2014 IL App (2d) 131146 No. 2-13-1146 Opinion filed November 17, 2014 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
WEST SUBURBAN BANK, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellee, ) ) v. ) No. 08-CH-4874 ) ADVANTAGE FINANCIAL PARTNERS, ) LLC, ) Honorable ) Robert G. Gibson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Jorgensen concurred in the judgment and opinion. Justice Birkett specially concurred, with opinion.
OPINION
¶1 The plaintiff, West Suburban Bank (WSB), issued a loan to the defendant, Advantage
Financial Partners, LLC, and Advantage collateralized that loan with the mortgages of 23
properties in Cook, Du Page, and other counties. Advantage defaulted on the loan, and WSB
filed foreclosure actions against the mortgaged properties. In almost all of the actions, a private
detective agency called MPSI, Inc., was appointed and acted as a special process server. After
WSB obtained judgments and the properties were sold, Advantage filed petitions under section
2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)) to set aside the
judgments for lack of personal jurisdiction. Advantage alleged that service was defective, 2014 IL App (2d) 131146
because MPSI was not properly certified when its employees served process in the lawsuits. The
trial court dismissed the petitions and Advantage appealed. We reverse and remand.
¶2 BACKGROUND
¶3 In 2005, WSB issued a $10 million revolving-credit promissory note to Advantage,
secured by multiple mortgages on properties owned by Advantage in several counties.
Advantage defaulted on the note in 2008.
¶4 Beginning in December 2008, WSB filed 23 foreclosure actions against Advantage on
the properties that secured the promissory note. In all but one of these cases, 1 WSB sought and
obtained orders appointing MPSI, Inc., license No. 117-000774, as special process server, and
MPSI employees served process upon Advantage. WSB subsequently obtained default
judgments of foreclosure in all of the cases. In 2009, the properties were sold to WSB at
sheriff’s sales and the sales were confirmed by the court. WSB later sold the properties to third
parties.
¶5 About four years later, in April 2013, Advantage filed section 2-1401 petitions for relief
from judgment in all 23 cases. As relevant here, the petitions alleged that service was defective
because MPSI was not certified to act as a process server at the time its employees served the
summonses in the cases. Accordingly, the trial courts had never acquired personal jurisdiction
over Advantage, and the orders subsequently entered in the cases were void. (The section 2-
1401 petitions also alleged other defects in the service, but they are not relevant here in light of
our disposition.)
¶6 WSB sought consolidation as to all of the cases and the supreme court granted it as to all
but one case, a Cook County case. The 22 remaining cases were consolidated into the present
1 In Will County case No. 08-CH-5698, a different special process server was appointed.
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case, No. 08-CH-4874, which proceeded before the circuit court of Du Page County. WSB then
filed a motion to dismiss the section 2-1401 petitions.
¶7 During the briefing of the motion to dismiss, multiple exhibits were presented that
established the following facts, all of which appear to be undisputed. MPSI was first licensed by
the Department of Financial and Professional Regulation (Department) in 1994 under a different
name; the name was changed to MPSI in 2000. The agency was founded by Alfred J.
Chiappano, a licensed private detective himself. Chiappano was identified in government
records as the licensed “private detective in charge” of MPSI.
¶8 On August 31, 2008, MPSI’s license expired. It has never been renewed. Later that year,
in November 2008, MPSI was involuntarily dissolved by the Secretary of State. Thus, when
MPSI employees served process on Advantage in the cases herein, MPSI was neither licensed
nor an Illinois corporation. (After Advantage filed its section 2-1401 petitions, MPSI sought and
received reinstatement as an Illinois corporation. However, it never renewed its private detective
agency license.) Chiappano’s individual license remained valid at all times.
¶9 On September 24, 2013, the trial court heard oral argument and granted WSB’s motion to
dismiss Advantage’s section 2-1401 petitions in 21 cases, 2 reasoning that, even though MPSI
itself was not licensed at the time of service, its employees who served the summonses were
licensed, and thus there was no defect in service. It also stated that allowing the section 2-1401
petitions to proceed more than five years after the properties were sold would be “inequitable.”
