2023 IL App (1st) 220198-U No. 1-22-0198 Order filed June 12, 2023. First Division

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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ ALEJANDRO ORTIZ, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) No. 18 M1 714647 KINISHA TINSLEY and UNKNOWN OCCUPANTS, ) ) Defendants. ) The Honorable ) Martin Paul Moltz, (Kinisha Tinsley, Defendant-Appellant). ) Judge Presiding.

PRESIDING JUSTICE LAVIN delivered the judgment of the court. Justices Hyman and Coghlan concurred in the judgment. ORDER ¶1 Held: We reverse the circuit court’s denial of defendant’s petition to vacate the eviction order against her and remand for an evidentiary hearing addressing whether plaintiff satisfied the statutory requirements for constructive service by posting. ¶2 Defendant Kenisha Tanksley appeals from the circuit court’s order denying her petition to vacate an eviction order pursuant to section 2-1401(f) of the Code of Civil Procedure (Code) (735 No. 1-22-0198 ILCS 5/2-1401(f) (West 2020)).1 On appeal, defendant argues that the circuit court erred in denying her petition as moot and time-barred on the basis that she had already vacated the premises. She also argues that the circuit court erred in finding it had personal jurisdiction over defendant where (1) plaintiff failed to exercise the requisite diligent inquiry in locating defendant’s whereabouts before effecting constructive service on her and (2) plaintiff spelled defendant’s name wrong when effecting constructive service by posting. We vacate the circuit court’s order denying defendant’s section 2-1401 petition and remand for an evidentiary hearing. ¶3 The record reflects that, in June 2015, plaintiff leased an apartment unit on the 1500 block of South Millard Avenue (premises) to defendant. Defendant paid rent with the help of the United States Department of Housing and Urban Development Housing Choice Voucher rental subsidy, which was administered by the Chicago Housing Authority (CHA). The parties do not dispute that defendant lived in the apartment with two children and, at some point, her ex-husband began living in the rented unit as well. ¶4 In August 2018, plaintiff served a person at the premises named “Mr. Pickens” with a five days’ notice, addressed to “Kinisha Tinsley and all unknown occupants,” requesting $2554 in unpaid rent. The notice stated that unless full payment of the unpaid rent was made on or before the expiration of five days after service of the notice, the lease would be terminated. ¶5 On September 12, 2018, plaintiff filed a complaint alleging that he was entitled to possession of the premises, and that defendants “Kinisha Tinsley & unknown occupants” owed

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No. 1-22-0198 him rent from April 1, 2017, to “present” in the amount of $2554, plus additional rent and costs.

That same date, an eviction summons for trial was issued ordering the sheriff to effect service, naming “Kinisha Tinsley & unknown occupants” as defendants, and reflecting the address of the premises. The sheriff’s office attempted service on September 18, 2018, and subsequently filed an affidavit of service stating defendant was not served because contact could not be made.

¶6 On September 26, 2018, plaintiff moved for appointment of a special process server, private detective Lynn M. Bagley, to serve defendant. The circuit court granted the motion on

September 28, 2018.

¶7 The alias summons was returned, along with an affidavit of non-service by Bagley dated

October 13, 2018. Bagley averred that on October 5, 2018, at 1:07 p.m., she went to the premises and saw it was a two-flat building with two separate units. The first floor had no identification on the mailbox, although the second-floor unit’s mailbox did have identification. There was no answer from the first-floor unit. An individual in the second-floor unit told Bagley that he believed

defendant “was” in the first-floor unit, but “no one lives in the unit.” Bagley placed her card in the front and back doors of the first-floor unit. She returned on Sunday, October 7, at 2:55 p.m.;

Monday, October 8, at 5:02 p.m.; and Tuesday, October 10, at 4:48 p.m. However, there was no answer and Bagley’s cards were still in the doors. Bagley concluded that “[s]ervice could not be obtained as no one is currently staying in the unit.”

