{ "id": 4810474, "name": "HYMAN KLEIN et al. v. LA SALLE NATIONAL BANK, as Trustee, et al. (Morris Aron, Appellant; David Ellis, Appellee)", "name_abbreviation": "Klein v. La Salle National Bank", "decision_date": "1993-04-15", "docket_number": "No. 73287", "first_page": "201", "last_page": "208", "citations": [ { "type": "official", "cite": "155 Ill. 2d 201" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "15 Ill. App. 3d 626", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462671 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0626-01" ] }, { "cite": "164 Ill. App. 3d 673", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3583132 ], "pin_cites": [ { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0673-01" ] }, { "cite": "316 Ill. 188", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5140538 ], "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill/316/0188-01" ] }, { "cite": "61 Ill. 2d 452", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2966099 ], "pin_cites": [ { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0452-01" ] }, { "cite": "34 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2880736 ], "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0536-01" ] }, { "cite": "95 Ill. 2d 377", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3112572 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "382" }, { "page": "382" }, { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0377-01" ] }, { "cite": "113 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173712 ], "weight": 5, "pin_cites": [ { "page": "308" }, { "page": "308" }, { "page": "313" }, { "page": "308" }, { "page": "312-14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0294-01" ] }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "weight": 4, "pin_cites": [ { "page": "220-21" }, { "page": "220-21" }, { "page": "221" }, { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "18 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328089 ], "weight": 3, "pin_cites": [ { "page": "505" }, { "page": "505" }, { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0502-01" ] }, { "cite": "89 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493996 ], "weight": 5, "pin_cites": [ { "page": "279-80" }, { "page": "286" }, { "page": "286" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0273-01" ] } ], "analysis": { "cardinality": 548, "char_count": 10490, "ocr_confidence": 0.774, "pagerank": { "raw": 4.465503996610501e-07, "percentile": 0.9218755610848355 }, "sha256": "c2a3933187ed2bfe393be1c792d96aa7bd5e76239d4109b346801d191711cc87", "simhash": "1:ebbb4423cd281e98", "word_count": 1761 }, "last_updated": "2023-07-14T19:59:52.800746+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HYMAN KLEIN et al. v. LA SALLE NATIONAL BANK, as Trustee, et al. (Morris Aron, Appellant; David Ellis, Appellee)." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nThe issue presented in this case is whether service of process on the trustee of a land trust confers personal jurisdiction in an action against the beneficial interest holder. We conclude it does not.\nBACKGROUND\nThe Kleins, Hyman and Lillian, and the Ellises, David and Catherine, owned 25% interests in a land trust, the res of which was an apartment building in Evanston, Illinois. La Salle National Bank acted as trustee.\nThe Kleins alleged in a lawsuit filed in January 1990 that the Ellises breached an agreement among the co-beneficiaries to share in the building\u2019s operating expenses. The initial complaint identified David Ellis, alone, as a co-beneficiary of the trust. Judgment was sought \u201cagainst David Ellis and his 25% interest.\u201d However, only the bank trustee, not David Ellis, was actually identified as a defendant in the complaint.\nIn April 1990, the Kleins obtained a default judgment against David Ellis in the circuit court of Cook County pursuant to that complaint.\nSubsequently, the circuit court permitted the Kleins to amend the complaint to reflect that David and Catherine Ellis were joint co-beneficiaries of a 25% interest in the trust. In substance, the complaint was unchanged. The bank trustee remained the only party identified as a defendant.\nThe Kleins obtained a default judgment against Catherine Ellis in October 1990. The order reciting that judgment contains no reference to the April default judgment against David.\nIt is undisputed that neither David nor Catherine Ellis was served with summons or received a copy of the complaint. Only the bank trustee was served with process. Nevertheless, the Kleins were successful in compelling the Ellises\u2019 interest to be sold at a judicial auction in execution upon the default judgments. The sale was approved by order of the circuit court in February 1991.