NOTICE 2020 IL App (5th) 190231-U NOTICE Decision filed 09/18/20. The This order was filed under text of this decision may be NOS. 5-19-0231 & 5-19-0234 (consolidated) Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for IN THE by any party except in the Rehearing or the disposition of limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
In re MARRIAGE OF ) ` Appeal from the ) Circuit Court of DONNA F. BURRELSMAN, ) St. Clair County. ) Plaintiff-Appellee, ) ) and ) No. 08-D-639 ) THOMAS L. BURRELSMAN, ) Honorable ) Stacy L. Campbell, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
DONNA BURRELSMAN, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 11-L-146 ) AMERICAN FAMILY INSURANCE COMPANY; ) U.S. BANCORP, d/b/a U.S. Bank; ADAM KOCKLER; ) EMPLOYEE DOE; JOHN ROE; THOMAS ) BURRELSMAN; and WELLS FARGO & CO., d/b/a ) Wells Fargo Bank, N.A., ) ) Defendants ) Honorable ) Christopher T. Kolker, (Thomas Burrelsman, Defendant-Appellant). ) Judge, presiding. ______________________________________________________________________________
JUSTICE WHARTON delivered the judgment of the court. Presiding Justice Welch and Justice Barberis concurred in the judgment.
1 ORDER
¶1 Held: In the dissolution of marriage case, where Thomas Burrelsman had sufficient contacts with the state of Illinois and both the United States and Illinois constitutional due process requirements were satisfied, the trial court had personal jurisdiction and its default judgment was not void. In the fraud case, where Donna Burrelsman sought an alternate form of service of process because Thomas Burrelsman could not be located for in person service and the trial court authorized her request pursuant to section 2-203.1 of the Code of Civil Procedure (735 ILCS 5/2-203.1 (West 2010)), the service method ordered was consistent with due process, the trial court had personal jurisdiction, and the default judgment was not void.
¶2 This is a consolidated appeal of two cases filed by Donna Burrelsman against Thomas
Burrelsman. The first is a dissolution of marriage case and the second is a fraud case. Default
judgments were entered in Donna’s favor against Thomas in both cases. In the dissolution of
marriage case, Thomas contends that the trial court did not have personal jurisdiction and therefore
the default judgment is void. In the fraud case, Thomas argues that the trial court lacked personal
jurisdiction because he was not served in person and that the service of process by publication was
improper. We find that the trial court had personal jurisdiction in both cases and that service of
process by publication as directed by the trial court’s order in the fraud case was proper. We affirm
the trial court’s judgments.
¶3 BACKGROUND
¶4 We will provide facts for both cases in separate sections to avoid confusion with the
overlapping timelines. Additional relevant facts will be included within the analyses of the issues
on appeal.
¶5 Dissolution of Marriage Case
¶6 Donna and Thomas were married in Belleville in 1966. They lived in Illinois until 1980,
when they moved to Colorado. In 2007, Donna moved back to Illinois, and in August 2008, she
filed a petition for dissolution of marriage. Thomas remained in Colorado. In response, Thomas 2 filed a special and limited entry of appearance and a motion to determine jurisdiction. In these
documents, Thomas stated that he and Donna owned property in Colorado and argued that the trial
court should dismiss the case because he had no significant contacts with Illinois, and therefore
the trial court did not have jurisdiction. In turn, Donna alleged that Thomas directed her to move
back to Illinois and owed her a duty of support and therefore subjected himself to Illinois
jurisdiction. 735 ILCS 5/2-209(a)(9) (West 2006). In December 2008, the trial court denied
Thomas’s motion to dismiss. The trial court found that Donna’s pleadings and affidavit established
personal jurisdiction and noted that Thomas filed no pleading to counter her allegations. Thomas
appealed to this court, but we concluded that the order was not final and appealable and dismissed
his appeal.
