NOTICE 2020 IL App (5th) 190538-U NOTICE Decision filed 09/08/20. The This order was filed under text of this decision may be NO. 5-19-0538 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
FRANZ B. ENNS and SARA ENNS, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Madison County. ) v. ) ) No. 15-L-635 JOHN J. JACKSON and AUGUSTA LOGISTICS, ) INC., ) ) Defendants ) Honorable ) David A. Hylla, (Augusta Logistics, Inc., Defendant-Appellee). ) Judge, presiding. ________________________________________________________________________
PRESIDING JUSTICE WELCH delivered the judgment of the court. Justices Moore and Overstreet concurred in the judgment.
ORDER
¶1 Held: Leave to file an interlocutory appeal was improvidently granted where our determination would be dependent upon the specific underlying facts of this case.
¶2 This appeal arises from the circuit court of Madison County’s order vacating default
judgment against the defendant, John J. Jackson, pursuant to section 2-1401 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2018)). Because this cause comes
before us pursuant to Illinois Supreme Court Rule 308 (eff. July 1, 2017), our review is
strictly limited to the certified question of whether the trial court erred when it found that 1 it had not obtained personal jurisdiction over Jackson. 1 For the reasons that follow, we
vacate our order granting leave to appeal as it was improvidently entered and dismiss the
appeal.
¶3 I. BACKGROUND
¶4 On May 19, 2015, the plaintiffs, Franz B. Enns and Sara Enns, filed a complaint in
the circuit court of Madison County against the defendants, Augusta Logistics, Inc. (ALI),
and John J. Jackson. The complaint alleged that on April 9, 2014, Jackson—a Michigan
resident—negligently operated a tractor-trailer in Madison County resulting in a collision
with the plaintiffs’ vehicle. A summons was issued and sent to both defendants. On
September 11, 2015, and again on January 12, 2016, an alias summons was issued for
Jackson. Jackson was subsequently served on February 2, 2016, through the Illinois
Secretary of State’s office.
¶5 On June 8, 2016, the plaintiffs filed a motion for default judgments against both
defendants. Attached to the motion were an affidavit of compliance for service through
the Secretary of State regarding ALI and proof of service on Jackson through the Secretary
of State dated February 2, 2016. On July 28, 2016, the trial court granted the motion against
both defendants. On December 12, 2016, after hearing testimony and reviewing the
evidence submitted, the court entered judgment in favor of Franz in the amount of $660,200
and in favor of Sara in the amount of $50,000, finding both defendants jointly liable.
1 The court also certified the question of whether it erred when it found it obtained personal jurisdiction over the defendant Augusta Logistics, Inc., through the plaintiffs’ service of process pursuant to 805 ILCS 5/5.25(c) (West 2018). That question is the subject of Enns v. Jackson, 2020 IL App (5th) 190533-U. 2 ¶6 On September 21, 2018, the defendants filed a petition for relief from judgment
pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2018)). As to Jackson,
the petition alleged that the plaintiffs failed to properly effectuate service under the
requirements of section 2-203.1 of the Code in that they failed to file with the trial court
“an affidavit stating the nature and extent of the investigation made to determine the
whereabouts of the defendant and the reasons why service is impractical under items (1)
and (2) of subsection (a) of Section 2-203, including a specific statement showing that a
diligent inquiry as to the location of the individual defendant was made and reasonable
efforts to make service have been unsuccessful” (affidavit of diligent inquiry). Id. § 2-
203.1. On October 2, 2018, the plaintiffs responded, arguing that the petition should be
denied as it failed to satisfy the requirements of section 2-1401 of the Code as it was not
“supported by affidavit or other appropriate showing as to matters not of record.” Id. § 2-
1401(b).
¶7 On May 20, 2019, following a hearing, the trial court issued a written order granting
the petition for relief from judgment as to Jackson. The order cited both section 2-203.1
of the Code (735 ILCS 5/2-203.1 (West 2018)) and section 10-301(b) of the Illinois Vehicle
Code (Vehicle Code) (625 ILCS 5/10-301(b) (West 2018)) as the applicable law.