Advantage appealed.
2 The order did not apply to the Cook County case that was not consolidated with the
others, or to the Will County case involving a different process server. Accordingly, this appeal
concerns the remaining 21 cases.
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¶ 10 ANALYSIS
¶ 11 On appeal, Advantage raises several arguments as to why service was defective.
However, as we find its first argument dispositive, we do not reach the others.
¶ 12 Advantage argues that, because MPSI was not a licensed private detective agency when
its employees served process, service was defective. We agree. In explaining why, we begin
with the plain language of the statute that governs who may serve process in Illinois, section 2-
202 of the Code. 735 ILCS 5/2-202 (West 2012).
¶ 13 Subsection (a) of that statute provides that “[p]rocess shall be served by a sheriff” or, in
counties with populations of less than 2 million, “process may be served, without special
appointment, by a person who is licensed or registered as a private detective under the Private
Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004
[(Private Detective Act) (225 ILCS 447/5-5 et seq. (West 2012))] or by a registered employee of
a private detective agency certified under that Act as provided in Section (a-5).” (Emphasis
added.) 735 ILCS 5/2-202(a) (West 2012).
¶ 14 Subsection (a-5) governs the service of process through special process servers appointed
by the court, and it provides:
“Upon motion and in its discretion, the court may appoint as a special process server a
private detective agency certified under the Private Detective *** Act ***. Under the
appointment, any employee of the private detective agency who is registered under that
Act may serve the process. The motion and the order of appointment must contain the
number of the certificate issued to the private detective agency by the Department ***. A
private detective or private detective agency shall send, one time only, a copy of his, her,
or its individual private detective license or private detective agency certificate to the
county sheriff in each county in which the detective or detective agency or his, her, or its
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employees serve process, regardless of size of the population of the county. As long as
the license or certificate is valid and meets the requirements of the Department ***, a
new copy of the current license or certificate need not be sent to the sheriff.” (Emphasis
added.) 735 ILCS 5/2-202(a-5) (West 2012).
The provision also defines who is a “registered employee” of a private detective agency and
requires the agency to maintain a list of such employees and to provide the list under certain
circumstances. Id.
¶ 15 Of the 23 foreclosure cases filed by WSB, the great majority (15) were in Cook County,
which has a population of more than 2 million. In those cases, WSB was required to rely on the
sheriff’s office to serve summons or else seek appointment of a special process server. As noted
above, in 22 of the cases, WSB elected to seek the appointment of MPSI as a special process
server under section 2-202(a-5) of the Code. The question before us is whether the resulting
appointments of MPSI were valid under section 2-202(a-5), given the undisputed fact that
MPSI’s private detective agency license expired prior to those appointments and prior to the
service of process.
¶ 16 In construing a statute, our task is to “ascertain and give effect to the legislature’s intent.”
Lieb v. Judges’ Retirement System, 314 Ill. App. 3d 87, 92 (2000). The best indicator of the
legislature’s intent is the plain language of the statute. Lee v. John Deere Insurance Co., 208 Ill.
2d 38, 43 (2003). “When the statute’s language is clear, it will be given effect without resort to
other aids of statutory construction.” Id. We will not depart from the plain language of a statute
by reading into it exceptions, limitations, or conditions that conflict with the express legislative
intent. Petersen v. Wallach, 198 Ill. 2d 439, 446 (2002). “One of the fundamental principles of
statutory construction is to view all provisions of an enactment as a whole,” and thus “words and
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phrases must be interpreted in light of other relevant provisions of the statute.” J.S.A. v. M.H.,
224 Ill. 2d 182, 197 (2007).
¶ 17 In this case, the statute’s language is clear: a court may appoint, as a special process
server, only a private detective agency that is “certified” under the Private Detective Act (225
ILCS 447/5-5 et seq. (West 2012)). “Certified” is used together with “licensed” in section 2-
202(a-5) to mean a private detective agency that has been duly licensed under the Private
Detective Act, with the result that it has been issued a certificate by the Department. See 735
ILCS 5/2-202(a-5) (West 2012); 225 ILCS 447/10-25 (West 2012). The importance of the
certification requirement is reflected in the additional provisions of section 2-205(a-5), which
specify that the court order appointing the special process server must contain the private
detective agency’s certificate (license) number and that the agency must place a copy of the
certificate on file with the local sheriff’s office.
