                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           O’Halloran v. Luce, 2013 IL App (1st) 113735




Appellate Court             MARGARET O’HALLORAN, as Special Administrator of the Estate of
Caption                     Henry LeGear, deceased, Plaintiff-Appellee, v. DANA LUCE, Defendant,
                            (Robert F. Harris, Cook County Public Guardian, as Limited Guardian of
                            the Estate of Dana Luce, a Disabled Person, Defendants-Appellants).


District & No.              First District, First Division
                            Docket No. 1-11-3735


Filed                       March 29, 2013


Held                        In an action by the administrator of a deceased person’s estate seeking to
(Note: This syllabus        recover from the owner of the house in which the deceased resided based
constitutes no part of      on the claim that the disabled owner’s negligent maintenance of the house
the opinion of the court    caused a fire that resulted in the deceased’s death, the question certified
but has been prepared       by the trial court pursuant to Supreme Court Rule 308 as to whether
by the Reporter of          service on the disabled owner by publication satisfied due process under
Decisions for the           the circumstances was answered in the negative, since the public
convenience of the          guardian, had standing to appeal from the entry of a default judgment
reader.)
                            against the disabled person and service by publication was not consistent
                            with due process, especially when the public guardian had lost contact
                            with the disabled person, there was no evidence the disabled person
                            would have understood the published notice of the suit if he saw it, and
                            service by publication could not have been reasonably calculated to
                            apprise a person in the disabled person’s situation with the consequences
                            of plaintiff’s lawsuit.


Decision Under              Appeal from the Circuit Court of Cook County, No. 98-L-12620; the
Review                      Hon. Irwin J. Solganick and the Hon. William D. Maddux, Judges,
                            presiding.
Judgment                   Question answered; cause remanded.


Counsel on                 SmithAmundsen, LLC, of Chicago (Michael Resis, Ellen L. Green, and
Appeal                     Nicholas G. Kourvetaris, of counsel), for appellants.

                           McVey & Parsky, of Chicago (John M. O’Halloran, of counsel), for
                           appellee.


Panel                      JUSTICE CUNNINGHAM delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Hoffman and Justice Delort concurred in the judgment
                           and opinion.



                                             OPINION

¶1          This appeal arises from a December 12, 2011 order entered by the circuit court of Cook
        County which denied the motion to reconsider an order denying the defendant’s motion to
        quash service filed by defendant-appellant Robert F. Harris, Cook County public guardian
        (Public Guardian), as limited guardian of the estate of Dana Luce, a disabled person. The
        appeal arose prior to the resolution of the underlying case and presented a certified question
        to this court pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). Specifically:
            “Whether service by publication pursuant to and upheld by this court’s September 13,
            2010 and November 3, 2011 orders under section 2-203.1 of the Illinois Code of Civil
            Procedure satisfies due process under all of the circumstances in this case.”
        This case presents a procedurally interesting and complicated set of facts and circumstances
        of first impression. On appeal, the Public Guardian argues that: (1) he has standing to
        challenge the trial court orders that authorized service by publication; and (2) service by
        publication on a mentally disabled individual does not satisfy due process. For the following
        reasons, we answer the certified question in the negative and remand the matter to the circuit
        court of Cook County for further proceedings consistent with this opinion.

¶2                                        BACKGROUND
¶3          The underlying case arose from a November 12, 2008 complaint filed in the circuit court
        of Cook County by plaintiff-appellee Margaret O’Halloran (O’Halloran), as special
        administrator of the estate of Henry LeGear, against defendants-appellants Dana Luce (Luce)
        and the Public Guardian. Subsequently, the trial court dismissed the Public Guardian as a
        party-defendant with prejudice and granted O’Halloran permission to serve Luce by
        publication. On June 22, 2011, the trial court entered a default judgment against Luce. The

