Municipal Trust and Savings Bank v. Moriarty

2021 IL 126290

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 126290)

MUNICIPAL TRUST AND SAVINGS BANK, Appellee, v.

DENNIS J. MORIARTY, Appellant.

Opinion filed June 17, 2021.

JUSTICE THEIS delivered the judgment of the court, with opinion.

Chief Justice Anne M. Burke and Justices Neville, Michael J. Burke, and

Overstreet concurred in the judgment and opinion.

Justice Carter dissented, with opinion, joined by Justice Garman.

OPINION

¶1 In this case, we consider the proper construction of section 2-202 of the Code

of Civil Procedure (Code) (735 ILCS 5/2-202 (West 2016)), specifically, whether

a licensed or registered private detective may serve process in Cook County without

special appointment in a case filed outside of Cook County. The circuit court of

Kankakee County found such process proper. Therefore, it denied defendant’s

petition filed under section 2-1401 of the Code (id. § 2-1401), challenging the

underlying judgment as void. The appellate court affirmed. 2020 IL App (3d)

190016, ¶ 25. For the following reasons, we reverse the judgment of the appellate

court.

¶2 BACKGROUND

¶3 On December 14, 2016, plaintiff Municipal Trust and Savings Bank filed a

complaint for mortgage foreclosure against defendant Dennis J. Moriarty. The

complaint was filed in Kankakee County, where the mortgaged commercial

properties are located. Plaintiff had a summons issued for defendant at 5601 South

County Line Road in Hinsdale, Illinois.

¶4 On December 28, 2016, Ryan Leggott, a registered employee of Diligent

Detective Agency, Ltd., served defendant in Cook County at Rush Hospital located

at 1620 East Harrison Road in Chicago. Plaintiff did not move for appointment of

a process server, and the circuit court made no such appointment. Defendant never

filed an answer to the complaint.

¶5 On January 23, 2017, plaintiff filed a motion for entry of judgment of

foreclosure and sale. Plaintiff alleged that defendant had been personally served

with process on December 28, 2016, and therefore the trial court had personal

jurisdiction over him.

¶6 On January 30, 2017, the circuit court entered a judgment for foreclosure and

sale. The circuit court found that defendant was personally served with process and

was in default by failing to answer the complaint or otherwise appear. The circuit

court also found that service of process was properly made in accordance with the

Code and that the court had personal jurisdiction over him.

¶7 On June 28, 2017, a sheriff’s sale was held on the property, and plaintiff was

the successful bidder. 1 Two days later, plaintiff filed a motion for confirmation of

the foreclosure sale.

1

An affidavit contained in the appendix to plaintiff’s brief, dated March 4, 2019, represents that

the foreclosed property was sold to a third party on September 8, 2017.

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¶8 On July 17, 2017, defendant filed his appearance pro se at a hearing on

plaintiff’s motion for confirmation. At the hearing, defendant stated that he had not

been aware of the sale. He explained that he had been in a nursing home and did

not receive notice. Before the sale was confirmed, he requested that he be given 30

days to redeem the property. After reviewing the record, the circuit court stated

that, because defendant was in default in the foreclosure proceedings, plaintiff had

no obligation to give him notice of the public sale. Ruling that plaintiff complied

with the procedures necessary to obtain a confirmation of the foreclosure sale, the

court granted plaintiff’s motion for confirmation. 2

¶9 On May 21, 2018, defendant filed a section 2-1401 petition arguing that the

circuit court was without personal jurisdiction to enter the default judgment in the

foreclosure proceeding. Defendant asserted that under section 2-202 of the Code, a

private process server cannot serve process on a defendant in Cook County without

first being appointed by the circuit court. Defendant argued that process was

improper because Leggott had not been appointed by the circuit court when he

served defendant at Rush Hospital in Chicago. Defendant requested that the court

find the default judgment void and vacate that judgment and all subsequent orders.

¶ 10 On September 21, 2018, the circuit court denied defendant’s section 2-1401

petition. The circuit court found Leggott was not required to be specially appointed

under section 202 of the Code because the provision allowed him to serve process

on defendant without limitation in Illinois.

