JUDGES DISAGREE ON STATE'S EFFORTS TO SERVE SUMMONS ON LANDOWNER

July 1, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

The Illinois Appellate Court split 2-1 on whether the state established that it was entitled to use an unconventional method of serving summons, under section 2-203.1 of the Illinois Code of Civil Procedure. People ex rel. Waller and Ryan v. Harrison, No. 2-03-0413 (2d Dist., May 21).

The attorney general and the Lake County state's attorney filed a complaint against "J. Harrison, as Trustee under Trust No. 410," alleging violation of the Illinois Environmental Protection Act. As Justice Robert D. McLaren's majority opinion recounted:

"The state's complaint alleged that defendant, as trustee, owned property at 38101 N. Sheridan Road in Beach Park. The property, which appeared to be abandoned, contained tires, drums of petroleum products and other waste in violation of the act and regulations promulgated under it.

"The state made several attempts to serve defendant personally or by abode service. The original summons, directed to an address in Mundelein, was returned unserved. An alias summons directed to an address in Tower Lakes was similarly returned unserved. A third alias summons directed to defendant at the Lake County courthouse also was not served. An attempt to serve defendant at an address in Cedar Grove, Wis., was also unsuccessful.

"The state then filed a motion for an order authorizing alternative service. The motion does not state specifically which section of the Code of Civil Procedure it invokes. The motion alleges that, 'The plaintiff has made diligent inquiry as to the location of the defendant, and reasonable efforts to make service have been unsuccessful.'

"Attached to the motion was the affidavit of Assistant State's Attorney Lisle Stalter, which alleged the following. Stalter reviewed records in the Lake County recorder's office to learn who purchased the property. This information provided her with a post office box in Mundelein, which she traced to a street address.

"A Lake County sheriff's deputy attempted to serve defendant at that address but returned the summons unserved. A colleague then gave Stalter an address for defendant in Cedar Grove, Wis. However, an attempt at service at that address was returned unserved.

"She found another address in Tower Lakes-Barrington at which to serve defendant. However, the summons was returned unserved as no such address existed.

"Stalter averred that, 'Although a diligent effort has been made, no other information has been found as to where J. Harrison can be personally served.'

"The trial court issued an order stating that 'plaintiff's motion for service by publication is granted as plaintiff has shown due diligence in attempting to obtain personal service.' The court also ordered that defendant be served by regular mail.

"Later, Stalter filed a second affidavit that was essentially the same as the first, but included the specific addresses at which service was attempted.

"The state provided publication notice and also mailed copies of the complaint to the addresses at which it had attempted service. Only the envelope sent to the Tower Lakes address was returned.
"Defendant did not appear, and the trial court entered a default judgment. It enjoined defendant from future violations of the act, ordered him to clean up the site and fined him $79,000.

"Defendant then appeared and moved to quash the service and vacate the judgment. The trial court denied the motion and defendant timely appeals."

Here are some highlights of McLaren's majority opinion (with various omissions not noted in the quoted text):

"Defendant first claims that the trial court did not acquire jurisdiction over him because the state did not comply with the statute authorizing substituted service. If a party is not properly served with a summons, the court has no personal jurisdiction over him or her and any judgment entered against that party is void.

"Generally, the code requires that an individual defendant be served either in person or by abode service -- by leaving a copy of the summons with a family member above the age of 13. However, section 2-203.1 of the code provides that if service upon an individual defendant is impractical, a plaintiff may request that the court allow 'a comparable method of service.'

"The motion must be accompanied by 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.'

"Defendant complains that Stalter's affidavit attached to the motion was insufficient because it did not state 'the reasons why service [was] impractical' pursuant to section 2-203 or '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.'

"We disagree.

"While a party requesting an alternative means of service must strictly comply with section 2-203.1, its requirements for the affidavit are not magic words that must be slavishly copied before alternative service will be permitted. Here, although Stalter's affidavit did not state that 'service under section 2- 203 is impractical because ...' it is clear from the affidavit as a whole that service was impractical because defendant could not be found.

"Stalter described her efforts to find defendant, which led to attempted service at three different home addresses as well as the county courthouse. The trial court could clearly infer from this that defendant could not be located and, therefore, personal or substituted service was impractical.

"Moreover, Stalter's affidavit specifically states, 'Although a diligent effort has been made, no other information has been found as to where J. Harrison can be personally served.' This is substantially similar to the required statement that 'a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful.'

"We will not hold the affidavit insufficient because it did not track the statutory language precisely.

