dissenting:
I respectfully dissent because I do not believe that the State established that conventional service was impractical, nor do I believe that the publication by the State was comparable to service under section 2 — 203.1 would reverse, vacate the default judgment, and remand this cause for further proceedings.
A motion under section 2 — 203.1 must be accompanied by an affidavit that demonstrates why service under section 2 — 203 is impractical. This affidavit must include a specific statement showing that (1) a “diligent inquiry” as to the location of the individual defendant was made and (2) “reasonable efforts” to make service have been unsuccessful. 735 ILCS 5/2 — 203.1 (West 2000). In my judgment, the State fails in both respects.
The original summons was directed to defendant at 566 Lomond Drive, Mundelein, Illinois. It was issued on June 21, 2001, and returned not found on June 29, 2001, by the Lake County sheriff, who noted that someone else was living at that address. A first alias summons was issued to defendant at 25313 W. Lake Shore Drive, Barrington/Tower Lakes, Illinois, on August 2, 2001, and returned not found on August 23, 2001, after four unsuccessful attempts to establish whether the address existed. A second alias summons, directed to the Lake County courthouse, was issued but subsequently expired without being served. Through undisclosed means, the State obtained a Wisconsin address for defendant. However, according to Assistant State’s Attorney Stalter’s affidavit, defendant was not served in Wisconsin. There is no sheriffs return from Wisconsin in the record, so we do not know if the process was not served in Wisconsin due to lack of time, lack of personnel, deficiencies in the request, or some other reason. The total of Stalter’s efforts to locate an address for defendant was limited to checking property and tax records and obtaining information about the Wisconsin address from a “colleague.” No search of motor vehicle registration records was made. As far as we know, neithér the person living in the house nor the neighbors of the Mundelein property were questioned as to defendant’s whereabouts. Even though a letter addressed to the Barrington/Tower Lakes address came back with the notation “Forwarding Time Expired,” no request was made of the post office for a current address. No one checked any databases for a telephone listing, city directory, or utility service. No one requested or authorized an investigative service to take steps to trace defendant.
The record discloses other leads that the State did not follow. The property in question was an amusement business with a go-cart track and batting cages. This we may easily infer from the record, which includes Lake County health department site inspections complete with color photographs of the signs at the entrance to the go-cart track. Consequently, the business may have had organizational documents on file with the Secretary of State’s office. The business may have been registered with the Illinois Department of Revenue or the Department of Employment Security. The business may have had an assumed name certificate on file with the Lake County clerk’s office. The business may have obtained an operating license from the Village of Beach Park, where the business was located. Yet no one checked with any of these governmental entities to uncover information as to the whereabouts of defendant. While the State apparently had some information that defendant might attend a court date in Lake County, and the second alias summons was directed to the Lake County courthouse, we do not know how the State came into possession of that information. The record does not reflect that the State searched the circuit clerk’s records for any prior or pending legal proceedings. No one attempted to locate business associates of defendant or former employees of the business.
The periodic site inspections of the property by the Lake County health department show ongoing activity at the site. Grass was mowed. Refuse was still being dumped. There was a trailer moved onto the property, with a Missouri license plate affixed to it. No one tried to determine who owned the trailer through tracing the license plate. Surveillance of the property would have yielded the culprit who was doing the dumping or the Samaritan who was doing the mowing or, at the least, a license plate number of a vehicle or vehicles going into and out of the property. It is important to underscore that the State commanded the investigative resources of the Lake County State’s Attorney’s office, the Lake County sheriffs department, and the Illinois Attorney General’s office.
For these reasons, I disagree with the majority’s conclusion that the State conducted a diligent inquiry. To the contrary, its inquiry was superficial and, under these circumstances, its efforts to effect service were not reasonable. I believe that Stalter’s affidavits in support of her invocation of section 2 — 203.1 actually aver nothing more than what was stated in the affidavit in Mugavero v. Kenzler, 317 Ill. App. 3d 162, 165 (2000): merely that defendant moved from the address on the summons. That is the only information imparted by her two affidavits. In Mugavero, this court refused to allow court-ordered service on the basis of such a representation. Mugavero, 317 Ill. App. 3d at 165-66. The majority’s holding in this case, that personal service was impractical because defendant was not found, eviscerates the requirement of diligence in trying to find him. I believe this sets a wrong precedent.
