Opinion
1-21-1460
06-30-2023
EMILY EDDY, Plaintiff-Appellee, v. NATHAN WILKS, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 20 M2 1448 Honorable James L. Allegretti, Judge, presiding.
JUSTICE LYLE delivered the judgment of the court. Presiding Justice Delort and Justice Mitchell concurred in the judgment.
ORDER
LYLE JUSTICE
¶ 1 Held: The circuit court's denial of defendant's section 2-1401 petition to vacate the default judgment is reversed and the cause is remanded for an evidentiary hearing where the parties submitted pleadings and supporting affidavits that created a controverted material fact as to whether plaintiff effectuated service of process on defendant.
¶ 2 Defendant Nathan Wilks appeals from the circuit court's orders denying his motion to vacate a default judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2020)) and his motion to reconsider entered in this breach of contract action brought by plaintiff Emily Eddy against him. On appeal, Mr. Wilks contends the circuit court erred in denying his section 2-1401 motion to vacate, arguing that the default judgment is void because the court lacked personal jurisdiction over him where he was never served with process. Mr. Wilks argues in the alternative that he was entitled to relief under section 2-1401 because he demonstrated by a preponderance of the evidence a meritorious defense in the original action and due diligence in presenting his defense. For the following reasons, we vacate and remand for further proceedings.
¶ 3 There are no reports of proceedings in the record on appeal. The following background is taken from the common law record.
¶ 4 On May 18, 2020, Ms. Eddy filed a complaint against Mr. Wilks for breach of contract and, alternatively, quantum meruit, alleging she gave Mr. Wilks two loans for $30,000 and $66,300, respectively, which he failed to repay. Ms. Eddy sought $144,001.66 in damages, which included accrued interest on the loans. Ms. Eddy attached to her complaint a promissory note for the $30,000 loan, emails between the parties, and a balance sheet reflecting the total outstanding balance of $144,001.66 as of May 18, 2020.
¶ 5 After several unsuccessful attempts at serving Mr. Wilks with process at assorted addresses, on September 16, 2020, Ms. Eddy filed a proof of service with the circuit court. Attached to the filing was the affidavit of special process server Arthur Gross, who averred that he personally served Mr. Wilks with an alias summons and complaint on September 11, 2020, at 11:27 a.m. Mr. Gross averred that he left a copy of the process with Mr. Wilks personally at a residence on the 2300 block of Sedgwick Court in Naperville, Illinois (the Sedgwick address). Mr. Gross described the person with whom he left the process as a 30- to 39-year-old African American male weighing 200 pounds and standing 6 feet to 6 feet, 2 inches tall. The individual was wearing a hat and had brown eyes. The notice of filing was mailed to Mr. Wilks at the Sedgwick address.
¶ 6 On September 17, 2020, Ms. Eddy filed a motion for default judgment against Mr. Wilks, alleging that he was personally served with a summons and complaint by a special process server on September 11, 2020, but he failed to file an appearance, answer, or any other pleading. The notice of the motion was mailed to Mr. Wilks at the Sedgwick address.
¶ 7 On October 13, 2020, the circuit court issued a written order granting default judgment to Ms. Eddy. The court continued the matter to October 28, 2020, for prove-up. On October 23, 2020, Ms. Eddy mailed notice of the prove-up hearing to Mr. Wilks at the Sedgwick address.
¶ 8 On October 26, 2020, Ms. Eddy filed affidavits in support of her damages and attorney fees claims. Notice of the filing was mailed to Mr. Wilks at the Sedgwick address.
¶ 9 On October 28, 2020, the circuit court issued a written order, "due notice being given," awarding a default judgment in favor of Ms. Eddy in the amount of $166,338.75, which included attorney fees and court costs.
¶ 10 On January 7, 2021, a wage deduction notice was mailed to Mr. Wilks at the Sedgwick address and to his employer.
¶ 11 On February 10, 2021, Mr. Wilks, through counsel, filed a general appearance. The following day, Mr. Wilks filed a "motion" to vacate the default judgment pursuant to section 2-1401 of the Code, alleging he was never served and did not receive notice of the case until after the default judgment had been entered. He also alleged that he had a meritorious defense, asserting he did not owe the money alleged and used reasonable diligence in presenting his defense to the court in bringing his motion to vacate default judgment quickly after learning of the default judgment.
