The Vill. of Algonquin v. Lowe

2011 IL App (2d) 100603

954 N.E.2d 228

352 Ill.Dec. 368

The Village of ALGONQUIN, Plaintiff and Respondent–Appellant,

v.Jas. A. LOWE, his Heirs and/or Assigns, Clarence J. Ebel, his Heirs and/or Assigns, Oak Park National Bank, as Trustee of a Trust Agreement Dated 5/17/54 and Known as Trust No. 2084, Benjamin C. Getzelman, his Heirs and/or Assigns, The Northern Trust Company, as Trustee of a Trust Agreement Dated 3/26/26 and Known as Trust No. 6478, Unknown Owners, and Nonrecord Claimants, Defendants (Terrence Nagel and Bonnie Nagel, Petitioners–Appellees).

No. 2–10–0603.

Appellate Court of Illinois, Second District.

June 1, 2011.

Jennifer J. Gibson, Zukowski, Rogers, Flood & McArdle, Crystal Lake, for Village of Algonquin.Michael E. Kalland, Kalland & Romag, Elgin, for Bonnie Nagel, Terrence Nagel.

OPINION

Justice HUDSON delivered the judgment of the court, with opinion.

¶ 1 The trial court granted a petition that Terrence Nagel and Bonnie Nagel filed under section 2–1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2–1401 (West 2008)). The petition asked the court to vacate a July 26, 2007, judgment that purported to give the Village of Algonquin title to certain land in the Village. That land included property that the Nagels were using for their driveway. The timing of the petition was such that granting it could be proper only if the judgment was void. The Nagels asserted that the Village had not obtained personal jurisdiction over them, so that the judgment was void as to them. The trial court agreed. The Village now argues that it obtained personal jurisdiction over the Nagels by publication service. We disagree, as a plaintiff cannot obtain personal jurisdiction over a defendant that it has never sought to identify. We therefore affirm.

¶ 2 BACKGROUND

¶ 3 On December 29, 2006, the Village filed a complaint for the eminent-domain condemnation of a group of streets and associated tree-lawn/parkway areas within the Village.¹ In the suit, the Village sought fee-simple title to all of the areas designated as streets and all of the bordering tree-lawn/parkway areas. The property that the Village sought was thus a series of strips of land 60 feet wide with many interconnections. Some of the streets that the developer had platted had never been built, but the Village nevertheless sought to condemn the land designated for the unbuilt streets. In the complaint, the Village named as defendants Jas. A. Lowe, Clarence J. Ebel, Benjamin C. Getzelman, their heirs and assigns, and two land trusts that had banks as trustees. It further alleged that other persons might exist with assorted interests in the property and named these persons as defendants under the designations of “unknown owners” and “non-record claimants.” Accompanying the complaint was an “Affidavit for Publication Regarding Unknown Owners and Non–Record Claimants.” In it, an attorney for the Village averred as follows:

“Affiant * * * states that in addition to the persons designated by name on the Complaint filed in the above cause, there may be other person(s) who are interested in said action who have or claim[ ] some right, title, interest or a lien in, to or upon the real property, or some part thereof, described in the Complaint; that the name of each such person(s) is unknown to the Plaintiff and to this Affiant, and upon diligent inquiry, cannot be ascertained, and such other persons are made parties defendant to said action by the name and description of ‘unknown owners.’

Affiant further states, in addition to persons designated by name on the Complaint filed in the above case, and ‘unknown owners' there may be other parties who have an interest in the Premises that have not yet been recorded, cannot be determined by Plaintiff, and such other persons are made parties defendant to said action by the name and description of ‘non-record claimants.’ ”

¶ 4 On February 1, 2007, the Village filed a publisher's certificate of publication that was addressed to all the parties listed in the complaint and that purported to make all of them parties to the eminent-domain action.

¶ 5 The Village filed affidavits of personal service on the two bank trustees.

¶ 6 On March 9, 2007, the Village filed a second affidavit for service by publication in which it sought to serve Getzelman, Lowe, Ebel, and their heirs and assigns. In that affidavit, counsel for the Village averred that, despite diligent inquiry, the names of the heirs and assigns remained unknown and they could not be found. In a second affidavit, a private investigator averred that he had sought Getzelman, Lowe, and Ebel and could not find them, but he had evidence that at least two of them had died. The Village published notice to Getzelman, Lowe, Ebel, and their heirs and assigns.

¶ 7 Next, the Village moved for default judgment against all the parties it had originally named, including unknown owners and nonrecord claimants, and the court granted that motion.

