THIRD DIVISION
Date Filed: March 19, 2003

JUSTICE HALL delivered the opinion of the court:

The defendant, Diane Huntley, as special administrator (theAdministrator) of the estate of Annie Collins, deceased (Mrs. Collins), filedan amended petition pursuant to section 2-1401 of the Code of Civil Procedure(the Code) (735 ILCS 5/2-1401 (West 2000)) seeking to vacate a judgmententered in favor of the plaintiff, Jahnene Clay, and against Mrs. Collins'sestate. The circuit court denied the amended petition. The Administratorappeals.

The sole issue on appeal is whether the circuit court abused itsdiscretion when it denied the Administrator's amended section 2-1401 petition.

On July 11, 1997, the plaintiff filed a suit for damages against Mrs.Collins alleging that Mrs. Collins assaulted her by willfully spilling acontainer of caustic liquid chemicals on the plaintiff. Mrs. Collins wasserved with summons and filed an appearance through her attorney, LawrenceAndolino of the law firm of Edward R. Vrdolyak (Vrdolyak law firm).

On July 21, 1999, the circuit court entered a case management ordersetting the case for jury trial on May 10, 2000.

On August 27, 1999, Mr. Andolino filed a motion to spread of record Mrs.Collins's death on June 8, 1999. On September 7, 1999, the circuit courtgranted the motion. The circuit court also granted the plaintiff's oralmotion to file an amended complaint substituting Willie Collins (Mr. Collins),Mrs. Collins's husband, as special administrator of her estate, as defendantand to add a negligence count to the complaint. On September 15, 1999, theplaintiff filed an amended two-count complaint naming Willie Collins, asspecial administrator of Mrs. Collins's estate, as defendant.

On May 4, 2000, Mr. Andolino filed a motion to withdraw as attorney forMrs. Collins, citing her death and her family's lack of cooperation. Theaccompanying notice of motion stated that he would present the motion on May17, 2000. The notice and motion were addressed to the "Family of AnnieCollins, 2140 Washburne Avenue, Chicago, Il. 60608" and indicated that thenotice and motion were sent certified mail, return receipt requested.

On May 10, 2000, the scheduled jury trial date, the circuit court enteredan order which provided that the "Defendant" was waiving "its" jury demand andthe plaintiff was nonsuiting the intentional tort count of the complaint. Theorder further provided that "the Defendant" was defaulted as to the negligencecount for failure to answer or otherwise plead to the negligence count. Thecase was set for prove-up on May 11, 2000.

On May 11, 2000, Mr. Andolino filed another notice of motion stating thathe would present his motion to withdraw as attorney for Mrs. Collins on thatdate. According to his affidavit in the record, on May 10, 2000, OrlandoDeLeon delivered the May 11, 2000, notice of motion and motion to withdraw to6824 South Campbell Street, Chicago, where it was accepted by Karion Collins.

On May 11, 2000, the circuit court entered judgment in favor of theplaintiff in the amount of $400,000 plus costs against Mr. Collins, as specialadministrator of Mrs. Collins's estate. The circuit court also allowed theVrdolyak law firm to withdraw as attorney for "Ann Collins."

On November 13, 2000, Mr. Collins, through new counsel, filed a section2-1401 petition to vacate the May 11, 2000, judgment. The petition alleged,inter alia, that Mr. Collins had a meritorious defense to the negligenceaction under the Dead- Man's Act (735 ILCS 5/8-201 (West 1996)). The petitionfurther alleged that Mr. Collins had been diligent with respect to theunderlying law suit, and upon learning of the entry of the judgment, he tooksteps to vacate the judgment. According to his supporting affidavit, Mr.Collins averred that he never received notice that he was named as the specialadministrator of Mrs. Collins's estate, that he never received a copy of theplaintiff's amended complaint and that he never received notice of the defaultorder entered in this case. Mr. Collins further averred that he did notreceive notice of the entry of the May 11, 2000, judgment or the withdrawal ofthe Vrdolyak law firm.

On February 23, 2001, attorneys for Mr. Collins filed a motion requestingthat Diane Huntley be substituted for Mr. Collins as special administrator forMrs. Collins's estate based upon Mr. Collins's diminished capacity, bothmentally and physically. The attorneys also sought the withdrawal of Mr.Collins's affidavit and leave to file an amended petition. On March 6, 2001,the circuit court entered an order allowing the withdrawal of Mr. Collins'saffidavit, substituting Diane Huntley as the special administrator andgranting leave to file an amended section 2-1401 petition.