¶ 18 As MPSI’s license had expired before WSB moved to appoint it as special process server,
its certificate was invalid. It therefore was not eligible for appointment under section 2-202(a-5)
of the Code. In reaching this conclusion, we note that the Private Detective Act, which was
enacted to protect the public (225 ILCS 447/5-15 (West 2012)), expressly states that it is
unlawful for any person, firm, or corporation to act as a licensed agency unless it is in fact
licensed by the Department (225 ILCS 447/10-5 (West 2012)). Accordingly, MPSI could not
legally act as a licensed private detective agency at the time of its appointment as a special
process server, and any service by MPSI’s employees upon Advantage was invalid. See Gocheff
v. Breeding, 53 Ill. App. 3d 608, 609 (1977) (where person appointed as special process server
was a party interested in the action and thus ineligible for such appointment, service was
invalid).
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¶ 19 WSB argues that MPSI’s lack of certification does not invalidate the service, because
Chiappano’s license remained in good standing and the employees who served the summonses,
Jason Flowers and Mary Jo Brooks, were “registered employees” under section 2-202(a-5)(1)
with valid permanent employee registration cards. See 735 ILCS 5/2-202(a-5)(1) (West 2012).
This argument ignores the fact that the entity appointed as the special process server was the
private detective agency, MPSI, not Chiappano. Assuming that Flowers and Brooks were
employees of MPSI, they could not legally serve process where MPSI’s own appointment was
invalid. Id. Even if Flowers and Brooks were viewed as Chiappano’s employees, that would not
render their service of process valid; a special process server may not “delegate” the service of
process to one who was not named in the appointment. ITT Thorp Corp. v. Hitesman, 115 Ill.
App. 3d 202, 206 (1983). Thus, MPSI could not “cure” the invalidity of its appointment by
delegating the ability to serve process to Chiappano. We can find no support for WSB’s
contention that the employees of a defunct private detective agency that was ineligible to be
appointed as a special process server could validly serve process on that agency’s behalf.
¶ 20 WSB argues that MPSI’s expired certification is a technical defect that should not result
in a lack of personal jurisdiction. However, the weight of Illinois law is clearly to the contrary:
defects in the service of process are neither “technical” nor insubstantial. In State Bank of Lake
Zurich v. Thill, 113 Ill. 2d 294, 308-09 (1986), the supreme court explained:
“It is essential to the validity of a judgment that the court have both jurisdiction of
the subject matter of the litigation and jurisdiction over the parties. [Citations.] Absent a
general appearance, personal jurisdiction can be acquired only by service of process in
the manner directed by statute. *** A judgment rendered without service of process,
*** 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
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proceedings. *** [A] judgment rendered by a court which fail[ed] to acquire jurisdiction
of either the parties or the subject matter of the litigation may be attacked and vacated at
any time or in any court, either directly or collaterally.” (Emphasis added.)
Further, strict compliance with the statutes governing the service of process is required before a
court will acquire personal jurisdiction over the person served. Sarkissian v. Chicago Board of
Education, 201 Ill. 2d 95, 109 (2002); C.T.A.S.S.&U. Federal Credit Union v. Johnson, 383 Ill.
App. 3d 909, 912 (2008).
¶ 21 In Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc., 172 Ill. App. 3d 993, 998
(1988), this court held that, where a private detective was not authorized to serve process
because he was not appointed as required by section 2-202 of the Code, the court lacked personal
jurisdiction over the defendant and the default judgment obtained by the plaintiff was void.
