Thompson v. Ross Dialysis-Englewood, LLC

2017 IL App (1st) 161329

• Court: Appellate Court of Illinois
• Decided: September 11, 2017
• Docket: 1-16-1329
• Status: Unpublished

Opinion

2017 IL App (1st) 161329

FIRST DIVISION September 11, 2017

No. 1-16-1329

KEITH THOMPSON, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 14 L 13197 ) ROSS DIALYSIS-ENGLEWOOD, LLC; FRESENIUS ) MEDICAL CARE OF ILLINOIS, LLC; and JAMILA ) BRAGGS, ) ) Defendants, ) The Honorable ) Eileen M. Brewer, (Jamila Braggs, Defendant-Appellant). ) Judge Presiding.

PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Neville and Hyman concurred in the judgment and opinion.

OPINION

¶1 In this interlocutory appeal, Jamila Braggs, an Illinois resident, challenges the circuit

court’s order denying her motion to dismiss for lack of personal jurisdiction. Plaintiff sought

leave of court to serve defendant by alternative methods after his attempts to personally serve her

with an alias summons and complaint were unsuccessful. Defendant argues that plaintiff did not

demonstrate diligence in attempting to serve her with a summons and complaint either through

personal or substitute service, and therefore was not entitled to a special order of court allowing

alternative service. We agree. We therefore reverse the circuit court’s order granting plaintiff’s

motion for alternative service, quash the service of process on defendant, and remand for further

proceedings. 1-16-1329

¶2 BACKGROUND

¶3 On December 22, 2014, Keith Thompson filed a complaint against Ross Dialysis-

Englewood, LLC, Fresenius Medical Care of Illinois, LLC, and Jamila Braggs. Thompson

alleged that Braggs, an employee or agent of Ross Dialysis, assaulted and battered him while

plaintiff was an invitee at Ross Dialysis. On February 13, 2015, a summons was issued addressed

to Braggs at 14528 Des Plaines Street, Harvey, Illinois. The sheriff’s office of Cook County

made three unsuccessful attempts between March 1 and March 7 to serve Braggs at 14528 Des

Plaines Street. The affidavit of non-service explained that Braggs was not served because, “per

the Forte family, [defendant] unknown.”

¶4 On May 1, 2015, an alias summons was issued addressed to Braggs at 14528 Des Plaines

Street. On May 28, 2015, plaintiff’s special process server executed an affidavit stating that he

served Braggs with a copy of the summons and complaint at 15722 Spaulding Avenue,

Markham, Illinois on “May 21, 2013,” [sic] at 9:13 p.m. The process server’s affidavit stated that

the person served with the summons and complaint “[r]efused to show ID,” and was described as

an African American female, approximately 35 years old. 1

¶5 On September 9, 2015, Braggs filed a motion to quash the “May 21, 2013,” [sic] service

of process. Attached to the motion to quash was Braggs’s affidavit executed on August 24, 2015.

She averred that she currently resided at 151 South Desplaines Street, Joliet, Illinois, and she had

lived there since September 2014. She stated that she did not reside at 15722 Spaulding Avenue,

had not resided at that address since 2012, and was not present at that address on May 21, 2015.

Braggs further claimed that she had not been served with any summons or complaint. Her

affidavit was not supported by any exhibits or corroborated by any evidence of her address.

1 Although Thompson claims in his appellee’s brief that Braggs matches this description, the record does not contain any description of Braggs’s physical features. 2 1-16-1329

¶6 On September 16, 2015, the circuit court entered a handwritten order granting Braggs’s

motion to quash. The order also granted Thompson leave to issue an alias summons and

appointed a special process server. On September 18, 2015, an alias summons was issued for

“Jamilla Braggs,” 2 with a listed address of “151 Desplaines St., Joliet, IL 60436.” A case

management order entered on October 28, 2015, states that “[i]f [Defendant] Braggs not served

Plaintiff granted leave to issue alias summons and appoint *** [a] special process server.”

¶7 On December 17, 2015, Thompson filed a motion for leave to issue a third alias

summons and appoint a special process server. The motion explained that his special process

server had changed addresses and was not able to timely serve the second alias summons that

had been previously issued. The circuit court granted Thompson’s motion on December 28,

2015, and the third alias summons was issued on January 8, 2016.