¶8 On October 15, 2018, a “notice requiring appearance in pending action” was filed along with an affidavit for constructive service by posting. The notice named “Kinisha Tinsley & All

Unknown Occupants” as the defendants and identified the address of the premises as the property at issue. The affidavit form contained multiple boxes that could be checked regarding the reason

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personal service was not possible. Plaintiff checked the box stating defendant “is concealed within the state.” The affidavit form also contained two boxes reflecting that either defendant’s place of residence either (1) was known, in which case plaintiff was to write out the address of the residence, or (2) could not be ascertained after diligent inquiry, in which case plaintiff was to write out defendant’s last known address. Plaintiff checked the box that defendant’s residence was known, writing out the address of the premises. The form’s accompanying notice stated defendant was to appear in person at the Daley Center on October 31, 2018, at 9:30 a.m.

¶9 The Sheriff’s Office of Cook County filled out an affidavit of service, reflecting that, on

October 17, 2018, notice was served by posting a copy of the notice at the Cook County

Government Building, Chicago City Hall, and the Daley Center. That same day, a copy of the notice was mailed to defendant at the premises.

¶ 10 On October 31, 2018, the circuit court entered an eviction order against “Kinisha Tinsley,”

granting plaintiff possession of the premises. The order also dismissed plaintiff’s money claim and stated plaintiff “may not seek this money in the future.”

¶ 11 On February 23, 2021, defendant, through counsel, filed a section 2-1401(f) petition “to vacate the order for possession and motion to seal the court file.” She requested that the circuit court vacate the eviction order as void because the circuit court lacked personal jurisdiction over her, where plaintiff failed to properly effect service. Defendant refuted that she was concealing herself, and claimed that plaintiff failed to conduct a “ ‘diligent inquiry’ ” in ascertaining her residence and “ ‘due inquiry’ ” in ascertaining her whereabouts prior to resorting to service via

posting. She also argued that plaintiff improperly spelled her name as “Kinisha Tinsley” in the complaint and service attempts, when her name should have been spelled “Kenisha Tanksley.”

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Defendant also requested that the court seal the case file, because the eviction case had jeopardized her ability to receive rent subsidies and rent in the future.

¶ 12 Defendant attached her affidavit to her petition. She averred that, on June 2, 2015, she rented the apartment unit at the premises and lived there with her child and stepchild. During a

CHA inspection in the spring of 2018, she learned there was black mold in her apartment. The apartment failed CHA inspection, and plaintiff “took no action” to address the mold issue. In August 2018, CHA verbally told defendant she could stay in a different apartment if necessary due to the ongoing mold issue and plaintiff’s failure to address it. Defendant “temporarily relocated” her family to her mother’s apartment on the 2600 block of West Monroe Street. She informed

CHA of that address in September 2018. She also informed plaintiff that, during the fall of 2018, she was not regularly residing at the apartment due to the mold.

¶ 13 Defendant averred that she “could regularly be found” at her mother’s apartment and “was not concealing [her]self in the fall of 2018.” She did not observe any business cards from Bagley on the front or back door of the apartment at the premises, and she did not know Bagley was attempting to contact her. During the fall of 2018, plaintiff did not ask defendant where he could reach her or tell her he was trying to serve her. She stated, “To my knowledge, [plaintiff] did not

allege that he made any calls or sent any letters during the fall of 2018 in attempts to inform me of the eviction lawsuit.” Defendant claimed she first learned about the eviction lawsuit from CHA on

October 31, 2018, which was the same day that the eviction order was entered. She moved out of the apartment on November 15, 2018.

¶ 14 Also attached to defendant’s petition was her lease for the apartment, which provided for a term from June 2, 2015, through June 30, 2016, and a monthly rent of $1051. Defendant further

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August 22, 2018.

¶ 15 Defendant also attached an order entered on November 23, 2020, by the chancery division

of the circuit court in a case that defendant initiated against CHA to challenge the termination of her rent voucher eligibility. The court observed that CHA’s hearing officer found defendant had

violated two requirements for eligibility, as she (1) “committed a serious and repeated violation of her lease by not paying rent as required under her lease” and (2) was evicted. The circuit court entered and continued CHA’s motion to dismiss the proceedings, citing potential jurisdictional questions in the instant case.

