Illinois Official Reports 

Appellate Court

Smith v. Hammel, 2014 IL App (5th) 130227

Appellate Court 

Caption

ROBERT SMITH, Plaintiff-Appellant, v. JEFF HAMMEL,

Defendant-Appellee.–JULIE GOSS, Plaintiff-Appellee, v. SMITH 

CHIROPRACTIC CENTER, Defendant-Appellant (MedStar 

Ambulance, Inc., Sparta Community Hospital, and Quality Health 

Care Clinic, Defendants).

District & No. Fifth District

Docket Nos. 5-13-0227, 5-13-0293 cons.

Filed July 23, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

In an action arising from a dispute over a chiropractor’s lien for 

treating a person injured in an automobile accident, the trial court, in 

ruling on the “Petition to Adjudicate Liens” filed by the patient’s 

attorney, properly found the chiropractor in default when he failed to 

appear and “discharged and voided” the lien, and, after the settlement 

proceeds received by the patient were disbursed and the chiropractor 

filed a conversion action against the patient’s attorney in another 

attempt to recover for his services, the trial court properly dismissed 

that claim on the ground that the order adjudicating the lien was 

res judicata, since the trial court did not need personal jurisdiction 

over the chiropractor, he was not required to be personally served with 

summons where the trial court had in rem jurisdiction over the 

settlement proceeds, the chiropractor had proper notice by mail and 

was properly found to be in default for failing to appear, his lien was 

properly adjudicated to $0, and the patient’s attorney properly 

disbursed the settlement proceeds pursuant to the court’s order.

Decision Under 

Review

Appeal from the Circuit Court of Randolph County, Nos. 11-LM-108, 

10-CH-48; the Hon. Eugene E. Gross and the Hon. Andrew J. 

Gleeson, Judges, presiding.
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Judgment Affirmed.

Counsel on

Appeal

John D. Alleman, of Alleman & Hicks, of Carbondale, for appellants.

Jeffrey S. Hammel, of Jeffrey S. Hammel Law Firm, of Belleville, for 

appellees.

Panel PRESIDING JUSTICE WELCH delivered the judgment of the court, 

with opinion.

Justices Goldenhersh and Stewart concurred in the judgment and 

opinion.

 OPINION 

¶ 1 On September 12, 2008, Julie Goss was involved in an automobile collision in which she 

suffered personal injuries. She was treated for those injuries by chiropractor Robert Smith, 

who rendered services in the total amount of $2,777. 

¶ 2 Julie Goss instituted a claim against the driver of the other vehicle/tortfeasor through her 

attorney, Jeff Hammel, seeking recovery for her injuries. That claim was settled without the 

necessity of court action. 

¶ 3 Prior to settlement of the claim, chiropractor Smith had notified Goss and attorney 

Hammel of his statutory lien on any settlement proceeds Goss might receive. That lien is 

provided by the Health Care Services Lien Act (the Act) (770 ILCS 23/1 et seq. (West 

2010)), which provides that every health care provider that renders any medical services to 

an injured person shall have a lien upon all claims and causes of action of the injured person 

for the amount of the health care provider’s reasonable charges. 770 ILCS 23/10(a) (West 

2010). The Act requires the health care provider to notify both the injured party and the party 

against whom the claim or cause of action exists of the existence of the lien. 770 ILCS 

23/10(b) (West 2010). Notice of the lien may be made by registered or certified mail or in 

person. 770 ILCS 23/10(b) (West 2010). 

¶ 4 The Act further provides for adjudication of lien rights under the Act: “On petition filed 

by the injured person or the health care professional or health care provider and on the 

petitioner’s written notice to all interested adverse parties, the circuit court shall adjudicate 

the rights of all interested parties ***.” 770 ILCS 23/30 (West 2010).1

 

1

Subsequent to the commencement of this action, effective January 1, 2013, section 30 of the Act 

was amended to add a paragraph providing that “[a] petition filed under this Section may be served 

upon the interested adverse parties by personal service, substitute service, or registered or certified 

mail.” 770 ILCS 23/30 (West 2012). 
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¶ 5 After Goss’s claim was settled, attorney Hammel filed, in the circuit court of Randolph 

County, a “Petition to Adjudicate Liens” pursuant to section 30 of the Act (No. 10-CH-48). 

