Case v. Ericson

2025 IL App (2d) 250111-U

• Court: Appellate Court of Illinois
• Decided: December 18, 2025
• Docket: 2-25-0111
• Status: Unpublished

Opinion

2025 IL App (2d) 250111-U No. 2-25-0111 Order filed December 18, 2025

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

STEVEN L. CASE, LISA M. CASE, and ) Appeal from the Circuit Court CAROUSEL ENTERPRISES, LLC, ) of Kane County. ) Plaintiffs-Appellees, ) ) v. ) No. 20-L-116 ) ERIC E. ERICSON, ) Honorable ) Kevin T. Busch, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice Kennedy and Justice Mullen concurred in the judgment.

ORDER

¶1 Held: Section 2-1401 petition challenging personal jurisdiction because of improper service was properly denied where process server’s affidavit established a presumption of valid service that was not overcome with clear and satisfactory evidence.

¶2 Pro se defendant, Eric E. Ericson, appeals the denial of his petition under section 2-1401

of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2022)) to vacate a default

judgment. Defendant argues that, due to a defect in the affidavit of personal service, the trial court

never obtained personal jurisdiction over him in the underlying action and, therefore, the default

judgment is void. We disagree and affirm. 2025 IL App (2d) 250111-U

¶3 I. BACKGROUND

¶4 On March 3, 2020, plaintiffs filed a four-count complaint against defendant. Plaintiffs

alleged that their residential property bordered defendant’s and that he posted “profane and

defamatory signs” on the lot line and faced them toward plaintiffs’ property. Plaintiffs also alleged

stalking, harassment, and threats by defendant. Along with their complaint, plaintiffs filed a

motion for a preliminary and permanent injunction prohibiting defendant from engaging in the

type of conduct alleged in the complaint.

¶5 On March 3, 2020, a summons was issued. In the “SERVE” box, defendant was listed at

a St. Charles address.

¶6 On March 5, 2020, the motion for injunctive relief was set for a hearing on March 17, 2020.

On June 29, 2020, the hearing was continued to August 3, 2020, for “service.” The continuance

order noted: “If plaintiff [sic] has not made good faith efforts to serve defendant by next date, case

may be non-suited.” An alias summons was issued on July 14, 2020. In the “SERVE” box,

defendant was listed at the same St. Charles address. The alias summons required defendant to

appear via Zoom on August 3, 2020.

¶7 On July 30, 2020, process server Heidi Berna filed an affidavit of service. For “Recipient

Name/Address,” the affidavit listed “[defendant], Kane County Judicial Center: 37W777 IL Rte.

38, 3rd Floor, Saint Charles, IL 60175.” For “Manner of Service,” the affidavit stated:

“Personal/Individual, Jul [sic] 30, 2020, 1:24 CDT.” For “Documents,” the affidavit listed “Alias

Summons & Verified Complaint; Exhibits ***; Verified Motion for Preliminary Injunction;

Exhibits; Notice of Hearing by Videoconference; Zoom Instructions.” Under “Additional

Comments,” the affidavit stated: “Successful Attempt: Jul [sic] 30, 2020, 1:24 CDT at Kane

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County Judicial Center [same address as above] received by [defendant]. Ethnicity: Caucasian;

Gender: Male; Weight: Thin; Height: 6’; Hair: Gray.” The affidavit further provided:

“Sgt. Derrick Feiza identified [defendant] as he approached the courtroom and

remained nearby during the service. I introduced myself to [defendant] outside of Room

311 and explained I was serving him with a [s]ummons & [c]omplaint that required his

Zoom appearance on Monday, August 3rd, 2020 at 9:00 AM. [Defendant] attempted to

ignore me by proceeding to the courtroom. The door was closed and locked. There was a

[b]ailiff standing at the door. I repeated myself as the three of us stood outside the door.

[Defendant] stated ‘I don’t have a Zoom hearing on Monday’ and asked the [b]ailiff to

open the door. [Defendant] was advised the room was not open. [Defendant] proceeded

into the hallway and would not accept the documents. I placed them on the ground near

the doorway of Room 311 and loudly announced ‘Sir you have been served.’ I immediately

left the area.”

The affidavit of service was signed by Berna and dated July 30, 2020.

¶8 On August 3, 2020, an order was entered continuing the matter to September 15, 2020, for

“status on pleadings.” The order directed defendant “to file appearance and responsive pleadings

by 9/1/20.”

