Arntz v. Zabka

2021 IL App (4th) 190910-U

NEIL J. ARNTZ, MARION ARNTZ dbaARNTZ FAMILY LIMITED PARTNERSHIP,NEIL J. ARNTZ, GENERAL PARTNER Plaintiffs-Appellees,PAUL W. ROUTT, Assignee-Appellee, v. LUZ O. ZABKA, Defendant-Appellant.

NO. 4-19-0910

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

January 13, 2021

NOTICE

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Coles County

No. 12L22

Honorable Mitchell K. Shick, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court.

Justices Cavanagh and Holder White concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, finding the trial court did not err in granting plaintiffs' petition for revival of judgment, nor did the court err in denying defendant's motion to strike.

¶ 2 Plaintiffs, Neil J. Arntz and Marion Arntz, d/b/a Arntz Family Limited Partnership, petitioned for revival of a judgment in the trial court. After trying to serve notice on defendant Luz O. Zabka's counsel through the mail, plaintiffs provided notice of the revival action by publication. Plaintiffs' counsel recounted his efforts to serve defendant's counsel by first class mail in an affidavit. Defendant moved to dismiss the petition, arguing insufficient service of process. Defendant likewise moved to strike opposing counsel's affidavit. The matter came before the trial court for a telephonic hearing, where the court granted plaintiffs' petition for revival of judgment and denied defendant's motion to strike.

¶ 3 On appeal, defendant presents three arguments that we consolidate into two and restate as: (1) the trial court erred in granting plaintiff's "Petition for Revival of Judgment" and (2) the trial court erred in denying defendant's "Motion to Strike."

¶ 4 I. BACKGROUND

¶ 5 This case began nearly 20 years ago in Seattle, Washington, with an investment deal gone bad. The underlying facts can be found in Arntz v. Valdez, 163 Wash. App. 1003, 2011 WL 3433018 (2011), but for our purposes here it is enough to note that in 2010, after protracted litigation, the King County Superior Court entered a judgment for plaintiffs (and against defendant) for $48,490.59 owed under a promissory note, plus interest, attorney fees, and costs. The Washington Court of Appeals later affirmed the judgment. At no point during the Washington litigation did defendant challenge the superior court's jurisdiction or plaintiffs' standing to enforce the promissory note.

¶ 6 In April 2012, pursuant to section 12-652 of the Code of Civil Procedure (Code) (735 ILCS 5/12-652 (West 2012)), plaintiffs filed the Washington judgment in the Coles County circuit court, seeking to enforce and collect on the judgment. In opposition, defendant filed a "Petition to Vacate a Void Foreign Judgment," which she later amended, arguing the Washington judgment was void because the King County Superior Court lacked jurisdiction. Specifically, defendant argued the Arntz Family Limited Partnership ceased to exist before the King County Superior Court entered judgment for plaintiffs. Defendant further argued plaintiffs defrauded the King County Superior Court by using a fictious "dba" rather than naming the Arntz Family Limited Partnership as a party. Defendant reasoned plaintiffs' actions deprived the King County Superior Court of jurisdiction. Following a full hearing in November 2012, havingheard arguments from both sides, the trial court denied defendant's petition, thereby allowing the Washington judgment to be registered in Illinois. Defendant did not appeal that decision.

¶ 7 The Washington judgment, now an Illinois judgment, laid dormant for almost seven years until plaintiffs petitioned to revive it in April 2019. Meanwhile, plaintiffs assigned the judgment to their attorney, Paul W. Routt (individually assignee or collectively plaintiffs). Plaintiffs served notice of the petition on attorney Kent Heller, who represented defendant in the 2012 proceedings. Within days, Heller moved to strike service of notice, attesting he briefly represented defendant in 2012, he no longer represented her, and serving him did not properly constitute service on defendant. On May 24, 2019, attorney Brent Winters entered his appearance for defendant and filed a motion to dismiss the petition for revival of judgment. On May 30, 2019, the trial court held a telephonic hearing on the pending motions. The trial court granted Heller's motion to strike service, finding he no longer represented defendant. Attorney Winters agreed to accept service on defendant's behalf. When plaintiffs agreed to serve Winters according to Illinois Supreme Court Rules, the trial court continued the hearing on defendant's motion to dismiss, subject to proper notice.