Chiropractor Smith was notified of the petition to adjudicate liens by regular and certified 

mail. There is no dispute that Smith received a copy of the petition to adjudicate liens and a 

notice of the hearing on the petition. Nevertheless, Smith did not appear at the hearing on the 

petition to adjudicate liens, and in an order entered September 8, 2010, he was found to be in 

default. Smith’s lien was therefore “discharged and voided.” The settlement proceeds were 

disbursed in accordance with the court’s order. 

¶ 6 On March 13, 2012, chiropractor Smith filed a “Motion to Vacate Void Order” and a 

“Motion to Declare Order Void,” arguing that he had not been personally served with 

summons and a copy of the petition to adjudicate liens, nor had he otherwise submitted 

himself to the jurisdiction of the court. He argued, therefore, that the order finding him in 

default and discharging and voiding his lien was void for lack of personal jurisdiction over 

him. The motions argue that simply sending a copy of the petition and notice of hearing is 

not sufficient to confer personal jurisdiction over a party; personal service of a summons and 

complaint is required. 

¶ 7 After a hearing held April 19, 2012, Smith’s motions were denied by order entered April 

23, 2012. Smith’s motion to reconsider was also denied in an order entered May 31, 2013. 

Smith appeals. 

¶ 8 In a different but related case, also filed in the circuit court of Randolph County, 

chiropractor Smith brought suit against attorney Hammel for conversion (No. 11-LM-108). 

Smith’s complaint, filed September 16, 2011, alleged that by failing to have Smith personally 

served with summons and complaint on the petition to adjudicate liens, and by appearing in 

court on the petition and proceeding to have an order entered discharging and voiding 

Smith’s lien, Hammel had converted Smith’s claim/assets. The suit sought damages in the 

amount of the lien, $2,777. 

¶ 9 Hammel filed a motion to dismiss Smith’s complaint, arguing that he had followed 

proper legal process in adjudicating the lien and that the court’s order in that case resolved all 

issues. Smith responded that the court had not had personal jurisdiction over him to validly 

adjudicate his lien. 

¶ 10 On March 1, 2012, the circuit court entered an order dismissing Smith’s complaint for 

conversion against attorney Hammel. The court found that its order on the petition to 

adjudicate liens was res judicata and that Smith’s claim for conversion was barred thereby. 

Smith’s motion to reconsider was denied, and Smith appeals. 

¶ 11 Because the two cases present precisely the same issue, they have been consolidated for 

our decision. In both cases, Smith argues that the circuit court’s order adjudicating his lien 

rights is void as the court did not have personal jurisdiction over him or in rem jurisdiction 

over the settlement proceeds. We affirm both judgments. 

¶ 12 The parties agree, as do we, that the appropriate standard of review is de novo. This 

appeal presents a question of law only, involving the interpretation of a statutory provision. It 

is well settled that where no genuine issue of material fact remains in dispute and a circuit 

court has issued a ruling of law, a reviewing court must use a de novo standard of review. 

In re Estate of McInerny, 289 Ill. App. 3d 589, 596 (1997); see also Jayko v. Fraczek, 2012 

IL App (1st) 103665, ¶ 3 (a dispute over personal jurisdiction presents a question of law, and 

rulings as to questions of law are considered de novo).
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¶ 13 The parties also agree, as do we, that where personal jurisdiction over the defendant is 

required, an order entered without personal jurisdiction is void ab initio as to that defendant 

and subject to direct or collateral attack at any time. DiNardo v. Lamela, 183 Ill. App. 3d 

1098, 1101 (1989); see also Jayko, 2012 IL App (1st) 103665, ¶ 3. Nevertheless, because we 

find that the proceeding to adjudicate the liens was an in rem proceeding, we hold that 

personal jurisdiction over Smith by service of summons was not required. 

¶ 14 Personal jurisdiction pertains to the authority of the court to litigate in reference to a 

particular defendant and to determine the rights and duties of that defendant. In re Possession 

& Control of the Commissioner of Banks & Real Estate of Independent Trust Corp., 327 Ill. 