On May 15, 2001, the Administrator filed an amended section 2-1401petition. The petition alleged, inter alia, that Mr. Collins should not beheld accountable for any delay or negligence in seeking to vacate the May 10and May 11, 2000, orders due to his mental incompetence.

The Administrator filed a memorandum of law in support of the petition. The exhibits to the memorandum included the affidavit of Dr. Rodolfo Pamintuanin which the doctor averred that he had been treating Mr. Collins for chroniccongestive heart failure, chronic atrial fibrillation and senile dementia,which rendered him incompetent to participate in or follow the progress of anylegal matters since April 1999.⁽¹⁾ Also included as an exhibit was theaffidavit of Mr. Andolino in which he averred that the Vrdolyak law firmreceived the amended complaint and sent a copy of it to Mrs. Collins's familyat 2140 Washburne Avenue, that the Vrdolyak law firm had never received achange of address from the family and that a copy of the order granting themotion to withdraw was sent to Mrs. Collins's family, but, because theVrdolyak law firm had withdrawn, the May 11, 2000, order relating to theprove-up was not sent to the family.

The plaintiff filed a response to the amended section 2-1401 petition. In her response, the plaintiff alleged that on May 10, 2000, through theirrespective attorneys, the parties had reached an agreement. According to theaffidavit of Jeffrey Burkart, the plaintiff's attorney, Mr. Burkart informedMr. Andolino that he was only interested in proceeding to judgment on thenegligence count so that he could potentially recover from Allstate, Mrs.Collins's insurer. Mr. Andolino advised Mr. Burkart that Mr. Andolino hadonly been hired to defend the intentional tort count and that it wasAllstate's responsibility to defend the negligence count. The attorneysagreed that Mr. Burkart would nonsuit the intentional tort count and seek adefault judgment on the negligence count. Based upon his normal practice, Mr.Burkart would have sent a copy of the default order to Allstate.

The Administrator filed a reply to the plaintiff's response, supported bythe affidavit of Karion Williams. According to her affidavit, prior to thedeath of her mother, her parents resided at 2140 West Washburne Avenue inChicago. After Mrs. Collins's death on June 8, 1999, Mr. Collins moved inwith Ms. Williams at 6824 South Campbell Street, Chicago, so that Ms. Williamscould monitor his medical treatment. While they received the motion advisingthem that the Vrdolyak law firm was withdrawing as counsel for Mrs. Collins,neither she nor her father received copies of the amended complaint or thedefault and judgment orders entered in the case. Ms. Williams and her fatherfirst learned in September 2000 that Mr. Collins had been named the specialadministrator and that the default and judgment orders had been entered. Ms.Williams then contacted her mother's insurance carrier and requested that anattorney be appointed to defend Mr. Collins in this matter.

In addition, according to the affidavit of Deborah Nico, the attorneyassigned to represent Mr. Collins after the Vrdolyak law firm withdrew, onJanuary 17, 2001, when the plaintiff's counsel, Michael Baird, and sheattempted to take Mr. Collins's deposition, he was confined to a hospital bed,appeared to be in physical distress and could not respond to basic questionsput to him.

On July 16, 2001, the circuit court denied the amended section 2-1401petition. The Administrator filed a timely notice of appeal.

Whether to grant a section 2-1401 petition lies in the sound discretionof the trial court. Selvy v. Beigel, 309 Ill. App. 3d 768, 773, 723 N.E.2d702, 706 (1999). An abuse of discretion is found only if no reasonable personwould decide as did the trial court. Selvy, 309 Ill. App. 3d at 774, 723N.E.2d at 706-07.

Section 2-1401 of the Code provides a procedure where final orders,judgments and decrees may be vacated after 30 days of entry; this is done bybringing to the court's attention matters of fact, unknown when the judgmentwas entered, but which, if known, would have affected or altered the judgment. Layfield v. Village of University Park, 267 Ill. App. 3d 347, 350, 641 N.E.2d1247, 1249 (1994).