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     trial court ordered the Public Guardian to appear and represent Luce. The Public Guardian
     then filed a motion to quash service by publication, which the trial court denied. On
     December 5, 2011, the Public Guardian filed a motion to reconsider. The trial court denied
     the Public Guardian’s motion to reconsider, but certified a question of law to this court
     pursuant to Rule 308. This appeal followed.
¶4        On April 11, 2002, an order was entered by the circuit court of Cook County which
     appointed the Public Guardian as limited guardian of the estate of Luce. The order stated “the
     Public Guardian has authority to investigate and secure all assets and has authority over all
     assets over $1,000.00.” On September 25, 2002, O’Halloran’s decedent, Henry LeGear, died
     as a result of a fire that occurred in a residence located at 634 Prairie Avenue in Wilmette,
     Illinois (Wilmette residence). The building was apparently owned by Luce. On September
     10, 2004, O’Halloran, as special administrator of the estate of Henry LeGear, filed a
     complaint against Luce and the Public Guardian under case number 04 L 10299 (original
     complaint).1 She named both Luce and the Public Guardian as defendants. In response to the
     original complaint, the Public Guardian filed a motion to dismiss himself as a party-
     defendant.2 On April 8, 2005, the trial court granted the Public Guardian’s motion to dismiss
     with prejudice. The court further ordered that “the [Public Guardian] is barred from arguing
     their lack of involvement in this case as a basis for challenging any future award in this case,
     if any is awarded.” On November 16, 2007, O’Halloran voluntarily dismissed the original
     complaint.
¶5        On November 12, 2008, O’Halloran refiled her complaint against Luce and the Public
     Guardian under case number 08 L 12620 (refiled complaint). Again, she named both Luce
     and the Public Guardian as defendants. O’Halloran alleged that at the time of the fire, Luce
     owned or had a beneficial interest in, possessed, maintained and controlled the Wilmette
     residence where the fire occurred. Further, O’Halloran alleged that LeGear died as a result
     of Luce’s negligence in failing to maintain the electrical system and failing to ensure that
     adequate and operable smoke detectors were located in the Wilmette residence. Count I
     alleged negligence and sought damages against Luce and the Public Guardian because
     LeGear’s cause of action for his injuries caused by the fire survived to his estate pursuant to
     section 27-6 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/27-6 (West 2002)). Count
     II alleged negligence and sought damages against Luce and the Public Guardian under the
     Wrongful Death Act (740 ILCS 180/1 (West 2002)). In response to the refiled complaint, the
     Public Guardian again filed a motion to dismiss himself as a party-defendant.3 In his motion
     to dismiss, the Public Guardian argued that he should be dismissed as a defendant from the


             1
           The original complaint is not contained in the record on appeal. This action was refiled on
     November 12, 2008, under case number 08 L 12620.
             2
             Despite careful review of the record, we cannot ascertain the date on which this motion to
     dismiss was filed.
             3
             Despite careful review of the record, we cannot ascertain the date on which this motion to
     dismiss was filed.