App. 3d 441, 463 (2001). It is black letter law that the alternative to personal jurisdiction is 

in rem jurisdiction or quasi in rem jurisdiction. In re Possession of Banks & Real Estate, 327 

Ill. App. 3d at 463. This form of jurisdiction is concerned with the relationship between the 

defendant and the state with respect to specific property. In re Possession of Banks & Real 

Estate, 327 Ill. App. 3d at 463. In rem or quasi in rem proceedings do not require personal 

service of process. In re Possession of Banks & Real Estate, 327 Ill. App. 3d at 465. 

¶ 15 A proceeding to adjudicate liens has specifically been held to be an in rem action. See 

Zilinger v. Allied American Insurance Co., 957 F. Supp. 148, 149 (N.D. Ill. 1997); Jayko v. 

Fraczek, 2012 IL App (1st) 103665, ¶ 23. 

¶ 16 In Zilinger, the plaintiffs were injured in an automobile accident and received a 

settlement from their insurance carrier. One of the plaintiffs’ union benefit plans asserted a 

lien on the proceeds of the insurance settlement. The plaintiffs filed a motion to adjudicate 

the lien and served the union benefit plan by mail in accordance with Illinois Supreme Court 

Rule 11 (eff. Nov. 15, 1992). Nevertheless, the union benefit plan did not appear at the 

hearing. 

¶ 17 On a motion for remand following removal to federal court, the benefit plan argued that 

the order adjudicating the lien was void because the circuit court had failed to obtain personal 

jurisdiction over it. The benefit plan argued that in order to have a valid lien adjudication, the 

circuit court must first obtain personal jurisdiction through service of summons on the 

parties. The plaintiffs argued that personal jurisdiction was not required, the proceeding 

being one in rem. 

¶ 18 The district court agreed with the plaintiffs that the lien adjudication was an in rem action 

which did not require personal service of process: 

“ ‘there [is] a res upon which the court is acting.... [The] proceeding ‘in rem’ is one 

which ... is brought to enforce a right in the thing itself.... [J]udgments in rem ... 

operate directly upon the property and are binding upon all persons in so far as their 

interest in the property is concerned. [A] judgment in rem ... creates no personal 

liability, especially as against those who, while interested in the property, have not 

been served with process and have not appeared in the action.’ ” Zilinger, 957 F. 

Supp. at 149 (quoting Austin v. Royal League, 316 Ill. 188, 193 (1925)). 

¶ 19 The court held that the res was the insurance policy settlement proceeds and that the 

adjudication of the lien was a determination of competing rights in the settlement proceeds. 

Zilinger, 957 F. Supp. at 150. The circuit court’s order did not create personal liability for the 

benefit plan, and personal service of summons was not required where supreme court rule 

allowed service by mail. Zilinger, 957 F. Supp. at 150. Accordingly, the lien adjudication 

was valid. 
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¶ 20 Jayko v. Fraczek, 2012 IL App (1st) 103665, a decision of the First District of this court, 

is precisely on point and is the case relied upon by the circuit court in reaching its decision 

herein. In Jayko, St. Alexius Medical Center (St. Alexius) appealed from an order denying its 

motion to readjudicate its health care provider’s lien under the Act against Jayko’s personal 

injury action, arguing that the original adjudication was void because St. Alexius had not 

been personally served with summons. 

¶ 21 Jayko had been injured when he was struck by a car while riding his bike. He received 

treatment at St. Alexius. Jayko filed a lawsuit against the driver and owner of the car that had 

struck him, and St. Alexius notified Jayko’s lawyer and the defendant-driver that it was 

asserting a lien under the Act on the proceeds of the cause of action. St. Alexius delivered 

this notice by certified mail, as provided for in section 10(b) of the Act (770 ILCS 23/10(b) 

(West 2006)). Jayko used certified mail to notify St. Alexius of the hearing date on the 

petition for adjudication. St. Alexius did not contend that it did not receive the notice. 

Nevertheless, St. Alexius did not appear at the hearing and its lien was adjudicated to $0. 

¶ 22 In its motion to readjudicate the lien, St. Alexius argued that notice by certified mail was 

insufficient to vest the circuit court with personal jurisdiction over it and that it was entitled 

to be personally served with summons of process. In denying the motion, the circuit court 

stated that it was relying on the decision in Zilinger for the proposition that a lien 

adjudication is an in rem proceeding and does not require service of summons to the 

lienholder because the court does not need to acquire personal jurisdiction. The appellate 

court agreed. 

