Equity Residential Properties Management Corp. v. Nasolo

847 N.E.2d 126, 364 Ill. App. 3d 26, 301 Ill. Dec. 467, 2006 Ill. App. LEXIS 140
CourtAppellate Court of Illinois
DecidedMarch 6, 2006
Docket1—05-—0610
StatusPublished
Cited by45 cases

This text of 847 N.E.2d 126 (Equity Residential Properties Management Corp. v. Nasolo) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Equity Residential Properties Management Corp. v. Nasolo, 847 N.E.2d 126, 364 Ill. App. 3d 26, 301 Ill. Dec. 467, 2006 Ill. App. LEXIS 140 (Ill. Ct. App. 2006).

Opinion

JUSTICE McBRIDE

delivered the opinion of the court:

Khadijah Nasolo appeals from an order of the circuit court of Cook County denying her motion to quash constructive service of process and vacate a default judgment order entered in favor of Equity Residential Properties Management Corporation, agent for the owner of Bourbon Square Apartments (Equity Residential), on a complaint seeking possession of 794 Pennsylvania Drive, Apt. #1, Palatine, Illinois, 60074. In accordance with the judgment order, the Cook County sheriffs office evicted Nasolo from the apartment during the summer of 2004.

Nasolo’s primary contention on appeal is that the record shows her former landlord did not make sufficient efforts toward personal service before resorting to constructive service pursuant to section 9 — 107 of the Forcible Entry and Detainer Act. 735 ILCS 5/9 — 107 (West 2004). Nasolo also argues there was a fact dispute entitling her to an evidentiary hearing as to whether constructive service was justified. Alternatively, Nasolo contends we should find (1) constructive service by posting was ineffective, because it occurred in downtown Chicago rather than in the suburban Palatine neighborhood where the residential apartment unit was located, or because posting at the County Building and Chicago’s City Hall amounted to posting in one public place rather than two, or (2) the landlord sought enforcement of the order for possession prematurely while its claims for back rent, attorney fees, and costs were still pending. Nasolo asks this court to grant her motion to quash and vacate, or to remand the cause for an evidentiary hearing on the motion.

In a motion taken with the case, however, Equity Residential argues we should not address the merits of Nasolo’s arguments and should dismiss the appeal with prejudice, because Nasolo’s amended appellate brief does not conform with the supreme court rules. Since the amended brief sufficiently conforms with the mandated format, we deny Equity Residential’s motion and proceed to our review.

Equity Residential filed suit against Nasolo on May 17, 2004, seeking unpaid rent for the month of May totaling $1,075.86, costs, attorney fees, and possession of the apartment unit it first leased to Na-solo in March 2004. Equity Residential filed the pleading in the circuit court’s municipal department, first district, which is located in the Richard J. Daley Center, 50 West Washington Street, in downtown Chicago, and then placed copies of the complaint and summons with the Cook County sheriff’s office for service of process. The summons indicated trial would take place on June 4, 2004.

The sheriff’s return of service dated May 25, 2004, indicated four deputies made separate, unsuccessful attempts to serve Nasolo at the subject apartment. Service was attempted on Wednesday, May 19 at 8:18 a.m. or p.m. by deputy No. 4786; on Thursday, May 20 at 8:15 p.m. by deputy No. 4750; on Monday, May 24 at 10:11 a.m. by deputy No. 4741, and on Tuesday, May 25 at 6:37 p.m. by deputy No. 3995. The last deputy sheriff made a checkmark next to “moved” as the “reason not served” and handwrote “moved — vacant” under “additional remarks.”

On June 2, 2004, Equity Residential’s attorney, Wayne S. Shapiro, completed an affidavit for constructive service, alleging that Na-solo “on due inquiry cannot be found so that process cannot be served” and that her place of residence “upon diligent inquiry cannot be ascertained and his [sic] last known place of residence [was the subject apartment].” The statute Equity Residential was relying upon provides as follows:

“Constructive service. If the plaintiff, his or her agent, or attorney files a forcible detainer action *** and is unable to obtain personal service on the defendant *** and a summons duly issued in such action is returned without service stating that service cannot be obtained, then the plaintiff, his or her agent or attorney may file an affidavit stating that the defendant *** is not a resident of this State, or has departed from this State, or on due inquiry cannot be found, or is concealed within this State so that process cannot be served upon him or her, and also stating the place of residence of the defendant *** if known, or if not known, that upon diligent inquiry the affiant has not been able to ascertain the defendant’s or unknown occupant’s place of residence, then *** the defendant *** may be notified by posting and mailing of notices ***.” (Emphasis added.) 735 ILCS 5/9 — 107 (West 2004).

The statute further specifies that notice by posting conveys limited jurisdiction to the court:

“However, in cases where the defendant *** is notified by posting *** and the defendant *** does not appear generally, the court may rule only on the portion of the complaint which seeks judgment for possession, and the court shall not enter judgment as to any rent claim joined in the complaint ***. The claim for rent may remain pending until such time as the defendant or unknown occupant appears generally or is served with summons, but the order for possession shall be final, enforceable and appealable if the court makes an express written finding that there is no just reason for delaying enforcement or appeal, as provided by Supreme Court rule of this State.” 735 ILCS 5/9 — 107 (West 2004).

The statute also specifies the contents of a notice and the procedures to be followed by the sheriff:

“Such notice shall be *** directed to the defendant ***, shall state the nature of the cause *** and at whose instance issued and the time and place for trial, and shall also state that unless the defendant *** appears at the time and place fixed for trial, judgment will be entered by default ***. The sheriff shall post 3 copies of the notice in 3 public places in the neighborhood of the court where the cause is to be tried *** [and] shall at the same time mail one copy of the notice addressed to such defendant *** at such place of residence shown in such affidavit. On or before the day set for the appearance, the sheriff shall file the notice with an endorsement thereon stating the time when and places where the sheriff posted and to whom and at what address he or she mailed copies as required by this Section. For want of sufficient notice any cause may be continued from time to time until the court has jurisdiction of the defendant or unknown occupant.” 735 ILCS 5/9 — 107 (West 2004).

After attorney Shapiro tendered his sworn statement, the sheriffs office posted notice of the suit on June 4, 2004, at the Clark Street entrance of the County Building, the LaSalle Street entrance of Chicago’s City Hall, and in Room 701 of the Richard J. Daley Center, and mailed copies of the documents to Nasolo at the apartment at issue. The notice indicated the case would next be called for trial on June 17, 2004.

When the case was called on Thursday, June 17, 2004, the trial judge noted Nasolo had neither appeared nor answered after she was constructively served.

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Bluebook (online)
847 N.E.2d 126, 364 Ill. App. 3d 26, 301 Ill. Dec. 467, 2006 Ill. App. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equity-residential-properties-management-corp-v-nasolo-illappct-2006.