                                                -3-
     refiled complaint because: (1) the claims alleged against him were barred by res judicata; (2)
     the claims alleged against him were barred by the one-year statute of limitations pursuant to
     the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity
     Act) (745 ILCS 10/8-101 (West 2002)); (3) O’Halloran failed to state a cause of action
     because she cited no law that created a duty on the part of the Public Guardian; and (4)
     O’Halloran failed to state a cause of action because there was no allegation that the Public
     Guardian owned the Wilmette residence. On June 11, 2009, the trial court granted the Public
     Guardian’s motion to dismiss the refiled complaint with prejudice.
¶6        On September 13, 2010, O’Halloran filed a motion for leave to utilize alternative means
     of service for the refiled complaint, pursuant to section 2-203.1 of the Illinois Code of Civil
     Procedure (Code) (735 ILCS 5/2-203.1 (West 2010)). Specifically, O’Halloran requested the
     court’s permission to serve Luce by publication. O’Halloran’s motion for alternative service
     by publication claimed that since August 2004, Luce had lived as a homeless person in the
     area of Evanston, Illinois. O’Halloran further claimed that when the original complaint was
     filed, Luce could not be located by investigators. O’Halloran argued that in order to serve
     Luce in the refiled complaint, she had searched the Internet, inquired of the Wilmette police
     department and hired an investigator, but was still unable to locate Luce. Thus, O’Halloran
     argued that the only available means of service was by publication. On that same day, the
     trial court granted O’Halloran’s motion for alternative service by publication.
¶7        On November 4, 11, and 18, 2010, the notice of suit appeared in local newspapers
     published by the Pioneer Press. The notice stated that Luce was required to file an
     appearance by December 10, 2010. Luce did not file an appearance. On January 11, 2011,
     O’Halloran filed a motion for a default judgment.
¶8        On February 8, 2011, the trial court entered a case management order which stated that
     O’Halloran was to hire a special process server for the purpose of effectuating personal
     service on Luce. On February 16, 2011, the trial court appointed David H. Will (Will) as
     special process server for the purpose of effectuating personal service on Luce. On March
     17, 2011, Will sent a letter to O’Halloran explaining that he was unable to locate Luce. Will
     stated that he had previously investigated Luce in 2004 on behalf of the Public Guardian, and
     was only able to contact Luce at soup kitchens in the area of Evanston, Illinois. Will returned
     to the soup kitchens and spoke with volunteers and patrons regarding Luce’s location,
     however, he was unable to locate Luce. Will then searched public record sources and learned
     that an individual named Dana Luce had filed civil suits in the United States District Court
     for the Western District of Washington at Tacoma in 2006, 2008, and 2010. Will was not
     able to determine if this individual was the same person who is at issue in this case.
¶9        On June 22, 2011, the trial court entered a default judgment against Luce. On July 20,
     2011, the probate court entered an order which stated:
              “IT IS HEREBY ORDERED that the [Public Guardian] shall appear and represent
          Dana Luce in case no. 08 L 12620.
              THE COURT FINDS this to be in the best interest of the estate of Dana Luce.”
     On July 21, 2011, the Public Guardian filed a motion to vacate the default judgment entered
     on June 22, 2011, and for extension of time to answer or otherwise appear (motion to vacate

                                              -4-
       and for extension of time to answer or otherwise appear). On July 28, 2011, the Public
       Guardian filed a motion for leave to file an appearance. Also, on July 28, 2011, the Public
       Guardian filed a motion to quash the service of summons and vacate the order of September
       13, 2010 (motion to quash service), which had authorized service of the refiled complaint by
       publication. In his motion to quash service, the Public Guardian argued that in this case, the
       trial court did not have jurisdiction over Luce because the method of service that was used
       did not satisfy the requirements of due process.
¶ 10        On July 29, 2011, the trial court held a hearing on the Public Guardian’s motion to quash
       service. On September 21, 2011, O’Halloran filed a response to the Public Guardian’s
       motion to quash service. On October 21, 2011, the Public Guardian filed a reply in support
       of his motion to quash service. On November 3, 2011, following oral argument on the
       motion to quash service, the trial court denied the Public Guardian’s motion to quash service.
¶ 11        On December 5, 2011, the Public Guardian filed a motion to reconsider the court’s
       November 3, 2011 order, or alternatively, to request that the trial court certify a question of
       law for appeal pursuant to Rule 308.4 On December 12, 2011, the trial court denied the
       Public Guardian’s motion to reconsider, but granted the Public Guardian’s motion to certify
       a question of law to this court, pursuant to Rule 308. The trial court found that there exists
       substantial grounds for differences of opinion. The following question was certified by the
       circuit court:
            “Whether service by publication pursuant to and upheld by this court’s September 13,
            2010 and November 3, 2011 orders under section 2-203.1 of [the Code] satisfies due
            process under all of the circumstances in this case.”
       Further, the trial court found that an immediate appeal may materially advance the resolution
       of remaining litigation.
¶ 12        On December 23, 2011, the Public Guardian filed an application for leave to appeal to
       this court pursuant to Rule 308. On January 11, 2012, this court granted the Public
       Guardian’s Rule 308 application for leave to appeal. On January 27, 2012, O’Halloran filed
       an answer to the Public Guardian’s application for leave to appeal pursuant to Rule 308.
       Therefore, this court has jurisdiction to consider the certified question of law on appeal
       pursuant to Rule 308.

¶ 13                                        ANALYSIS
¶ 14       We determine the following issues on appeal: (1) whether the Public Guardian had
       standing to file an application for leave to appeal pursuant to Rule 308; and (2) whether
       service by publication as authorized by the trial court satisfied due process under all of the
       circumstances of this case.