¶ 8 Meanwhile, plaintiffs twice attempted to serve notice to attorney Winters via prepaid first-class certified mail, restricted delivery, return receipt requested. In the first attempt, plaintiffs mailed notice to the address listed on the "Notice of Appearance" Winters filed in the trial court: 5105 U.S. Highway 41, Terre Haute, IN 47802. This address is a UPS Store. Because plaintiffs mailed the notice certified mail, restricted delivery, Winters had to go to the UPS Store and sign to perfect delivery and service. He never did. Stymied, plaintiffs reached out to Winters by telephone, who said he was temporarily in California, and he would be there for several weeks. Winters provided plaintiffs with the following address: 11318 Via Vista, Nevada City,California, 95959. Plaintiffs mailed notice to this address, again prepaid first-class certified mail, restricted delivery, return receipt requested, which required Winters's signature upon delivery. For reasons unclear from the record, this second mailing has not been delivered to Winters.

¶ 9 Stymied again, plaintiffs sought to serve notice of the petition for revival of judgment by publication. On August 15, 22, and 29, 2019, plaintiffs published notice in the Journal Gazette-Times Courier. On October 1, 2019, assignee filed his affidavit describing his attempts to serve Winters by mail and explaining why he finally resorted to service by publication. On October 28, 2019, defendant filed a "Motion to Strike Affidavit," moving to strike both assignee's affidavit and the service by publication.

¶ 10 On November 25, 2019, the trial court held a telephonic hearing to consider plaintiff's petition for revival of judgment and defendant's motion to strike. Attorneys Winters and Rout appeared for their clients and argued their respective sides. The record before us contains no transcript of this proceeding, nor does it contain a copy of the court's judgment. We know from the docket sheet, however, the trial court granted the petition for revival of judgment over defendant's objection. The court denied defendant's motion to strike.

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 Defendant challenges the trial court's decisions on two grounds: (1) the trial court erroneously revived the judgment because the original Washington judgment was void for lack of jurisdiction and, therefore, not entitled to full faith and credit and (2) the trial court erroneously denied defendant's motion to strike. We disagree and affirm the trial court.

¶ 14 A. Revival of Judgment

¶ 15 "[A]n action to revive a judgment *** is not a new proceeding, but a continuation of the suit in which the judgment was originally entered." Dec & Aque v. Manning, 248 Ill. App. 3d 341, 349, 618 N.E.2d 367, 373 (1993). Section 2-1602 of the Code provides, "a judgment may be revived by filing a petition to revive the judgment in the seventh year after its entry *** or at any other time within 20 years after its entry if the judgment becomes dormant and by serving the petition and entering a court order for revival ***." 735 ILCS 5/2-1602(a) (West 2018). Section 2-1602 instructs that judgment holders must file the petition "in the original case in which the judgment was entered" and must serve the defendant with "notice of the petition to revive a judgment *** in accordance with Supreme Court Rule 106." 735 ILCS 5/2-1602(b), (c) (West 2018); see also Department of Public Aid ex rel. McGinnis v. McGinnis, 268 Ill. App. 3d 123, 129, 643 N.E.2d 281, 284 (1994) ("[P]ursuant to Rule 105, the party seeking revival (and possibly interest on the original judgment) must give personal notice to prevent surprise on the party owing the dormant judgment."). "The recognized effect of a revived judgment is to 'revive the judgment as it formerly existed and to reinvest it with the same attributes and conditions which originally belonged to it.' " Dec & Aque, 248 Ill. App. 3d at 349 (quoting Bank of Eau Claire v. Reed, 232 Ill. 238, 241, 83 N.E. 820, 821 (1908)).

¶ 16 "There are only two permissible defenses to a revival action: the denial of the existence of the judgment, or proof of satisfaction or discharge of the action ***." McGinnis, 268 Ill. App. 3d at 131. However, "these defenses must appear on the face of the record." McGinnis, 268 Ill. App. 3d at 131. Defendant did not and does not raise either of these defenses—she neither denies the judgment's existence nor does she claim she satisfied the judgment. Rather, defendant collaterally attacks the underlying Washington judgment, which became an Illinois judgment when plaintiffs registered it in 2012, alleging the King County Superior Court neverhad jurisdiction to enter the order. Though revival actions allow only two defenses, "[r]evival cannot preclude *** a [jurisdictional] challenge" because it is a well-worn legal principle that "a judgment is subject to challenge at any time on the basis that it was rendered without personal jurisdiction." Dec & Aque, 248 Ill. App. 3d at 349-50; see also BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17, 6 N.E.3d 162 ("A judgment entered by a court without jurisdiction over the parties is void and may be challenged at...