¶ 8 On July 26, 2007, the court entered judgment for the Village. The order stated that Lowe, Ebel, Getzelman, “their heirs and/or assigns,” and the two bank trustees had been served, but had failed to appear. It further said that “[j]udgment is entered in favor of Plaintiff, Village of Algonquin,” and against the same parties that it described as having failed to appear. In other words, the order did not mention unknown owners or nonrecord claimants. The court granted the Village fee-simple absolute title to the property as listed in the original complaint.

¶ 9 On January 20, 2010, the Nagels filed their section 2–1401 petition. They asserted that, because the Village had not properly served them, the trial court had lacked personal jurisdiction over them, making the condemnation judgment void as to them. They alleged that they lived at 1109 Pioneer Road and that they used as their driveway and primary means of vehicle access to their detached garage a segment of the condemned property on which no road had been built. The Nagels further alleged that they had bought their property in 1975 and that the driveway and the associated garage were already in place. Finally, they alleged that the Village was aware of their use of the segment for their driveway, as shown by its having sent the Nagels two letters concerning the condition and use of the driveway. They attached the letters as exhibits.

¶ 10 The Village responded, arguing, among other things, that, because the letters were outside the record, they were inadmissible as evidence of lack of personal jurisdiction over the Nagels. In support of that argument, it cited Muslim Community Center v. Village of Morton Grove, 392 Ill.App.3d 355, 331 Ill.Dec. 296, 910 N.E.2d 705 (2009). In that decision, while deciding whether a trial court had “subject matter jurisdiction,” the reviewing court stated that “ ‘[i]n the case of a collateral attack on a judgment, all presumptions are in favor of the validity of the judgment attacked, and want of jurisdiction must appear on the face of the record.’ ” ² Muslim Community Center, 392 Ill.App.3d at 358, 331 Ill.Dec. 296, 910 N.E.2d 705 (quoting Scheller v. Trustees of Schools of Township 41 North, Range 12, East of the Third Principal Meridian, 67 Ill.App.3d 857, 866, 24 Ill.Dec. 104, 384 N.E.2d 971 (1978)).

¶ 11 The court had a hearing on the petition at which it did not hear testimony or admit exhibits. The arguments at the hearing suggest that both parties assumed that the condemnation order had applied to unknown owners and nonrecord claimants. Counsel for the Nagels argued that the Nagels had gained rights to the property through adverse possession. He also told the court that the Village had sent the Nagels a letter telling them that they could no longer use their driveway. The court ruled that the condemnation judgment was void as to the Nagels, thus granting their petition.

¶ 12 The Village filed a timely notice of appeal. It now repeats its arguments that lack of personal jurisdiction must be apparent on the face of the record for a judgment to be void and that no flaw in jurisdiction of the Nagels was apparent in the record. It also argues that the record positively shows that it gained personal jurisdiction over the Nagels through the published notice. The briefs of both parties assume that the condemnation judgment was, on its face, applicable to nonrecord claimants, the class of defendant into which the Nagels would most likely fall.

¶ 13 ANALYSIS

¶ 14 Initially, we note that the trial court probably intended that the condemnation judgment be applicable to all whom the Village described as defendants, including the unknown owners and nonrecord claimants. That it entered the default judgment against all defendants strongly implies this. Thus, the Village likely would be entitled to have the court modify the condemnation judgment nunc pro tunc to include unknown owners and nonrecord claimants. See, e.g., Kingbrook, Inc. v. Pupurs, 202 Ill.2d 24, 32 n. 3, 269 Ill.Dec. 13, 779 N.E.2d 867 (2002) (noting that, even after a court has otherwise lost jurisdiction, it may correct an order nunc pro tunc when the record clearly shows an error in the form of the original judgment). Given this, we can act most efficiently by accepting the parties' assumption that the judgment applied to unknown owners and nonrecord claimants. We also note that since this case concerns the granting of a section 2–1401 petition without an evidentiary hearing—essentially, judgment on the pleadings—our review is de novo. See People v. Vincent, 226 Ill.2d 1, 14–17, 312 Ill.Dec. 617, 871 N.E.2d 17 (2007) (discussing why the de novo standard of review is applicable to dismissals and judgments on the pleadings in section 2–1401 proceedings).

¶ 15 Turning to the parties' arguments, we see that the Village's brief implies at times that we should presume the judgment to be valid against everyone with a claim—effectively, valid against the world. A...