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________________________________________________________________________ Rule 23 order filed 2018 IL App (5th) 170001 January 26, 2018; Motion to publish granted NO. 5 -17-0001 March 6 , 2018. IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

RONALD WITCHER and JODI WITCHER

, ) Appe al from the ) Circuit Court of Plaintiffs

- Appellees

, ) Madison County. )

v. ) No. 16- MR -116 ) STATE FARM FIRE AND CASUALTY ) COMPANY, ) Honorable ) John B. Barberis

, Jr., Defendant -Appellant. ) Judge, presiding.

JUSTICE CATES delivered the judgment of the court, with opinion. Justice s Welch and Moore concurred in the judgment and opinion.

O PINION

¶ 1 The defendant, State Farm Fire and Casualty Company (State F arm), appeals from an
order denying its motion to vacate the judicial appointment of an appraisal umpire and an order

confirming the appraisal award. For the reasons that follow, we reverse and remand.

¶ 2 On February 1, 2015, a fire ravaged the home of the plaintiffs, Ronald and Jodi Witcher,

leaving little more than rubble, debri s, and ash

. At that time , the plaintiff s’ home and property

w ere cover ed under a policy of homeowner’ s insurance issued by State Farm. The plaintiffs and

State Farm agree d that the fire resulted in a total loss, but they could not agree on the l oss

valuation. T he homeowner’s policy provided for an appraisa l process in the event of a

disagreement regarding the amount of a loss. The policy is not included in the record on appeal

,

but the parties agree that the appraisal clause provides as follows: 

### 1“If we and you disagree on the amount of loss, either one can demand that the amount of

loss be set by appraisal. If either makes a written demand for appraisal, each shall select a

competent, disinterested appraiser. Each shall notify the other of the app raiser’s identity

within 20 days of receipt of the written demand. The two appraisers shall then select a

competent, impartial umpire. If the two appraisers cannot agree upon an umpire within 15

days, you or we can ask a judge of a court of record in the s tate where the residen ce
premises is located to select an umpire. The appraisers shall then set the amount of loss.

If the appraisers submit a written report of an agreement to us, the amount agreed upon

shall be the amount of the loss. If the appraisers f ail to agree within a reasonable time,

they shall submit their differences to the umpire. Written agreement signed by any two of

these three shall set the amount of the loss. Each appraiser shall be paid by [the] party

selecting that appraiser. Other expen ses of the appraisal and the compensation of the

umpire shall be paid equally by you and us.”

¶ 3 Unable to reach an agreement on the amount of the loss, the plaintiffs sent a letter, dated

Friday, March 18, 2016, to State Farm, demand ing that the loss be sett led by appraisal

. The

plaintiffs also designat ed Joel Adkerson as their appraiser. According to a UPS tracking

document, State Farm received the plaintiff s’ letter on Monday, March 21, 2016

. In keeping with

the terms of the appraisal clause, State Farm was required to notify the plaintiffs of the identity

of its appraiser within 20 days of receipt of the appraisal demand, meaning on or before April 10

,

2016 . The 20- day period passed without State Farm notifying the plaintiffs of its a ppraiser. T he

subsequent 15- day deadline for the plaintiff s’ and State Farm ’s appraisers to agree on an
appraisal umpire also passed without the selection of a neutral appraisal umpire and without

State Farm’s designation of an appraiser.



### 2¶ 4 On April 2 7 , 2016, the plaintif fs , through their attorney, filed a p etition for the j udicial

a ppointment of an a ppraisal u mpire in the circuit court of Madison County. Therein, t he

plaintiffs a lleged that State Farm failed to participate in the appraisal process as outlined in the

homeowner’ s policy. The plaintiffs asserted that they had value d their total loss at $247,121.03,

while State Farm had valued th e loss at $159,601.48, a difference of $87,519.55. The plaintiffs

further asserted that they submitted a writte n demand for an appraisal to State Farm , and that

State Farm refused to designate an appraiser . The plaintiffs claimed that State Farm refused to

participate in the appraisal process in an attempt to del a y or thwart the appraisal process , to

deprive the in sured of indemnity benefits

, and to vexatiously and unreasonably delay payment

under the homeowner’s policy. The plaintiffs attached correspondence between their adjuster and

State Farm, as well as a list of eight candidate s to act as the appraisal umpire. The record

indicates that at the time the plaintiffs ’ petition was filed, there was no request t hat the petition

and summons be served on State Farm . T here is no certificate of service or other document that

shows that State Farm was serv ed with a copy of the plaintiffs’ petition

. ¶ 5 According to the record, the circuit court was presented with and granted the plaintiffs’

petition on the same date that the petition was filed. In the order entered April 27, 201 6
, the court

appointed Dale F. Peek to serve as the appraisal umpire. Peek was one of the candidates listed by

the plaintiffs . The order further provided that the court would retain jurisdiction for “ filing and

enforcement of a binding A ppraisal A ward under the insurance policy contract herein.”