¶ 16 On September 2, 2021, plaintiff filed a response to the section 2-1401 petition. Plaintiff argued that defendant failed to pay her monthly rent of $137 for over 18 months, from February

2017 to August 2018. Plaintiff placed summons with the sheriff, hired a special process server when that failed, and, when the special process server failed, contacted CHA but did not receive any information regarding defendant’s whereabouts. Plaintiff argued that he followed “every proscribed step available to him in his attempt to serve the Defendant,” and the record supported the circuit court’s finding of concealment. He further argued that defendant’s petition was time- barred, as it was filed more than two years after the entry of judgment.

¶ 17 Plaintiff attached to his response his affidavit averring that defendant stopped paying her portion of the rent in February 2017 and ignored his warning that her non-payment would jeopardize her ability to “receive Section 8.” Defendant refused to pay rent or discuss paying rent.

When mold was discovered in the apartment unit, plaintiff “immediately” sought to remediate the 220203

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issue, but defendant refused him or any contractors entry to the apartment. On multiple occasions, defendant refused entry and stated, “ ‘This is my house!’ ” Plaintiff provided written notices of request for entry and contacted the CHA voucher program regarding access to the apartment and non-payment of rent. Defendant still refused entry.

¶ 18 Plaintiff decided to terminate the tenancy in August 2018 and attempted to call defendant

“several” times, but defendant never answered his phone calls. Plaintiff averred that defendant

never informed him she was moving, did not provide her mother’s address or contact information, and appeared to have abandoned the apartment and left no forwarding information. CHA had no information on defendant’s whereabouts and was “well aware” of the “difficulties” plaintiff had with defendant.

¶ 19 Defendant filed a reply, arguing that her petition was timely because the eviction order was void for lack of personal jurisdiction and could be challenged at any time. She further argued plaintiff failed to include sufficient details in his affidavit of non-service to support his contention that defendant was concealing herself, such as including the details that plaintiff had contacted

CHA to locate defendant and that defendant refused his attempts to contact her. She asserted that plaintiff failed to diligently inquire into her whereabouts.

¶ 20 The circuit court heard arguments on defendant’s petition. No witnesses testified.

Plaintiff’s counsel stated that the “original impetus” for defendant’s eviction, the failure to pay rent for over 18 months, occurred at least a year before the mold was found in the apartment unit.

Plaintiff “got tired of it” and contacted CHA, who told him to evict defendant.

¶ 21 Defendant’s counsel argued that defendant had vacated the apartment two weeks after she learned of the eviction order. Counsel informed the court that “mental health issues” delayed the 220204

No. 1-22-0198 filing of defendant’s petition. Counsel stated that CHA had already agreed to reinstate defendant’s

voucher if the court vacated her eviction order, because “at that point she has not been evicted for nonpayment of rent.” Counsel asserted that, if the circuit court found plaintiff’s affidavit credible, an evidentiary hearing might be necessary to address the conflicting affidavits as to whether plaintiff appropriately attempted to locate defendant to serve her with the eviction complaint.

¶ 22 On September 22, 2021, the circuit court denied defendant’s section 2-1401 petition to

vacate the order of possession. The court found that, regardless of whether service was proper, the matter was moot because the apartment was already vacated and eviction was “complete.” The court also found that the public interest exception to the mootness doctrine did not apply.

Additionally, the court found that it had lost jurisdiction over the case, and defendant’s untimely

petition could not revest jurisdiction with the court because plaintiff had opposed the petition. The court granted defendant’s request to seal the record, noting plaintiff had no objection to it.

¶ 23 On October 22, 2021, defendant filed a motion for reconsideration, arguing the circuit court erred in denying her petition based on the mootness doctrine, as the collateral consequences exception to the mootness doctrine applied. She also argued the court erred in denying the petition based on lack of jurisdiction, as a void judgment may be challenged at any time, and the section

2-1401 petition initiated a new proceeding over which the court had jurisdiction.