¶ 11 The appellate court affirmed, holding that the circuit court had personal

jurisdiction over defendant to enter the default judgment of foreclosure and that the

judgment was therefore not void. 2020 IL App (3d) 190016, ¶ 23. The appellate

court found that, under section 2-202, a duly licensed or registered private detective

may serve process, without special appointment, anywhere in the state so long as

the summons was issued from a county other than Cook County. Id. ¶ 22. The

appellate court found that, because the summons was issued from Kankakee

2

On August 17, 2017, defendant filed a motion to “quash serive judication [sic].” The motion

stated, “[i]n order to serve in Chicago, with over a million people, you have to be appointed.” The

trial court denied the motion. On September 25, 2017, defendant filed a notice of appeal, which was

later voluntarily dismissed on defendant’s own motion.

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County, Leggott was authorized under section 2-202 to serve defendant in Cook

County. Id. ¶ 23.

¶ 12 Justice Schmidt specially concurred because he disagreed with the majority’s

construction of section 2-202. Id. ¶ 29 (Schmidt, J., specially concurring). He

believed the majority’s interpretation would render portions of subsection 2-202(a),

which is intended to regulate who has the authority to serve process in Cook

County, superfluous by allowing a private detective to serve process in the county

without special appointment. Id. ¶¶ 29-30. Justice Schmidt believed that, to avoid

inconvenience, the party requesting the summons must engage in a reasonable

search to ascertain whether the party to be served is located in Cook County. Id.

¶ 31. He wrote that under section 2-202, special appointment of a licensed or

registered private detective is required whenever the party knows or could

reasonably discover that the party to be served is in Cook County. Id.

¶ 13 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315

(eff. Oct. 1, 2019).

¶ 14 ANALYSIS

¶ 15 Defendant contends that service of process by Leggott did not comport with

section 2-202 because he was not specially appointed by the court. Consequently,

defendant asserts that the circuit court erred by dismissing his section 2-1401

petition because it lacked jurisdiction to enter the default judgment.

¶ 16 Section 2-1401 of the Code authorizes a party to seek relief from a final

judgment, such as a default judgment entered where the trial court lacks personal

jurisdiction over the defendant, when brought more than 30 days after entry of

judgment. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 101 (2002).

¶ 17 A judgment entered by a court that lacks jurisdiction over the parties is void

and may be challenged at any time, either directly or collaterally. BAC Home Loans

Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17. Personal jurisdiction may be

established either by service of process in accordance with statutory requirements

or by a party’s voluntary submission to the court’s jurisdiction. Id. ¶ 18. A judgment

rendered without voluntary submission or service of process in strict statutory

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compliance is void regardless of whether the defendant had actual knowledge of

the proceedings. State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308 (1986).

¶ 18 The issue before us turns on the proper construction of section 2-202. The

fundamental rule of statutory construction is to ascertain and effectuate the

legislature’s intent. Comprehensive Community Solutions, Inc. v. Rockford School

District No. 205, 216 Ill. 2d 455, 473 (2005). The plain language of the statute

remains the best indication of this intent. Id. As statutory interpretation presents a

question of law, our standard of review is de novo. Board of Education of the City

of Chicago v. Moore, 2021 IL 125785, ¶ 18. We apply the same standard to a

section 2-1401 petition dismissed on purely legal grounds. People v. Thompson,

2015 IL 118151, ¶ 25.

¶ 19 Section 2-202 of the Code provides, in pertinent part:

“Persons authorized to serve process; Place of service; Failure to make return.

(a) Process shall be served by a sheriff, or if the sheriff is disqualified, by a

coroner of some county of the State. In matters where the county or State is an

interested party, process may be served by a special investigator appointed by

the State’s Attorney of the county ***. A sheriff of a county with a population

of less than 2,000,000 may employ civilian personnel to serve process. In

counties with a population of less than 2,000,000, 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 ***. ***

***

(b) Summons may be served upon the defendants wherever they may be

found in the State, by any person authorized to serve process. An officer may

serve summons in his or her official capacity outside his or her county, but fees

for mileage outside the county of the officer cannot be taxed as costs. The

person serving the process in a foreign county may make return by mail.” 735

ILCS 5/2-202(a), (b) (West 2016).