¶7 The dissolution of marriage case continued without Thomas’s involvement. The trial court
issued several body attachments for his arrest without success. In April 2010, while the dissolution
case was pending, the Colorado marital home was destroyed by fire. The marital home was the
primary marital asset. After the fire, Thomas received insurance proceeds for the losses sustained
from the fire. In April 2011, Donna asked the trial court to enter a default judgment. On April 19,
2011, the trial court found that Thomas was in default and entered a judgment of dissolution of
marriage. In the judgment, the court found that the fire insurance proceeds from the loss of the
marital home constituted a marital asset and awarded Donna her share.
¶8 Thomas filed a motion pursuant to section 2-1401 of the Illinois Code of Civil Procedure
(735 ILCS 5/2-1401 (West 2016)) on February 26, 2018, asking the court to vacate the judgment
as void because the trial court did not have personal jurisdiction. The trial court denied Thomas’s
motion on May 13, 2019. Thomas appealed this order.
3 ¶9 Fraud Case
¶ 10 Donna and Thomas entered into an agreement with Wells Fargo Bank, N.A. (Wells Fargo)
on January 19, 2007, for an equity line loan secured by their Colorado home. In 2008, Donna
moved out of the Colorado home and returned to Illinois.
¶ 11 On August 5, 2009, a Colorado statutory power of attorney was notarized in St. Clair
County, Illinois, by a man named Adam Kockler, who was then employed by U.S. Bank. This
Colorado statutory power of attorney document purported to have Donna’s signature and granted
Thomas power to conduct real estate and banking transactions on Donna’s behalf. Donna
adamantly denies that she signed this document and alleges that her signature was forged. She
contends that the fraudulent document was arranged for and obtained by Thomas to secure an
additional loan. Thomas presented this forged power of attorney to Wells Fargo and executed a
Deed of Trust pledging the Colorado home as collateral for a $141,000 loan—$50,000 of which
was dispensed that same date to Thomas.
¶ 12 In 2010, a fire burned the Colorado marital home. The home and contents were insured by
American Family Insurance Company (American Family). American Family paid Thomas
approximately $200,000. Donna’s name was on the checks. Donna alleges that Thomas forged her
signature and cashed the American Family checks. American Family notified Donna about the fire
loss in May 2010 but did not inform her that it had paid the claim. Later, in October and November
2010, Donna submitted her proof of loss to American Family for personal contents destroyed in
the fire. American Family agreed that the value of Donna’s lost property was $82,849.80; however,
as of the date when the fraud complaint was filed, American Family had not paid Donna.
¶ 13 Donna submitted a fraud packet to Wells Fargo in November 2010, denying that she
participated in the 2009 loan transaction between Wells Fargo and Thomas that was secured by
4 equity in the Colorado home. Thomas stopped making payments on the Wells Fargo loan in 2010.
Donna asked Wells Fargo to provide her with copies of the loan documents and associated
paperwork that could establish that Thomas stole her identity and used the fraudulent power of
attorney to obtain the Wells Fargo loan. However, Wells Fargo refused to provide Donna with the
requested documents. Furthermore, Donna claims that despite repeated attempts to speak with
Wells Fargo about the matter, Wells Fargo refused to communicate with her. Wells Fargo also
refused Donna’s repeated requests for the pay-off amount necessary to stop the foreclosure
process. Apparently disregarding Donna’s claim that Thomas committed identity theft, Wells
Fargo proceeded with foreclosure proceedings in Colorado against Thomas and Donna.
¶ 14 Donna filed her lawsuit in St. Clair County seeking damages from the various named
defendants on March 22, 2011. Donna sued American Family for nonpayment of insurance
proceeds for the fire loss of the marital home and its contents. Donna also sued U.S. Bancorp and
Adam Kockler, individually and as an employee of U.S. Bancorp. She alleged that Kockler did not
act pursuant to the Illinois statutory mandates as a licensed notary public to ensure that the
individual who presented the document for notarization was, in fact, Donna Burrelsman. Donna
made three claims against U.S. Bancorp—that U.S. Bancorp failed to provide Kockler with a safe
place to keep his notary seal in order to prevent others from unlawful use; consented to the
unlawful use of Kockler’s seal; and/or was vicariously liable for Kockler’s unlawful acts because
Kockler used his notary seal within the course and scope of his employment with U.S. Bancorp.