               4
                We note that the Public Guardian’s December 5, 2011 motion to reconsider was filed more
       than 30 days after the trial court’s November 3, 2011 order. However, the motion to reconsider was
       timely because the thirtieth day after the trial court’s November 3, 2011 order fell on a weekend, and
       the Public Guardian filed the motion on the following Monday. See 5 ILCS 70/1.11 (West 2010).

                                                    -5-
¶ 15        As a preliminary matter, before we address the certified question, we first determine
       whether the Public Guardian had standing to file an application for leave to appeal pursuant
       to Rule 308.
¶ 16        O’Halloran first argues that the Public Guardian did not have standing to file an
       application for leave to appeal pursuant to Rule 308 because he did not file an appearance
       for Luce after the default judgment was entered against Luce. Specifically, O’Halloran argues
       that after the default judgment was entered against Luce on June 22, 2011, the trial court
       entered another order on July 20, 2011 that stated “the [Public Guardian] shall appear and
       represent Dana Luce.” O’Halloran points out that the Public Guardian’s subsequent motion
       to vacate and for extension of time to answer or otherwise appear, and motion to quash
       service, were filed on behalf of the Public Guardian and not on behalf of Luce individually.
       O’Halloran contends that the Public Guardian did not file an appearance for Luce
       individually, thus, he does not have standing to appeal on behalf of Luce.
¶ 17        O’Halloran next argues that the Public Guardian did not have standing to file an
       application for leave to appeal pursuant to Rule 308 because he forfeited his argument that
       the trial court lacked jurisdiction over Luce. O’Halloran acknowledges that the Public
       Guardian’s July 28, 2011 motion to quash service argued that the trial court did not have
       jurisdiction over Luce because service by publication was invalid. However, O’Halloran
       points out that after the default judgment was entered, the Public Guardian’s first responsive
       pleading was the July 21, 2011 motion to vacate and for extension of time to answer or
       otherwise appear. In the July 21, 2011 motion to vacate and for extension of time to answer
       or otherwise appear, the Public Guardian did not challenge the trial court’s jurisdiction over
       Luce. O’Halloran argues that because the Public Guardian did not challenge the trial court’s
       jurisdiction over Luce in the first responsive pleading after the default judgment was entered,
       he forfeited the argument that the trial court lacked jurisdiction over Luce. O’Halloran claims
       that if the Public Guardian’s jurisdiction argument is forfeited, then there is no basis on
       which he could have filed an application for leave to appeal pursuant to Rule 308.
¶ 18        Further, O’Halloran argues that the Public Guardian did not have standing to file an
       application for leave to appeal pursuant to Rule 308 because the trial court’s April 8, 2005
       order barred the Public Guardian from challenging the default judgment. The trial court’s
       April 8, 2005 order dismissed the Public Guardian as a party in the original complaint and
       also stated “the [Public Guardian] is barred from arguing their lack of involvement in this
       case as a basis for challenging any future award in this case, if any is awarded.” O’Halloran
       argues that because the default judgment was entered after the trial court’s April 8, 2005
       order, the Public Guardian was barred from challenging the default judgment entered against
       Luce. O’Halloran asserts that if the Public Guardian was barred from challenging the default
       judgment, then he was also unable to file an application for leave to appeal pursuant to Rule
       308.
¶ 19        In response, the Public Guardian argues that he did have standing to file an application
       for leave to appeal pursuant to Rule 308, even though he did not file an appearance for Luce
       individually. The Public Guardian argues that after the default judgment was entered, he
       participated in the refiled complaint in a representative capacity as the guardian of Luce’s
       estate. The Public Guardian points out that he has authority over all assets in Luce’s estate