Similarly, in C.T.A.S.S.&U., 383 Ill. App. 3d at 912, the reviewing court held that the default
judgment was void for lack of personal jurisdiction where process was served before the order
appointing the special process server was entered. In both cases, the reviewing courts vacated, as
void, the default judgments previously entered. WSB attempts to distinguish these cases on the
ground that they involved different defects in the service of process than occurred here, but it
cannot explain why the operative legal principle should be any different. In light of this
precedent, we reject WSB’s argument that the defects in MPSI’s service of process were
insufficient to render the default judgments in these cases void.
¶ 22 WSB also raises a variety of other arguments against the conclusion that the court never
acquired personal jurisdiction over Advantage, but all of them lack merit. For instance, WSB
argues that an affidavit of service (such as the affidavits executed by MPSI’s employees in the
cases herein) is prima facie evidence of proper service of process, which may not be set aside
unless impeached by clear and satisfactory evidence. In re Jafree, 93 Ill. 2d 450, 455 (1982).
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However, Advantage met that standard here: it presented clear and undisputed evidence
(documentation of MPSI’s unlicensed status at the time of its appointment as special process
server and when it served the summonses) to rebut the presumption of valid service. Moreover,
the presumption of valid service is an evidentiary presumption that is limited to the factual
matters within the process server’s personal knowledge. Nibco, Inc. v. Johnson, 98 Ill. 2d 166,
172 (1983). As such, its applicability here is doubtful, as the issue is not a factual one relating to
the manner of service, but rather is a legal one regarding the eligibility of the process server to
serve process at all. Cf. Gocheff, 53 Ill. App. 3d at 609-10 (not applying the presumption of
valid service where the issue was whether the process server was legally eligible to perform that
task).
¶ 23 WSB also argues that Advantage had notice of the lawsuits even if it was not properly
served, thus fulfilling the purpose behind the service of process. However, as our supreme court
has stated, “A judgment rendered without service of process, *** 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.” Thill, 113 Ill. 2d at 308. As for WSB’s
argument that Advantage waived its objection to personal jurisdiction through actions Advantage
took after filing its section 2-1401 petitions, it lacks merit, being unsupported by either the
record or legal authority. See BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 43
(actions taken after lodging objection to personal jurisdiction do not create a retroactive waiver
of such objection).
¶ 24 WSB contends that the defect in service of process merely rendered the judgments
voidable, not void, citing Bell Federal Savings & Loan Ass’n v. Horton, 59 Ill. App. 3d 923, 930-
31 (1978), and Clemmons v. Travelers Insurance Co., 88 Ill. 2d 469, 481 (1981). However,
Clemmons concerns evidentiary issues related to a return of service and in no way holds that
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invalid service would render a judgment voidable rather than void. Horton involved the
defendants’ claim that the plaintiff had not made “due inquiry” into their location with “due
diligence” so as to justify service by publication. The reviewing court agreed with the
defendants and thus found service by publication improper, rendering the default judgment void
as to the defendants. Horton, 59 Ill. App. 3d at 930. The court’s later comments regarding
“void” and “voidable” defects in service were dicta, and we believe they were not well taken.
As we have said, the proposition is well established that invalid service results in a judgment that
is void for lack of personal jurisdiction. Sarkissian, 201 Ill. 2d at 109; Thill, 113 Ill. 2d at 308-
09; see also Pennoyer v. Neff, 95 U.S. 714, 732 (1877) (“if the court has no jurisdiction over the
person *** and, consequently, no authority to pass [judgment] upon his personal rights and
obligations[,] *** the whole proceeding *** is coram non judice and void”). There is no similar
support for the idea that lack of personal jurisdiction merely renders a judgment voidable.