¶ 24 On December 17, 2021, plaintiff filed a response to the motion for reconsideration, arguing that the court was not revested with jurisdiction. Plaintiff also asserted that the collateral consequences exception to the mootness doctrine did not apply because defendant also lost her

eligibility for rental vouchers due to her “prolonged and unexcused” failure to pay rent. Therefore, the eviction order was not the sole cause of any collateral consequences she faced.

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¶ 25 On January 7, 2022, defendant filed a reply, reiterating the arguments in her motion for reconsideration.

¶ 26 On January 13, 2022, the circuit court entered an order denying the motion for reconsideration. The court noted that defendant had never paid rent, wanted mold in her unit taken care of but would not allow anyone inside her unit, “kind of abandoned” her unit, and “absented

herself” so that she could not be served. The court stated “[t]hese are all findings of bad faith,” and concluded there was nothing in defendant’s favor supporting an exception to the mootness doctrine. The court additionally stated that it had “checked and rechecked the service” and found service was proper and so the order was not void.

¶ 27 On appeal, defendant argues that the circuit court erred in finding her section 2-1401 petition to vacate moot and untimely. She also asserts that the court erred in finding service by posting was proper. Defendant argues that because plaintiff failed to comply with the statutory requirements for service by posting, the court lacked personal jurisdiction to enter the eviction order against her, and so the eviction order was void and must be vacated. We first address whether the issue on appeal is moot.

¶ 28 “An appeal is moot if no controversy exists or if events have occurred which foreclose the reviewing court from granting effectual relief to the complaining party.” In re Shelby R., 2013 IL

114994, ¶ 15. Generally, this court will not decide moot questions, though there are exceptions to

that rule. People v. Morger, 2019 IL123643, ¶ 15. Where a tenant challenges an order of possession in favor of a landlord and seeks possession, the issue is moot if the tenant no longer possesses the property at issue because the relief the tenant seeks can no longer be granted. See

Poulos v. Reda, 165 Ill. App. 3d 793, 798 (1987). However, where a tenant challenges service in 220206

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an eviction proceeding, “if the eviction was void for lack of jurisdiction, the accomplished fact of eviction would not make the case moot.” Bank of Ravenswood v. King, 70 Ill. App. 3d 908, 914

(1979). “Claims of mootness present questions of law, which we review de novo.” Universal Metro

Asian Services Ass’n v. Mahmood, 2021 IL App (1st) 200584, ¶ 17.

¶ 29 Here, defendant is not seeking to maintain possession of the premises, nor is she debating the factual basis for the eviction order, i.e., whether she paid the rent that plaintiff claims she owes.

Rather, defendant is arguing that the circuit court never had jurisdiction over her to enter the eviction order from the beginning because plaintiff failed to effect service, and so the order is void ab initio. See JPMorgan Case Bank, National Ass’n v. Ivanov, 2014 IL App (1st) 133553, ¶ 46

(“Where a court lacks *** personal jurisdiction over the parties, any order entered in the matter is void ab initio and, thus, may be attacked at any time.” (Internal quotation marks omitted.)). As stated, defendant’s challenge to her service is not rendered moot simply because plaintiff executed a void eviction order. See King, 70 Ill. App. 3d at 914. Therefore, the court erred in finding defendant’s challenge to the eviction order was moot, where defendant was seeking to vacate a void order based on a lack of proper service.

¶ 30 The court also erred in finding that the section 2-1401 petition was untimely.

¶ 31 Generally, a trial court loses jurisdiction 30 days following the entry of a final judgment if a timely postjudgment motion is not filed. People v. Bailey, 2014 IL 115459, ¶ 26. Section 2-1401 of the Code, however, provides a statutory mechanism for vacating final judgments older than 30 days. 735 ILCS 5/2-1401 (West 2018).

¶ 32 A section 2-1401 petition constitutes the initial pleading in a new proceeding and is not a continuation of the underlying proceedings. Sarkissian v. Chicago Board of Education, 201 Ill. 2d