                                                 -6-
       valued at over $1,000. The Public Guardian contends that the refiled complaint does not seek
       to recover damages valued at less than $1,000 from Luce personally. Rather, the refiled
       complaint seeks to recover damages from assets held in Luce’s estate valued at over $1,000.
       Thus, the Public Guardian argues that the refiled complaint attacked his interests as a
       guardian of Luce’s estate. The Public Guardian asserts that because the refiled complaint
       attacked his interests, he had standing to appeal pursuant to Rule 308.
¶ 20       The Public Guardian also argues that he did not forfeit his argument that the trial court
       lacked jurisdiction over Luce because the service of process was invalid. The Public
       Guardian points out that after the default judgment was entered, his first responsive pleading
       was the July 21, 2011 motion to vacate and for extension of time to answer or otherwise
       appear. The Public Guardian asserts that pursuant to section 2-301 of the Code (735 ILCS
       5/2-301 (West 2010)), a party does not forfeit his right to challenge the court’s jurisdiction
       if his first responsive pleading after the entry of a default judgment is a motion for an
       extension of time to answer or otherwise appear. Therefore, the Public Guardian argues that
       because he did not forfeit his jurisdiction argument, he had standing to file a petition in the
       court, pursuant to Rule 308.
¶ 21       The Public Guardian next argues that the trial court’s April 8, 2005 order did not bar him
       from challenging the default judgment. The trial court’s April 8, 2005 order stated that the
       Public Guardian would not be allowed to argue his “lack of involvement” as a basis for
       challenging any future award entered in this case. The Public Guardian contends that he is
       not arguing his lack of involvement as a basis for challenging the default judgment. Rather,
       the Public Guardian argues that he is challenging the entry of a default judgment by the trial
       court based on the trial court’s lack of jurisdiction over Luce as a result of what he asserts
       is invalid service by publication. Also, the Public Guardian claims that although he was
       dismissed as a party in both the original complaint and the refiled complaint, he was still
       involved in the case as the guardian of Luce’s estate which contained assets sought by
       O’Halloran. The Public Guardian argues that because the trial court’s April 8, 2005 order did
       not bar him from challenging the default judgment, he had standing to file a Rule 308
       application.
¶ 22       We do not agree with O’Halloran’s arguments that the Public Guardian lacked standing
       to file a petition in this court, for leave to appeal pursuant to Rule 308. “The doctrine of
       standing requires that a party, either in an individual or representative capacity, have a real
       interest in the action brought and in its outcome.” In re Estate of Wellman, 174 Ill. 2d 335,
       344, 673 N.E.2d 272, 276 (1996). “The essence of the inquiry regarding standing is whether
       the litigant, either in an individual or representative capacity, is entitled to have the court
       decide the merits of a dispute or a particular issue.” Id. at 345, 673 N.E.2d at 276.
¶ 23       On April 11, 2002, the Public Guardian was appointed as the guardian of Luce’s estate
       and was given authority over all of Luce’s assets valued at over $1,000. In both the original
       complaint and the refiled complaint, O’Halloran sought to recover damages valued at over
       $1,000 from the assets of Luce’s estate. Thus, O’Halloran’s complaints were essentially
       actions brought against Luce’s estate. Although the Public Guardian was dismissed as a party
       from both the original complaint and the refiled complaint, the trial court entered an order
       directing the Public Guardian to appear and represent Luce in the refiled complaint after the