¶8 On March 2, 2016, Thompson filed a motion for alterative service pursuant to section 2-

203.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-203.1 (West 2014)), claiming that he

had incurred “significant expense attempting to locate and personally serve [Braggs], however

[p]laintiff has been unable to serve [Braggs].” Attached to the motion was a skip trace performed

on February 9, 2015, by Stewart & Associates, Inc. that listed 18 possible addresses for Braggs,

one of which was 15722 Spaulding Avenue. Also attached to the motion for alternative service

was an affidavit of non-service executed by Joseph Bell on February 12, 2016. Bell’s affidavit

stated that he attempted to serve Braggs at 15722 Spaulding Avenue and that “[i]t has been

determined that subject does not live at address listed on summons. The address on summons

[sic] is 151 Desplaines St., Joliet, IL 60436.” Bell detailed two attempts to serve Braggs at 15722

Spaulding Avenue. On January 19, 2016, at 8:43 a.m., Bell observed a grey Nissan with Illinois

2 Braggs’s name is spelled both “Jamila” and “Jamilla” throughout the record. 3 1-16-1329

license plates parked in the driveway. 3 After he knocked on the door and announced his

presence, a female spoke through the door, asked him to leave, and threatened to call the police.

She refused to provide her name or identification. On January 27, 2016, Bell again observed the

grey Nissan in the driveway. Without opening the door, a female occupant insisted that Bell

leave or that she would call the police. She refused to provide her name or identification, and she

called the police. A Markham police officer arrived, and Bell asked the officer to confirm the

women’s identify. The officer refused to do so.

¶9 On March 3, 2016, the circuit court granted Thompson’s motion for alternative service.

The order granted Thompson leave to attempt service by certified mail and posting on Braggs’s

door. A fourth alias summons for Braggs was issued on March 9, 2016, with a listed address of

“151 Desplaines St., Joliet, IL 60436.” Thompson sent the summons and complaint via certified

and regular mail to 151 Desplaines Street, and both letters were postmarked March 9, 2016. On

April 2, 2016, Bell executed an affidavit for service by publication and posting, in which he

attested that Braggs was concealed within the state. 4

¶ 10 On April 15, 2016, Braggs filed a motion to dismiss pursuant to section 2-301 of the

Code (735 ILCS 5/2-301 (West 2014)) for lack of personal jurisdiction. She argued that

Thompson failed to effectuate personal or substitute service pursuant to section 2-203(a) of the

Code (735 ILCS 5/2-203(a) (West 2014)), and that service by alternative method was not

available where Thompson did not demonstrate that personal or substitute service was

impractical. Furthermore, Braggs argued that Thompson’s motion for leave to obtain service

3 There is no evidence in the record before us that the grey Nissan belonged to or was registered to Braggs. 4 Plaintiff asserts on appeal that “[s]ervice by posting was completed at 151 S. Desplaines St. on April 2, 2016,” and cites to Bell’s April 2, 2016 affidavit as support for that claim. Bell’s affidavit, however, does not reflect that he posted the summons and complaint at any time.

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through alternative methods failed to demonstrate that Thompson made a diligent inquiry into

Braggs’s whereabouts or made a reasonable effort to achieve personal or substitute service

pursuant to section 2-203(a) of the Code. Attached to Braggs’s motion to dismiss was an

affidavit she executed on April 6, 2016, which states that Braggs resided at 151 South Desplaines

Street “and [had] lived at this address since the date of my last [a]ffidavit *** until the present

date[,]” 5 that she had not lived at the Spaulding address since 2012, and that she was not present

at the Spaulding address on either January 19 or January 27. She further claimed that on March

12, 2016, she received mail at 151 South Desplaines Street from Thompson’s attorney’s firm,

and that on March 16, 2016, she received a summons and complaint taped to her door at 151

South Desplaines.

¶ 11 On April 22, 2016, the circuit court denied Braggs’s motion to dismiss “based upon

plaintiff’s prior attempts at service and order granting alternative service.” Braggs filed a petition

for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(3) (eff. Mar. 8, 2016), which

we allowed.

¶ 12 ANALYSIS

¶ 13 Braggs argues that the circuit court should have granted her motion to dismiss because

Thompson’s motion for alternative service did not satisfy the diligence requirement of section 2-

203.1 of the Code. She contends that she provided her correct address, 151 South Desplaines

Street, in her August 24, 2015, affidavit in support of her motion to quash and that Thompson

provided no evidence of any attempts to serve Braggs at 151 South Desplaines Street.

¶ 14 The question of whether the circuit court had personal jurisdiction over a party is a

question of law that is generally reviewed de novo. BAC Home Loans Servicing, LP v. Mitchell,

5 As noted above, Braggs’s August 24, 2015, affidavit stated that she had resided at 151 South Desplaines Street since September 2014. Supra ¶ 6. 5 1-16-1329

2014 IL 116311, ¶ 17; White v. Ratcliffe, 285 Ill. App. 3d 758, 764 (1996). Thompson argues

that the clearly erroneous standard applies because the question of whether Thompson’s attempts

to serve Braggs were sufficient involved mixed questions of law and fact. See People ex rel.

