceedings consistent with this opinion.

¶ 2 BACKGROUND

¶ 3 The underlying case arose from a November 12, 2008 complaint filed in the circuit court of Cook County by plaintiff-appellee Margaret O'Halloran (O'Halloran), as special administrator of the estate of Henry LeGear, against defendant-appellant Dana Luce (Luce) and the Public Guardian. Subsequently, the trial court dismissed the Public Guardian as a party-defendant with prejudice and granted O'Halloran permission to serve Luce by publication. On June 22, 2011, the trial court entered a default judgment against Luce. The trial court ordered the Public Guardian to appear and represent Luce. The Public Guardian then filed a motion to quash service by publication, which the trial court denied. On December 5, 2011, the Public Guardian filed a motion to reconsider. The trial court denied the Public Guardian's motion to reconsider, but certified a question of law to this court pursuant to Rule 308. This appeal followed.

¶ 4 On April 11, 2002, an order was entered by the circuit court of Cook County which appointed the Public Guardian as limited guardian of the estate of Luce. The order stated "the Public Guardian has authority to investigate and secure all assets and has authority over all assets over $1,000.00."

On September 25, 2002, O'Halloran's decedent, Henry LeGear, died as a result of a fire that occurred in a residence located at 634 Prairie Avenue in Wilmette, Illinois (Wilmette residence). The building was apparently owned by Luce. On September 10, 2004, O'Halloran, as special administrator of the estate of Henry LeGear, filed a complaint against Luce and the Public Guardian under case number 04 L 10299 (original complaint).*fn1 She named both Luce and the Public Guardian as defendants. In response to the original complaint, the Public Guardian filed a motion to dismiss himself as a party-defendant.*fn2 On April 8, 2005, the trial court granted the Public Guardian's motion to dismiss with prejudice. The court further ordered that "the [Public Guardian] is barred from arguing their lack of involvement in this case as a basis for challenging any future award in this case, if any is awarded." On November 16, 2007, O'Halloran voluntarily dismissed the original complaint.

¶ 5 On November 12, 2008, O'Halloran refiled her complaint against Luce and the Public Guardian under case number 08 L 12620 (refiled complaint). Again, she named both Luce and the Public Guardian as defendants. O'Halloran alleged that at the time of the fire, Luce owned or had a beneficial interest in, possessed, maintained and controlled the Wilmette residence where the fire occurred. Further, O'Halloran alleged that LeGear died as a result of Luce's negligence in failing to maintain the electrical system and failing to ensure that adequate and operable smoke detectors were located in the Wilmette residence. Count I alleged negligence and sought damages against Luce and the Public Guardian because LeGear's cause of action for his injuries caused by the fire survived to his estate pursuant to section 27-6 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/27-6 (West 2002)). Count II alleged negligence and sought damages against Luce and the Public Guardian under the Wrongful Death Act (740 ILCS 180/1 (West 2002)). In response to the refiled complaint, the Public Guardian again filed a motion to dismiss himself as a party-defendant.*fn3 In his motion to dismiss, the Public Guardian argued that he should be dismissed as a defendant from the refiled complaint because: (1) the claims alleged against him were barred by res judicata; (2) the claims alleged against him were barred by the one-year statute of limitations pursuant to the Local Government and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101 (West 2002)); (3) O'Halloran failed to state a cause of action because she cited no law that created a duty on the part of the Public Guardian; and (4) O'Halloran failed to state a cause of action because there was no allegation that the Public Guardian owned the Wilmette residence. On June 11, 2009, the trial court granted the Public Guardian's motion to dismiss the refiled complaint with prejudice.

¶ 6 On September 13, 2010, O'Halloran filed a motion for leave to utilize alternative means of service for the refiled complaint, pursuant to section 2-203.1 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-203.1 (West 2010)). Specifically, O'Halloran requested the court's permission to serve Luce by publication. O'Halloran's motion for alternative service by publication claimed that since August 2004, Luce had lived as a homeless person in the area of Evanston, Illinois. O'Halloran further claimed that when the original complaint was filed, Luce could not be located by investigators. O'Halloran argued that in order to serve Luce in the refiled complaint, she had searched the internet, inquired of the Wilmette Police Department and hired an investigator, but was still unable to locate Luce. Thus, O'Halloran argued that the only available means of service was by publication. On that same day, the trial court granted O'Halloran's motion for alternative service by publication.

¶ 7 On November 4, 11, and 18, 2010, the notice of suit appeared in local newspapers published by the Pioneer Press. The notice stated that Luce was required to file an appearance by December 10, 2010. Luce did not file an appearance. On January 11, 2011, O'Halloran filed a motion for a default judgment.

¶ 8 On February 8, 2011, the trial court entered a case management order which stated that O'Halloran was to hire a special process server for the purpose of effectuating personal service on Luce. On February 16, 2011, the trial court appointed David H. Will (Will) as special process server for the purpose of effectuating personal service on Luce. On March 17, 2011, Will sent a letter to O'Halloran explaining that he was unable to locate Luce. Will stated that he had previously investigated Luce in 2004 on behalf of the Public Guardian, and was only able to contact Luce at soup kitchens in the area of Evanston, Illinois. Will returned to the soup kitchens and spoke with volunteers and patrons regarding Luce's location, however, he was unable to locate Luce. Will then searched public record sources and learned that an individual named Dana Luce had filed civil suits in the United States District Court for the Western District of Washington at Tacoma in 2006, 2008, and 2010. Will was not able to determine if this individual was the same person who is at issue in this case.

ΒΆ 9 On June 22, 2011, the trial court entered a default judgment against Luce. On July 20, 2011, the probate ...


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