2022 IL App (2d) 210607-U No. 2-21-0607 Order filed September 20, 2022
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)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
FRANCES G. LUCZAK, ) Appeal from the Circuit Court ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 12-CH-5066 ) MARY ANN HALL, as Trustee of the, ) ROBERT L. JENSEN TRUST, ) ) Defendant ) ) Honorable (George E. Hall, III, Third-Party Citation ) Paul M. Fullerton, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Brennan and Justice Birkett concurred in the judgment.
ORDER
¶1 Held: Service of process that did not comply with Supreme Court Rule 105(b)(2) (eff. Jan. 1, 2018) was insufficient to confer personal jurisdiction over third-party citation respondent.
¶2 I. INTRODUCTION
¶3 Third-party citation respondent, George E. Hall, III (respondent), appeals a series of orders
of the circuit court of Du Page County finding that it had personal jurisdiction over him and 2022 IL App (2d) 210607-U
awarding plaintiff, Frances Luczak, $77,101.03 representing an amount converted from the Robert
L. Jensen Trust. For the reasons that follow, we reverse.
¶4 II. BACKGROUND
¶5 The instant appeal has its genesis in litigation commenced in October 2012, when plaintiff
filed a complaint for inventory against defendant Mary Ann Hall in her capacity as Trustee of the
Robert L. Jensen Trust (Mary Ann Hall, who is respondent’s mother, is not a party to this appeal).
Plaintiff alleged that defendant had breached her fiduciary duties as Trustee. In January 2018,
judgment was entered against defendant. It is undisputed that defendant transferred to respondent
approximately $89,000 ($12,000 was apparently recovered by plaintiff during the course of a
bankruptcy proceeding initiated by defendant). In March 2019, a citation to discover assets was
issued to respondent. Respondent, a Texas resident at the time, moved to quash. The trial court
denied this motion. Ultimately a judgment was entered against respondent in the amount of
$77,101.03. Respondent now appeals, and, for the reasons that follow, we reverse.
¶6 III. ANALYSIS
¶7 On appeal, respondent raises three main arguments. First, he contends that the trial court
lacked personal jurisdiction over him. Second, he argues that section 2-1402 of the Civil Practice
Law (735 ILCS 5/2-1402 (West 2020)) did not authorize the trial court to enter the order it did in
this case. Third, he asserts that plaintiff’s failure to join him in the earlier litigation bars her from
pursuing trust assets in accordance with the merger doctrine, collateral estoppel, and res judicata.
As we find that the trial court lacked personal jurisdiction over respondent, we need not address
respondent’s second and third arguments.
¶8 We now turn to respondent’s argument that the trial court lacked personal jurisdiction over
him. Whether jurisdiction exists is a legal issue, so review is de novo. In re Luis R., 239 Ill. 2d
-2- 2022 IL App (2d) 210607-U
295, 299 (2010). Generally, to enter a valid judgement, a court must have both subject-matter
jurisdiction and personal jurisdiction. BAC Home Loan Servicing, LP v. Mitchell, 2014 IL 116311,
¶ 17. A trial court must have personal jurisdiction over a third party in a supplemental proceeding
in order to exercise authority over him or her. Poplar Grove State Bank v. Powers, 218 Ill. App.
3d 509, 520-21 (1991). Establishing personal jurisdiction over an individual has two components.
First, for a court to exercise jurisdiction over an individual, the individual must have at least
minimum contacts with this state. Keller v. Henderson, 359 Ill. App. 3d 605, 613 (2005). Second,
valid service of process must be rendered upon the individual (unless the individual voluntarily
submits to the jurisdiction of the court). BAC Home Loan Servicing, LP, 2014 IL 116311, ¶ 18.
Defective service of process is insufficient to establish personal jurisdiction. Id; see also Municipal
Trust & Savings Bank v. Moriarty, 2021 IL 126290, ¶ 17 (“A judgment rendered without voluntary
submission or service of process in strict statutory compliance is void regardless of whether the
defendant had actual knowledge of the proceedings.”).
¶9 Respondent’s argument is premised on his claim that he was not properly served in this
matter. A number of statutes and rules are relevant here. First, section 2-1402(a) of the Civil
Practice Law (735 ILCS 5/2-1402(a) (West 2020)) provides, in pertinent part, “The procedure for
conducting citation proceedings shall be prescribed by rules.” Illinois Supreme Court Rule 277
(eff. Jan. 4, 2013) implements section 2-1402 and states, “The citation shall be served and returned
in the manner provided by rule for service, otherwise than by publication, of a notice of additional
relief upon a party in default.” Illinois Supreme Court Rule 105 (eff. Jan. 1, 2018) governs
“additional relief upon parties in default.” Relevant here, Rule 105(b)(2) states:
“The notice may be served by any of the following methods:
***
-3- 2022 IL App (2d) 210607-U
(2) By prepaid certified or registered mail addressed to the party, return receipt
requested, showing to whom delivered and the date and address of delivery. The
notice shall be sent ‘restricted delivery’ when service is directed to a natural person.