¶ 12 Mr. Wilks attached his own affidavit dated February 11, 2021, in which he averred that he was "never served with any *** papers" on September 11, 2020, did not owe the amount of money alleged, did not learn of the case until January 11, 2021, and "[u]nlike the person described in the Affidavit of Special Process Server, in September of 2020 I weighed 240 pounds and was 6'3"."
Mr. Wilks averred he was never served the papers on "September 11, 2021." The relevant date of service is September 11, 2020. However, as it is clear from the record and Mr. Wilks' other filings that his reference to "2021" is a typographical error, we will use the correct 2020 date.
¶ 13 On March 18, 2021, Ms. Eddy filed a response to Mr. Wilks' motion to vacate, arguing he failed to establish that he was entitled to relief because he did not comply with the due diligence or meritorious defense requirements of section 2-1401. Ms. Eddy argued Mr. Wilks' assertion that he did not owe the amount alleged was a legal conclusion and did not establish a meritorious defense, there was no factual basis to disturb the court's judgment, and Mr. Gross's affidavit demonstrated that Mr. Wilks had been personally served on September 11, 2020. Regarding Mr. Wilks' challenge to the process server's description of him, Ms. Eddy argued that the encounter was brief, and Mr. Wilks did not dispute the accuracy of the Sedgwick address and other details provided by Mr. Gross. Finally, Ms. Eddy noted that Mr. Wilks' affidavit was legally insufficient because it failed to set forth facts admissible in evidence, relying instead on legal conclusions, in contravention of Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013).
¶ 14 In support, Ms. Eddy attached a counteraffidavit from Mr. Gross, who averred the following. After an investigation, Mr. Gross learned Mr. Wilks' vehicle was registered to an address in Plainfield, Illinois. Mr. Wilks was not there when Mr. Gross attempted service, and the office manager informed him that Mr. Wilks had vacated the premises on July 9, 2020. Mr. Gross performed a "skip trace" on Mr. Wilks' girlfriend who lived with him, which led to the Sedgwick address where they had moved on July 10, 2020.
¶ 15 On September 11, 2020, at 11:27 a.m., Mr. Gross knocked on the door of the Sedgwick address and a "muscular African American man" wearing a hat answered. Mr. Gross informed the man that he was from Tri County Investigation and had court papers for Nathan Wilks. Mr. Gross asked if the man was Nathan Wilks, and the man responded, "yes," so Mr. Gross handed him the summons and complaint.
¶ 16 Mr. Gross "could not believe it" when he heard that Mr. Wilks was claiming he had not been properly served. Ms. Eddy's attorney provided Mr. Gross with a LinkedIn profile for Mr. Wilks, and Mr. Gross identified the individual in the photograph on the profile as "the same person who said he was Nathan Wilks and accepted the summons and complaint at the Sedgwick address." Finally, Mr. Gross averred that Mr. Wilks was personally served in accordance with Illinois law at 11:27 a.m. on September 11, 2020. Mr. Gross attached to his affidavit copies of his field service notes, affidavit of service, skip request information, invoice for service on the Plainfield and Sedgwick addresses, and Mr. Wilks' LinkedIn profile. Regarding Mr. Wilks' averment that he was 6 feet, 3 inches tall and weighed 240 pounds, Mr. Gross averred he only saw Mr. Wilks for a few seconds and estimated him to be 6 feet, 2 inches tall and 200 pounds, which was "pretty close."
¶ 17 On April 6, 2021, Mr. Wilks filed a reply to Ms. Eddy's response. He argued that the totality of the evidence showed that the September 11, 2020, process was served on his brother, Keith Wilks (Keith), not Mr. Wilks. He also claimed that, "[h]ad this court had the evidence it now has before it, it is doubtful that any judgment would have occurred." Mr. Wilks attached his own affidavit dated April 6, 2021, stating that he (1) was never served with process in the case, (2) did not owe the amount alleged, (3) did not learn of the case until January 11, 2021, and (4) did not match the description of the person described in Mr. Gross's affidavit. He further averred that Keith did not live at the Sedgwick address but was there on September 11, 2020. Keith was "shorter and lighter" than Mr. Wilks in September 2020, close to 6 feet, 2 inches tall and 200 pounds. Finally, Mr. Wilks averred he was in his office on Kinzie Street in Chicago at 11:27 a.m. on the date of service.
¶ 18 Mr. Wilks also attached an affidavit from Ashley Donat, who averred that on September 11, 2020, she arrived at the office on Kinzie Street in Chicago between 10:30 and 11 a.m. Ms. Donat was with Mr. Wilks from the time she arrived until they both left the office between 11:15 and 11:45 a.m.