\nIn March 1991, pursuant to a special and limited appearance, David Ellis filed a petition for relief from the April 1990 default judgment entered against him and sought to stay effect of the order approving the sale (see Ill. Rev. Stat. 1989, ch. 110, pars. 2 \u2014 301, 2 \u2014 1401, 2\u2014 1305). Ellis contended that the judgment was void for lack of personal jurisdiction because he had not been served with summons.\nMorris Aron, who had purchased the Ellises\u2019 interest, was permitted to intervene (see Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 408) in proceedings on the petition.\nThe circuit court of Cook County denied section 2\u2014 1401 relief. The appellate court reversed (No. 1 \u2014 91\u2014 1462 (unpublished order under Supreme Court Rule 23)). We granted Aron's petition for leave to appeal. (134 Ill. 2d R. 315.) We note that David Ellis\u2019 petition, the denial of which gave rise to the issue presented here, did not address the October 1990 default judgment against Catherine, and she is not a party to this appeal.\nDISCUSSION\nEllis\u2019 petition sought relief from the April 1990 default judgment against him pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401). A section 2 \u2014 1401 proceeding is a new action, subject to the usual rules of civil practice. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273; see Ill. Rev. Stat. 1989, ch. 110, par. 2\u20141401(b).) As in every civil case, the right to relief must be adequately alleged and proved. Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505.\nThe proceeding is instituted by the filing of a petition \u201csupported by affidavit or other appropriate showing as to matters not of record.\u201d (Ill. Rev. Stat. 1989, ch. 110, par. 2\u20141401(b).) Like a complaint, the petition must be legally sufficient in affirmatively setting forth specific allegations supporting the right to relief. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21.) In substance, the allegations must set forth a meritorious defense or claim in the original action and the petitioner\u2019s due diligence in both presenting the claim or defense and filing the petition. (Airoom, 114 Ill. 2d at 220-21.) Like a complaint, the petition may be challenged by a motion to dismiss for its failure to state a cause of action or if, on its face, it shows that the petitioner is not entitled to relief. Ostendorf, 89 Ill. 2d at 279-80; Brockmeyer, 18 Ill. 2d at 505.\nAssuming the petition\u2019s legal sufficiency, the right to relief as alleged must be proved. (Brockmeyer, 18 Ill. 2d at 505.) The procedure respecting that proof is akin to the procedure on a motion for summary judgment. (Ostendorf, 89 Ill. 2d at 286.) Specifically, relief should be granted on the basis of the pleadings, affidavits, and the record of the prior proceeding alone if no factual dispute is raised and the allegations of the petition are thereby proven. (Ostendorf, 89 Ill. 2d at 286.) If a disputed factual issue exists material to whether relief is justified, an evidentiary hearing is required. (Ostendorf, 89 Ill. 2d at 286.) In that event, as in any other civil case, relief is appropriate only where the petition\u2019s allegations are proved by a preponderance of the evidence. Airoom, 114 Ill. 2d at 221.\nOn appeal from a disposition on a petition for section 2 \u2014 1401 relief, the standard applied by reviewing courts is whether the trial judge abused his discretion. (Airoom, 114 Ill. 2d at 221.) Underlying the disposition on the petition for section 2 \u2014 1401 relief here is the issue of whether personal jurisdiction existed over David Ellis. In the absence of personal jurisdiction, the judgment against Ellis is void. (State Bank v. Thill (1986), 113 Ill. 2d 294, 308.) If the judgment is void, there could be no reason to justify the denial of section 2 \u2014 1401 relief. That is so because a party\u2019s attack on a judgment for lack of personal jurisdiction renders considerations otherwise pertinent to section 2 \u2014 1401, like the petitioner\u2019s diligence, unnecessary. (Thill, 113 Ill. 2d at 308.) Such an attack mandates a search of the entire record. Thill, 113 Ill. 2d at 313.\nThe facts are undisputed. Ellis\u2019 petition alleges that the only summons issued named the bank trustee and was accepted by an employee in the bank\u2019s land trust department. A copy of the summons, attached as an exhibit, attests that the summons was so served. Also attached as an exhibit is the bank trustee\u2019s answer to the Kleins\u2019 action. The answer states that the bank acted solely as a \u201cnaked land trustee\u201d with regard to the trust realty. The petition is further supported by Ellis\u2019 affidavit which recites that Ellis first learned of the judgment against him in February 1990 after the judicial sale. Last, the record contains Lillian Klein\u2019s \u201ccounteraffidavit.