Page 31 - John Hundley 2013

Litigation Law Roundup

Sharp Thinking

No. 96 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. August 2013
Publication Service on Known Incompetent Violates Due Process

Service of process upon a person known to have been adjudicated incompetent to manage his affairs
violates due process, a panel in the Appellate Court’s First District has held.

In O’Halloran v. Luce, 2013 IL App (1st) 113735, the panel said that to satisfy due process, “notice
must be reasonably calculated ‘to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.’” Noting there was no evidence
that the incompetent even lived in the area where publication occurred, the court went on to
hold that because of the adjudication of disability, “even if he had seen the published notice,
he likely would not have understood what it meant.” Accordingly, “service by publication
cannot be reasonably calculated to apprise an individual in Luce’s circumstances of the legal
ramifications of a lawsuit.” The court vacated the resulting judgment against the incompetent
and sent the case back for further proceedings.

Service Return Not Conclusive on Agent’s Authority

When a corporation is served with process, the agent served must have actual authority to accept
service and the return of the process server is not conclusive as to that agency, a panel in the Appellate
Court’s First District has held.

Ruling in MB Fin. Bank, N.A. v. Ted & Paul, LLC, 2013 IL App (1st) 122077, the panel said that
whether someone is a corporate agent for service of process issues is a factual question and the usual
rules of deference to the service return do not apply. It contrasted service upon an individual, where it
said an uncorroborated affidavit was insufficient to overcome the service return even though it was
claimed that that return was incorrect as to the defendant’s gender.

Failure To Attach Rule 222 Affidavit Does Not Void Judgment

Failure of a plaintiff to attach to his complaint an affidavit under Illinois Supreme Court Rule 222 does
not make the subsequent default judgment void and attackable outside the two-year period of 735 ILCS
5/2-1401(c), a panel in the Appellate Court’s First District has held.

Rule 222(b) requires a money-damage plaintiff to attach to the initial pleading an affidavit that the total
of money damages sought does or does not exceed $50,000. The purpose is to govern applicability of
Supreme Court rules for limited and simplified discovery in cases where less than
$50,000 is at issue.

Noting that the “void judgment” exception to the two-year bar of § 2-1401(c)
applies only where the judgment was entered “without personal or subject matter
jurisdiction or the inherent power to make or enter the judgment involved,” Dovalina v.
Conley, 2013 IL App (1st) 103127, held that the lack of a Rule 222 affidavit did not fit
within that doctrine and at most made the resulting judgment “voidable, not void.”

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
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