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Sutton v. Ekong

Court of Appeals of Illinois, First District, Second Division

July 9, 2013

SHERRIE SUTTON, Plaintiff-Appellee,
v.
EDWIN EKONG, Defendant-Appellant (Anthony Norris and James Major, Defendants).

Appeal from the Circuit Court of Cook County No. 08 L 13983 Honorable Deborah M. Dooling & Drella C. Savage Judges Presiding.

OPINION

SIMON, JUSTICE

¶ 1 Defendant, Edwin Ekong (Ekong), appeals from various orders of the circuit court of Cook County concerning the entry of a default judgment in favor of plaintiff, Sherrie Sutton, and against Ekong. On appeal, Ekong contends that the default judgment is void because the court did not obtain personal jurisdiction over him and that the court erred in striking his motion to vacate the judgment under section 2-1301(e) of the Illinois Code of Civil Procedure (Code of Civil Procedure) (735 ILCS 5/2-1301(e) (West 2010)) and denying his petition to vacate the judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). For the reasons that follow, we vacate the court's order entering a default judgment in favor of plaintiff and against Ekong.

¶ 2 BACKGROUND

¶ 3 On December 19, 2008, plaintiff filed a complaint against defendants, Ekong, Anthony Norris and James Major, asserting that, on July 26, 2007, plaintiff was driving in the vicinity of 103rd Street and Forest Avenue in Chicago when she came to a stop to avoid another vehicle, but that defendants failed to stop their vehicles such that a chain of collisions occurred involving plaintiff's vehicle thereby causing injuries to plaintiff. Plaintiff alleged that defendants breached their duties to exercise due care and caution in the operation of their vehicles so as to avoid injuring her and that she was severely injured as a direct and proximate result of their negligent acts. A summons was issued for Ekong that same day.

¶ 4 On January 2, 2009, a deputy sheriff attempted to serve Ekong with the summons and complaint at his residence on South Oglesby Avenue in Chicago, but was unable to do so and marked "no contact" as the reason those documents were not served on Ekong. On January 23, 2009, plaintiff filed a motion for the appointment of Stern Process and Investigations, LLC (Stern), a private detective agency, as a special process server, and the circuit court entered an order granting the motion that same day.

¶ 5 On March 10, 2009, Joanne Stoklasa, a special process server for Stern, filed an affidavit relating that she attempted to serve Ekong with the summons and complaint at his residence five times between February 7 and February 15, 2009, but was unable to do so because Ekong was avoiding service. Stoklasa related that she received no answer on February 7, 8, and 12; that on February 10 a man answered on the intercom and said "go away, I'm not coming downstairs for anything"; and that on February 15 a man answered on the intercom, said that Ekong was not home and refused to go to the main door. Stoklasa further related that Ekong's residence was a secure building and a visitor must be buzzed in by the tenant and that she spoke with a neighbor who said that Ekong resided at that building and was frequently at home.

¶ 6 On May 15, 2009, plaintiff filed a motion for service of Ekong by special order of the court under section 2-203.1 of the Code of Civil Procedure (735 ILCS 5/2-203.1 (West 2008)). Plaintiff asserted that she had been diligent in attempting to serve Ekong and that the inability to effect service upon him showed that he was evading service. Plaintiff pointed out that section 10-301 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/10-301 (West 2008)) provided that a defendant could be served through the Secretary of State if the defendant resided outside of Illinois and requested that the court grant her leave to serve Ekong in accordance with the rules for service set forth in section 10-301 of the Vehicle Code even though Ekong resided in Illinois because that manner of service was consistent with due process. On May 22, 2009, the court entered an order granting plaintiff's motion and granting plaintiff leave to serve Ekong in accordance with the rules for service through the Secretary of State set forth in section 10-301 of the Vehicle Code. On June 8, 2009, the Secretary of State accepted service on Ekong's behalf. On November 1, 2010, the cause of action between plaintiff and Norris was dismissed because the parties had reached a settlement agreement that Norris would pay damages of $60, 000 to plaintiff.