"Defendant contends that the affidavit does not demonstrate that the state was in fact diligent in attempting to personally serve him. He complains that the simple failure to serve defendant at two 'viable' addresses and one nonexistent one was insufficient. Again, we disagree.

"Stalter's affidavit describes efforts to find defendant at three addresses."

"Interestingly, while defendant criticizes the state's efforts to find him, he does not argue that he could have been found with a diligent inquiry.

"In the analogous situation of a motion for service by publication under section 2-206 of the code, courts require a defendant challenging service to file a counter-affidavit stating that upon reasonable inquiry he or she could have been found. The plaintiff must then produce evidence showing that it conducted a due inquiry.

"Here, defendant's motion to quash did not suggest how he could have been found.

"Diligence must depend on the facts of the specific case. In particular, whether a party has been diligent does not depend upon the sheer number of attempts at service. Here, the state showed that it had exhausted all of its leads in its attempt to locate defendant. As noted, defendant does not suggest any additional steps the state could have taken.

"We are convinced that the statute does not require futile attempts to serve a defendant at an address where he does not live or at an address that does not exist. The state adequately demonstrated its diligence in attempting to serve defendant personally."

Dissenting, Justice Frederick J. Kapala explained:

"I respectfully dissent because I do not believe that the state established that conventional service was impractical, nor do I believe that the publication by the state was comparable to service under section 2-203. I would reverse, vacate the default judgment, and remand this cause for further proceedings.

"A motion under section 2-203.1 must be accompanied by an affidavit which demonstrates why service under section 2-203 is impractical. This affidavit must include a specific statement showing that (1) a 'diligent inquiry' as to the location of the individual defendant was made and (2) 'reasonable efforts' to make service have been unsuccessful. In my judgment, the state fails in both respects."

Among other things, Kapala recounted, "The total of Stalter's efforts to locate an address for defendant was limited to checking property and tax records and obtaining information about the Wisconsin address from a 'colleague.'

"No search of motor vehicle registration records was made. As far as we know, neither the person living in the house nor the neighbors of the Mundelein property were questioned as to defendant's whereabouts.

"Even though a letter addressed to the Barrington-Tower Lakes address came back with the notation 'Forwarding Time Expired,' no request was made of the post office for a current address. No one checked any databases for a telephone listing, city directory or utility service.

"No one requested or authorized an investigative service to take steps to trace defendant.

"The record discloses other leads that the state did not follow. The property in question was an amusement business with a go-cart track and batting cages. This we may easily infer from the record, which includes Lake County Health Department site inspections complete with color photographs of the signs at the entrance to the go-cart track. Consequently, the business may have had organizational documents on file with the Secretary of State's office.
"The business may have been registered with the Illinois Department of Revenue or the Department of Employment Security. The business may have had an assumed name certificate on file with the Lake County clerk's office. The business may have obtained an operating license from the Village of Beach Park, where the business was located. Yet no one checked with any of these governmental entities to uncover information as to the whereabouts of defendant.

"While the state apparently had some information that defendant might attend a court date in Lake County, and the second alias summons was directed to the Lake County courthouse, we do not know how the state came into possession of that information.
"The record does not reflect that the state searched the circuit clerk's records for any prior or pending legal proceedings. No one attempted to locate business associates of defendant or former employees of the business.

"The periodic site inspections of the property by the Lake County Health Department show ongoing activity at the site. Grass was mowed. Refuse was still being dumped. There was a trailer moved onto the property, with a Missouri license plate affixed to it.
"No one tried to determine who owned the trailer through tracing the license plate. Surveillance of the property would have yielded the culprit who was doing the dumping or the Samaritan who was doing the mowing or, at the least, a license plate number of a vehicle or vehicles going into and out of the property.

"It is important to underscore that the state commanded the investigative resources of the Lake County state's attorney's office, the Lake County sheriff's department and the Illinois attorney general's office.

"For these reasons, I disagree with the majority's conclusion that the state conducted a diligent inquiry. To the contrary, its inquiry was superficial and, under these circumstances, its efforts to effect service were not reasonable.

"I believe that Stalter's affidavits in support of her invocation of section 2-203.1 actually aver nothing more than what was stated in the affidavit in Mugavero v. Kenzler, 317 Ill.App.3d 162, 165 (2000), merely that defendant moved from the address on the summons. That is the only information imparted by her two affidavits. In Mugavero, this court refused to allow court-ordered service on the basis of such a representation.

"The majority's holding in this case, that personal service was impractical because defendant was not found, eviscerates the requirement of diligence in trying to find him. I believe this sets a wrong precedent."

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