No. 3--01--0524

	_________________________________________________________________

	IN THE APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

	A.D., 2002

JOHN CLEELAND,				)	Appeal from the Circuit Court

	Plaintiff-Appellee,		)	for the 21st Judicial Circuit,

						)	Kankakee County, Illinois

						)	

	v.					)	No. 93--L--228

						)

DARCIE GILBERT and BRET		)	Honorable

GADBOIS, Defendants			)	Fred S. Carr, Jr.

(American Family Insurance 	)	Judge, Presiding

Group,					) 	

	Defendant-Appellant).	)	

_________________________________________________________________

	JUSTICE BRESLIN delivered the opinion of the court:

_________________________________________________________________

	In this underinsured motorist action, defendant American Family Insurance Group appeals the trial court's decision

confirming an arbitration award entered against it in favor of

plaintiff John Cleeland.  American Family claims that the decision

was void for lack of jurisdiction and that monetary relief was

inappropriate.  While we conclude that jurisdiction was proper, we hold, inter alia, that the arbitration award must be vacated because the trial court exceeded its authority when it entered a monetary judgment pursuant to an application to compel arbitration in accordance with the Uniform Arbitration Act (Act) (710 ILCS 5/1 et seq. (West 2000)), without first making a finding of contempt on a rule to show cause.  Accordingly, we affirm in part, vacate in part and remand.

FACTS

	In October of 1993, Cleeland filed a negligence action against two defendants for injuries he sustained in a 1991 automobile

accident.  The action was eventually settled, and the trial court

entered an order dismissing it with prejudice.  Four years later,

Cleeland's attorney sent American Family notice regarding his

intent to pursue an underinsured motorist claim.  American Family

informed Cleeland that it had no record of the accident or of his

policy.  Although Cleeland's attorney provided additional policy

information to Kimberly Eastman, the American Family claims

adjuster, the insurance company continued to assert that it could find no information regarding a policy.

	In October of 1998, Cleeland filed a "motion to compel

arbitration" against American Family pursuant to section 2 of the

Act (710 ILCS 5/2 (West 2000)).  The motion was filed under the

same case number as the previously dismissed action.  It claimed

that Cleeland was insured by American Family at the time of the

accident, that the policy of insurance provided him with

underinsured motorist benefits and contained a provision for

arbitration, that Cleeland made a demand for arbitration, but that American Family failed to respond.  American Family provided no response to the motion.  Cleeland subsequently filed a motion

requesting that arbitrators be appointed.  At a hearing, American

Family failed to appear, and the trial court granted the motion to

compel arbitration and the motion appointing the arbitrators.

	Over one year later, Cleeland filed a motion requesting that

the court order the arbitration to proceed.  Although American Family received notice, it did not appear at the hearing where the

motion was granted and the arbitration hearing was scheduled.  The

arbitration hearing proceeded as scheduled; at its conclusion

Cleeland was awarded $363,967.  Afterwards, Cleeland filed a motion

requesting an order confirming the arbitration award.  Again,

American Family did not appear at the hearing on that motion, and

it was granted by the court.

	In January of 2001, Cleeland filed a citation to discover

assets, sending notice to American Family.  Thereafter, American

Family filed a special and limited appearance and a motion to quash

service of summons, vacate the arbitration award, and dismiss for

want of jurisdiction.  After the motion was denied, American Family

appealed.

	Additional facts will be provided as they become pertinent to

the analysis. 

ANALYSIS

	On appeal, American Family contends both that the trial court

lacked personal and subject matter jurisdiction and that the order confirming the arbitration award should be vacated because Cleeland

was not entitled to monetary relief on his application to compel

arbitration.  This court reviews issues of law de novo. Keller v. Walker, 319 Ill. App. 3d 67, 744 N.E.2d 381 (2001); Woods v. Cole, 181 Ill. 2d 512, 693 N.E.2d 333 (1998).

	The first issue regards personal jurisdiction.  American Family claims that the motion to compel arbitration was erroneously

served on its employee in her individual capacity and not in her role as an officer or agent of the company.  Because American Family was improperly served, it claims it was not properly joined

as a party-defendant and all subsequent orders were void.

	When serving a private corporation, a copy of the process may be left with the corporation's registered agent or any of its

officers or agents within the state.  See 735 ILCS 5/2-204 (West

2000); Megan v. L.B. Foster Co., 1 Ill. App. 3d 1036, 275 N.E.2d 426 (1971) (finding that service upon an intelligent clerk who

acted as a receptionist and understood the purport of the service

of summons was proper service upon an agent of the company). 

Service of summons, however, cannot be obtained upon a corporation

by serving one of its purported agents personally or as an

individual.  See First State Bank & Trust Co. of Hanover Park v. Winfrey, 165 Ill. App. 3d 767, 520 N.E.2d 763 (1987).  If a corporation is not served with process, all subsequent judgments

against the corporation are void because the court lacks

jurisdiction to enter orders against it.  See State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 497 N.E.2d 1156 (1986). 