Specifically, it addressed Jackson’s argument and found that the plaintiffs failed to produce
an affidavit of diligent inquiry as required under section 2-203 of the Code.
¶8 On June 18, 2019, ALI filed a motion to certify question for appeal. On August 22,
2019, the plaintiffs filed their response and a motion to reconsider, in part, the trial court’s
May 20, 2019, order granting the petition for relief from judgment as to Jackson. In their 3 motion, the plaintiffs argued that service on Jackson had been effectuated under section
10-301 of the Vehicle Code, which did not require an affidavit of diligent inquiry, and the
court therefore did in fact have personal jurisdiction when it entered default judgment
against Jackson. In support of their motion, the plaintiffs attached: (1) the September 11,
2015, alias summons issued to Jackson; (2) a receipt from the clerk of the circuit court in
Madison County showing $5 was paid for the alias summons; (3) a copy of a check in the
amount of $52 made out to the Wayne County Sheriff; (4) a copy of the Illinois crash report
documenting the collision; (5) a proof of a nonservice form certifying that the Wayne
County Deputy Sherriff was unable to serve Jackson at the address listed on the alias
summons; (6) proof of service for Jackson through the Secretary of State’s office dated
February 2, 2016, stating that service had been received by them for Jackson; and (7) the
January 12, 2016, alias summons, an affidavit of compliance for service of process of a
nonresident, and a certified mail receipt showing that the copy of process sent to Jackson
was returned as not deliverable. A hearing was held on the matters, and the court granted
ALI’s motion to certify question for appeal and denied the plaintiffs’ motion to reconsider.
On November 22, 2019, the court issued a written order certifying the two questions for
appeal. On January 22, 2020, this court granted the plaintiffs’ application for leave to
appeal under Illinois Supreme Court Rule 308 (eff. July 1, 2017).
¶9 II. ANALYSIS
¶ 10 Illinois Supreme Court Rule 308 (id.) vests the appellate court with the discretion
to hear an appeal “[w]hen the trial court, in making an interlocutory order not otherwise
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NOTICE 2020 IL App (5th) 190538-U NOTICE Decision filed 09/08/20. The This order was filed under text of this decision may be NO. 5-19-0538 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
FRANZ B. ENNS and SARA ENNS, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Madison County. ) v. ) ) No. 15-L-635 JOHN J. JACKSON and AUGUSTA LOGISTICS, ) INC., ) ) Defendants ) Honorable ) David A. Hylla, (Augusta Logistics, Inc., Defendant-Appellee). ) Judge, presiding. ________________________________________________________________________
PRESIDING JUSTICE WELCH delivered the judgment of the court. Justices Moore and Overstreet concurred in the judgment.
ORDER
¶1 Held: Leave to file an interlocutory appeal was improvidently granted where our determination would be dependent upon the specific underlying facts of this case.
¶2 This appeal arises from the circuit court of Madison County’s order vacating default
judgment against the defendant, John J. Jackson, pursuant to section 2-1401 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2018)). Because this cause comes
before us pursuant to Illinois Supreme Court Rule 308 (eff. July 1, 2017), our review is
strictly limited to the certified question of whether the trial court erred when it found that 1 it had not obtained personal jurisdiction over Jackson. 1 For the reasons that follow, we
vacate our order granting leave to appeal as it was improvidently entered and dismiss the
appeal.
¶3 I. BACKGROUND
¶4 On May 19, 2015, the plaintiffs, Franz B. Enns and Sara Enns, filed a complaint in
the circuit court of Madison County against the defendants, Augusta Logistics, Inc. (ALI),
and John J. Jackson. The complaint alleged that on April 9, 2014, Jackson—a Michigan
resident—negligently operated a tractor-trailer in Madison County resulting in a collision
with the plaintiffs’ vehicle. A summons was issued and sent to both defendants. On
September 11, 2015, and again on January 12, 2016, an alias summons was issued for
Jackson. Jackson was subsequently served on February 2, 2016, through the Illinois
Secretary of State’s office.