¶9 Also on August 3, 2020, plaintiffs’ attorney filed an affidavit of service averring that, on

that same day, he “served *** The Nosh Company, LLC[ ],” by mailing to defendant, at his St.

Charles address, (1) the August 3, 2020, continuance order; (2) the March 3, 2020, complaint; and

the (3) the March 3, 2020, motion for injunctive relief. Plaintiffs’ attorney further averred:

“Although the affidavit of service establishes that defendant was properly served, I mailed these

documents to him so that he could not legitimately claim that he did not have the documents.”

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¶ 10 On September 10, 2020, plaintiffs filed a motion for default judgment. Plaintiffs noted that

defendant had not filed an appearance or any responsive pleadings.

¶ 11 On September 15, 2020, the trial court granted plaintiffs’ motion for a default judgment.

The court noted that defendant failed to file an appearance or any responsive pleadings despite

(1) Berna’s July 30, 2020, affidavit of service attesting to personal service upon defendant; (2) the

court’s August 3, 2020, order requiring defendant to file his appearance and responsive pleadings

by September 1, 2020; and (3) plaintiffs’ attorney’s August 3, 2020, affidavit attesting that he sent

defendant copies of the complaint, the motion for injunctive relief, and the August 3, 2020, order.

Accordingly, the court held defendant in default. The court continued the matter for the entry of

orders on the relief sought in the complaint.

¶ 12 On November 12, 2020, the trial court awarded plaintiffs compensatory damages and court

costs totaling $105,348.25. Further, the court permanently enjoined defendant from posting signs

on his property that “are visible from [p]laintiffs’ property ***, and which are profane, harassing,

and/or defamatory concerning [p]laintiffs or [p]laintiffs’ property, and which serve no legitimate

useful purpose.”

¶ 13 On October 31, 2024, plaintiffs filed a citation to discover assets. In an affidavit of service

filed on November 6, 2024, process server Mark Grena averred that he served the citation on

defendant at his St. Charles address. Grena described defendant as: “Age: 67; Ethnicity:

Caucasian; Gender: Male; Weight: 175; Height: 6’2”; Hair: Brown[.]”

¶ 14 On February 20, 2025, defendant filed a pro se petition to vacate the default judgment.

He claimed that the judgment was “void” because the trial court had not obtained personal

jurisdiction over him. He explained that he was “not *** properly served with the complaint and

summons according to due process of law.” According to defendant, Berna’s affidavit of service

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did not establish personal service upon him because she did not comply with section 2-203 of the

Code (735 ILCS 5/2-203 (West 2018)). First, Berna’s affidavit did not estimate defendant’s age

as required by section 2-203(b) (id. § 2-203(b)). Second, Berna’s physical description of defendant

did not match the physical descriptions in either Grena’s affidavit of service or defendant’s current

Illinois driver’s license. Third, Berna did not comply with section 2-203(a) (id. § 2-203(a))

because, by her own admission, she did not leave the documents with defendant but rather left

them “on the ground near the doorway of Room 311.” Defendant also asserted that plaintiffs did

not send him notice of the entry of the default judgment, contrary to the trial court’s directive; that

defendant had “[no] clue” why plaintiffs served documents on “The Nosh Company, LLC”; that

plaintiffs knowingly and consistently used the wrong address to serve defendant; and that

defendant did not receive any court documents when he was in jail from August 4, 2020, to

November 16, 2020, during which time the default judgment was entered.

¶ 15 On March 12, 2025, plaintiffs filed a motion to dismiss defendant’s section 2-1401 petition

and to impose sanctions on defendant. Plaintiffs argued that (1) personal service upon defendant

by leaving the papers on the courthouse floor was proper because defendant refused to take them

and (2) defects in Berna’s affidavit did not invalidate service because defendant never contested

that he was the individual served with the papers. Plaintiffs asked for an award of costs as a

sanction.

¶ 16 On March 14, 2025, the trial court held a hearing on defendant’s petition. Defendant

appeared pro se. The court began by commenting that defendant had not filed an appearance in

the matter. Plaintiffs’ counsel then noted that he had filed a response to the petition two days

earlier and was not sure if the court had received it. Counsel was prepared to respond orally to the

petition. Defendant said he had not received the response and “[did not] know if it [was] 28 days

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or 30 days to respond or whatever.” Defendant was “not going to say anything” until he knew

“what [was] going on.” The court declined to continue the matter, remarking that defendant had

had 30 days to hire an attorney but did not do so. The court asked plaintiffs’ counsel for argument.