                                                -7-
       default judgment was entered. The parties agree that the trial court had the authority to order
       the Public Guardian to appear and represent Luce pursuant to section 11a-18(c) of the
       Probate Act (755 ILCS 5/11a-18(c) (West 2010)). Specifically, section 11a-18(c) of the
       Probate Act states, in pertinent part:
                 “(c) The guardian of the estate of a ward shall appear for and represent the ward in
            all legal proceedings unless another person is appointed for that purpose as guardian or
            next friend. This does not impair the power of any court to appoint a guardian ad litem
            or next friend to defend the interests of the ward in that court, or to appoint or allow any
            person as the next friend of a ward to commence, prosecute or defend any proceeding in
            his behalf.” 755 ILCS 5/11a-18(c) (West 2010).
¶ 24        The Public Guardian filed an appearance and multiple motions as guardian of Luce’s
       estate. Although the Public Guardian did not file an appearance for Luce individually, he
       participated in the refiled complaint in his representative capacity as the guardian of Luce’s
       estate, and he certainly had an interest in the outcome of the refiled complaint. We hold that
       under these facts and circumstances, the Public Guardian had standing to file an application
       for leave to appeal pursuant to Rule 308.
¶ 25        Further, the Public Guardian did not forfeit his argument that the trial court lacked
       jurisdiction over Luce because the service by publication was invalid. Section 2-301 of the
       Code states:
                 “(a) Prior to the filing of any other pleading or motion other than a motion for an
            extension of time to answer or otherwise appear, a party may object to the trial court’s
            jurisdiction over the party’s person, *** on the ground of insufficiency of process or
            insufficiency of service of process *** by filing a motion to quash service of process.
            Such a motion may be made singly or included with others in a combined motion ***.
                 (a-5) If the objecting party files a responsive pleading or motion (other than a motion
            for an extension of time to answer or otherwise appear) prior to the filing of a motion in
            compliance with subsection (a), the party waives all objections to the court’s jurisdiction
            over the party’s person.” (Emphases added.) 735 ILCS 5/2-301(a), (a-5) (West 2010).
       In this case, the default judgment was entered on June 22, 2011. On July 21, 2011, the Public
       Guardian filed his first responsive pleading, which was a motion to vacate and for extension
       of time to answer or otherwise appear. On July 28, 2011, the Public Guardian filed a motion
       for leave to file an appearance. Also, on July 28, 2011, the Public Guardian filed his motion
       to quash service. In the motion to quash service, the Public Guardian argued that the trial
       court did not have jurisdiction over Luce in the refiled matter because the service by
       publication was invalid. Because his first responsive pleading was a motion for extension of
       time to answer or otherwise appear, the Public Guardian did not forfeit his argument that the
       trial court lacked jurisdiction over Luce. O’Halloran’s argument that the Public Guardian
       forfeited his right to challenge jurisdiction is without merit. See OneWest Bank, FSB v.
       Topor, 2013 IL App (1st) 120010, ¶ 11.
¶ 26        Moreover, the trial court’s April 8, 2005 order did not bar the Public Guardian from
       challenging the default judgment. The trial court’s April 8, 2005 order stated that the Public
       Guardian would not be allowed to argue his “lack of involvement” as a basis for challenging

                                                 -8-
       any future award entered in this case.
¶ 27       The entire essence of the Public Guardian’s arguments in his pleadings following the
       default judgment is that the trial court did not have jurisdiction over Luce because it
       improperly authorized service by publication. The Public Guardian maintained his role as
       guardian of Luce’s estate at all times throughout the original complaint and the refiled
       complaint. Also, the Public Guardian was directed to participate in the refiled complaint after
       the entry of the default judgment. At no point did the Public Guardian argue his lack of
       involvement as a basis for challenging the default judgment. We find no merit to
       O’Halloran’s argument that the trial court’s April 8, 2005 order barred the Public Guardian
       from challenging the default judgment. We hold that the Public Guardian had standing to file
       an application for leave to appeal pursuant to Rule 308.
¶ 28       We next address the certified question of law presented by the trial court on December
       12, 2011. The certified question is:
           “Whether service by publication pursuant to and upheld by this court’s September 13,
           2010 and November 3, 2011 orders under section 2-203.1 of [the Code] satisfies due
           process under all of the circumstances in this case.”
¶ 29       The Public Guardian argues that this court should answer the certified question in the
       negative because in this case, service by publication on an adult adjudicated to be disabled
       does not satisfy the requirements of due process. The Public Guardian asserts that service by
       publication did not satisfy due process because it could not have been reasonably calculated
       to give Luce notice of the refiled complaint. The Public Guardian contends that under the
       circumstances of this case, the chances that Luce resided in the community where the notice
       of suit was published, read the notice, and understood the notice were very remote. Further,
       the Public Guardian argues that in a personal injury action, alternative methods of service of
       process can only be utilized through a special order of the court under section 2-203.1 of the
       Code. Therefore, the Public Guardian argues that service by publication is not recognized as
       a proper means of service.
¶ 30       In response, O’Halloran argues that this court should answer the certified question in the
       positive because in this case, service by publication satisfied due process. O’Halloran points
       out that the Public Guardian, as an interested party, had notice of the original complaint and
       the refiled complaint but chose to file a motion to dismiss in both matters. O’Halloran also
       highlights the facts that the Public Guardian provided Luce’s last known address as the
       Wilmette residence where the fire occurred, and Luce’s whereabouts have been unknown for
       years. O’Halloran emphasizes that even after the trial court allowed service by publication,
       she hired an investigator who was familiar with Luce to try and locate him but the
       investigator was unsuccessful. O’Halloran argues that section 2-203.1 of the Code was
       designed for situations similar to the instant case in which there are no plausible options for
       service other than service by publication. Further, she contends that the Public Guardian did
       not cite any Illinois cases which have held that service by publication is unconstitutional.
       O’Halloran argues that in determining whether a method of service is constitutional, the
       question is not whether the method of service actually succeeded in notifying the defendant
       but, rather, whether the method of service was reasonably calculated to do so. Therefore,


