Posted by: Patricia Salkin | January 6, 2019

IL Appeals Court Finds Summons Over Encroachment was Sufficient Despite Failing to Directly Name a Defendant

This post was authored by Matthew Loeser, Esq.

This case arose after the Zoning Board of Appeals of the City of Chicago granted a 2.5-inch reduction to the standard 24-inch setback required between the side of Sheila Ryan’s home and the new home next door that was purchased by Laura Sheehan from building contractor Raymond T. DeGrazia and his corporation, 636-638 West 37th Street, Inc. The record reflected that the encroachment into the side setback was caused when the location for the new concrete foundation at 638 West was mismarked by a subcontractor. The builder testified he did not realize the error until after the foundation, walls, and roof were complete and it was no longer cost effective to alter the construction. The circuit court granted Sheehan’s motion to dismiss Ryan’s Complaint due to the caption of her Summons of service listing only “Zoning Board of Appeals of the City of Chicago, et al” as defendants, rather than expressly including Sheehan. On appeal, Ryan contended the Summons adequately notified Sheehan of the legal action and that the decision to dismiss elevated form over substance.

Ryan timely filed for judicial review of the Board’s decision, and issued a Summons to the Board, the builder, and Sheehan. The record further included a certified mail receipt that Sheehan signed at her new home, when she accepted delivery of the Summons and Complaint. The court noted that the Illinois Supreme Court has repeatedly held that an established rule of statutory construction is to “liberally construe a right to appeal so as to permit a case to be considered on its merits.” Here, Sheehan’s name appeared prominently on the face of the Summons as a “Defendant,” and the Summons notified “each defendant” of the time and place at which he or she must appear. As such, the court found that the format and contents of the Summons adequately notified Sheehan of the pending administrative review action as well as of her opportunity to respond, and vested the circuit court with personal jurisdiction over Sheehan. Accordingly, the court reversed the dismissal order and remanded the cause for further proceedings.

Ryan v Zoning Board of Appeals of the City of Chicago, 2018 Il. App. (1st) 172669 (11/8/2018)


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