Civil 2-1401 petitions require proper service. Defendant can’t object to his own improper service. This civil 2-1401 petition was properly dismissed.
People v. Kuhn, 2014 IL App (3d) 130092 (August). Civil 2-1401 Petitions Require Proper Service
Defendants petition under the Illinois Compiled Statutes Code of Civil Procedure, 735 ILCS 5/2-1401, was dismissed sua sponte.
Defendant argues that the trial court’s sua sponte dismissal of his section 2-1401 petition should be vacated since it was not ripe for adjudication because it was not properly served on the State.
Defendant mailed his 2-1401 petition to the court, the clerk, and the state. It was a motion to “correct an unlawful sentence” of four years IDOC for possession of a controlled substance. In the motion, defendant was also trying to vacate his guilty plea.
Section 2-1401 of the Code provides a statutory procedure for the vacatur of a final judgment that is more than 30 days but less than 2 years old. 735 ILCS 5/2-1401.
A petition brought under section 2-1401 must be filed in the same proceeding in which the challenged order or judgment was entered, but the petition is not a continuation of the original action. 735 ILCS 5/2-1401(b).
The notice requirements for filing a section 2-1401 petition are governed by Illinois Supreme Court Rule 105 and 106. Rule 105 provides that notice may be served by either summons, certified or registered mail, or by publication. Ill. S. Ct. R. 105(b).
“The object of process is to notify a party of pending litigation in order to secure his appearance.” Professional Therapy Services, Inc. v. Signature Corp., 223 Ill. App. 3d 902, 910 (1992). In construing the sufficiency of the notice, we focus on whether the object and intent of the law were substantially attained rather than the formal and technical requirements. People v. Ocon, 2014 IL App (1st) 120912.
Civil 2-1401 Petitions Require Proper Service
After notice has been served, the responding party has 30 days to file an answer or otherwise appear. Ill. S. Ct. R. 105(a). However, the party opposing the petition need not file a responsive pleading. Vincent, 226 Ill. 2d 1. A trial court may only sua sponte dismiss a section 2-1401 petition after the expiration of the 30-day response period. People v. Laugharn, 233 Ill. 2d 318 (2009).
Here, defendant takes the unusual position of objecting to his failure to properly serve the State with notice of his section 2-1401 petition.
The State responds that although defendant’s service did not comply with Rule 105, it had actual notice of the petition, which was sent by regular mail, and was present at two hearings that occurred after the petition was filed.
In Ocon, 2014 IL App (1st) 120912, the First District Appellate Court discussed the standing element of a defendant’s appellate challenge to his improper service of a section 2-1401 petition. In its analysis, the court cited the standing principle that ” ‘a party may “object to personal jurisdiction or improper service of process only on behalf of himself or herself.” ‘ ” Id. ¶ 34 (quoting In re M.W., 232 Ill. 2d 408, 427 (2009) quoting Fanslow v. Northern Trust Co., 299 Ill. App. 3d 21, 29 (1998)).
The court noted “[t]his case presents an unusual situation in which defendant is objecting to the lack of proper service of his petition on the State,” but the court did not resolve the case on standing grounds. Ocon, 2014 IL App (1st) 120912, ¶ 35.
In the instant case, defendant objects to his improper service of process on the State. Defendant has not argued or cited authority to overcome his lack of standing to make this objection on behalf of the State. Therefore, we conclude that defendant does not have standing to raise an issue regarding the State’s receipt of service.
Actual Notice Received
Alternatively, the notice provided to the State was sufficient to allow the State to determine how it wanted to proceed. The record indicates that defendant served the section 2-1401 petition on the State by regular mail. Thereafter, the State appeared at two hearings, but did not file a responsive pleading or object to the improper service. Defendant’s service, 5 although technically not compliant with Rule 105, provided the State with actual notice of the petition and allowed the State to file a responsive pleading or object to the noncompliant service.
The State did neither and does not object on appeal. Therefore, we affirm the sua sponte dismissal of defendant’s section 2-1401 petition and conclude that defendant abandoned the issues raised in the notices of appeal.
Defendant cannot object to his own improper notice. If there is an objection to be made on that issue it is up to the State to do it. Here, the State did raise such an objection and was quite content with the court’s motion to dismiss defendant’s civil petition.