¶ 20 Plaintiff asserts that, reading the two subsections together, the correct

interpretation is that the county in which the lawsuit is filed controls the authority

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of the process server, not the county in which service is made. Because the

complaint in this case was filed in Kankakee County, plaintiff believes that the

restriction in subsection (a), allowing service of process in Cook County only by a

private detective if he or she is appointed by the court, does not apply. We find

plaintiff’s construction unpersuasive.

¶ 21 Contrary to plaintiff’s argument, section 2-202 is concerned with where process

is served on a defendant; it says nothing about where the particular complaint is

filed. Subsection (a) provides that in counties with a population of less than 2

million, which includes all counties in Illinois other than Cook County, process

may be served, without special appointment, by a person who is licensed or

registered as a private detective. Therefore, it logically follows that, for a private

detective to serve process on a defendant in Cook County, he or she must be

specially appointed by the court. Subsection (b) then provides that summons may

be served upon the defendants wherever they may be found in the State, by any

person authorized to serve process. By the plain language of subsection (a), Leggott

was not a “person authorized to serve process” without special appointment and,

therefore, did not meet the requirement of subsection (b).

¶ 22 This interpretation of section 2-202 has long been the consistent construction

of the statute prior to the majority’s decision below. More than 30 years ago, in

Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc., 172 Ill. App. 3d 993 (1988),

the plaintiff filed a complaint in Du Page County and served process on the

defendant in Cook County, using a private detective who had not been specially

appointed. The appellate court rejected the plaintiff’s argument that, reading

subsections (a) and (b) of section 2-202 together, the logical inference was that the

county in which the lawsuit is filed, and not the county in which service is made,

controls the authority of the process server. Id. at 997. The Schorsch court held that,

from the plain language of section 2-202, subsection (a) is concerned with who is

authorized to serve process, while subsection (b) is concerned with the place of

service. Id. It held, “while subsection (b) allows process to be served upon a

defendant wherever he may be found in the State, the provision further provides

that it be ‘by any person authorized to serve process,’ thus referring to subsection

(a).” Id.; see also U.S. Bank National Ass’n v. Rahman, 2016 IL App (2d) 150040,

¶ 34 (holding that, under the plain language of section 2-202(a), service by a special

process service was authorized without special appointment only in a county other

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than Cook; the plain language of the statute was concerned with where the service

takes place, not where the complaint is filed); C. T. A. S. S. & U. Federal Credit

Union v. Johnson, 383 Ill. App. 3d 909, 912 (2008) (holding that service of process

was defective because section 2-202 requires that private detectives serving process

in Cook County be appointed by the circuit court).

¶ 23 We acknowledge the potential inconvenience to a party having to request

special appointment of a private detective when the defendant is served in Cook

County. However, where the language of a statute is clear, this court is not free to

read into it exceptions that our legislature did not express and must give it effect as

written. Comprehensive Community Solutions, Inc., 216 Ill. 2d at 473. Because

Leggott served process on defendant in Cook County without being specially

appointed to do so, plaintiff did not comply with section 2-202, and service of

process was defective on that ground.

¶ 24 Plaintiff asserts that, even if service of process was improper, defendant

voluntarily submitted to the circuit court’s jurisdiction when he appeared,

participated, and requested relief at the hearing on plaintiff’s motion to confirm

sale. Plaintiff argues that defendant therefore subjected himself to the jurisdiction

of the court before the court’s entry of the order that ultimately divested him of his

property rights.

¶ 25 As defendant conceded in the appellate court and the record establishes, he

voluntarily submitted to the jurisdiction of the court on July 17, 2017, when he filed

a written appearance and appeared in court on plaintiff’s motion to confirm sale.

By doing so, defendant waived any objection to the circuit court’s personal

jurisdiction prospectively only; his appearance did not retroactively validate void

orders entered prior to July 17, 2017. See BAC Home Loans Servicing, LP, 2014 IL

116311, ¶ 44 (holding that a party who submits to the court’s jurisdiction does so

only prospectively and that the appearance does not retroactively validate void

orders entered prior to that date).