Relief under section 2-1401 requires that the petitioner set forthspecific factual allegations supporting each of the following elements: (1)the existence of a meritorious defense or claim; (2) due diligence inpresenting that claim in the original action; and (3) due diligence in filingthe section 2-1401 petition to vacate. Selvy, 309 Ill. App. 3d at 774, 723N.E.2d at 707. A petitioner must first show the grounds asserted for reliefwould have prevented the entry of the judgment against him had they been knownat trial, and then he must prove that the failure to discover or present thegrounds for relief was not the result of the petitioner's own lack ofdiligence. Layfield, 267 Ill. App. 3d at 350, 641 N.E.2d at 1249.

In addition, section 2-1401(f) provides that "[n]othing contained in thisSection affects any existing right to relief from a void order or judgment, orto employ any existing method to procure that relief." 735 ILCS 5/2-1401(f)(West 2000).

Section 2-1008 of the Code provides in pertinent part as follows:

"If a person against whom an action has been brought dies, andthe cause ofactionsurvives andis nototherwisebarred, hisor herpersonalrepresentative shall besubstitutedas a party. If nopetition hasbeen filedfor lettersof officefor thedeceased'sestate, thecourt, uponthe motionof a personbringing anaction andafter thenotice tothe party'sheirs orlegatees asthe courtdirects andwithoutopening anestate, mayappoint aspecialrepresentative for thedeceasedparty forthe purposesof defendingthe action. If a partyelects tohave aspecialrepresentative appointedunder thisparagraph(2), the recoveryshall belimited tothe proceedsof anyliability insuranceprotectingthe estate. 735 ILCS5/2-1008(b)(2)(West 2000).

In cases such as the one before us, the statutory process described abovecontemplates (1) a motion by the plaintiff for the appointment of a specialadministrator; (2) notice to the deceased defendant's heirs or legatees thatthe plaintiff is seeking to substitute a special administrator; and (3) thecircuit court's appointment of a special administrator.

We observe, first, that the plaintiff did not file a motion seeking theappointment of a special administrator. Rather, the September 7, 1999, orderreflects that the plaintiff made an oral motion for leave to file an amendedcomplaint naming Mr. Collins as special administrator. While section 2-1008provides that notice to the deceased party's heirs and legatees is "as thecourt directs," the record in this case does not reflect that Mr. Collins wasever notified that the plaintiff was seeking to name him as specialadministrator of Mrs. Collins's estate.

However, failure to give notice does not render the appointment of aspecial administrator void ab initio. See Sepeda v. LaBarre, 303 Ill. App.3d 595, 599, 708 N.E.2d 804, 806 (1999) (where the notice was not given "asthe court directs," the remedy was to file a petition to replace the specialadministrator, and until then, the appointment of the special administratorwas effective).⁽²⁾

In the present case, therefore, the failure of the plaintiff to notifyMr. Collins that the plaintiff was seeking to name him special administratorof Mrs. Collins's estate does not entitle him to a vacation of the judgmentagainst him.

However, more significantly, there is no evidence in the record that Mr.Collins was ever served with summons together with a copy of the amendedcomplaint.⁽³⁾ We note that section 2-1008 makes no mention of service ofsummons on the substituted special administrator. However, a fundamentalrequirement of due process in any proceeding that is to be accorded finalityis notice, reasonably calculated under the circumstances, to appriseinterested parties of the pendency of the action and afford them anopportunity to present their objections. Stratton v. Wenona Community UnitDistrict No. 1, 133 Ill. 2d 413, 432, 551 N.E.2d 640, 648 (1990). Since Mr.Collins was not notified of the petition seeking to name him specialadministrator of Mrs. Collins's estate and he never appeared in response tothe petition, due process requires that once he was named as the specialadministrator of Mrs. Collins's estate, he be served with summons.

A court obtains personal jurisdiction over a defendant either when thedefendant is served with process or when the defendant enters a generalappearance. Minikon v. Escobedo, 324 Ill. App. 3d 1073, 1083, 756 N.E.2d 302,311 (2001).

If a party is not properly served with summons, the trial court does notobtain personal jurisdiction over that party. In re Marriage of Schmitt, 321Ill. App. 3d 360, 367, 747 N.E.2d 524, 530 (2001). Where a trial court doesnot have jurisdiction over a party, any order entered against him is void abinitio and subject to direct or collateral attack at any time. Schmitt, 321Ill. App. 3d at 367, 747 N.E.2d at 530.