¶5 On June 8, 2016, the plaintiffs filed a motion for default judgments against both
defendants. Attached to the motion were an affidavit of compliance for service through
the Secretary of State regarding ALI and proof of service on Jackson through the Secretary
of State dated February 2, 2016. On July 28, 2016, the trial court granted the motion against
both defendants. On December 12, 2016, after hearing testimony and reviewing the
evidence submitted, the court entered judgment in favor of Franz in the amount of $660,200
and in favor of Sara in the amount of $50,000, finding both defendants jointly liable.
1 The court also certified the question of whether it erred when it found it obtained personal jurisdiction over the defendant Augusta Logistics, Inc., through the plaintiffs’ service of process pursuant to 805 ILCS 5/5.25(c) (West 2018). That question is the subject of Enns v. Jackson, 2020 IL App (5th) 190533-U. 2 ¶6 On September 21, 2018, the defendants filed a petition for relief from judgment
pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2018)). As to Jackson,
the petition alleged that the plaintiffs failed to properly effectuate service under the
requirements of section 2-203.1 of the Code in that they failed to file with the trial court
“an affidavit stating the nature and extent of the investigation made to determine the
whereabouts of the defendant and the reasons why service is impractical under items (1)
and (2) of subsection (a) of Section 2-203, including a specific statement showing that a
diligent inquiry as to the location of the individual defendant was made and reasonable
efforts to make service have been unsuccessful” (affidavit of diligent inquiry). Id. § 2-
203.1. On October 2, 2018, the plaintiffs responded, arguing that the petition should be
denied as it failed to satisfy the requirements of section 2-1401 of the Code as it was not
“supported by affidavit or other appropriate showing as to matters not of record.” Id. § 2-
1401(b).
¶7 On May 20, 2019, following a hearing, the trial court issued a written order granting
the petition for relief from judgment as to Jackson. The order cited both section 2-203.1
of the Code (735 ILCS 5/2-203.1 (West 2018)) and section 10-301(b) of the Illinois Vehicle
Code (Vehicle Code) (625 ILCS 5/10-301(b) (West 2018)) as the applicable law.
Specifically, it addressed Jackson’s argument and found that the plaintiffs failed to produce
an affidavit of diligent inquiry as required under section 2-203 of the Code.
¶8 On June 18, 2019, ALI filed a motion to certify question for appeal. On August 22,
2019, the plaintiffs filed their response and a motion to reconsider, in part, the trial court’s
May 20, 2019, order granting the petition for relief from judgment as to Jackson. In their 3 motion, the plaintiffs argued that service on Jackson had been effectuated under section
10-301 of the Vehicle Code, which did not require an affidavit of diligent inquiry, and the
court therefore did in fact have personal jurisdiction when it entered default judgment
against Jackson. In support of their motion, the plaintiffs attached: (1) the September 11,
2015, alias summons issued to Jackson; (2) a receipt from the clerk of the circuit court in
Madison County showing $5 was paid for the alias summons; (3) a copy of a check in the
amount of $52 made out to the Wayne County Sheriff; (4) a copy of the Illinois crash report
documenting the collision; (5) a proof of a nonservice form certifying that the Wayne
County Deputy Sherriff was unable to serve Jackson at the address listed on the alias
summons; (6) proof of service for Jackson through the Secretary of State’s office dated
February 2, 2016, stating that service had been received by them for Jackson; and (7) the
January 12, 2016, alias summons, an affidavit of compliance for service of process of a
nonresident, and a certified mail receipt showing that the copy of process sent to Jackson
was returned as not deliverable. A hearing was held on the matters, and the court granted
ALI’s motion to certify question for appeal and denied the plaintiffs’ motion to reconsider.