¶ 19 On June 16, 2021, following a hearing, the court denied Mr. Wilks' motion to vacate the default judgment.
¶ 20 On July 15, 2021, Mr. Wilks filed a "motion to vacate and reconsider [the June 16, 2021, judgment denying his section 2-1401 petition] and vacate [the October 28, 2020,] default judgment" pursuant to section 2-1401 of the Code. He argued that, since the court's June 16, 2021, judgment, he had obtained credible evidence in support of his petition in the form of an affidavit from Keith. Mr. Wilks realleged his earlier argument that the evidence demonstrated that Keith was served on September 11, 2020, and that any judgments flowing from the purported service should be vacated. He also requested leave to file an appearance.
¶ 21 Mr. Wilks attached Keith's affidavit, dated July 13, 2021. Keith stated he was served with papers on September 11, 2020. He "did not appreciate the seriousness of the service of the papers" on him. Keith did not advise Mr. Wilks about the service, nor did he give him the documents. Between February 2021 and June 2021, Keith ignored several of Mr. Wilks' attempts to communicate with him. As of September 11, 2020, his height was six feet tall and he weighed 204 pounds.
¶ 22 Mr. Wilks also attached his own affidavit dated July 14, 2021, averring that he attempted to contact Keith regarding the service documents "several times" between February 2021 and June 2021. Keith did not communicate with him regarding the documents until June 15, 2021, between 6:30 and 7 p.m. Mr. Wilks alleged there was not enough time before the 10 a.m. hearing the next day to have Keith prepare an affidavit, given that Keith worked nights and went to sleep at his home in Iowa in the early morning hours of June 16, 2021. Mr. Wilks reiterated that he was never served with "any papers" on September 11, "2021."
¶ 23 In response, Ms. Eddy argued that Mr. Wilks' motion should be denied because the information he relied upon was available prior to the hearing on Mr. Wilks' section 2-1401 motion to vacate. Ms. Eddy also argued that Mr. Wilks had not been diligent in any aspect of the case and, after ignoring the pleadings, motions, and orders served on him and being denied relief on his motion to vacate, he was attempting to re-litigate the entire proceeding.
¶ 24 Ms. Eddy noted that Mr. Wilks' affidavit again failed to comply with Rule 191 and was "perjurious" because, in the reply in support of his April 2021 motion to vacate, Mr. Wilks claimed his brother was served while, in the new affidavit attached to his motion to reconsider, Mr. Wilks claimed Keith did not inform him of the court documents until June 15, 2021.
¶ 25 On September 21, 2021, Mr. Wilks filed a reply reiterating the arguments made in his prior pleadings and alleging Keith was too irresponsible to notify him of the service and did not respond to his attempts to communicate.
¶ 26 On October 13, 2021, following arguments, the circuit court denied Mr. Wilks' motion to reconsider. Mr. Wilks timely filed his notice of appeal from the denial of his motion to reconsider the denial of his section 2-1401 motion to vacate the default judgment.
¶ 27 On appeal, Mr. Wilks contends that the circuit court erred in denying his motion to vacate the default judgment pursuant to section 2-1401(f) because he was never served and, therefore, the circuit court lacked personal jurisdiction over him, rendering the default judgment void. Mr. Wilks further argues that he presented sufficient evidence showing a meritorious defense and due diligence to support the grant of his pleading under section 2-1401(a).
¶ 28 As an initial matter, we note that no reports of proceedings are included in the record on appeal. The record does contain a cursory bystander report regarding the October 13, 2021, June 16, 2021, and October 28, 2020, hearings. The circuit court allowed the report, but it sheds little light on what occurred at the proceedings below. The report consists of a single paragraph setting forth the three dates and judgments of the circuit court and mentions the parties argued on their "briefs." The circuit court's findings of fact are not contained in its written orders denying Mr. Wilks' motion to vacate and motion to reconsider. Therefore, our disposition is limited to a review of the pleadings and supporting attachments presented to the circuit court, and any doubts which may arise from the incompleteness of the record will be resolved against Mr. Wilks as the appellant. Foutch v. O'Bryant, 99 Ill.2d 389, 392 (1984).