Any action taken by a defendant that recognizes a case as being in courtconstitutes the entry of a general appearance unless the action is taken forthe sole purpose of objecting to the court's jurisdiction over the defendant'sperson. Minikon, 324 Ill. App. 3d at 1083, 756 N.E.2d at 311.

The record in this case reflects that following the death of Mrs. Collinsand the filing of the amended complaint naming Mr. Collins as the specialadministrator, Mr. Andolino continued to appear in this case.

Generally, the relationship of attorney and client is terminated by thedeath of the client, and thereafter, the authority of the attorney torepresent the interests of a deceased client must come from the personalrepresentatives of the decedent. In re Marriage of Fredricksen, 159 Ill. App.3d 743, 745, 512 N.E.2d 1080, 1082 (1987). An attorney's employment and hisauthority are revoked by the death of his client, so an attorney cannotproceed where he does not represent a plaintiff or defendant. Washington v.Caseyville Health Care Ass'n, 284 Ill. App. 3d 97, 100, 672 N.E.2d 34, 36(1996).

In this case, Mr. Andolino's appearance was filed on behalf of Mrs.Collins, not Mr. Collins. The record does not reflect that Mr. Andolino filedan additional appearance on behalf of Mr. Collins or that he had any authorityto act on behalf of Mr. Collins. The motion to withdraw filed by Mr.Andolino on behalf of the Vrdolyak law firm specified that the law firm waswithdrawing its representation of "Ann Collins." While the motion did notmention Mr. Collins, following its withdrawal, the law firm had no furthercontact with the Collins family. According to Mr. Andolino's affidavit, Mr.Collins was sent a copy of the order granting the withdrawal but not a copy ofthe judgment order because the Vrdolyak law firm had withdrawn.

We conclude that the Vrdolyak law firm and Mr. Andolino never representedMr. Collins, and therefore, Mr. Andolino's actions in continuing to appearbefore the court in this case, including his agreement with Mr. Burkart toallow a default judgment to be entered against Mr. Collins as the specialadministrator, did not confer the circuit court jurisdiction over Mr. Collins.

In summary, Mr. Collins was never notified that the plaintiff was seekingto name him the special administrator of Mrs. Collins's estate; he was neverserved with summons and a copy of the amended complaint; he never filed anappearance or otherwise appeared before the court in this case; and Mr.Andolino and the Vrdolyak law firm did not represent Mr. Collins. Therefore,any appearances or actions by Mr. Andolino did not confer the circuit court'sjurisdiction to Mr. Collins.

We conclude that the circuit court lacked jurisdiction over Mr. Collins,and therefore, the circuit court's orders of May 10 and May 11, 2000,defaulting Mr. Collins and entering judgment against him as the specialadministrator are void ab initio. Thus, the circuit court abused itsdiscretion when it denied section 2-1401 relief to the Administrator.

The judgment of the circuit court of Cook County is reversed and thecause remanded for the entry of an order granting the petition and for furtherproceedings consistent with the views expressed in this opinion.

Reversed and remanded with directions.

HOFFMAN and WOLFSON, JJ., concur.

1. On appeal, the plaintiff has challenged the validity of theaffidavits of both Dr. Pamintuan and Karion Williams, thedaughter of Mr. and Mrs. Collins, on the basis that they were notsworn to or notarized. We need not address the merits of theplaintiff's argument, however, as the plaintiff does not contendnor is there any evidence in the record that Mr. Collins wasserved with summons, the determinative issue in this case.

2. In Sepeda the reviewing court dealtwith the notice "as the court directs"requirement of section 13-209(b) of theCode (735 ILCS 5/13-209(b)(2) (WestSupp. 1997). The court noted, however,that the notice provisions of section2-1008 of the Code and section 2.1 ofthe Wrongful Death Act (740 ILCS 180/2.1 (West 1996)) were identical. Sepeda, 303 Ill. App. 3d at 598, 708N.E.2d at 806.

3. According to Mr. Andolino's affidavit, a copy of theamended complaint was sent to the Collins's family at theWashburne Avenue address, since the Vrdolyak firm was not advisedof a change of address. Yet Mrs. Collins's death certificatecontained the Campbell Street address, and the Vrdolyak firm wasin possession of the certificate and that information at least asof September 7, 1999, when Mrs. Collins's death was spread ofrecord.