Waller v. Harrison, 348 Ill. App. 3d 976, 979 (2004). We disagree. Waller recognized that when

the circuit court does not hear disputed evidence or make any findings of fact, the de novo

standard applies. Id. at 979-80; see also Aurora Loan Services, LLC v. Kmiecik, 2013 IL App

(1st) 121700, ¶ 15 (where the circuit court’s ruling on a motion to quash service “is based on

documentary evidence only, our review on appeal is de novo.”). Here, there is nothing in the

record to suggest that the circuit court held an evidentiary hearing, heard disputed evidence, or

made any findings of fact when it granted Thompson’s motion for alternative service or when it

denied Braggs’s motion to quash. There are no findings of fact to which we must defer, and we

thus review the circuit court’s order de novo.

¶ 15 In order to enter a valid judgment, the circuit court must possess both subject matter

jurisdiction and personal jurisdiction over the parties. State Bank of Lake Zurich v. Thill, 113 Ill.

2d 294, 308 (1986). The circuit court acquires personal jurisdiction over a defendant either

through the filing of an appearance or by service of process as directed by statute. Id.; see also

BAC Home Loans, 2014 IL 116311, ¶ 18. Section 2-203 of the Code provides in relevant part

that:

“Except as otherwise expressly provided, service of summons upon an individual

defendant shall be made (1) by leaving a copy of the summons with the defendant

personally, [or] (2) by leaving a copy at the defendant’s usual place of abode, with some

person of the family or a person residing there, of the age of 13 years or upwards, and

informing that person of the contents of the summons, provided the officer or other

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person making service shall also send a copy of the summons in a sealed envelope with

postage fully prepaid, addressed to the defendant at his or her usual place of abode ***.”

735 ILCS 5/2-203(a) (West 2014).

Section 2-203.1 of the Code provides:

“Service by special order of court. If service upon an individual defendant is

impractical under items (1) and (2) of subsection (a) of Section 2-203, the plaintiff may

move, without notice, that the court enter an order directing a comparable method of

service. The motion shall be accompanied with 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. The court may order service to be made in any manner consistent with due

process.” 735 ILCS 5/2-203.1 (West 2014).

Based on the plain language of the statute, a party seeking service by a special order of court

under section 2-203.1 of the Code must demonstrate that it made a diligent inquiry into the

whereabouts of the defendant and must detail the reasonable efforts it made to effectuate service

under section 2-203(a) of the Code. “A plaintiff seeking to serve a defendant pursuant to section

2-203.1 must strictly comply with the requirements of that provision, and a failure to conduct a

diligent inquiry of the defendant’s location will result in improper service.” Sutton v. Ekong,

2013 IL App (1st) 121975, ¶ 19 (citing Mugavero v. Kenzler, 317 Ill. App. 3d 162, 166 (2000)).

¶ 16 Braggs relies primarily on Mugavero and Sutton in support of her argument that

Thompson failed to conduct a diligent inquiry into her location. In Mugavero, the plaintiff sued

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the defendant for allegedly causing an automobile accident. 317 Ill. App. 3d at 163. The

summonses issued went unserved, and plaintiff sought leave of court to serve defendant through

the Secretary of State. Id. at 163-64. The circuit court allowed the alternative service, and a

default judgment was entered against defendant. Id. at 164. Defendant moved to quash the

service of process, arguing that alternative service on the Secretary of State pursuant to section 2-

203.1 of the Code was not permitted. Id. The circuit court denied the motion to quash and

defendant’s motion to reconsider. Id. We reversed, finding that plaintiff had not filed an affidavit

as required by section 2-203.1 of the Code. Id. at 165. We further rejected the plaintiff’s

argument that testimony from the hearing on defendant’s motion to reconsider would have

shown the “extensive efforts” to locate defendant, finding that the alleged testimony “was no

substitute for the affidavit required by section 2-203.1.” Id. We concluded that “a plaintiff who

seeks to serve a defendant in accordance with section 2-203.1 must strictly comply with the

provisions of that section.” Id. at 166.

¶ 17 In Sutton, the plaintiff sued the defendant for allegedly causing an automobile accident.

2013 IL App (1st) 121975, ¶ 3. The plaintiff made six unsuccessful attempts to serve defendant

with the summons and the complaint. Id. ¶¶ 4-5. The plaintiff sought and obtained leave to serve

the defendant by an alternative method of service pursuant to section 2-203.1 of the Code by

serving the Secretary of State, and a default judgment was entered in favor of the plaintiff. Id.