Donna sued Wells Fargo, alleging that it conspired with Thomas and “violated federal statutory
requirements and its own internal banking practices by falsely and fraudulently creating and
recording a loan document” based solely upon the fraudulent power of attorney. Donna claimed
that, as a result, Wells Fargo was holding her to the terms of the loan document that obligated her
5 to repay Wells Fargo approximately $200,000. Finally, in Donna’s suit against Thomas, she
alleged that Thomas made material and knowingly false representations to Wells Fargo. She also
alleged that he provided false documents to Wells Fargo resulting in the second mortgage being
taken on the Colorado home that obligated Donna for the debt.
¶ 15 Donna attempted to have Thomas served with the fraud complaint in Greenwood,
Arkansas, but was never successful in locating him. On October 29, 2012, Donna filed a motion
asking the trial court to allow her to obtain service of process pursuant to section 2-203.1 of the
Code of Civil Procedure. 735 ILCS 5/2-203.1 (West 2010). In the motion, Donna’s attorney
outlined the repeated unsuccessful attempts to obtain personal service on Thomas. She asked the
court to order an alternate method of service of process consistent with due process. Id. On
November 13, 2012, the trial court granted this request, stating: “Court grants Motion for Order
allowing service per 735 ILCS 5/2-203.1. Plaintiff’s counsel to submit affidavit and the Court will
approve service by publication.” We note that the record on appeal does not contain a transcript
from the hearing on Donna’s motion for alternate service of process. However, in its written order,
the court noted that Terry Neubauer, Thomas’s attorney in the dissolution of marriage case,
appeared at the hearing and provided the court with a post office box address in Arkansas—the
only address that attorney Neubauer had to reach Thomas.
¶ 16 Thereafter, on December 13, 2012, Donna’s attorney, Rhonda D. Fiss, submitted her
affidavit in accordance with the trial court’s order authorizing service by publication pursuant to
section 2-203.1. Id. Attorney Fiss stated that she had been unsuccessfully attempting to obtain
personal service on Thomas since March 2011. At attorney Fiss’s direction, Donna contacted
family members who advised her that Thomas was living in the vicinity of Fort Smith, Arkansas.
Fiss hired a process server who attempted to locate Thomas by contacting the police departments
6 for the cities of Fort Smith and Greenwood, Arkansas; the sheriff’s department for Sebastian
County, Arkansas; the water departments for Fort Smith and Greenville; the Greenwood property
assessor’s office; and the Greenwood post office. The Greenwood post office confirmed that
Thomas had a post office box but did not provide any information about Thomas’s physical
address. Attorney Fiss stated that she hired a second process server who drove around apartment
buildings in Greenwood, Arkansas, looking for Thomas’s vehicle; checked with the Greenwood
property assessor and the water department; went to the homes of Thomas’s relatives; and returned
to Greenwood a second time to check for Thomas’s vehicle around all apartments. The second
process server was also unsuccessful in locating Thomas.
¶ 17 On January 8, 2013, the Proof of Publication, from the Times Record daily newspaper
located in Fort Smith, Sebastian County, Arkansas, was filed with the court. The newspaper
employee certified that the notice to Thomas was published on December 19, 2012, December 26,
2012, and January 2, 2013.
¶ 18 Donna filed a motion asking the trial court to enter a default judgment against Thomas on
March 6, 2013. She alleged that Thomas was served by court-authorized newspaper publication,
and that the February 1, 2013, deadline for filing an answer to the complaint had passed. That same
date, the trial court entered judgment against Thomas and set the hearing for Donna to establish
damages. Ultimately, the trial on damages was held between July 31, 2017, and August 3, 2017.