	According to the record, Cleeland was listed as applicant and

American Family was listed as respondent on both the motion and

summons.  The summons was addressed to "Kimberly Eastman Casualty

Claim Analyst 745 McClintock Drive Suite 100 Burr Ridge Illinois

60521."  The subsequent return of service showed that Eastman was

served by "Personal Service: By leaving a copy of the summons and

complaint with the named defendant personally."  Although Eastman

provided an affidavit stating that she had "no recollection" of receiving the summons, the affidavit failed to state that she had

not been served.  The affidavit did state, however, that on the

date of service Eastman was working as a casualty claims analyst

for American Family at the office identified on the summons.  

	This evidence supports the conclusion that service was

properly made on the corporation because the summons clearly

identified American Family as the respondent and the person who

received the service was a responsible agent of the corporation. 

See United Bank of Loves Park v. Dohm, 115 Ill. App. 3d 286, 450 N.E.2d 974 (1983) (finding that a clerk was a proper agent of a

bank for receipt of process). Therefore, we affirm.  See

Professional Therapy Services, Inc. v. Signature Corp., 223 Ill. App. 3d 902, 585 N.E.2d 1291 (1992) (affirming a lower court's

decision that service was proper because defendant did not overcome

its burden showing otherwise). 

	The second issue is whether subject matter jurisdiction existed.  American Family claims that the order confirming the award was void because the motion was filed in the same action that

had been previously dismissed with prejudice.  American Family

suggests that Cleeland should have filed a new complaint and

attached the contract of insurance or reopened the dismissed case

and sought leave of court to add it as a new defendant.

	"Subject matter jurisdiction" refers to the power of a court

to hear and decide a particular case or controversy. Dahl v. Grenier, 126 Ill. App. 3d 891, 467 N.E.2d 992 (1984).  The issue of whether a court has subject matter jurisdiction may be raised at any time. Automated Professional Tax Services, Inc. v. Department of Employment Security, 244 Ill. App. 3d 485, 612 N.E.2d 1008 (1993).  If a court does not have subject matter jurisdiction, it

has no authority to act and any subsequent action taken by the

court is void. Bank of Viola v. Nestrick, 94 Ill. App. 3d 511, 418 N.E.2d 515 (1981).

	In this case, the trial court determined that when Cleeland

filed his motion to compel arbitration, it was a new cause of

action, against a new defendant, seeking new relief.  Because it

had no impact on the prior dismissed cause of action, Cleeland did

not have to file a motion to reopen the old case or add a party

defendant.  According to the court, the placement of the old case number on the application and summons was a ministerial, record-

keeping function of the court and had no impact on the cause of

action or its outcome.  We agree with the trial court.  

	A careful reading of Cleeland's motion clearly demonstrates

that substantively it is an application to compel arbitration

pursuant to the Act.  See Sobczak v. Whitten, 75 Ill. App. 3d 208, 393 N.E.2d 1080 (1979) (finding that the character of a pleading is determined from its content, not its label).  Although Cleeland had

placed an old case number on the application and summons, it did

not change the fact that he filed a new action against a new

defendant, requesting new relief.  Cleeland's application to compel

arbitration would have been better served by filing it under a new

case number a new action as a new matter, but we do not think that the procedure used was fatal to the trial court's subject matter jurisdiction under the Uniform Arbitration Act (710 ILCS 5/1 et seq. (West 2000)) its being considered by the trial court.  If American Family objected to the procedure used, it had notice and an

opportunity to move for dismissal on procedural grounds.  It failed

to do so and should not be heard to complain now.1

	Third, American Family asserts that the order affirming the arbitration award should be vacated  reversed because Cleeland was not

entitled to receive monetary relief on an application to compel

arbitration.  We agree.  In a proceeding to compel arbitration, the

sole issue is whether there is an agreement to arbitrate. Nelson  v. Roger J. Lange & Co., 229 Ill. App. 3d 909, 594 N.E.2d 391 (1992).  If a valid agreement is established, the trial court has

no discretion and must order arbitration. Contract Development Corp. v. Beck, 210 Ill. App. 3d 677, 569 N.E.2d 941 (1991).  Although the court is compelled to order arbitration, the court's

authority is limited to that alone.  See 710 ILCS 5/2 (West 2000).

	Accordingly, we hold that the trial court in this case erred

	While the trial court in this case had the authority to compel the parties to arbitrate, it exceeded its authority when it granted

Cleeland's subsequent motions appointing arbitrators, setting the

arbitration hearing,  and confirming the arbitration award, and entering

a monetary judgment..   because Cleeland was not entitled to such relief on an application to compel arbitration.  Instead, once an order to compel arbitration issued and American Family continued to

stonewall on the matter, the proper procedure to compel arbitration

would have been to file Cleeland should have filed  a rule to show cause why American Family should not be held in contempt for failure to proceed with the

arbitration.2  See generally Falcon, Ltd. v. Corr's Natural Beverages, Inc., 173 Ill. App. 3d 291, 527 N.E.2d 504 (1988).  Because continuing on  proceeding to arbitration and then confirming a monetary

award was beyond the court's authority at that point in the

proceedings, the trial court's decision denying American Family's

motion to vacate the arbitration award is hereby vacated, and this

action is remanded for further proceedings. 

	For the foregoing reasons, the judgment of the circuit court of Kankakee County is affirmed in part, vacated in part and

remanded.  and reversed in part.

	Affirmed in part, vacated  reversed in part and remanded.

	LYTTON, P.J., and McDADE, J., concurring.