¶¶ 6-7. The defendant filed a motion to vacate the default judgment and quash the alternative

service, which the circuit court denied. Id. ¶ 10. The defendant appealed and we reversed. We

found that the plaintiff “did not perform the type of search or investigation that an earnest person

seeking to locate a defendant to effectuate service on him would make, as plaintiff failed to

discover [the defendant’s] easily obtainable business address or attempt to serve him at that

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location prior to requesting service by special order of the court.” Id. ¶ 22. We relied in part on

our supreme court’s decision in In re Dar. C., in which the State was found to have failed to

exercise diligence under section 2-16(2) of the Juvenile Court Act of 1987 (705 ILCS 405/2-

16(2) (West 2006)) in locating a minor’s biological father where the State failed to conduct any

search or investigation into several opportunities to acquire the father’s contact information.

2011 IL 111083, ¶¶ 75-80.

¶ 18 Taken together, section 2-203.1 of the Code, Mugavero, and Sutton require a plaintiff

seeking leave of court to serve a defendant through alternative service to present an affidavit that

demonstrates the diligent efforts plaintiff made to reasonably ascertain the whereabouts of the

defendant to be served and to explain that those efforts were unsuccessful. Here, like in Sutton,

Thompson failed to satisfy the diligence requirement of section 2-203.1 of the Code.

Thompson’s motion for alternative service was supported by Bell’s February 12, 2016, affidavit

of non-service in which Bell stated that “[i]t has been determined that subject does not live at

address [sic] listed on summons. The address on summons [sic] is 151 Desplaines St., Joliet, IL

60436.” Bell did not document any attempts to serve Braggs at 151 South Desplaines Street, and

there is no evidence in the record that explains how Bell determined that Braggs did not reside at

that address. Furthermore, the skip trace attached to Thompson’s motion for alternative service,

which was not attached to or referenced in Bell’s affidavit, was performed in February 2015, a

full 11 months prior to Bell’s attempts to serve Braggs in January 2016. Thompson’s motion is

devoid of any evidence that he undertook any effort at all to determine Braggs’s address after the

circuit court’s September 16, 2015, order quashing the May 23, 2015, service of process.

Braggs’s home address was easily ascertainable: she herself provided her address in her August

24, 2015, affidavit. Yet Thompson did not demonstrate that he made any effort to effectuate

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service of a summons and complaint on Braggs at an easily ascertainable address. Finally, after

Thompson secured an order allowing him to serve Braggs by certified mail and posting,

Thompson, for the first time, sought to effectuate service on Braggs at 151 Desplaines Street.

Thompson plainly failed to comply with section 2-203.1 of the Code.

¶ 19 Thompson attempts to distinguish Sutton by claiming that in that case, the plaintiff failed

to discover an easily obtainable business address, whereas here, the alias summons dated

September 18, 2015, contained the 151 Desplaines Street address. But Thompson cannot claim to

have satisfied the diligence requirement in section 2-203.1 of the Code by virtue of having done

nothing with information that was in his possession—the mere issuance of a summons with a

correct address cannot constitute diligence for the purposes of section 2-203.1 of the Code when

a plaintiff then fails to attempt to have the summons served on the defendant.

¶ 20 The circuit court erred in granting Thompson leave to serve Braggs by alternative

methods. Because Thompson failed to strictly comply with section 2-203.1 of the Code, he was

not entitled to serve Braggs by mailing and posting a copy of the summons and complaint. That

service was therefore not sufficient to confer the circuit court with personal jurisdiction over

Braggs. Although Braggs styled her motion as a motion to dismiss for lack of jurisdiction, she is

an Illinois resident and thus subject to the general personal jurisdiction of the Illinois courts,

provided that she is properly served with a summons and complaint as directed by section 2-

203(a) of the Code. Therefore, the proper relief available to Braggs is to reverse the circuit

court’s order granting Thompson leave to serve her by alternative methods, reverse the circuit

court’s April 22, 2016, order to the extent that the circuit court denied Braggs’s motion to quash

the service of process by regular and certified mail and posting, quash the service of process, and

remand for further proceedings. See, e.g., People v. Wallace, 405 Ill. App. 3d 984, 988 (2010)

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(explaining that service requirements “ensure that potential defendants have due notice of suits”

and that where a party has notice of action and a service error is technical in nature, the proper

remedy is to require “service on a party that already has notice.”).

¶ 21 CONCLUSION

¶ 22 For the foregoing reasons, the circuit court’s orders granting Thompson’s motion for

alternative service and denying Braggs’s motion to quash are reversed, the service of the

summons and complaint effectuated by mailing and posting is quashed, and we remand for

further proceedings.

¶ 23 Reversed and remanded.