Based on the evidence and testimony presented at the trial, the court awarded Donna $300,000 in
compensatory damages. On September 11, 2017, the trial court entered a judgment against Thomas
for $300,000 plus $807.09 for costs of suit.
¶ 19 On February 28, 2018, Thomas filed a motion to vacate the default judgment pursuant to
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)). He argued that
7 the judgment was void on the basis that the trial court lacked personal jurisdiction because he had
not been personally served.
¶ 20 In her response to Thomas’s motion, Donna asserted arguments based upon events from
both the dissolution of marriage and fraud cases. From the dissolution of marriage case, Donna
asserted that Thomas had been represented by attorney Terry Neubauer since November 3, 2008;
that she had successfully established personal jurisdiction in that case; and that Thomas did not
file a contrary affidavit or pleading. From the fraud case, Donna asserted that Thomas fraudulently
obtained a notarized power of attorney over real estate document that she purportedly signed in St.
Clair County, Illinois. She argued that this fraudulent act provided the State with the interest to
protect her from predation by citizens of other states—like Thomas. See McNally v. Morrison, 408
Ill. App. 3d 248, 951 N.E.2d 184 (2011). She also claimed that the fraudulent action constituted
sufficient minimum contacts to establish personal jurisdiction because Thomas’s actions in
obtaining the forged document were calculated to cause Donna injury within Illinois where she
lived. See Calder v. Jones, 465 U.S. 783 (1984).
¶ 21 Donna also contended that Thomas was aware of the fraud lawsuit and was actively
avoiding service of process. In support of this assertion, she cited to American Family’s
examination of Thomas under oath during its fire investigation. American Family’s representative
asked Thomas about Donna’s lawsuit. He admitted that he was aware of the suit and further stated:
“When I broached the [fraud lawsuit] subject with my attorney there, he said he was aware of it, and then side-stepped the issue. And his last basic advice to me or instructions was to depart the state of Illinois and do not return to the state of Illinois until he says I can.”
Donna argued that because Thomas and his dissolution of marriage attorney were aware of the
pending fraud case, Thomas could have entered an appearance and challenged the court’s
jurisdiction, but instead he did nothing to avoid the default judgment.
8 ¶ 22 Thomas responded to Donna’s arguments by claiming that his attorney had never entered
an appearance for him in the dissolution of marriage case. The trial court denied Thomas’s motion
to vacate the default judgment on March 26, 2019, without findings.
¶ 23 Thomas filed a motion to reconsider the trial court’s order denying his motion to vacate.
In his attached affidavit, Thomas stated that he had not been personally served in the fraud case
and that that he had not received notice by mail or by the St. Clair County Clerk’s office pursuant
to section 2-206 of the Code of Civil Procedure (735 ILCS 5/2-206 (West 2010)). On May 13,
2019, after arguments of counsel, the trial court denied Thomas’s motion without findings.
¶ 24 Appeals in Both Cases
¶ 25 In the dissolution of marriage case, Thomas appeals from the trial court’s order denying
his motion to vacate the default judgment. In the fraud case, Thomas appeals from two orders: the
trial court’s order denying his motion to vacate the default judgment and the trial court’s order
denying his motion to reconsider. Thomas filed appeals in both cases, and on August 30, 2019, he
asked this court to consolidate the appeals. On September 9, 2019, we granted the motion to
consolidate.
¶ 26 ANALYSIS
¶ 27 We have jurisdiction to hear this appeal pursuant to Illinois Supreme Court Rule 301 (eff.
Feb. 1, 1994) because the judgments Thomas appealed are final.
¶ 28 As all issues raised in this consolidated appeal involve personal jurisdiction, we begin our
analysis with a brief review of the applicable law. The validity of all judgments requires that the
trial court have personal jurisdiction over the parties. State Bank of Lake Zurich v. Thill, 113 Ill.
