Where there is evidence of service of process and evidence against service of process, the court must engage in an evidentiary hearing regarding whether process was served even if the evidence of service of process is not in strict compliance with Section 2-203 of the Code of Civil Procedure.

The 1st District Appellate Court reversed and remanded a decision from Cook County Associate Judge Moira S. Johnson.

On June 22, 2014, Jacoby Hoskins was in an automobile collision when he attempted to turn left in front of a vehicle driven by Frederick Smith and was struck by Smith’s vehicle.

Michelle Mayfield was a passenger in Smith’s car and claimed she was injured in the collision. On June 13, 2016, Mayfield filed suit against Smith and Hoskins, alleging that each had been negligent.

The Cook County Sheriff’s Office filed an affidavit stating that they had attempted service of Hoskins at his address of record four times between June 22 and July 5 and had been unable to effectuate service. An alias summons was issued to each defendant on Sept. 19, 2016. The case was continued multiple times due to difficulties with service of process.

Smith appeared on May 3, 2017, and filed an answer and cross-claim for contribution. Approximately four months later, on Aug. 24,the special process server filed an affidavit of service attesting that on Sept. 25, 2016 he left a copy with an individual named Jonnett Hoskins who identified herself as Hoskins’ grandmother at Hoskins’ address and mailed another copy to the same address. This affidavit was not notarized.

Hoskins moved to quash service, including notarized affidavits from himself and Jonnett attesting that neither had ever been served. The trial court granted the motion to quash and another set of summons were issued.

Hoskins moved to dismiss, arguing that Mayfield had not been diligent in serving him. Mayfield filed a response, including several previously unsubmitted affidavits by the special process server, including a notarized affidavit of service in September 2016. The trial court granted Hoskins’ dismissal. Mayfield appealed.

On appeal, Mayfield argued that the trial court should have held an evidentiary hearing and erred in granting dismissal. The appellate court examined the record, noting that there were two relevant documents attesting to the service of process against Hoskins: the affidavit of service on Sept. 25, 2016, filed a year later unnotarized, and an email sent to Hoskins’ counsel contemporaneously with the service but not filed with the court prior to the motion to quash. Neither complied with the requirements of service of process.

However, the appellate court found that the documents, together, amounted to adequate proof of service of process. The affidavit contained the requisite language and was properly filed but was not notarized, and the email was not filed and lacked the requisite language but was certified and contemporaneous to the service.

The affidavit was not notarized, which the trial court emphasized weakened but did not destroy its evidentiary value. As there was evidence of service on one side and affidavits denying service on the other, the trial court was presented with a question of fact, which the appellate court held it had an obligation to resolve prior to settling the motion to quash.

As a result, the appellate court remanded to the circuit court for additional resolution.

Michelle Mayfield v. Frederick Smith and Jacoby Hoskins

2019 Ill. App. 181899

Writing for the court: Justice Robert E. Gordon

Concurring: Justices Margaret Stanton McBride and Eileen O’Neill Burke

Released: Jan. 2, 2020