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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).

Held [*]

The default judgment entered against defendant in connection with an automobile accident was vacated, notwithstanding the fact that defendant was served pursuant to an order for service through the Secretary of State after six unsuccessful attempts to serve defendant at his residence, since service through the Secretary of State was improper where, inter alia, plaintiff did not first attempt to serve defendant at his easily obtainable business address and defendant was personally served with the motion for a default judgment, notice of the prove-up hearing, and a citation to discover assets at that address.

Appeal from the Circuit Court of Cook County, No. 08-L-13983; the Hon. Deborah M. Dooling and the Hon. Drella C. Savage, Judges, presiding.

Mark L. Karno, of Mark L. Karno & Associates, of Chicago, for appellant.

Hugh C. Griffin and Matthew W. McElligott, both of Hall, Prangle & Schoonveld LLC, of Chicago, for appellee.

Panel SIMON, JUSTICE delivered the judgment of the court, with opinion, Justices Quinn and Connors concurred in the judgment and opinion.

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.

ΒΆ 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 ...


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