Service is not complete until the notice is received by the defendant, and the registry
receipt is prima facie evidence thereof.”
As noted, these requirements must be complied with strictly. Municipal Trust & Savings Bank v.
Moriarty, 2021 IL 126290, ¶ 17.
¶ 10 Here, the record contains a receipt from the United States Postal Service showing payment
for a “3-day flat rate env[elope]” to Dickinson, Texas. A printout of the online tracking page
accompanies the receipt. It states that the envelope was delivered on March 18, 2019, at 11:46
a.m. “In/At Mailbox Dickinson Tx 77539.” However, it does not state to whom it was delivered
or to what address. Such omissions are fatal. See People v. Liner, 2015 IL App (3d) 140167, ¶ 16
(holding that, for the purpose of Illinois Supreme Court Rule 12 (eff. July 1, 2017), omission of
address amounted to non-compliance with service requirements). Moreover, respondent is a
“natural person,” but there is no indication that it was sent “restricted delivery.” This clearly does
not strictly comply with the mandates of Rule 105; indeed, even if strict compliance was not
required, we would have difficulty concluding that this constituted substantial compliance where
not even the person served was identified. Cf. People v. Scott, 2019 IL App (2d) 160439, ¶ 21
(describing the sort of defect that would not preclude a finding of substantial compliance under
Illinois Supreme Court Rule 12 (eff. July 1, 2017) as, a “slight defect in the form of the proof
of service, such as a typographical error, misspelling, or other inadvertent mistake.”).
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2022 IL App (2d) 210607-U No. 2-21-0607 Order filed September 20, 2022
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)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
FRANCES G. LUCZAK, ) Appeal from the Circuit Court ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 12-CH-5066 ) MARY ANN HALL, as Trustee of the, ) ROBERT L. JENSEN TRUST, ) ) Defendant ) ) Honorable (George E. Hall, III, Third-Party Citation ) Paul M. Fullerton, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Brennan and Justice Birkett concurred in the judgment.
ORDER
¶1 Held: Service of process that did not comply with Supreme Court Rule 105(b)(2) (eff. Jan. 1, 2018) was insufficient to confer personal jurisdiction over third-party citation respondent.
¶2 I. INTRODUCTION
¶3 Third-party citation respondent, George E. Hall, III (respondent), appeals a series of orders
of the circuit court of Du Page County finding that it had personal jurisdiction over him and 2022 IL App (2d) 210607-U
awarding plaintiff, Frances Luczak, $77,101.03 representing an amount converted from the Robert
L. Jensen Trust. For the reasons that follow, we reverse.
¶4 II. BACKGROUND
¶5 The instant appeal has its genesis in litigation commenced in October 2012, when plaintiff
filed a complaint for inventory against defendant Mary Ann Hall in her capacity as Trustee of the
Robert L. Jensen Trust (Mary Ann Hall, who is respondent’s mother, is not a party to this appeal).
Plaintiff alleged that defendant had breached her fiduciary duties as Trustee. In January 2018,
judgment was entered against defendant. It is undisputed that defendant transferred to respondent
approximately $89,000 ($12,000 was apparently recovered by plaintiff during the course of a
bankruptcy proceeding initiated by defendant). In March 2019, a citation to discover assets was
issued to respondent. Respondent, a Texas resident at the time, moved to quash. The trial court
denied this motion. Ultimately a judgment was entered against respondent in the amount of
$77,101.03. Respondent now appeals, and, for the reasons that follow, we reverse.
¶6 III. ANALYSIS
¶7 On appeal, respondent raises three main arguments. First, he contends that the trial court
lacked personal jurisdiction over him. Second, he argues that section 2-1402 of the Civil Practice
Law (735 ILCS 5/2-1402 (West 2020)) did not authorize the trial court to enter the order it did in
this case. Third, he asserts that plaintiff’s failure to join him in the earlier litigation bars her from
pursuing trust assets in accordance with the merger doctrine, collateral estoppel, and res judicata.
As we find that the trial court lacked personal jurisdiction over respondent, we need not address
respondent’s second and third arguments.
¶8 We now turn to respondent’s argument that the trial court lacked personal jurisdiction over
him. Whether jurisdiction exists is a legal issue, so review is de novo. In re Luis R., 239 Ill. 2d
-2- 2022 IL App (2d) 210607-U
295, 299 (2010). Generally, to enter a valid judgement, a court must have both subject-matter
jurisdiction and personal jurisdiction. BAC Home Loan Servicing, LP v. Mitchell, 2014 IL 116311,
¶ 17. A trial court must have personal jurisdiction over a third party in a supplemental proceeding
in order to exercise authority over him or her. Poplar Grove State Bank v. Powers, 218 Ill. App.
