Cavanaugh v. Lansing Municipal Airport

                                        FOURTH DIVISION
                                          May 1, 1997
                                             


 



No. 1-96-1260

RONALD CAVANAUGH,                  ) APPEAL FROM THE 
                                   ) CIRCUIT COURT OF
          Plaintiff-Appellant,     ) COOK COUNTY 
                                   ) 
     v.                            ) 
                                   )
LANSING MUNICIPAL AIRPORT,         )
                                   )
          Defendant,               )
                                   )
     and                           )
                                   ) 
VILLAGE OF LANSING,                ) HONORABLE
                                   ) JULIA M. NOWICKI
          Defendant-Appellee.      ) JUDGE PRESIDING.
     JUSTICE McNAMARA delivered the opinion of the court: 
     Plaintiff, Ronald Cavanaugh, appeals from the trial court's
order quashing service and vacating a default judgment against
defendant, Village of Lansing (Village).  The trial court ruled
that plaintiff did not comply with the requirements of section 2-
211 of the Code of Civil Procedure (Code) (735 ILCS 5/2-211 (West
1994)) for proper service on the Village and, without proper
service, the judgment order is void.  The relevant facts are as
follows.
      On January 27, 1993, plaintiff filed a complaint naming as
defendants "Lansing Municipal Airport" and "the Village of
Lansing."  Plaintiff's allegations collectively referred to
defendants as "Lansing."  Plaintiff alleged that, on October 22,
1989, his airplane was damaged on a runway at the airport when
one wheel of the plane fell into a hole.  Plaintiff alleged that
the hole was caused "when Lansing had removed a light standard
from the runway."  Plaintiff sought $66,520 in damages.
     Two summons were issued on January 27, 1993.  One instructed
the sheriff to serve "Lansing Municipal Airport," with a street
address.  The other summons requested service on "Village of
Lansing," with a street address.  On February 1, 1993, a
sheriff's deputy served "Bob Malkas, Agent," at the airport
administration office, and "Darlene Goncher, Agent," at the
office of the Village clerk.  At that time, Katherine Dahlkamp
was the Village clerk, and Robert West was the president of the
board of trustees of the Village. 
     On February 3, 1993, Dahlkamp sent a letter to the insurance
companies for the Village along with copies of both the summons
and the complaint.  Dahlkamp intended for insurance defense to be
provided for both Lansing Municipal Airport and the Village. 
Counsel filed an appearance only on behalf of Lansing Municipal
Airport, however, and argued that plaintiff's claim was barred by
the one-year statute of limitations set forth in the Local
Governmental and Governmental Employees Tort Immunity Act (745
ILCS 10/8-101 (West 1994)).  On July 8, 1993, Judge Kenneth
Gillis dismissed with prejudice plaintiff's claim against Lansing
Municipal Airport.  The order further stated that "[t]his cause
shall continue to pend as to the co-defendant Village of
Lansing."
     Plaintiff moved for default judgment against the Village. 
Although plaintiff filed a notice of motion and a notice of
filing, neither was served on the Village.  On July 14, 1993,
without any prove up, default judgment was granted in favor of
plaintiff and against the Village in the amount of $66,520. 
Plaintiff did not provide the Village with notice of the default
judgment.  
     On October 16, 1995, plaintiff's counsel sent the Village a
letter demanding payment on the default judgment.  The letter
stated: "Given that more than two (2) years has [sic] elapsed
since such judgment, the judgment is final and not appealable." 
The Village thereafter filed a special and limited appearance, a
"Motion to Quash Service and Vacate Default Judgment," a "Motion
to Correct Misnomer," and a "Rule 183 Motion for Extension of
Time" to file a petition for relief from judgment pursuant to
section 2-1401 of the Code (735 ILCS 5/2-1401 (West 1994)).   
     On March 12, 1996, Judge Julia Nowicki granted the Village's
motion to quash and vacated the default judgment on the grounds
that plaintiff did not comply with the requirements for proper
service on the Village.  Specifically, the court held that
plaintiff failed to serve either the Village clerk or the
president of the Village board of trustees as required by section
2-211 of the Code (735 ILCS 5/2-211 (West 1994)), and without
valid service of process, the judgment is void.  This appeal
followed. 
     While the parties do not raise the issue, we will first
discuss our jurisdiction over this matter.  This court is
obligated to consider its own jurisdiction sua sponte.  Salemi v.