¶ 26 Plaintiff raises additional arguments that were not considered by the circuit

court as to why the denial of the petition should be affirmed. In pertinent part,

plaintiff asserts that, under section 2-1401(e) of the Code (735 ILCS 5/2-1401(e)

(West 2016)), a third-party buyer of the property is entitled to protection from the

effects of an order setting aside a judgment affecting title to the property. Whether

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there was a bona fide third-party purchaser of the property, however, is disputed by

the parties. We note that plaintiff has included an affidavit in its brief representing

that the property was sold to a third party in September 2017. That affidavit does

not appear in the record. The affidavit is also dated six months after the trial court

denied defendant’s section 2-1401 petition. Under these circumstances, where there

are disputed issues of fact and where the circuit court dismissed the petition on the

erroneous belief that service was proper, we find it necessary to remand to the

circuit court for further consideration of the merits of defendant’s section 2-1401

petition, consistent with this opinion.

¶ 27 CONCLUSION

¶ 28 For the foregoing reasons, the judgments of the circuit court and the appellate

court are reversed. The cause is remanded to the circuit court for further

proceedings.

¶ 29 Reversed and remanded.

¶ 30 JUSTICE CARTER, dissenting:

¶ 31 I respectfully dissent from the majority opinion. Unlike the majority, I believe

the appellate court correctly concluded that section 2-202(b) of the Code of Civil

Procedure (Code) (735 ILCS 5/2-202(b) (West 2016)) unambiguously “empowers

‘any person authorized to serve process’ to do so on ‘defendants wherever they may

be found in the State.’ ” 2020 IL App (3d) 190016, ¶ 20 (quoting 735 ILCS 5/2-

202(b) (West 2016)). I agree with the appellate court’s refusal to read section 2-

202(a) as limiting this provision because section 2-202(b) contains no such

limitation.

¶ 32 In construing statutory language, this court “presumes the General Assembly

did not intend absurdity, inconvenience, or injustice in enacting legislation.” People

v. Clark, 2019 IL 122891, ¶ 20. The majority’s construction of section 2-202

requires plaintiffs to determine whether a defendant is presently or temporarily

located in Cook County before having a summons issued, even if the defendant’s

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residence is located in a county that does not require special appointment under

section 2-202(a).

¶ 33 If the legislature intended to limit the broad authority granted in section 2-

202(b) to serve “defendants wherever they may be found in the state” based on the

population of the county where the defendant is located at the time of service,

logically it would have provided such a limitation in section 2-202(b). See 735

ILCS 5/2-202(b) (West 2016). Section 2-202(a) governs who may serve process in

Illinois, and section 2-202(b) governs the place where those authorized to serve

process by section 2-202(a) may serve defendants. Id. § 2-202(a). Thus, reading the

statute as a whole, I would hold that a duly licensed or registered private detective

may serve process, “without special appointment,” anywhere in the state so long as

the summons was issued from a county “with a population of less than 2,000,000.”

See id.

¶ 34 The underlying foreclosure action involved in this case was filed in Kankakee

County, a county with a population of fewer than 2 million people. The property

that was the subject of the foreclosure action is located in Kankakee County.

Defendant’s residence and last address was in Kankakee County. Defendant was

served with process 14 days after the summons was issued from Kankakee County,

a county with a population of fewer than 2 million people, by a private detective

who was authorized to serve the summons at the time it was issued in Kankakee

County. Defendant does not dispute that he was served the summons and complaint.

I would find that the private detective, who was authorized to serve the summons

at the time it was issued in Kankakee County, was duly authorized to serve

defendant in Cook County under section 2-202(b). I would hold that the trial court

had personal jurisdiction over defendant to enter the default judgment of

foreclosure and that the judgment is not void. Accordingly, I would affirm the

judgments of the appellate court and the circuit court.

¶ 35 For the foregoing reasons, I respectfully dissent.

¶ 36 JUSTICE GARMAN joins in this dissent.

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