¶ 29 Also at the outset, we must address the nature of the pleadings in this case. A section 21401 petition constitutes the initial pleading in a new proceeding and is not the mere continuation of the original proceeding. PNC Bank, National Ass'n v. Kusmierz, 2022 IL 126606, ¶ 15. As the initial pleading in a new proceeding, a section 2-1401 petition is" 'procedurally the counterpart of a complaint and subject to all the rules of civil practice that that character implies.'" Casteel v. Jiminez, 2022 IL App (1st) 201288, ¶ 20 (quoting Blazyk v. Daman Express, Inc., 406 Ill.App.3d 203, 207 (2010)).
¶ 30 We note that Mr. Wilks labeled his section 2-1401 pleading as a "motion." Although not fatal, his filing would be more appropriately characterized as a "petition," because the filing was the equivalent of a complaint in a new proceeding rather than a request for relief in pending litigation. See 735 ILCS 5/2-1401(a) (West 2020) (relief under section 2-1401(a) "may be had upon petition"); Studentowicz v. Queen's Park Oval Asset Holding Trust, 2019 IL App (1st) 181182, ¶ 9 (a pleading's character is determined by its content and not its label).
¶ 31 Likewise, Ms. Eddy should not have filed a "response" to Mr. Wilks' section 2-1401 pleading, but, rather, "pleaded to it as if it were a complaint, such as by filing an answer, or a motion [to dismiss] under section 2-615 or 2-619" of the Code (735 ILCS 5/2-615, 2-619 (West 2020)). Jiminez, 2022 IL App (1st) 201288, ¶ 20. Ms. Eddy's mislabeling of her pleading as a "response," however, also was not fatal to the proceedings. Id. However, we admonish the litigants to follow the appropriate procedure in the future. Studentowicz, 2019 IL App (1st) 181182, ¶ 9.
¶ 32 During the section 2-1401 proceedings, Mr. Wilks asserted in his pleadings that he was never served with process. "Serving a copy of a summons and complaint on a party-defendant is an essential part of the litigation process." Urban Partnership Bank v. Ragdale, 2017 IL App (1st) 160773, ¶ 18. A court must have personal jurisdiction over the parties to enter a valid judgment. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17. Service of process protects a party's right to due process through proper notification and providing an opportunity to be heard. In re Dar. C., 2011 IL 111083, ¶ 61.
¶ 33" '[A] failure to effect service as required by law deprives a court of jurisdiction over the person, and any default judgment based on defective service is void.'" Department of Healthcare &Family Services ex rel. Sanders v. Edwards, 2022 IL App (1st) 210409, ¶ 42 (quoting U.S. Bank National Ass'n v. Johnston, 2016 IL App (2d) 150128, ¶ 28). A judgment rendered without personal jurisdiction is void, even if the defendant had actual knowledge of the proceedings. Municipal Trust &Savings Bank v. Moriarty, 2021 IL 126290, ¶ 17.
¶ 34 Section 2-1401 of the Code represents a comprehensive statutory procedure authorizing a circuit court to vacate or modify a final order or judgment in civil and criminal proceedings. People v. Abdullah, 2019 IL 123492, ¶ 13; Smith v. Airoom, Inc., 114 Ill.2d 209, 220 (1986). A section 2-1401 petition may raise a factual or legal challenge to a final order or judgment. Tuna v. Airbus, S.A.S., 2017 IL App (1st) 153645, ¶ 31. Under a factual challenge, a section 2-1401 petition generally is used to bring facts to the attention of the circuit court that, if known to the court at the time of judgment, would have precluded its entry. People v. Vincent, 226 Ill.2d 1, 8-9 (2007).
¶ 35 The nature of the challenge presented in a section 2-1401 petition dictates the proper standard of review on appeal. Warren County Soil &Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. Relief under a section 2-1401 fact-dependent challenge to a final judgment requires a petitioner to file, between 30 days and 2 years after entry of the judgment, a petition showing (1) the existence of a meritorious defense or claim in the original action; (2) due diligence in presenting the defense or claim; and (3) due diligence in filing the petition. Id. ¶¶ 37, 40 (citing Airoom, Inc., 114 Ill.2d at 220-21). The quantum of proof necessary to sustain the petition is a preponderance of the evidence, and the question of whether relief should be granted lies within the discretion of the circuit court. Warren County Soil &Water Conservation District, 2015 IL 117783, ¶ 31.