Klein Construction Co., 266 Ill. App. 3d 110, 639 N.E.2d 629
(1994).  The jurisdiction of the appellate court is limited to
review of appeals from final judgments or orders, subject to
certain statutory or supreme court exceptions.  In re Petition to
Incorporate the Village of Greenwood, 275 Ill. App. 3d 465, 655 N.E.2d 1196 (1995).  The fact that an order contains the
requisite language that there is no just reason for delay in
enforcement or appeal does not make a nonfinal order appealable. 
Rice v. Burnley, 230 Ill. App. 3d 987, 596 N.E.2d 105 (1992).  A
judgment is considered "final" if it finally disposes of rights
of parties either upon an entire controversy or upon some
definite and separate branch thereof.  Board of Trustees of
Community College District No. 508 v. Rosewell, 262 Ill. App. 3d
938, 635 N.E.2d 413 (1992).        
     Here, the trial court's order set forth a special finding
that "[t]here is no just reason to delay enforcement or appeal of
this order," and plaintiff filed a timely notice of appeal.  Yet,
our research has revealed a split among Illinois courts as to
whether an order quashing service is final and appealable.  While
some appeals have been dismissed on the grounds that such an
order is interlocutory and not appealable (Nelson v. United
Airlines, Inc., 243 Ill. App. 3d 795, 612 N.E.2d 980 (1993);
Stankowicz v. Gonzalez, 103 Ill. App. 3d 828, 431 N.E.2d 1272
(1981); Alexander v. Burke, 6 Ill. App. 3d 919, 287 N.E.2d 53
(1972); Mabion v. Olds, 84 Ill. App. 2d 291, 228 N.E.2d 188
(1967)), other decisions, including one by the Illinois Supreme
Court, have determined that an order quashing service is final
and appealable (Brauer Machine & Supply Co. v. Parkhill Truck
Co., 383 Ill. 569, 50 N.E.2d 836 (1943); DiNardo v. Lamela, 183
Ill. App. 3d 1098, 539 N.E.2d 1306 (1989); In re Marriage of
Kelso, 173 Ill. App. 3d 746, 527 N.E.2d 990 (1988); Connaughton
v. Burke, 46 Ill. App. 3d 602, 361 N.E.2d 87 (1977)).  In
DiNardo, the second district of this court noted the disagreement
among Illinois courts, but as we must do here, elected to follow
the supreme court's reasoning in Brauer.  DiNardo, 183 Ill. App.
3d at 1103, 539 N.E.2d  at 1309.  In Brauer, the supreme court
stated:
               "It is true, the order, in form, was
          only an order quashing the service of the
          summons.  It was not an order dismissing the
          suit, nor was it in the form of a final
          judgment on the merits.  Regardless of its
          form, however, it was a complete and final
          disposition of the case, based upon the
          conclusion the court had reached that
          appellee was not amenable to the service of
          process in the manner in which the summons
          was served.  On that issue it was not only as
          effectual and conclusive but it was as final
          as any decision upon the merits.  The result
          was the same.
               If it should be held that an order of
          this character is not appealable, then there
          would be no method by which a plaintiff could
          obtain a review of an order of the trial
          court quashing the service of process." 
          Brauer, 383 Ill.  at 577-78, 50 N.E.2d  at 841.
Based on this language in Brauer, the DiNardo court held that "in
cases where the judgment is vacated due to improper service that
the effect of that order is to quash the service of process ***
an appeal may be had from this order."  DiNardo, 183 Ill. App. 3d
at 1103, 539 N.E.2d  at 1309; see also Marriage of Kelso, 173 Ill.
App. 3d at 749, 527 N.E.2d  at 991 ("an order granting a motion to
quash service of process is a final and appealable order"). 
Notwithstanding that other decisions have overlooked Brauer or
deferred to the trial court's desire to retain jurisdiction
(Nelson, 243 Ill. App. 3d 795, 612 N.E.2d 980; Stankowicz, 103
Ill. App. 3d 828, 431 N.E.2d 1272; Alexander, 6 Ill. App. 3d 919,
287 N.E.2d 53; Mabion, 84 Ill. App. 2d 291, 228 N.E.2d 188), we
hold, as in DiNardo, that the trial court's order vacating the
default judgment due to improper service was final and
appealable. 