¶ 25 WSB also argues that Advantage could not use section 2-1401 petitions to assert a lack of
personal jurisdiction once the sales of the properties had been confirmed, because, after that
point, a foreclosure judgment may be attacked only through a motion pursuant to section 15-
1508(b) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1508(b) (West 2012)). In
support of this argument, WSB cites Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469, ¶
27, in which the supreme court held that a mortgagor could challenge a judgment of foreclosure
by filing a motion under section 2-1301(e) of the Code (735 ILCS 5/2-1301(e) (West 2010)) only
until the mortgagee moved to confirm the sale; after that point, the movant must proceed under
section 15-1508(b) (735 ILCS 5/15-1508(b) (West 2010)). However, neither McCluskey nor the
other cases cited by WSB involved default judgments that were void for lack of personal
jurisdiction, and thus they do not speak to the situation here. Rather, the cases herein are
governed by the supreme court’s decision in Sarkissian, in which it held that a petition for relief
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from judgment under section 2-1401 was a proper vehicle by which to challenge a judgment as
void for lack of personal jurisdiction. Sarkissian, 201 Ill. 2d at 104. Further, as the First District
of the Appellate Court has aptly noted:
“A judgment entered without jurisdiction over the parties is void ab initio and
lacks legal effect. Village of Algonquin v. Lowe, 2011 IL App (2d) 100603, ¶ 24; Bell
Federal Savings & Loan Ass’n v. Horton, 59 Ill. App. 3d 923, 928-29 (1978). Even if the
legislature had the power to make a void judgment effective, nothing in section 15-1509
[of the Mortgage Foreclosure Law] indicates that the legislature sought to make
foreclosure judgments take effect and deprive owners of their properties when the trial
court lacked personal jurisdiction over the owners.” Deutsche Bank National Trust Co. v.
Brewer, 2012 IL App (1st) 111213, ¶ 15.
Accordingly, the reviewing court held that the strictures governing the setting aside of
foreclosure judgments apply only to “valid judgments entered with jurisdiction over the parties
and the subject matter.” Id.; see also MB Financial Bank, N.A. v. Ted & Paul, LLC, 2013 IL App
(1st) 122077, ¶ 19. We agree with this analysis. Accordingly, we reject the argument that
Advantage was required to bring its jurisdictional challenge under the Mortgage Foreclosure
Law rather than section 2-1401.
¶ 26 WSB’s final argument is that Advantage’s jurisdictional challenge is barred by laches.
This is a curious argument, as the principle that a void judgment may be attacked at any time is
firmly entrenched in Illinois law. See, e.g., BAC Home Loans Servicing, LP v. Mitchell, 2014 IL
116311, ¶ 17 (“A judgment entered by a court without jurisdiction over the parties is void and
may be challenged at any time, either directly or collaterally.”); Sarkissian, 201 Ill. 2d at 103
(same); In re Marriage of Verdung, 126 Ill. 2d 542, 547 (1989) (same); Haywood v. Collins, 60
Ill. 328, 337 (1871) (where landowner was not properly served, the court lacked personal
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jurisdiction over him and the judgment taking his property was void and could be collaterally
attacked, despite the fact that the property had since been sold to others). Nevertheless, WSB is
correct that, in some circumstances, laches have been held to interpose a limit on when a void
judgment may be collaterally attacked. See, e.g., James v. Frantz, 21 Ill. 2d 377, 383 (1961);
Eckberg v. Benso, 182 Ill. App. 3d 126, 131-32 (1989); In re Adoption of Miller, 106 Ill. App. 3d
1025, 1030 (1982); Rodriguez v. Koschny, 57 Ill. App. 3d 355, 361 (1978). Several of these
cases involved challenges to adoptions, brought many years later, in which the potential harm in
undoing the earlier judgment was of particular concern. See Koschny, 57 Ill. App. 3d at 361
(noting the use in other states of laches to bar even jurisdictional challenges to adoptions and
commenting that the doctrine of laches is “related in principle and in essential purpose to the
special statute of limitation governing attacks on adoption decrees”). 3 However, we need not
3 Courts in several states have recently addressed the issue of the extent to which the
doctrine of laches can or should be applied to bar collateral attacks on judgments that are void
for lack of personal jurisdiction. See, e.g., In re E.R., 385 S.W.3d 552, 566 (Tex. 2012); County
of San Diego v. Gorham, 113 Cal. Rptr. 3d 147, 159 (Cal. Ct. App. 2010); M&P Management,
L.P. v. Williams, 937 A.2d 398, 402 (Pa. 2007) (Saylor, J., concurring in part and dissenting in
part, joined by Eakin, J.) (discussing the problem of balancing the interests of finality against
those of validity); Edwards v. Allen, 216 S.W.3d 278, 289-92 (Tenn. 2007); Estate of Hutchins v.