2d 294, 308, 497 N.E.2d 1156, 1161 (1986). Unless the defendant waives service or enters a
general appearance, “personal jurisdiction can be acquired only by service of process in the manner
9 directed by statute.” Id. The law is settled that the plaintiff bears the burden to establish a
prima facie basis for the trial court to exercise personal jurisdiction over a nonresident defendant.
Russell v. SNFA, 2013 IL 113909, ¶ 28, 987 N.E.2d 778, 784 (citing Wiggen v. Wiggen, 2011 IL
App (2d) 100982, ¶ 20, 954 N.E.2d 432, 437). The defendant can overcome a plaintiff’s
prima facie case for personal jurisdiction by offering uncontroverted evidence that defeats
jurisdiction. Id. Our review is de novo if the trial court’s decision is based solely on documentary
evidence. Id. We resolve any conflicts in the pleadings and affidavits in the plaintiff's favor. Id.
¶ 29 Previously, to obtain personal jurisdiction over a nonresident of Illinois, Illinois courts
required that both a provision of the Illinois long-arm statute and the due process requirements of
the United States and Illinois Constitutions be satisfied. Id. ¶ 29. This two-part analysis had
historically been employed by Illinois courts, first by determining if a specific section of the long-
arm statute had been satisfied, and second by determining if the due process requirements of both
constitutions had been met. Rollins v. Ellwood, 141 Ill. 2d 244, 275, 565 N.E.2d 1302, 1316 (1990).
In 1989, the General Assembly amended the Illinois long-arm statute by adding subsection (c),
commonly referred to as the “catch-all provision,” that broadly states:
“A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois
Constitution and the Constitution of the United States.” 735 ILCS 5/2-209(c) (West 2010). If a
moving party invokes subsection (c), it is no longer necessary to utilize the two-part approach set
forth in Rollins “because [subsection (c)] constitutes an independent basis for exercising personal
jurisdiction that effectively collapses the jurisdictional inquiry into the single issue of whether a
defendant’s Illinois contacts are sufficient to satisfy federal and Illinois due process.” Russell, 2013
IL 113909, ¶ 30.
10 ¶ 30 “In all cases involving a nonresident defendant, before a court may subject the defendant
to a judgment in personam, ‘due process requires that the defendant have certain minimum
contacts with the forum State such that maintenance of the suit there does not offend “traditional
notions of fair play and substantial justice.” ’ ” Id. ¶ 34 (quoting Wiles v. Morita Iron Works Co.,
125 Ill. 2d 144, 150, 530 N.E.2d 1382, 1385 (1988), quoting International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)). Therefore, to satisfy federal due process we must consider whether a
nonresident defendant has minimum contacts with Illinois and if subjecting the defendant to
litigation in this state is “reasonable under traditional notions of fair play and substantial justice.”
Id.
¶ 31 The “minimum contacts” test is considered the threshold issue in any personal
jurisdictional challenge in Illinois. Id. ¶ 36 (citing Wiles, 125 Ill. 2d at 161). Sufficient minimum
contacts with Illinois must be of a type to provide “fair warning” that the nonresident defendant
could be called into court in this state. Spartan Motors, Inc. v. Lube Power, Inc., 337 Ill. App. 3d
556, 561, 786 N.E.2d 613, 617 (2003) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985)).
¶ 32 The determination of whether the minimum contacts test has been satisfied is dependent
upon whether the plaintiff is seeking general or specific personal jurisdiction. Russell, 2013 IL
113909, ¶ 36 (citing Keller v. Henderson, 359 Ill. App. 3d 605, 613, 834 N.E.2d 930, 936 (2005)).
General jurisdiction requires that the defendant have “continuous and systematic contacts” with
the state. Bolger v. Nautica International, Inc., 369 Ill. App. 3d 947, 951, 861 N.E.2d 666, 671
(2007) (citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 416 (1984)).
Specific jurisdiction requires a determination of whether the case “arises out of or relates to the
defendant’s contacts with” Illinois. Keller, 359 Ill. App. 3d at 618. The trial court must also
11 consider whether it is reasonable to require the nonresident defendant to litigate the case in Illinois.