     Turning to the parties' arguments on appeal, the relevant
statute is section 2-211 of the Code (735 ILCS 5/2-211 (West
1994)), which states: 
               "In actions against public, municipal,
          governmental or quasi-municipal corporations,
          summons may be served by leaving a copy with
          the chairperson of the county board or county
          clerk in the case of a county, with the mayor
          or city clerk in the case of a city, with the
          president of the board of trustees or village
          clerk in the case of a village, with the
          supervisor or town clerk in the case of a
          town, and with the president or clerk or
          other officer corresponding thereto in the
          case of any other public, municipal,
          governmental or quasi-municipal corporation
          or body." (Emphasis added.) 735 ILCS 5/2-211
          (West 1994).
     Plaintiff contends that the Village waived any argument
concerning the requirements of section 2-211 and that the default
judgment should stand.  Plaintiff stresses that Dahlkamp, the
Village clerk, sent a letter with a copy of the summons and
complaint to the Village's insurance companies two days after an
employee in her office was served.  Plaintiff further argues that
the general appearance filed on behalf of Lansing Municipal
Airport constituted a waiver of the Village's service argument. 
The Village responds that it is undisputed that plaintiff served
neither the Village clerk nor the president of the board of
trustees of the Village as required by section 2-211, and it is
irrelevant that Dahlkamp had actual knowledge of plaintiff's
lawsuit.  The Village further maintains that "[i]f the appearance
of the Lansing Municipal Airport, which is not a legal entity,
but a facility owned by the Village of Lansing, is deemed the
appearance of the Village, the defense of the Lansing Municipal
Airport, and its dismissal based on Tort Immunity Act grounds,
was in fact the defense and dismissal of the Village of Lansing." 
Finally, the Village urges that plaintiff had already settled
with his insurance company and released any further claims
arising from this incident long before filing this action. 
     In quashing service and vacating the default judgment, the
trial court relied on Miller v. Town of Cicero, 225 Ill. App. 3d
105, 590 N.E.2d 490 (1992).  In Miller, the plaintiff sued
several defendants, including the Village of Stickney.  A deputy
sheriff left a copy of the summons with Lillian Rotrekl, an
employee in the office of the village clerk of Stickney.  The
return stated that the sheriff served the summons "'[b]y leaving
a copy with Lillian Rotrekl, agent of said defendant.'"  Miller,
225 Ill. App. 3d at 106, 590 N.E.2d  at 491.  Following the entry
of default judgment against it, Stickney filed a special and
limited appearance and moved to quash service and vacate the
default judgment.  This court reversed the trial court's denial
of the motion to quash, stating:
               "[T]he statute provides that with
          respect to a village, service must be made to
          the president of the board of trustees or the
          village clerk. [Citation.]  Plaintiff served
          Lillian Rotrekl, an office clerk with general
          clerical duties.  The parties do not dispute
          that Rotrekl was not the president of the
          board of trustees or the village clerk of
          Stickney.  Thus, the service was obviously
          not in compliance with the plain language of
          the statute." Miller, 225 Ill. App. 3d at
          110, 590 N.E.2d  at 493-94.   
It was also noteworthy in Miller that the plaintiff "made no
attempt to ascertain the proper person for service and include
appropriate directions for the sheriff on the summons."  Miller,
225 Ill. App. 3d at 114, 590 N.E.2d  at 496.  The summons simply
gave the name "Village of Stickney," with a street address.  
     This court recognized in Miller that our holding seemed to
stress "'technicalities rather than the realities of the
situation,'" since there was no claim from Stickney that it did
not receive the service of summons.  Miller, 225 Ill. App. 3d at
113, 590 N.E.2d  at 495.  Yet, we concluded that this was a
concern for the legislature, since a court must enforce the
unambiguous and plain language of a statute.  Miller, 225 Ill.
App. 3d at 113, 590 N.E.2d  at 495; see also Mauro v. County of
Winnebago, 282 Ill. App. 3d 156, 159, 668 N.E.2d 619, 621
(1996)("[n]othing in the plain language of section 2-211 provides
that the county clerk is the agent of the sheriff for the purpose
of receiving service of process").
     The present case is indistinguishable from Miller.  As in
Miller, the summons here merely instructed the sheriff to serve
"Village of Lansing," with a street address.  It is also
undisputed that the individual served, Darlene Goncher, is
neither the Village clerk nor the president of the board of
trustees.  It is clear from Miller that service on an employee of
a village clerk is not proper service, regardless of whether the
village clerk later obtains actual knowledge of the lawsuit.  We
therefore cannot conclude that Dahlkamp's letter to the Village's
insurance companies constituted a waiver of the argument that
plaintiff failed to comply with section 2-211.  The trial court
properly determined that the Village was not amenable to the
service of process in the manner in which the summons was served.