Counsel observed that, unlike “abode service and other alternative services,” a return or affidavit

of personal service has a presumption of validity that cannot be overcome except by clear and

convincing evidence. Counsel noted that defendant did not contest the facts asserted in Berna’s

affidavit and thus the presumption of valid service stood. When the court again invited defendant

to respond, he reiterated that he was “not prepared to argue it because it is a 28- or 30-day time.”

The court found no need for “additional argument” and denied defendant’s petition for the

following reasons:

“The affidavit of service indicates that you were personally served outside of Courtroom

311 and that you were identified by the officer serving process. And you don’t deny that.

And your pleading is woefully insufficient in attempting to attack personal service.

You attempt to avoid it by arguing what could be described as—I don’t want to say

technicalities because they really aren’t because the service was personal. And again, you

don’t deny that. ***.”

The court did not address the request for costs.

¶ 17 Defendant’s timely notice of appeal followed.

¶ 18 II. ANALYSIS

¶ 19 At issue in this appeal is whether the trial court properly denied defendant’s section 2-1401

petition alleging that the court lacked personal jurisdiction over him in the underlying action

because of improper service.

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¶ 20 Section 2-1401 provides a comprehensive statutory procedure authorizing a trial court to

vacate or modify a final order or judgment older than 30 days. Smith v. Airoom, Inc., 114 Ill. 2d

209, 220 (1986). “[A] section 2-1401 petition can present either a factual or legal challenge to a

final judgment or order.” Warren County Soil & Water Conservation District v. Walters, 2015 IL

117783, ¶ 31. “In a section 2-1401 petition, the primary facts ‘are not those which would establish

the underlying action, but rather facts which are sufficient merely to support an order vacating the

judgment.’ ” Statia v. Orlet, 2023 IL App (5th) 220731, ¶ 12 (quoting Cunningham v. Miller’s

General Insurance Co., 188 Ill. App. 3d 689, 693 (1989)); see Walters, 2015 IL 117783, ¶ 31 (“A

proceeding under section 2-1401 constitutes an independent and separate action from the original

action ***.”).

¶ 21 “As a general rule, petitions brought pursuant to section 2-1401, to be legally sufficient,

must be filed within two years of the order or judgment, the petitioner must allege a meritorious

defense to the original action, and the petitioner must show that the petition was brought with due

diligence.” Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002). However,

“[n]othing contained in [section 2-1401] affects any existing right to relief from a void order or

judgment, or to employ any existing method to procure that relief.” 735 ILCS 5/2-1401(f) (West

2022). “[T]he allegation that the judgment or order is void substitutes for and negates the need to

allege a meritorious defense and due diligence.” Sarkissian, 201 Ill. 2d at 104. “Where, as here,

a judgment is challenged as void due to lack of personal jurisdiction stemming from defective

service of process, the section 2-1401 petition presents a purely legal challenge, which we review

de novo.” Ebulon Financial Group, LLC v. Politanska, 2025 IL App (1st) 240948, ¶ 26.

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¶ 22 Defendant’s sole argument on appeal is that plaintiffs’ personal service upon him was

insufficient, which deprived the trial court of personal jurisdiction and rendered the default

judgment void.”

¶ 23 In a civil action, “[p]ersonal jurisdiction can only be obtained by compliance with the

statutory manner of service of process.” Statia, 2023 IL App (5th) 220731, ¶ 15. Under section

2-203(a) of the Code (735 ILCS 5/2-203(a) (West 2018)), “service of summons upon an individual

defendant shall be made” by, inter alia, “leaving a copy of the summons with the defendant

personally.” Section 2-203(b) of the Code (id. § 2-203(b)) requires the process server to record

specific details about the person served and the place and time of service:

“(b) The officer, in his or her certificate or in a record filed and maintained in the

Sheriff’s office, or other person making service, in his or her affidavit or in a record filed

and maintained in his or her employer’s office, shall (1) identify as to sex, race, and

approximate age the defendant or other person with whom the summons was left and

(2) state the place where (whenever possible in terms of an exact street address) and the

date and time of the day when the summons was left with the defendant or other person.”

¶ 24 While defendant’s section 2-1401 petition raised several points, his sole argument on

appeal is that Berna’s affidavit of service was “defective” in that it did not identify defendant’s

“approximate age,” per section 2-203(b). Defendant argues that the “omission of an estimated age

on the affidavit of service defeats personal service.” Defendant thus concludes that Berna failed

to comply with section 2-203(b) of the Code. We hold that the defect defendant identifies does

not establish a failure of personal service.