Id. Relevant considerations include the burden to defend the case in Illinois; whether Illinois has
an interest in the dispute; the plaintiff’s interest in obtaining convenient and effective relief; the
interstate judicial system’s interest in obtaining the most efficient resolution of the case; and the
shared interests of several states in advancing fundamental social policies. Id.; Burger King Corp.,
471 U.S. at 476-77.
¶ 33 The Illinois Constitution’s due process requirement mandates that the exercise of
jurisdiction be “fair, just, and reasonable to require a nonresident defendant to defend an action in
Illinois, considering the quality and nature of the defendant’s acts which occur in Illinois or which
affect interests located in Illinois.” Rollins, 141 Ill. 2d at 275. While federal and Illinois due process
requirements may differ, we are aware of no cases in which federal due process requirements were
met, but Illinois due process requirements were not met. Russell, 2013 IL 113909, ¶ 32; Kostal v.
Pinkus Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381, 387-88, 827 N.E.2d 1031, 1037
(2005). In addition, federal courts interpreting Illinois law have not found a meaningful difference
between the federal and Illinois due process analyses. Russell, 2013 IL 113909, ¶ 33. We turn now
to the specific jurisdictional issues in this appeal.
¶ 34 Personal Jurisdiction in the Dissolution of Marriage Case
¶ 35 At issue in this case is whether there is any basis to exercise jurisdiction over Thomas
permitted by the United States and Illinois Constitutions. 735 ILCS 5/2-209(c) (West 2010). In
analyzing this question, we must examine the contacts Thomas had with Illinois to determine if
these contacts were sufficient and if the exercise of jurisdiction did not offend “traditional notions
of fair play and substantial justice.” International Shoe Co., 326 U.S. at 316.
12 ¶ 36 First, we note that Thomas bases his entire argument on the long-arm statute. As we
explained earlier, the requirements of that statute need not be satisfied if the requirements of due
process are met. He argues that the trial court should have allowed him to rebut Donna’s contention
that he directed her to live in Illinois. Both Donna’s argument at trial and Thomas’s contention on
appeal are based upon section 2-209(a)(9) of the Code of Civil Procedure. 735 ILCS 5/2-209(a)(9)
(West 2010). We find that the 1966 marriage contract entered into by Donna and Thomas in Illinois
coupled with the 14 years they resided in Illinois are sufficient to satisfy the requirement of
Thomas’s minimum contacts with Illinois. Thomas appears to acknowledge as much, stating in his
brief that his marriage and the 14 years he spent living with Donna in Illinois, “could be
interpreted” as sufficient contacts. We conclude that the minimum contacts test has been satisfied
for specific jurisdiction as the case clearly arose from Thomas’s contacts with Illinois.
Furthermore, we also conclude that maintaining the case in Illinois does not offend “traditional
notions of fair play and substantial justice.” International Shoe Co., 326 U.S. at 316.
¶ 37 We also review the reasonableness of requiring Thomas, who is no longer a resident of
Illinois, to litigate his dissolution of marriage case in Illinois. When Donna filed her petition for
dissolution of marriage, Thomas was living in Colorado. When Donna asked the trial court to enter
a default judgment, the marital home in Colorado had been destroyed by fire and Donna believed
that Thomas was living in Arkansas based on information she received from his relatives. Based
upon the record on appeal, we are not certain of the precise date when Thomas relocated. We note
that the appellant has the responsibility of preparing a full and complete appellate record. Midstate
Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 319, 789 N.E.2d 1248, 1251 (2003). In the
absence of a complete record on appeal, “the reviewing court will presume that the order entered
by the trial court was in conformity with the law and had a sufficient factual basis [citations].” Id.
13 Neither party resides in Colorado and the Colorado real estate at issue was destroyed by fire. Thus,
Colorado has no interest in the litigation, whereas Illinois has a substantial interest in adjudicating
marriages that occur in the state. We also find that Arkansas is geographically closer to Illinois
than Colorado is, and thus the shorter distance would result in a lesser burden to Thomas.