\u201d That affidavit addresses only the Heins\u2019 allegations against Ellis and states that David and Catherine Ellis were joint co-beneficiaries.\nThe question of whether personal jurisdiction existed over Ellis depends on the effect of the statutory service of process (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 203(a)) on the bank trustee, as Ellis did not otherwise submit to jurisdiction (see Thill, 113 Ill. 2d at 308). The answer is found in the nature of Ellis\u2019 interest in the trust realty and the relationship between Ellis and the bank trustee as it pertains to that interest.\nUnder the terms of the trust agreement, the bank trustee is given \u201cfull power and authority\u201d to exercise exclusive control in the management, operation, renting, or sale of the trust realty. The beneficial interests created are personal property and consist of interests in the \u201cearnings, avails[,] and proceeds\u201d arising from the sale or use of the realty.\nThe trust is therefore an \u201cIllinois land trust,\u201d or \u201cnaked\u201d trust. (See In re Estate of Alpert (1983), 95 Ill. 2d 377, 382; In re Estate of Peters (1966), 34 Ill. 2d 536, 539.) The beneficiaries of such trusts may retain power to direct or control the trustee in dealings as to the realty placed in trust. (See Ill. Rev. Stat. 1989, ch. 29, par. 8.31.) They do not, however, own the realty in any conventional sense. (See Hanley v. Kusper (1975), 61 Ill. 2d 452, 461.) Their interest is personal property. (In re Estate of Alpert, 95 Ill. 2d at 382.) The trustee holds both legal and equitable title. In re Estate of Alpert, 95 Ill. 2d at 382.\nThe relationship between Ellis and the bank trustee dictates that service of process on the bank could not confer personal jurisdiction over Ellis. Service of process on the bank trustee, as holder of both equitable and legal title, would be both necessary and appropriate in an in rem proceeding against the property directly. (See Austin v. Royal League (1925), 316 Ill. 188, 193; see also Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 616(e) (permitting amendment of pleadings to name a beneficiary of a land trust not originally named as a defendant in a cause of action arising from the ownership of real estate, as, for example, in a suit for personal injuries sustained as a result of the condition of property held in trust).) The Kleins\u2019 action was not such a proceeding. It was, in-\nstead, a simple breach of contract action against joint co-beneficiaries of the trust. That the Kleins were able to compel the sale of the co-beneficiaries\u2019 interest in execution on the judgments they obtained does not change the nature of the action. Execution against the beneficial interest in the trust required personal jurisdiction over its owners, David and Catherine Ellis, not the bank trustee, owner of the trust realty. Service of summons on the bank was ineffectual for that purpose. (Kappel v. Errera (1987), 164 Ill. App. 3d 673, 678.) Because David Ellis was not served with summons and did not otherwise submit to jurisdiction in the circuit court, the judgment against him is void. That conclusion applies regardless of Morris Aron\u2019s status as a bona fide purchaser, as the jurisdictional infirmity was shown on the record\u2019s face. Thill, 113 Ill. 2d at 312-14; cf. Uptown Federal Savings & Loan Association v. Walsh (1973), 15 Ill. App. 3d 626.\nFor the reasons stated, the judgment of the appellate court is affirmed.\nAffirmed.", "type": "majority", "author": "JUSTICE FREEMAN" } ], "attorneys": [ "Fioretti & Des Jardins, Ltd., of Chicago (James P. Nally, Robert W. Fioretti and Mary E. Valenti, of counsel), for appellant.", "Thomas G. Draths and Clinton J. Wesolik, of Wilson & McIlvaine, of Chicago, for appellee." ], "corrections": "", "head_matter": "(No. 73287.\nHYMAN KLEIN et al. v. LA SALLE NATIONAL BANK, as Trustee, et al. (Morris Aron, Appellant; David Ellis, Appellee).\nOpinion filed April 15, 1993.\nRehearing denied May 28, 1993.\nFioretti & Des Jardins, Ltd., of Chicago (James P. Nally, Robert W. Fioretti and Mary E. Valenti, of counsel), for appellant.\nThomas G. Draths and Clinton J. Wesolik, of Wilson & McIlvaine, of Chicago, for appellee." }, "file_name": "0201-01", "first_page_order": 395, "last_page_order": 402 }