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This case piqued my interest since I recently spent an obscene amount of time trying to serve a defendant in a commercial lease dispute. It wasn’t until after my process server gave sworn testimony for nearly an hour at an evidentiary hearing that the court finally (and mercifully) put the service issue to bed and allowed us to proceed with prosecuting the case.
A few weeks ago (late June 2014), the First District appeals court examined the importance of proper process service in the context of a petition to vacate a default judgment. The commercial tenant in Essi v. Fiduccia, 2014 IL App (1st) 120203-U, sued her ex-landlord for wrongful eviction. After serving the summons and complaint on who she thought was the defendant at his insurance agency office, the plaintiff got a default judgment of nearly $300,000 – a sum comprised of lost profits, lost equipment and punitive damages. About four months later, the defendant filed a petition to vacate the default judgment. The trial court granted the petition and plaintiff appealed.
Held: Affirmed. Trial court properly granted defendant’s petition to vacate the default judgment.
The defendant’s petition to vacate the default judgment was properly granted because the defendant was never served. In Illinois a judgment entered without personal jurisdiction over a party is void and can be attacked at any time and the petitioner doesn’t have to show due diligence or a meritorious defense. 735 ILCS 5/2-1401(f), (¶¶ 28-29).
Code Section 2-203 (735 ILCS 5/2-203) governs service of process on individual and corporate defendants in Illinois. Permissible service methods are (1) personal service – delivering a copy of process to the defendant personally; or (2) substitute or abode service: leaving a copy of process at defendant’s usual place of abode with someone living there over the age of 13, and informing the person of the contents of the summons. A corporation can be served by leaving the process with its registered agent or any officer or agent of the corporation found anywhere in the state. (¶45); 735 ILCS 5/2-203.
A sheriff or process server’s return of service that reflects personal service on a defendant is presumptively valid and can only be overturned by clear and convincing evidence. Uncorroborated, self-serving testimony of a defendant who claims he wasn’t served is usually insufficient to challenge a sheriff’s or process server’s sworn return. (¶¶ 29, 36-37). Conversely, where a defendant does submit a properly supported affidavit contesting service, the plaintiff must have the process server testify at an evidentiary hearing concerning the circumstances surrounding the challenged process service. (¶ 37).
Here, the sheriff deputy’s return stated that process was served on the defendant at his insurance agency’s office. But this was only a business address. The defendant didn’t live there. Defendant supported his petition to vacate with two affidavits: one from him, the other from his brother who is also defendant’s business partner. Defendant’s brother testified that he was the only one in the insurance officer at the date and time on the sheriff’s return and accepted the papers because he thought they were insurance documents. Defendant, for his part, testified in his affidavit that he was never served at home and that nobody who lived with him was served. Plaintiff failed to challenge defendants’ affidavits and didn’t call the sheriff deputy to testify in support of his service return (that showed personal service on the defendant). The Court held that because plaintiff failed to challenge defendants’ affidavits, defendant met the clear and convincing standard for vacating the default judgment.
This case illustrates that a default judgment entered without proper service can be attacked at any time. A sheriff’s return of service is prima facie valid but not inviolable. If a defendant offers sworn testimony contesting service, the plaintiff should call the sheriff deputy or process server to testify at an evidentiary hearing and elicit testimony on the date, time and circumstances surrounding the service on the defendant. Then, it’s up to the judge to decide based on whose testimony she finds more believable.