¶ 38 Finally, we find that the due process requirement of the Illinois Constitution was also met
in this case. Looking at the quality and nature of Thomas’s actions in Illinois—the contract of
marriage in 1966 and maintaining his legal residence in the state of Illinois for 14 years—we
conclude that Illinois due process interests were adequately met by the trial court.
¶ 39 We conclude that the trial court had personal jurisdiction over Thomas. We affirm the trial
court’s default and judgment orders.
¶ 40 Personal Jurisdiction in the Fraud Case
¶ 41 Thomas next argues that the default judgment entered in the fraud case was void because
the St. Clair County circuit court did not have personal jurisdiction over him because he was never
personally served. He filed his motion pursuant to section 2-1401(f) of the Code of Civil Procedure
which allows an untimely motion to vacate a default judgment if the trial court’s order is void. 735
ILCS 5/2-1401(f) (West 2016).
¶ 42 Thomas’s service issue is divided into two arguments. The first argument is based upon
the summonses that contained an incomplete address. Donna believed that Thomas was living
somewhere in Greenwood, Arkansas, and that the numerical portion of the physical address was
4613. She did not know the name of the street. Thus, the initial and all alias summonses were
addressed in Thomas’s name to 4613 _____________, Greenwood, Arkansas. Thomas was not
personally served with process in the fraud lawsuit in Arkansas. The second argument is based
14 upon the method of service of process authorized by the trial court—publication in a local
newspaper in Arkansas.
¶ 43 Thomas acknowledges that he was aware that there was a fraud case pending against him
in the St. Clair County circuit court, but he argues that his knowledge of the lawsuit does not
excuse Donna’s failure to achieve personal service. He cites to Studentowicz v. Queen’s Park Oval
Asset Holding Trust, 2019 IL App (1st) 181182, 125 N.E.3d 1151, in support of his argument. In
Studentowicz, the appellate court held that the name listed in the summons as part of “defendant’s
address” was insufficient to direct the summons to the correct property owner. The summons was
directed to Queen’s Park R/A Round Point Mortgage Servicing—and not to Queen’s Park Oval
Asset Holding Trust. Id. ¶ 2. The court was careful not to adopt a rule that would require the
“utmost precision,” finding that defects in the form of “minor misspellings and inclusion or
exclusion of initials are correctable misnomers and [are] therefore not fatal.” Id. ¶ 16 (citing
Thielke v. Osman Construction Corp., 129 Ill. App. 3d 948, 951, 473 N.E.2d 574, 576-77 (1985)).
The court also reiterated that knowledge of the pendency of a suit is not relevant on the issue of
whether the summons was in the proper form. Id. ¶ 17 (citing State Bank of Lake Zurich, 113 Ill.
2d at 308).
¶ 44 The Studentowicz case Thomas cites is inapposite to the issues involved in this case. In
Studentowicz, the plaintiff named a nonexistent entity with a similar name as the defendant on the
summons. Id. ¶ 2. Although an agent of Queen’s Park Oval Asset Holding Trust (the trust) was
served and the trust was aware of the lawsuit and had a copy of the complaint, the court found that
the trust was not actually served because of the error with the summons. Id. ¶¶ 5, 6, 21. Here,
unlike in Studentowicz, there is no dispute that Thomas was the person to be served. However, we
do not need to decide whether the lack of a street address was a flaw sufficient to render the process
15 ineffective because it was never served on Thomas. As such, Donna had to rely on the alternative
method of service approved by the court to affect personal jurisdiction.
¶ 45 We next turn to the service by publication issue. Thomas claims that service was improper
in this case because Donna did not comply with section 2-206(a) of the Code of Civil Procedure
(735 ILCS 5/2-206(a) (West 2010)) which provides the steps by which a plaintiff can achieve
personal service over a defendant by publication. He argues that service by publication as
completed in this case was ineffective. The statute requires publication in a local newspaper in the
county where the suit is pending and requires the clerk of the court to provide notice to the
defendant within 10 days after the notice is first published in the newspaper. Id.