                                                -9-
       O’Halloran argues that under the circumstances of this case, service by publication satisfied
       due process.
¶ 31       When reviewing certified questions of law pursuant to Rule 308, the appellate court
       applies the de novo standard of review. In re Commitment of Weekly, 2011 IL App (1st)
       102276, ¶ 36, 956 N.E.2d 634. There are two main purposes of service of process. Equity
       Residential Properties Management Corp. v. Nasolo, 364 Ill. App. 3d 26, 31, 847 N.E.2d
       126, 131 (2006). First, service of process gives notice to those whose rights are about to be
       affected by the plaintiff’s action. Id. “Second, it vests jurisdiction in the court over the person
       whose rights are to be affected by the litigation.” Id. If a defendant is not served with process
       as required by law then the court has no jurisdiction over the defendant, and any default
       judgment entered against the defendant is void. Id. at 32, 847 N.E.2d at 132.
¶ 32       “In Illinois, personal jurisdiction may be obtained by service of process as provided by
       statute.” In re Marriage of Schmitt, 321 Ill. App. 3d 360, 367, 747 N.E.2d 524, 530 (2001).
       Sections 2-203(a)(1) and (a)(2) of the Code (735 ILCS 5/2-203(a)(1), (2) (West 2010))
       provide for service of process on individuals by leaving a copy of the summons with the
       defendant personally, or by leaving a copy at the defendant’s usual place of abode with a
       family member or person residing there over the age of 13. Schmitt, 321 Ill. App. 3d at 367,
       747 N.E.2d at 530. Section 2-203.1 of the Code states that if personal service under sections
       2-203(a)(1) and (a)(2) is impractical, the plaintiff may file a motion requesting that the court
       authorize another method of service to be made in any manner consistent with due process.
       735 ILCS 5/2-203.1 (West 2010). “ ‘Notice is a fundamental requirement of due process.’ ”
       Hwang v. Department of Public Aid, 333 Ill. App. 3d 698, 707, 776 N.E.2d 801, 809 (2002)
       (quoting East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School District
       No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 420, 687 N.E.2d 1050, 1062 (1997)).
       In order 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.’ ” Hwang, 333 Ill. App. 3d at 707, 776 N.E.2d at 809 (quoting Stratton v.
       Wenona Community Unit District No. 1, 133 Ill. 2d 413, 432, 551 N.E.2d 640, 648 (1990)).
¶ 33       We note that in support of his argument, the Public Guardian cited numerous cases
       decided by the United States Supreme Court, and one Illinois Appellate Court case. See
       Mennonite Board of Missions v. Adams, 462 U.S. 791, 800 (1983) (holding that statutory
       provision regarding tax sale that required only notice by publication was invalid because
       notice by mail or other means to ensure actual notice is a minimum constitutional
       precondition to a proceeding that will affect the property interests of a party); Covey v. Town
       of Somers, 351 U.S. 141, 146 (1956) (holding that compliance with statutory notice
       requirements for a tax lien foreclosure violated due process because it did not afford notice
       to an incompetent person who was not protected by a guardian); Mullane v. Central Hanover
       Bank & Trust Co., 339 U.S. 306, 319-20 (1950) (holding that notice by publication was
       inadequate to inform known beneficiaries of a common trust fund of the proposed judicial
       settlement of certain accounts by the trustee); In re Application of the County Collector for
       Judgment & Order Sale Against Lands & Lots Returned Delinquent for Nonpayment of
       General Taxes for the Year 1982 & Prior Years, 188 Ill. App. 3d 1068, 1077, 545 N.E.2d
       145, 150 (1989) (holding that service on an incompetent person in compliance with statutory