Moreover, the majority’s opinion applies the wrong standard of review. Here, the trial court heard no disputed evidence and made no findings of fact. The State presented an affidavit that was not challenged at the time the trial court entered the order allowing special service under section 2 — 203.1. Generally, the manifest weight of the evidence standard of review applies if the trial court heard courtroom testimony, but a de novo standard applies when the trial court heard no testimony and ruled solely on the basis of documentary evidence. Rosenthal-Collins Group, L.P. v. Reiff, 321 Ill. App. 3d 683, 687 (2001). When the trial court rules on the legal sufficiency of an affidavit, we review de novo the trial court’s ruling (Jackson v. Graham, 323 Ill. App. 3d 766, 774 (2001)), giving no deference to the trial court’s decision. See Von Meeteren v. Sell-Sold, Ltd., 274 Ill. App. 3d 993, 996 (1995). The majority cites Zebra Technologies Corp. v. Topinka, 344 Ill. App. 3d 474 (2003), in support of its position that the clearly erroneous standard applies to our facts. However, in Zebra the trial court took three days of testimony in a bench trial, in which it weighed the credibility of the witnesses and made findings of fact based upon the evidence it heard. Zebra, 344 Ill. App. 3d at 481-83. In our case, no one disputed the efforts the State made to locate defendant or the averments in the State’s affidavit. Indeed, taking everything the State says it did as true, these efforts are insufficient to meet the requirements for special court-ordered service. I believe the correct standard of review is de novo.
Furthermore, I disagree that defendant has the burden to show that upon reasonable inquiry he could have been found. First Bank & Trust Co. of Fallon v. King, 311 Ill. App. 3d 1053 (2000), upon which the majority relies for this proposition, is a Fifth District Appellate Court case that cites no authority for the rule it announced, and we should decline to follow it. Notwithstanding, the majority has misapplied King. King shifted the burden to the defendant only “[o]nce the Bank filed the affidavit pursuant to the language used in the statute.” King, 311 Ill. App. 3d at 1057. As demonstrated in my discussion above, the State’s affidavit in support of the motion for service by publication did not meet the substantive requirements of section 2 — 203.1. Consequently, I believe the majority errs in applying King.
Significantly, this court considered the sufficiency of the affidavits required by section 2 — 203.1 in Mugavero and In re Marriage of Schmitt, 321 Ill. App. 3d 360 (2001), and we did not shift the burden to the defendant in either of those cases. In Mugavero, we reversed the trial court’s ruling that service was made under section 2 — 203.1 based solely upon our de novo determination that the plaintiffs affidavit was insufficient. Mugavero, 317 Ill. App. 3d at 164-65. We upheld the plaintiffs affidavit in Schmitt without first requiring the defendant to demonstrate that upon reasonable inquiry he could have been found. Schmitt, 321 Ill. App. 3d 360. I believe that our approach in the instant case departs from sound precedents we have already established.
Section 2 — 203.1 requires that the court-ordered method of service be comparable to personal or abode service. 735 ILCS 5/2 — 203.1 (West 2000). I do not believe that publication, coupled with mailing, as here, is comparable service unless the plaintiff can show that absolutely no other method is available under the circumstances. Although defendant challenged the method of service, the majority does not address this issue. The purpose of service is to give notice to those whose rights or immunities are about to be affected by the proposed action. Zilinger v. Allied American Insurance Co., 957 F. Supp. 148, 150 (N.D. Ill. 1997). Under Illinois law, every defendant in an action filed against him is entitled to the best possible notice of the pending suit. Fleet Mortgage Corp. v. Bryant, No. 88 C 1684 (N.D. Ill. 1988) (memorandum op.). Service by publication is a “ ‘concession of the law to hard circumstances of necessity’ ” {Fleet, slip op. at 1, quoting Graham v. O’Connor, 350 Ill. 36, 40 (1932)), “ ‘and the law makes this concession grudgingly’ ” (Fleet, slip op. at 1, quoting Empire of America v. Brown, No. 85 C 05067, slip op. at 1 (N.D. Ill. February 26, 1986)). The concession should not be made, and publication should not stand in the stead of personal service, where there are alternative methods. Had the State been diligent in its inquiry, it might have located an employee, an employer, a relative, an attorney, a friend, or a neighbor upon whom service could have been made in the event defendant’s whereabouts remained unknown. I read our decision in Schmitt as preferring that service be made on someone who has a relationship with the defendant and who is reasonably likely to advise the defendant of the service if that method is at all possible. I believe that section 2 — 203.1 should be used only in extraordinary circumstances such as those that existed in Schmitt, where the defendant was consciously evading service. Schmitt, 321 Ill. App. 3d at 362. Otherwise, mere difficulty, rather than impracticality, in effecting personal service will allow court-ordered service under section 2 — 203.1. Here, there was evidence that defendant, as trustee, owned the subject property. There was evidence of activity at the property. Publication with a mailing to defendant should have been augmented with posting by affixing the summons and complaint to the property, coupled with personal service or mailings to the associates of defendant. In my opinion, these measures would have been far more likely to notify defendant of the pending procedures than a mailing to defendant with publication in the Pioneer Press. I believe that the majority’s opinion weakens the safeguards that the legislature intended to put in place when it enacted section 2 — 203.1.