3d 509, 520-21 (1991). Establishing personal jurisdiction over an individual has two components.
First, for a court to exercise jurisdiction over an individual, the individual must have at least
minimum contacts with this state. Keller v. Henderson, 359 Ill. App. 3d 605, 613 (2005). Second,
valid service of process must be rendered upon the individual (unless the individual voluntarily
submits to the jurisdiction of the court). BAC Home Loan Servicing, LP, 2014 IL 116311, ¶ 18.
Defective service of process is insufficient to establish personal jurisdiction. Id; see also Municipal
Trust & Savings Bank v. Moriarty, 2021 IL 126290, ¶ 17 (“A judgment rendered without voluntary
submission or service of process in strict statutory compliance is void regardless of whether the
defendant had actual knowledge of the proceedings.”).
¶9 Respondent’s argument is premised on his claim that he was not properly served in this
matter. A number of statutes and rules are relevant here. First, section 2-1402(a) of the Civil
Practice Law (735 ILCS 5/2-1402(a) (West 2020)) provides, in pertinent part, “The procedure for
conducting citation proceedings shall be prescribed by rules.” Illinois Supreme Court Rule 277
(eff. Jan. 4, 2013) implements section 2-1402 and states, “The citation shall be served and returned
in the manner provided by rule for service, otherwise than by publication, of a notice of additional
relief upon a party in default.” Illinois Supreme Court Rule 105 (eff. Jan. 1, 2018) governs
“additional relief upon parties in default.” Relevant here, Rule 105(b)(2) states:
“The notice may be served by any of the following methods:
***
-3- 2022 IL App (2d) 210607-U
(2) By prepaid certified or registered mail addressed to the party, return receipt
requested, showing to whom delivered and the date and address of delivery. The
notice shall be sent ‘restricted delivery’ when service is directed to a natural person.
Service is not complete until the notice is received by the defendant, and the registry
receipt is prima facie evidence thereof.”
As noted, these requirements must be complied with strictly. Municipal Trust & Savings Bank v.
Moriarty, 2021 IL 126290, ¶ 17.
¶ 10 Here, the record contains a receipt from the United States Postal Service showing payment
for a “3-day flat rate env[elope]” to Dickinson, Texas. A printout of the online tracking page
accompanies the receipt. It states that the envelope was delivered on March 18, 2019, at 11:46
a.m. “In/At Mailbox Dickinson Tx 77539.” However, it does not state to whom it was delivered
or to what address. Such omissions are fatal. See People v. Liner, 2015 IL App (3d) 140167, ¶ 16
(holding that, for the purpose of Illinois Supreme Court Rule 12 (eff. July 1, 2017), omission of
address amounted to non-compliance with service requirements). Moreover, respondent is a
“natural person,” but there is no indication that it was sent “restricted delivery.” This clearly does
not strictly comply with the mandates of Rule 105; indeed, even if strict compliance was not
required, we would have difficulty concluding that this constituted substantial compliance where
not even the person served was identified. Cf. People v. Scott, 2019 IL App (2d) 160439, ¶ 21
(describing the sort of defect that would not preclude a finding of substantial compliance under
Illinois Supreme Court Rule 12 (eff. July 1, 2017) as, a “slight defect in the form of the proof
of service, such as a typographical error, misspelling, or other inadvertent mistake.”).
¶ 11 Plaintiff counters that there is evidence in the record to show that respondent was aware of
the citation proceedings. That respondent was served is referenced both in a filing before the
-4- 2022 IL App (2d) 210607-U
bankruptcy court and in a letter written by respondent’s counsel. As noted, however, a party’s
actual knowledge of the pendency of proceedings is not an adequate substitute for proper service.
Municipal Trust & Savings Bank, 2021 IL 126290, ¶ 17; State Bank of Lake Zurich v. Thill, 113
Ill. 2d 294, 308 (1986) (“A judgment rendered without service of process, either by summons or
by publication and mailing, where there has been neither a waiver of process nor a general
appearance by the defendant, is void regardless of whether the defendant had actual knowledge of
the proceedings.”). Respondent cites nothing to establish a contrary proposition. Hence,
respondent’s actual knowledge of the proceedings is immaterial.
¶ 12 Accordingly, we are compelled to conclude that the trial court erred in finding that it had
personal jurisdiction over respondent.
¶ 13 IV. CONCLUSION
¶ 14 In light of the foregoing, the judgment of the circuit court of Du Page County is reversed.
¶ 15 Reversed.
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