Fargo, 72 P.3d 638, 642 (Or. Ct. App. 2003); Raymond v. Raymond, 36 S.W.3d 733, 738-39
(Ark. 2001); Berlin v. Sordillo, 578 N.Y.S.2d 617, 619 (N.Y. App. Div. 1992). The Tennessee
Supreme Court’s decision in Edwards is particularly valuable, tracing the constitutional and
public policy considerations involved in the issue.
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resolve either the continuing validity of this line of cases or its application in this nonadoption
setting, because WSB has not established the necessary elements for the application of laches.
¶ 27 “[T]o assert the defense of laches, a party must show both that there was unreasonable
delay in bringing the action and that the delay materially prejudiced him.” Eckberg, 182 Ill.
App. 3d at 132. Here, WSB has made no showing of material prejudice. Rather, both in the trial
court and on appeal, WSB has merely asserted that its prejudice is “evident” from the record.
This bald assertion is insufficient. See Harper v. City Mutual Insurance Co., 67 Ill. App. 3d 694,
699 (1978) (evidence of prejudice is necessary to support the application of laches). Moreover,
to the extent that WSB seeks to rely on the possible prejudice to someone other than itself
(because the properties have been sold to third parties), we reject its argument. Section 2-
1401(e) of the Code provides that where, as here, the underlying judgment is void but the lack of
jurisdiction did not affirmatively appear in the record when judgment was entered, the
subsequent vacating of the judgment does not affect any “right, title or interest” in any real
property acquired by third parties. 735 ILCS 5/2-1401(e) (West 2012). Further, Advantage has
stated that it does not seek return of the properties. Accordingly, WSB has not shown that the
defense of laches should be applied here.
¶ 28 CONCLUSION
¶ 29 We are mindful of the concerns raised by Justice Birkett in his excellent special
concurrence about the effect of our decision today, and indeed share many of them. However,
the judicial principles we follow have been embedded in Illinois law for over a century. Those
principles go beyond the protection against deprivation of liberty and property afforded by the
due process clause (which simply requires notice and an opportunity to be heard), expressing the
intent of the legislature that no one should be haled into court unless the requirements for service
of process have been strictly complied with. Here, the applicable statute requires that a private
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detective agency be properly licensed before it may act as a special process server. As this
requirement was not met, the service did not comply with the statute.
¶ 30 For all of the foregoing reasons, the order of the circuit court of Du Page County
dismissing Advantage’s section 2-1401 petitions is reversed, and the cause is remanded for
further proceedings.
¶ 31 Reversed and remanded.
¶ 32 JUSTICE BIRKETT, specially concurring.
¶ 33 I invite the reader to step back and set aside, for a moment, the procedural niceties in play
here and consider this case with an intuitive sense of justice. I venture that few would find this
result at all palatable. Advantage has received an undeserved procedural windfall. Never has
Advantage disputed that a summons and complaint in each of these lawsuits was served on its
registered agent, Steven Rotunno, or his employee at Rotunno’s registered place of business.
Never has Advantage denied having actual knowledge of these lawsuits in time to appear and
defend. Nor has Advantage ever offered an explanation for its failure to appear and answer,
which led in 2009 to 23 default judgments, all but 2 of which are at issue in this appeal.
Advantage did not appear in these cases until April 2013, and then to challenge the judgments on
a ground that we accept today: MPSI’s license from the Department had expired on August 31,
2008, four months before it began serving Advantage with process in these cases. Advantage
does not, and cannot, claim that it was prejudiced by MPSI’s lack of a license when it served
Advantage.