¶ 46 Thomas contends that the trial court did not have personal jurisdiction over him because
Donna failed to comply with two requirements of the publication statute. First, the publication of
notice was not done in a newspaper published in St. Clair County where the case is pending.
Second, he contends that he did not receive a copy of the notice from the clerk’s office within 10
days of the first publication of the notice.
¶ 47 While Thomas accurately cites the service by publication statute requirements, the statute
is inapplicable because Donna asked the trial court for a special order to authorize an alternate
form of service pursuant to section 2-203.1 of the Code of Civil Procedure (735 ILCS 5/2-203.1
(West 2010)). Section 2-203.1 states that if personal service upon a defendant cannot be achieved
by service upon the defendant himself or by leaving a copy at the defendant’s place of abode, the
plaintiff is allowed to ask the court to enter an order directing a “comparable method of service.”
Id. The motion should be accompanied by an affidavit explaining what methods were attempted
and outlining the extent of the investigation to determine the defendant’s whereabouts. Id. Finally,
16 section 2-203.1 states: “The court may order service to be made in any manner consistent with due
process.” Id.
¶ 48 In this case, the trial court authorized a service method that may have had the best chance
to reach Thomas. It is clear from the record in this case that Thomas was trying to remain hidden.
He did not use his physical address, but instead had a post office box in Arkansas. When the trial
court held its hearing on Donna’s request for an alternate form of service, Donna’s attorney
subpoenaed Terry Neubauer, the attorney who was representing Thomas on the jurisdictional
issues in the dissolution of marriage case. The trial court asked attorney Neubauer to provide
Thomas’s physical address. He denied that he knew Thomas’s address, but during the hearing he
provided the court with Thomas’s post office box number.
¶ 49 The record on appeal contains no transcript of the hearing authorizing Donna’s request for
service by publication in an Arkansas newspaper. Additionally, the trial court’s order does not
include its reasons for authorizing service by publication in an Arkansas newspaper. As stated
earlier in this order, the burden is on the appellant to provide this court with a full and complete
record on appeal, and if there are deficiencies, this court presumes that the trial court’s order was
entered in compliance with the law and had a sufficient factual basis. Midstate Siding & Window
Co., 204 Ill. 2d at 319.
¶ 50 We note that the newspaper chosen is published and distributed in the geographic area of
Arkansas where Thomas maintained a post office box. Therefore, this publication would likely
have had the best opportunity to reach Thomas. We also note that the attorney representing
Thomas, although he had not entered his appearance in the fraud case, was present in court for the
hearing and was aware of the trial court’s order authorizing service by publication in an Arkansas
newspaper. Additionally, Thomas testified under oath in a statement taken by American Family
17 Insurance that his attorney—attorney Neubauer—advised him to leave Illinois and not to return
until Neubauer told him that it was safe to return. Finally, during the hearing on Thomas’s motion
to vacate the default judgment, Donna’s attorney informed the court that she had mailed copies of
“court documents” to the Arkansas post office box in an effort to keep Thomas apprised of this
case.
¶ 51 Overall, the record on appeal suggests that Thomas took steps to avoid personal service.
We find that service by publication in a newspaper located in the county of Thomas’s post office
box was appropriate under the circumstances and provided a better opportunity to reach Thomas
than publication in a St. Clair County, Illinois, newspaper. We conclude that the trial court’s order
authorizing this alternate method of service was fair and reasonable and served the interests of due
process as required by the statute. Thomas was effectively served by this alternate process. Thus,
we find that the trial court had personal jurisdiction over Thomas and the default judgment is not
void.
¶ 52 CONCLUSION
¶ 53 For the reasons stated in this order, we affirm the judgments of the St. Clair County circuit
court.
¶ 54 Affirmed.