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       requirements regarding a tax sale violated due process because the incompetent person was
       without a guardian and could not understand that she was being served). However, none of
       the cases cited by the Public Guardian are analogous or applicable to the case at bar. Thus,
       we cannot look to these cases for guidance.
¶ 34       In support of her argument, O’Halloran mainly relies on the case In re Application of the
       County Collector, 225 Ill. 2d 208, 227-31, 867 N.E.2d 941, 950-53 (2007) (hereinafter Lowe)
       (holding that compliance with statutory provisions regarding tax sale was sufficient to give
       mentally disabled person notice of the hearing in which title of her property was conveyed
       because plaintiff expended substantial effort to locate disabled person in addition to statutory
       provisions). O’Halloran also argues that Mennonite and Mullane do not support the Public
       Guardian’s argument. While we agree that Mennonnite and Mullane do not further the Public
       Guardian’s argument, we find that Lowe is likewise distinguishable and inapplicable to the
       instant case. Therefore, we are not persuaded by the court’s reasoning in Lowe.
¶ 35       The parties have not cited any cases and this court is not aware of an Illinois case that
       contains facts, circumstances and ultimate resolution which is analogous to the case at bar.
       However, it is clear that sections 2-203(a) and 2-203.1 of the Code and the principles of due
       process are applicable to the instant case. As previously discussed, the notice requirement
       for due process is: “notice must be reasonably calculated ‘to apprise interested parties of the
       pendency of the action and afford them an opportunity to present their objections.’ ” Hwang,
       333 Ill. App. 3d at 707, 776 N.E.2d at 809 (quoting Stratton, 133 Ill. 2d at 432, 551 N.E.2d
       at 648). O’Halloran is correct in stating that section 2-203.1 of the Code allows for service
       by any manner consistent with due process when personal service is not possible. However,
       under the specific and unique circumstances of this case, service by publication was not
       consistent with due process. Therefore, the trial court erred in allowing service by
       publication.
¶ 36       The record reveals that after the fire at the Wilmette residence which gave rise to the
       original complaint, the Public Guardian lost contact with Luce. O’Halloran claims that Luce
       has been living as a homeless person since 2004. Luce’s whereabouts were unknown at the
       time when the notice of suit appeared in local newspapers. After the notice of suit was
       published, an investigator who was familiar with Luce attempted to locate him at the soup
       kitchens that Luce previously frequented. Volunteers and patrons at the soup kitchens stated
       that they had not seen Luce for years. There is no evidence to suggest that Luce was even
       living in the area where the newspapers published the notice of suit. Moreover, if Luce had
       somehow accessed the newspapers containing the notice of suit, there is no evidence that he
       would have understood the notice of suit if he saw it. Luce had long since been adjudicated
       a disabled person and the Public Guardian had been appointed to manage all of his assets
       valued at over $1,000. Clearly, the reason for the adjudication of disability was because Luce
       was incapable of managing his affairs. Under these circumstances even if he had seen the
       published notice, he likely would not have understood what it meant. We acknowledge the
       difficulties O’Halloran experienced in attempting to locate Luce. However, those difficulties
       do not change the fact that service by publication cannot be reasonably calculated to apprise
       an individual in Luce’s circumstances of the legal ramifications of a lawsuit. Therefore, we
       answer the certified question in the negative and hold that service by publication in this case

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       did not satisfy due process.
¶ 37       Accordingly, we vacate the trial court’s November 3, 2011 order which denied the Public
       Guardian’s motion to quash service; the trial court’s June 22, 2011 order which entered a
       default judgment against Luce; and the trial court’s September 13, 2010 order which
       authorized service by publication. We remand this matter to the trial court for further
       proceedings consistent with this opinion.

¶ 38      Question answered; cause remanded.




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