¶ 23 Applying principles of statutory construction, the appellate court concluded that it had 

been the intent of the legislature to allow both notice of the existence of the lien and notice of 

the hearing on the petition to adjudicate the lien to be made by registered or certified mail, or 

in person. Section 10(b) of the Act refers to “written notice” of the existence of the health 

care provider’s lien and specifically provides that service of that written notice shall be by 

registered or certified mail or in person. Section 30 of the Act also refers to “written notice”

of the petition to adjudicate the lien, but does not specifically mention the method of service 

of this written notice. Construing these two statutory provisions together, as it must, the 

appellate court concluded that the legislature intended that both notices were adequately 

served by registered or certified mail or in person. The court rejected the notion that the 

legislature intended to impose on the injured plaintiff the added expense and responsibility of 

filing a complaint and obtaining personal service of the complaint. Accordingly the court 

construed section 30 of the Act to provide for written notice of the petition to adjudicate the 

lien to be served by registered or certified mail or in person. Jayko, 2012 IL App (1st) 

103665, ¶ 15.

¶ 24 The court then addressed the question of whether due process considerations required 

personal service of the petition to adjudicate the lien, and it concluded that they did not. 

Relying on the decision in Zilinger, which it found to be “well founded in Illinois law”

(Jayko, 2012 IL App (1st) 103665, ¶ 22), the court held that Jayko’s settlement proceeds 

were a res and that the circuit court’s adjudication of the statutory liens thereon was an 

in rem proceeding for which personal service on and personal jurisdiction over the health 

care provider were unnecessary. Thus, Jayko had not only complied with section 30 of the 

Act but also satisfied due process when he gave notice to St. Alexius through certified 

mailing. Jayko, 2012 IL App (1st) 103665, ¶ 23. 
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¶ 25 Chiropractor Smith argues that the instant proceeding was not one in rem because Goss’s 

settlement occurred prior to the filing of any suit. Accordingly, Smith argues, the circuit 

court never acquired in rem jurisdiction over the res, the settlement proceeds. Smith argues 

that Jayko is distinguishable in this respect because in Jayko, the plaintiff-patient had filed 

suit against the tortfeasor and settled that lawsuit, creating a res under the jurisdiction of the 

court. 

¶ 26 Smith’s argument is somewhat circular: only by acquiring personal jurisdiction over the 

parties who created the res, the settlement proceeds, does the court acquire in rem

jurisdiction over the res itself. But, of course, in rem jurisdiction is not acquired by obtaining 

personal jurisdiction over the parties who create the res. In rem jurisdiction rests exclusively 

on the situs of the res. McCallum v. Baltimore & Ohio R.R. Co., 379 Ill. 60, 69 (1942). The 

funds need not have been paid into the court in order for the court to have in rem jurisdiction 

over them; the state has in rem jurisdiction over property located within its borders. 

McCallum, 379 Ill. at 69. In any event, perhaps the simple answer to this argument is that the 

court acquired in rem jurisdiction over the res, the settlement proceeds, upon the filing of the 

petition to adjudicate liens. 

¶ 27 In summary, we hold that for purposes of adjudicating Smith’s lien, the circuit court did 

not need personal jurisdiction over Smith, nor was Smith required to be personally served 

with summons of process. The court had in rem jurisdiction over the settlement proceeds 

against which the lien had been asserted and could therefore adjudicate Smith’s rights with 

respect to that res. Smith having received proper notice by mail of the proceeding to 

adjudicate the lien, and having failed to appear thereon, the circuit court did not err in finding 

Smith to be in default and in adjudicating his lien to $0. Accordingly, we affirm the court’s 

order in No. 10-CH-48. 

¶ 28 Furthermore, the circuit court did not err in dismissing Smith’s complaint against 

attorney Hammel alleging conversion by Hammel of the property against which Smith’s lien 

was asserted. Hammel acted pursuant to a valid court order in disbursing the settlement 

proceeds. He cannot be held liable to Smith in conversion. Accordingly, we affirm the 

court’s order in No. 11-LM-108.

¶ 29 For the foregoing reasons the orders of the circuit court of Randolph County are hereby 

affirmed. 

¶ 30 Affirmed.