¶ 25 Berna’s affidavit related that she approached defendant in the Kane County courthouse.

After a law enforcement officer positively identified defendant to Berna, she told defendant that

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she was serving him with a summons and complaint. When defendant refused to take the papers,

Berna placed them on the ground and told defendant to consider himself “ ‘served.’ ”

¶ 26 “[I]n the context of personal service, return of summons is prima facie proof of proper

service.” MB Financial Bank, N.A. v. Ted & Paul, LLC, 2013 IL App (1st) 122077, ¶ 24; see In re

Jafree, 93 Ill. 2d 450, 455 (1982) (“The affidavit of service should be considered prima facie

evidence that the process was properly served.”). The return or affidavit of service “should not be

set aside unless the return has been impeached by clear and satisfactory evidence.” Jafree, 93 Ill.

2d at 455. Specifically, the return or affidavit “can be overcome only by a contradictory affidavit

or personal testimony.” Clemmons v. Travelers Insurance Co., 88 Ill. 2d 469, 481 (1981). But

“[a]n uncorroborated defendant’s affidavit merely stating that he had not been personally served

with summons is insufficient to overcome the presumption favoring the affidavit of service.” Paul

v. Ware, 258 Ill. App. 3d 614, 617 (1994); see MB Financial Bank, N.A., 2013 IL App (1st) 122077,

¶¶ 24-25 (“Courts are required to indulge in every reasonable presumption in favor of the return,

and the uncorroborated testimony of the party upon whom service is made is not enough to set

aside this evidence.”).

¶ 27 Defendant provided no testimony or affidavit to contradict Berna’s affidavit of service; in

fact, as the trial court noted, defendant never made even an unsworn denial that he was the

individual served.

¶ 28 The omission of estimated age from Berna’s affidavit did not defeat personal service.

Illinois Supreme Court Rule 102(d) (eff. Jan. 1, 2018) provides: “Failure to return the summons

or file proof of service does not invalidate the summons or the service thereof, if had.” What this

language means for mere defects in the affidavit of service has been addressed by our supreme

court: “It follows logically [from the language of Rule 102(d)] that if a return or proof of service

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is filed which fails to fully comply with the statute, such a defective return or proof of service

should not invalidate the summons or the service thereof, if had.” State Bank of Lake Zurich v.

Thill, 113 Ill. 2d 294, 312 (1986). Here, Berna’s affidavit, describing service upon defendant,

created a presumption of valid service. Defendant produced no evidence to overcome that

presumption. Thus, because service was “had” (id. at 312), Rule 102(d) compels us to conclude

that the affidavit’s defect did not invalidate service.

¶ 29 Defendant claims that “strict compliance with the statutes governing the service of process

is required before a court will acquire personal jurisdiction over the person served.” However,

none of the cases defendant cites can reasonably be read to support such a broad proposition.

Sarkissian affirms the “general and well-established rule *** that strict compliance with statutes

governing service of process on public entities is required.” (Emphasis added.) Sarkissian, 201

Ill. 2d at 109 (discussing service of process upon a municipal board of education). The present

case does not concern service of process on a public entity. As for Thill, the supreme court states

there:

“Illinois case law has long acknowledged that the return of the officer or other authorized

person making service of a summons on a defendant by delivering a copy to another person,

that is, by substituted service, must show strict compliance with every requirement of the

statute authorizing such substituted service, since the same presumption of validity that

attaches to a return reciting personal service does not apply to substituted service.”

(Emphasis added.) Thill, 113 Ill. 2d at 309.

This case concerns personal service, not substituted service.

¶ 30 C.T.A.S.S.&U. Federal Credit Union v. Johnson, 383 Ill. App. 3d 909, 912 (2008), purports

to state “the well-established rule in Illinois that strict compliance with statutes governing service

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of process is required.” Similarly, West Suburban Bank v. Advantage Financial Partners, LLC,

2014 IL App (2d) 131146, ¶ 20, states that “strict compliance with the statutes governing the

service of process is required before a court will acquire personal jurisdiction over the person

served.” However, both Johnson and West Suburban Bank cite only Sarkissian and Thill for these

propositions—and, as seen, the supreme court makes no such broad statement in either case.

¶ 31 Because defendant produced no evidence to contest personal service but relied entirely on

a defect in the affidavit of service, he failed to establish that the trial lacked personal jurisdiction.

Therefore, the trial court did not err in denying his section 2-1401 petition alleging that the default

judgment was void.

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 34 Affirmed.

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