On November 22, 2019, the court issued a written order certifying the two questions for
appeal. On January 22, 2020, this court granted the plaintiffs’ application for leave to
appeal under Illinois Supreme Court Rule 308 (eff. July 1, 2017).
¶9 II. ANALYSIS
¶ 10 Illinois Supreme Court Rule 308 (id.) vests the appellate court with the discretion
to hear an appeal “[w]hen the trial court, in making an interlocutory order not otherwise
appealable, finds that the order involves a question of law as to which there is substantial 4 ground for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.” Certified questions under
Rule 308 are questions of law reviewed de novo. Rozsavolgyi v. City of Aurora, 2017 IL
121048, ¶ 21. Certified questions must not seek the application of law to specific facts of
a case. Id. The appellate court should not address questions that would result in an
advisory or provisional answer. Id. Appeals under Rule 308 should be reserved for
exceptional circumstances and sparingly used. Id.
¶ 11 Here, the certified question on appeal is whether the trial court erred when it found
that it had not obtained personal jurisdiction over Jackson. The plaintiffs argue that the
court erred in applying section 2-203 of the Code (735 ILCS 5/2-203 (West 2018)) as
Jackson was instead served under section 10-301 of the Vehicle Code (625 ILCS 5/10-301
(West 2018)). In applying the wrong statute, the plaintiffs contend that the court erred
where it based its ruling on the fact that the plaintiffs had failed to file an affidavit of
diligent inquiry, as no such affidavit is required for effectuating service under the Vehicle
Code. See id.
¶ 12 “Section 10-301 of the Illinois Vehicle Code (625 ILCS 5/10-301 (West 2002))
provides for substituted service on an out-of-state motorist by serving the Secretary of
State. This section requires strict compliance. Allied American Insurance Co. v.
Mickiewicz, 124 Ill. App. 3d 705, 708 (1984).” State Farm Mutual Automobile Insurance
Co. v. Grater, 351 Ill. App. 3d 1038, 1040 (2004).
“Service of such process shall be made by serving a copy upon the Secretary of State *** together with an affidavit of compliance from the plaintiff *** and a fee of $5 and such service shall be sufficient service upon the person, if notice of such 5 service and a copy of the process are, within 10 days thereafter, sent by registered mail by the plaintiff to the defendant, at the last known address of the defendant, and the plaintiff’s affidavit of compliance herewith is appended to the summons.” 625 ILCS 5/10-301(b) (West 2018).
The plain language of the statute specifically requires plaintiff to send a copy of process to
defendant’s last known address via registered mail. Id. Sending the copy of process via
certified mail does not satisfy the statutory requirements to effectuate service under this
section. Burton v. Autumn Grain Transport, Inc., 222 Ill. App. 3d 755, 757 (1991); see
Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991).
¶ 13 Here, the trial court correctly found that the plaintiffs failed to satisfy section 2-
203.1 of the Code in failing to file an affidavit of diligent inquiry and that service was
therefore not effectuated under that section. However, the court’s analysis does not address
whether service was effectuated under the substitute service requirements prescribed in
section 10-301 of the Vehicle Code. In order for this court to determine whether the trial
court erred in finding it had not obtained personal jurisdiction over Jackson, we would have
to look to the specific facts of the case to determine whether section 10-301 of the Vehicle
Code was satisfied. For example, this court would be required to determine whether
process was sent via registered mail to Jackson’s last known address. This does not amount
to a question of law for which there is substantial ground for difference of opinion as
required by Rule 308. Ill. S. Ct. R. 308 (eff. July 1, 2017). For this reason, and because
the certified question cannot be resolved without the application of the law to specific facts,
this court should refrain from answering. We cannot conclude that the certified question
6 before us presents such exceptional circumstances as required by Rule 308 to warrant
consideration outside of the usual appeal process. Id.
¶ 14 III. CONCLUSION
¶ 15 Accordingly, our order of January 22, 2020, allowing leave to appeal in the instant
case is vacated as having been improvidently entered, and this appeal is dismissed.
¶ 16 Order vacated; appeal dismissed.