¶ 36 In contrast, where a section 2-1401 petition raises a "purely legal challenge" to a final judgment de novo review applies. Id. ¶ 37 (citing Vincent, 226 Ill.2d at 5, 14 (finding de novo review applied where a section 2-1401 petition alleged the sentence was void under section 2-1401(f), the State did not respond to the petition, and the circuit court denied the petition without a hearing)). Further, a party seeking to vacate a void judgment for lack of personal jurisdiction asserting defective service of process is not restricted by the time limitations or the due diligence requirements of section 2-1401. PNC Bank, National Ass'n v. Kusmierz, 2022 IL 126606, ¶ 15; We review de novo a ruling on a section 2-1401 petition claiming voidness for lack of personal jurisdiction. Warren County Soil &Water Conservation District, 2015 IL 117783, ¶ 47; Ocwen Loan Servicing, LLC v. DeGomez, 2020 IL App (2d) 190774, ¶ 15.
¶ 37 Here, notwithstanding his voidness claim on appeal, Mr. Wilks did not raise a claim of voidness for lack of personal jurisdiction in his section 2-1401 petition. Granted, Mr. Wilks claimed in his petition that he was not served with process, but he made this assertion solely in the context of a factual challenge, arguing that his failure to present his allegedly meritorious defense to Ms. Eddy's action was not due to his lack of diligence. As noted, we look to the nature of Mr. Wilks' challenge presented in his section 2-1401 petition to determine the proper standard of review on appeal. Warren County Soil &Water Conservation District, 2015 IL 117783, ¶ 31. We also bear in mind the procedural disposition of Mr. Wilks' petition. Tuna, 2017 IL App (1st) 153645, ¶¶ 33, 34 (noting the procedural disposition and nature of the challenge presented in the petition are relevant in determining the applicable standard of review). Accordingly, we review the circuit court's decision on the fact-based challenge at bar for an abuse of discretion. Warren County Soil &Water Conservation District, 2015 IL 117783, ¶ 51.
¶ 38 Section 2-203 of the Code sets forth the ways that service of summons may be served on an individual. 735 ILCS 5/2-203 (West 2020). In relevant part, it allows for service of process by leaving a copy of the summons with the defendant personally. 735 ILCS 5/2-203(a)(1) (West 2020). The person making service, in his affidavit, "shall (1) identify as to sex, race, and approximate age the defendant or other person with whom the summons was left and (2) state the place where (whenever possible in terms of an exact street address) and the date and time of the day when the summons was left with the defendant or other person." 735 ILCS 5/2-203(b) (West 2020).
¶ 39 "In Illinois, the process server's return affidavit is prima facie evidence of proper service, and the affidavit of service should not be set aside unless impeached by" 'clear and convincing evidence.'" Illinois Service Federal Savings &Loan Ass 'n of Chicago v. Manley, 2015 IL App (1st) 143089, ¶ 37 (quoting Paul v. Ware, 258 Ill.App.3d 614, 617-18 (1994)). The return affidavit "is powerful evidence that can be overcome only by a contradictory affidavit or personal testimony." Clemmons v. Travelers Insurance Co., 88 Ill.2d 469, 481 (1981).
¶ 40 Here, we find that the parties' contradictory pleadings and affidavits created a factual dispute as to whether Mr. Wilks was personally served with process warranting an evidentiary hearing. Mr. Gross's return affidavit complied with the requirements of section 2-203(b) by identifying Mr. Wilks' sex, race, and approximate age. 735 ILCS 5/2-203(b) (West 2020). Mr. Gross's affidavit further complied with section 2-203(b) because it stated he served process on Mr. Wilks at the Sedgwick address at 11:27 a.m. on September 11, 2020. It therefore constituted prima facie evidence that Mr. Wilks was personally served. Manley, 2015 IL App (1st) 143089, ¶ 37; In re J.B., 2018 IL App (1st) 173096, ¶ 33.
¶ 41 However, Mr. Wilks challenged service in his motion and attached a supporting affidavit. In his affidavit, Mr. Wilks averred that he was never served on September 11, 2020, did not learn of the case until January 11, 2021, and attacked Mr. Gross's physical description of him as inaccurate.
¶ 42 In responding to Mr. Wilks' motion to vacate, Ms. Eddy submitted a counteraffidavit from Mr. Gross, providing additional details concerning his investigative efforts in locating Mr. Wilks and service of process on him. Specifically, Mr. Gross averred that, on the date in question, he knocked on the door of the Sedgwick address and informed the man who came to the door that he had "court papers" for defendant Nathan Wilks. Mr. Gross asked the man whether he was Nathan Wilks, the man replied, "yes," and received the summons and complaint documents in his hands. Mr. Gross further averred that the person depicted in Mr. Wilks' LinkedIn profile subsequently provided to him was the same person who stated he was Nathan Wilks and accepted the court documents.
