Nelson v. Keene Corp.

669 N.E.2d 665, 283 Ill. App. 3d 7, 218 Ill. Dec. 522
CourtAppellate Court of Illinois
DecidedAugust 12, 1996
Docket1—92—2875, 1—92—2876 cons.
StatusPublished
Cited by4 cases

This text of 669 N.E.2d 665 (Nelson v. Keene Corp.) 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
Nelson v. Keene Corp., 669 N.E.2d 665, 283 Ill. App. 3d 7, 218 Ill. Dec. 522 (Ill. Ct. App. 1996).

Opinion

JUSTICE BRADEN

delivered the opinion of the court:

Plaintiffs, Elda Nelson and Patricia Dunning, appeal the judgment of the circuit court of Cook County dismissing their actions for lack of jurisdiction. On appeal, they opine that their complaints were erroneously dismissed.

We affirm.

On April 23, 1987, plaintiffs filed petitions pursuant to Supreme Court Rule 217 (134 Ill. 2d R. 217), seeking to preserve the testimony of two terminally ill persons, Robert Nelson and Colette Fitzsimmons, whose fatal conditions allegedly resulted from exposure to asbestos. Nelson was a former asbestos worker who was exposed to the substance on a daily basis. Fitzsimmons, a teacher, was exposed to asbestos at school where she taught. Both Nelson and Fitzsimmons developed malignant mesothelioma, a cancer caused by exposure to asbestos.

Rule 217, a discovery rule, provides for the taking of depositions in order to perpetuate testimony. Anticipating future litigation and the deaths of Nelson and Fitzsimmons, plaintiffs sought to videotape their depositions. In June 1987, the depositions of Nelson and Fitzsimmons were taken. Fitzsimmons died in September 1987; Nelson died in November of that year.

On October 15, 1987, plaintiffs submitted two motions, one pertaining to the Nelson case and one pertaining to the Fitzsimmons case. These motions, bearing the docket numbers of the Rule 217 proceedings, requested leave to file complaints for damages against defendants, Keene Corporation, ACandS, Inc., Armstrong World Industries, Inc., the Flintkote Company, Fibreboard Corporation, National Gypsum, Owens-Corning Fiberglas Corporation, Pittsburgh-Coming Corporation, Turner & Newall, P.L.C., GAF Corporation, United States Gypsum Company, Owens-Illinois, Inc., Rock Wool Manufacturing Company, Carey Canada, Inc., Celotex Corporation, Crown Cork & Seal Company, Eagle-Picher Industries, Inc., H.K. Porter Company, Inc., and Nicolet, Inc.

Appended to the motions for leave to file were the actual complaints. The motions for leave to file and the notice of the motions were mailed to defendants. Plaintiffs delivered the complaints to the deputy clerk assigned to the courtroom of the trial judge presiding over the Rule 217 proceedings. Plaintiffs’ counsel stamped the. complaints as filed in the chambers of the trial judge. Plaintiffs never paid a filing fee nor did they obtain new docket numbers for the actions they sought to commence. Defendants were never served with either summonses or complaints. None of the defendants filed appearances, responsive pleadings (with the exception of one which filed an answer with respect to Nelson) or any other motion indicative of the belief that a complaint had been filed. There was silence between the parties until October 1989.

On October 10, 1989, plaintiffs’ counsel amended the Nelson complaint, naming the same defendants. Defendants again filed no appearances or responsive pleadings. In December 1990, plaintiffs’ cases were set for trial, which was to begin on November 1, 1991. On January 24, 1991, ACandS filed a special and limited appearance, moving to dismiss the actions based upon lack of jurisdiction. ACandS argued that because it was not served with summonses and complaints, no actions were pending and the trial court had no jurisdiction over it. Several of the remaining defendants also moved to dismiss, filing special and limited appearances to contest the jurisdictional issue.

On December 12, 1991, the trial court granted the motions to dismiss, finding that no action had commenced and that it was without jurisdiction to proceed to trial on the matter. The trial court explained:

"By granting the motion and entering the order of October 15, 1987 allowing the complaint to be filed instanter and allowing defendants time certain within which to answer or otherwise plead I believe I did not confer jurisdiction. It doesn’t matter what the court’s intention was. It could not confer jurisdiction.
Indeed this Court had and continues to have limited jurisdiction under Rule 217. Any exercise of jurisdiction beyond what was conferred under Rule 217 was and would be in error. It would be a violation of the constitutional rights as well as the Illinois Code of Civil Procedure.
Defendants’ conduct did not confer jurisdiction. The Court never invoked its power to adjudicate a dispute to grant relief beyond [the Rule] 217 proceedings ***.”

On December 27, 1991, plaintiffs served summonses and complaints on defendants. These complaints were the same complaints that were delivered to the deputy clerk in the trial judge’s chambers on October 15, 1987, still bearing the docket numbers of the Rule 217 proceedings. Plaintiffs failed to file the complaints with the appropriate clerk of the circuit court and to pay the requisite filing fee. ACandS filed a motion to quash, alleging that, as the complaints were not filed in accordance with circuit court rules, there were no pending complaints and that service of "null” complaints was ineffective. The other defendants filed similar motions to quash or joined ACandS’s motion. Defendants’ motions were granted and plaintiffs appeal.

Plaintiffs question the propriety of the trial court’s dismissal of their complaints for lack of jurisdiction. Section 2—201(a) of the Civil Practice Law (735 ILCS 5/2—201(a) (West 1994)), unambiguously establishes the procedural steps essential to the commencement of a civil action. It states:

"Every action, unless otherwise expressly provided by statute, shall be commenced by the filing of a complaint. The clerk shall issue summons upon request of the plaintiff. The form and substance of the summons, and of all other process, and the issuanee of alias process, and the service of copies of pleadings shall be according to the rules.” 735 ILCS 5/2—201(a) (West 1994).

General jurisdiction is invoked in the trial court when an action is filed and a summons is issued and served upon the defendant according to law. Ryan v. Miller, 58 Ill. App. 3d 283, 374 N.E.2d 257 (1978). The objective of process service is threefold: (1) It notifies the defendant of pending litigation; (2) it enables the defendant to appear and defend; and (3) it vests jurisdiction in the trial court over both the controversy and the defendant. Charter Bank & Trust v. Novak, 218 Ill. App. 3d 548, 578 N.E.2d 629 (1991). Any judgment rendered absent the proper service of a summons is void ab initio for lack of jurisdiction over the defendant. Meldoc Properties v. Prezell, 158 Ill. App. 3d 212, 511 N.E.2d 861 (1987).

Plaintiffs’ conduct in this case ignored all of the aforementioned well-established procedural rules for filing a civil complaint. They do not dispute their disregard of these rules.

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Bluebook (online)
669 N.E.2d 665, 283 Ill. App. 3d 7, 218 Ill. Dec. 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-keene-corp-illappct-1996.