     Having concluded that Miller is directly on point, we
further note that the case plaintiff relies upon is readily
distinguishable.  In Acosta v. Burris, 47 Ill. App. 2d 201, 197 N.E.2d 757 (1964), the defendant was unsuccessful in seeking to
vacate a default judgment for improper service where the
bailiff's return stated that the defendant had been personally
served and the defendant failed to overcome this prima facie
evidence.  Indeed, the bailiff himself testified that he knew
defendant for two years prior to serving him and identified him
in open court as the individual he had served.  Acosta, 47 Ill.
App. 2d at 203, 197 N.E.2d  at 758.  Thereafter, the court
mentioned the defendant's lack of due diligence and that he had
tendered the case to his insurance company.  Acosta, 47 Ill. App.
2d at 204, 197 N.E.2d  at 758.  Nevertheless, it is well settled
that a party attacking a judgment for lack of personal
jurisdiction due to defective service of process is not held to
the due diligence requirements of a section 2-1401 (735 ILCS 2-
1401 (West 1994)) petition for relief from judgment.  State Bank
v. Thill, 113 Ill. 2d 294, 497 N.E.2d 1156 (1986); Dec v.
Manning, 248 Ill. App. 3d 341, 618 N.E.2d 367 (1993); DiNardo,
183 Ill. App. 3d at 1102, 539 N.E.2d  at 1308.  This is because a
party seeking to vacate a judgment due to improper service is
alleging that the judgment is void, and section 2-1401 does not
"affect[] any existing right to relief from a void order or
judgment."  735 ILCS 5/2-1401(f) (West 1994).  Accordingly, we
need not concern ourselves with whether the Village exercised due
diligence.
     We also reject plaintiff's argument that the Village waived
any defect in service through the general appearance filed on
behalf of Lansing Municipal Airport.  Plaintiff urges that, if
the airport is not a legal entity and merely a facility owned and
operated by the Village, then the appearance of the attorney on
behalf of Lansing Municipal Airport amounted to a general
appearance on behalf of the Village.  Yet, if we accept
plaintiff's argument, we would also be inclined to agree with the
Village that the next step is to hold that the dismissal of
Lansing Municipal Airport as a defendant was a dismissal of the
Village, especially where plaintiff himself collectively referred
to defendants as "Lansing" throughout his complaint and appellate
briefs.  Nevertheless, what plaintiff essentially is asking us to
do is to uphold the default judgment in his favor on the grounds
that the Village really did appear, even though plaintiff
actually secured the default judgment against the Village by
arguing to the trial court that the Village never appeared.  This
argument is not one we can comfortably accept or logically
digest.
     In short, we see no need to go beyond the clear and
unambiguous facts in the record.  The only general appearance in
the record was filed on behalf "Lansing Municipal Airport."  On
July 8, 1993, the trial court dismissed Lansing Municipal Airport
as a defendant, and the court's order specifically stated that
"[t]his cause shall continue to pend as to the co-defendant
Village of Lansing."  On July 14, 1993, plaintiff won a default
judgment against the Village on the grounds that the Village had
failed to appear and respond.  Plaintiff did not give the Village
notice of that default judgment until over two years later. 
Thereafter, the Village filed a special and limited appearance,
the only appearance undeniably on its behalf, and moved to quash
service and vacate the default judgment.  Under section 2-211 and
Miller, it is clear that plaintiff did not comply with the
requirements for proper service on the Village, and without valid
service, the trial court lacked personal jurisdiction over the
Village, and the judgment is void.  All of this the record
supports.  We decline to go any further by holding that the
appearance of the airport was an appearance by the Village or
that the dismissal of the airport was the dismissal of the
Village.  With the vacation of the default judgment, plaintiff's
action against the Village still stands.  Plaintiff will have the
opportunity to pursue his action against the Village on the
merits, and the Village will have the opportunity to set forth
any affirmative defenses, including that plaintiff's action is
time-barred or that plaintiff has already released all claims
against the Village through an insurance settlement.  
     Accordingly, for the reasons set forth above, we hold that
the trial court properly granted the Village's motion to quash
service and vacate default judgment.  The judgment of the circuit
court of Cook County is affirmed.    
     Judgment affirmed.
     WOLFSON, P.J., and CERDA, J., concur.