¶ 43 In his reply, Mr. Wilks claimed for the first time that it was his brother who was served, his brother matched Mr. Gross's description, and Mr. Wilks was at his office in Chicago at the time of service. In support of his reply, Mr. Wilks attached a second affidavit, averring that his brother was at the Sedgwick address on September 11, 2020, and his brother was close to 6 feet, 2 inches tall and 200 pounds. Mr. Wilks further provided details as to his location at the time of service, averring he was at his office on Kinzie Street in Chicago at 11:27 a.m. He also attached Ms. Donat's affidavit, who corroborated Mr. Wilks' contention that he was in the office on Kinzie Street at the time of service.
¶ 44 We therefore have a situation where the parties submitted pleadings and affidavits supporting their factual positions as to whether service had been effectuated on Mr. Wilks. These included affidavits submitted by Mr. Wilks offering facts not in the record and rebutting the special process server's affidavits submitted by Ms. Eddy. These affidavits created a material evidentiary conflict as to whether Ms. Eddy effectuated service on Mr. Wilks, the resolution of which would be dispositive in determining the issue of Mr. Wilks' due diligence in presenting his defense, as well as ultimately whether the default judgment was void for lack of personal jurisdiction. See Banovz v. Rantanen, 271 Ill.App.3d 910, 920 (1995) ("[e]vidence is material when it is offered to prove a proposition which is in issue or is probative of a matter in issue").
¶ 45 Here, the circuit court resolved the factual dispute over service of process based exclusively on the contradictory documentary evidence before it, but we find that an evidentiary hearing was needed to determine the disputed material question of fact. As the supreme court explained in State Bank of Lake Zurich v. Thill, 113 Ill.2d 294, 312 (1986), section 2-203 provides that a process server's affidavit that they have served a person is "evidence" that they have done so; however, this evidence "may be overcome only by a contradictory affidavit or personal testimony." Id. Mr. Wilks sought to overcome the evidence of Mr. Gross' service affidavit by submitting contradictory affidavits. Thus, as in Thill, Mr. Wilks' "challenge to the service in the present case and the filing of the affidavits of the process server[] in response to this challenge created an issue of fact as to the service which should have been resolved by the circuit court." Id. In such a case, an evidentiary hearing is required to resolve these factual disputes. Id.; see also Tun, 2017 IL App (1st) 153645, ¶ 36 (finding the "competing documents presented in support of and against section 2-1401 relief smack of summary judgment proceedings"); Stein v. Rio Parismina Lodge, 296 Ill.App.3d 520, 523 (1998) ("If the plaintiff's documentary evidence, including affidavits and depositions, contradicts the defendant's evidence on issues of fact that will determine whether the court has personal jurisdiction, the trial court must hear the testimony, evaluate its credibility, and resolve any material conflicts in the evidence."). An evidentiary hearing would have provided the court with an opportunity to hear the testimony of witnesses on this controverted matter. Thill, 113 Ill.2d at 312; see Madison Miracle Productions, LLC v. MGM Distribution Co., 2012 IL App (1st) 112334, ¶ 35 (stating that where any material evidentiary conflicts exist, "the trial court must conduct an evidentiary hearing to resolve those disputes"). Although, as noted, there is no report of proceedings included in the record filed on appeal, the bystander's report reflects that the court only heard arguments based on the pleadings and affidavits and did not hold an evidentiary hearing.
¶ 46 Accordingly, given the material evidentiary contradictions raised by the parties' pleadings, we find that the circuit court erred in denying Mr. Wilks' section 2-1401 pleading without conducting an evidentiary hearing as to whether service of process was properly effectuated on him. See TCA International, Inc. v. B &B Custom Auto, Inc., 299 Ill.App.3d 522, 532 (1998) (stating that a circuit court should conduct a hearing "in any case in which facts averred in the defendant's affidavits contradict the relevant facts in plaintiff's affidavit, i.e., where defendant has established a prima facie case of a lack of jurisdiction." (Emphasis in original.)). We therefore vacate the order of the circuit court denying Mr. Wilks' section 2-1401 motion and remand for an evidentiary hearing. See id. (holding that an evidentiary hearing is required where a factual dispute exists on the face of the affidavits).
¶ 47 Given our remand for an evidentiary hearing, we do not reach the merits of the claims set forth in Mr. Wilks' section 2-1401 motion or his appeal.
¶ 48 Vacated and remanded with direction.