¶ 7 On January 13, 2011, plaintiff filed a motion for default judgment against Ekong because he had been served through the Secretary of State and had failed to timely appear, answer, or otherwise plead. On April 13, 2011, the court entered a default judgment in favor of plaintiff and against Ekong. On May 23, 2011, the court entered an order awarding plaintiff $199, 998.32 in damages. On August 3, 2011, plaintiff filed a citation to discover Ekong's assets, and Ekong was personally served with that citation on August 10, 2011, at 10830 South Halsted Street in Chicago. Ekong filed his appearance on September 13, 2011.

¶ 8 On October 31, 2011, Ekong filed a combined petition to vacate the default judgment under section 2-1401 of the Code of Civil Procedure and motion to quash service, asserting that the court did not have personal jurisdiction over him because service through the Secretary of State was improper and that, even if it did, he had a meritorious defense to plaintiff's negligence claim and had exercised due diligence in filing his appearance and petition to vacate. Ekong attached a number of documents to his petition, including an investigation report dated June 29, 2009, prepared for plaintiff by Subrotech, LLC, a debtor location and asset research company. In that report, Subrotech related that although it was unable to contact Ekong to determine if he had auto insurance, it had learned that Ekong was a self-employed doctor of osteopathy with his own practice at 10830 South Halsted Street in Chicago. Ekong also attached an order entered by the Secretary of State on March 4, 2010, as part of a license revocation hearing regarding the car accident at issue and dismissing the cause against Ekong, finding that he was not at fault for the accident and that there was not a reasonable possibility that a judgment of more than $500 would be entered against him.

¶ 9 On November 21, 2011, plaintiff filed a response asserting that special service through the Secretary of State was proper because Ekong was evading service and plaintiff did not know that Ekong owned a business in Chicago at that time and that Ekong did not exhibit due diligence in presenting a meritorious defense or in bringing his petition to vacate. Plaintiff attached documents to her response to support her claims that she sent a copy of the summons and complaint to Ekong's residential address on July 1, 2009, and left several messages with Ekong's staff at his business address after having learned of that address on June 29, 2009, and that Ekong received a copy of the motion for default judgment at his business address on January 28, 2011. Plaintiff also maintained that her attorney spoke with Ekong on April 12, 2011, the day before the entry of default judgment, explained to him that the case was set for a hearing on the motion for default judgment, and advised him to attend the hearing, but Ekong said he had done nothing wrong and failed to appear at the hearing. Plaintiff further maintained that Ekong received the notice of the prove-up hearing on May 18, 2011, but did not attend that hearing, and that counsel for plaintiff provided Ekong with a copy of the judgment order and memorandum of judgment on June 13, 2011.

¶ 10 On March 19, 2012, the court entered an order denying Ekong's petition to vacate and motion to quash service. In doing so, the court found that service upon Ekong through the Secretary of State was proper under section 2-203.1 of the Code of Civil Procedure because that method of service conformed with principles of due process and that Ekong had not set forth a meritorious defense to the default judgment, did not act diligently in presenting his claim to the court in the original action, and did not act diligently in filing his petition to vacate.

¶ 11 On April 16, 2012, Ekong filed a motion to reconsider the court's ruling, asserting that service through the Secretary of State was improper under section 2-203.1 of the Code of Civil Procedure because plaintiff did not make a diligent inquiry as to his location, as plaintiff did not attempt to serve him at his easily obtainable business address. Ekong also asserted that plaintiff failed to comply with the rules for service through the Secretary of State by failing to send him notice of service by registered mail and that he was entitled to have the matter proceed as if he had timely appeared and no default judgment had been entered because he petitioned the court to set aside that judgment within one year of its entry. Ekong maintained that the default judgment against him was void and unenforceable for lack of personal jurisdiction and, regardless, that he had a meritorious defense to plaintiff's negligence claim and had been diligent in filing his petition to vacate.

ΒΆ 12 On July 2, 2012, the court entered an order denying Ekong's motion to reconsider. In doing so, the court declined to consider Ekong's claims regarding plaintiff's alleged failure to send notice of service by registered mail and Ekong's alleged right to have the matter proceed as if he had timely appeared because those claims were not included in Ekong's petition to vacate and, therefore, were not proper matters for a motion to reconsider. In addition, the court determined that it had not misconstrued existing law in considering whether plaintiff had made a diligent inquiry into Ekong's whereabouts prior to requesting special service or whether Ekong had established a meritorious defense. Regarding plaintiff's diligent inquiry into Ekong's ...


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