¶ 34 Our decision today impacts more than 20 individual cases, but the legal principle we
enforce today will impact countless more.
¶ 35 Inevitably, wherever the rule of law governs, technicalities will decide cases. Where the
law is clear, judges are to apply it however inconsequential appear the distinctions on which the
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decision rests and however jarring its consequences. Today’s result is dictated, I acknowledge,
by statute and case law. Section 2-202 contains an apparently exceptionless requirement that the
private detective agency be licensed at the time of service. I know of no supreme court case
interpreting the licensure requirement of section 2-202, but Sarkissian’s pronouncement that
“strict compliance with statutes governing service of process on public entities is required”
(Sarkissian, 201 Ill. 2d at 109) appears in principle to apply also to requirements for service on
private corporations, including the licensure mandate of section 2-202.
¶ 36 I would hope, however, that today’s result would give pause to those who have the
authority to forestall such outcomes in the future. Perhaps our supreme court will distinguish
Sarkissian from facts such as these and find some flexibility in section 2-202’s licensure
requirement for cases in which the defendant can demonstrate no prejudice from the licensure
lapse or defect. Notably, in Sarkissian, the court held that an agent authorized by section 2-211
of the Code (Ill. Rev. Stat. 1987, ch. 110, ¶ 2-211 (now 735 ILCS 5/2-211 (West 2012))) to
receive service of process on behalf of a public corporation can delegate that authority even
though section 2-211 has no provision for such delegation. See Sarkissian, 201 Ill. 2d at 112.
Perhaps the court will similarly find in section 2-202 a concept of substantial compliance. There
is, after all, a “broad overall policy goal of resolving cases on the merits rather than on
technicalities” (Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 352 (2007)). The Code itself
dictates that it “shall be liberally construed, to the end that controversies may be speedily and
finally determined according to the substantive rights of the parties.” 735 ILCS 5/1-106 (West
2012). Regarding the Civil Practice Act (Act) specifically (735 ILCS 5/2-101 et seq. (West
2012)), courts have said that the Act’s “overall philosophy of liberal construction *** precludes
the determination of rights of litigants upon the technicalities of pleading and procedure when
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such rights may, within the spirit and letter of the Act, be adjudicated on their merits.” McMillen
v. Rydbom, 56 Ill. App. 2d 14, 29 (1965).
¶ 37 There are several states whose judicial decisions have adopted a standard of substantial
compliance with codified service-of-process requirements. See, e.g., White Oak Manor, Inc. v.
Lexington Insurance Co., 753 S.E.2d 537, 542 (S.C. 2014) (“The Court has never required
exacting compliance with the rules to effect service of process, but instead looks to whether the
plaintiff substantially complied with the rules such that the court has personal jurisdiction over
the defendant and the defendant has notice of the proceedings.”); Graff v. Kelly, 814 P.2d 489,
495 (Okla. 1991) (holding “that the Oklahoma Pleading Code requires substantial compliance in
order for the trial court to have jurisdiction over the person of the defendant”); MJS Enterprises,
Inc. v. Superior Court, 200 Cal. Rptr. 286, 288 (Cal. Ct. App. 1984) (“Notice of the litigation
does not confer personal jurisdiction absent substantial compliance with the statutory
requirements for service of summons.”).
¶ 38 Alternatively, perhaps our legislature will consider allowing for substantial compliance
with statutory service-of-process requirements. Kansas, for instance, has codified the following
“saving” provision for service of process:
“Substantial compliance with any method of serving process effects valid service of
process if the court finds that, notwithstanding some irregularity or omission, the party
served was made aware that an action or proceeding was pending in a specified court that
might affect the party or the party’s status or property.” Kan. Stat. Ann. § 60-204 (2010).
¶ 39 I reluctantly concur, with the hope that today’s decision brings about changes that prevent
substantive rights from being swallowed by procedural hurdles where, as here, the party claiming
defective service of process can demonstrate absolutely no prejudice from the defect.
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