¶ 6 On May 4, 2016, State Farm filed an entry of appearance and a reply to the plaintiff s’

petition for the judicial appointment of an appraisal umpire

. In its reply, State Farm as s er ted that

its adjuster, Mike Har tkop, had been in contact with the plaintiff s ’ agent, Dan Long, in an

attempt to resolve the claim outside of the appraisal process ; that Hartkop had attempted to



### 3contact Long by phone for two weeks ; and that Long refused to respond to multiple phone calls

.

State Farm further represented that it ha d selected an appraiser, Steve Ricker, and that if the

parties ’ designated appraisers were unable or unwilling to agree on an appraisal umpire, State

Farm would submit a list of proposed names to the c ourt for a s election of an umpire. State Farm

requested that the court “allow State Farm’s input, specifically a list of potential umpires ,” before

making the appointment.

¶ 7 On May 9, 2016, Dale F. Peek filed a formal “Acceptance of Appraisal Umpire

Appointment” in the circuit court of Madison County. On that same date, State Farm filed a

motion to vacate the April 27, 2016, order appointing Dale Peek as the appraisal umpire. State

Farm asserted that its counsel did not receive a copy of th e appointment o rder until May 9, 201 6.

State Farm further asserted that it had no prior notice of the circuit c ourt’s actions, pointing out

that the plaintiffs’ p etition for appointment of an appraisal umpire was filed on April 27, 2016,

and that the order appointing Peek as the appraisal umpire w as entered on that same date. State

Farm noted that it had not been served with the petition and summons and that it did not enter an
appearance until May 4, 20 16, seven days after the order was issue d. State Farm argued that it

was denied due process where the appointment order was entered without any notice and without

jurisdiction over State Farm . State Farm asked the court to vacate the order of April 27, 2016,

and to set the matter for a hearing on the appointment of a judicial umpire.

¶ 8 On May 17, 2016, the plaintiffs filed a response

, asserting that State Farm had forfeited

and defaulted on its obligation to participate in the appraisal process . The plaintiffs re quested

that the court deny State Farm’s motion to vacate the appointment of the appraisal umpire.

¶ 9 On May 2 6 , 2016, Dale Peek, as appraisal umpire, and Joel Adkerson, the plaintiffs ’

designated appraiser

, filed an appraisal award in the circuit court. The document indicates that



### 4the two individuals independent ly appraised the property loss from the fire on February 1, 2015,

and impartially determined that the replacement cost value wa s $247,665.93 and that the actual

cash value of the loss was $212,895.88.

¶ 10 On May 27, 2016, a hearing was held on State Farm’s motion to vacate the order

appointing Dale Peek as appraisal umpire. Following the hearing, the court took State Farm’s

motion under advisement. In the interim, the plaintiffs filed a petition to confirm the appraisal

award

. State Farm filed an objection to the plaintiffs’ petition claiming that the appraisal was the

product of the denial of its right to due process. On September 15, 2016, the court heard

arguments on the plaintiffs’ petition to confir m the appraisal award and took all pending motions

under advisement.

¶ 11 In an order entered December 2, 2016, the circuit court deni ed State Farm’s m otion to

vacate the appointment of Dale F. Peek as judicial umpire and confirm ed the a ppraisal a ward.

The court found that the appointment of Dale Peek as appraisal umpire and the appraisal award

were in accordance with the parties’ contractual agreement in the homeowner’s policy.

¶ 12 On appeal, State Farm contends that it s right to due process was violated w here the

circuit court entered an order appointing a judicial umpire without providing State Farm with

notice or an opportunity to be heard on plaintiffs’ petition to appoint an appraisal umpire

. State

Farm also contends that the trial court did not have j urisdiction over State Farm at the time it

entered the order appointing the appraisal umpire. State Farm asks that the order appointing the

appraisal umpire and the order confirming the appraisal award be vacated

, and that the case be

remanded for a hearin g on the selection of an appraisal umpire.

¶ 13 To enter a valid judgment, the circuit court must have jurisdiction o ver the subject matter

and the parties. BAC Home Loans Servicing, LP v. Mitchell , 2014 IL 116311 , ¶ 17 , 6 N.E.3d



### 5162

. Personal jurisdiction may be obtained by effective service of process or by a party’s consent

to the circuit court’s jurisdiction by a voluntary appearance. BAC Home Loans Servicing , 2014

IL 116311, ¶ 18. A party who voluntarily submits to the court’s jurisdiction does so only

prospectively, and the appearance does not retroactively validate orders entered prior to the

appearance date. BAC Home Loans Servicing , 2014 IL 116311, ¶ ¶ 26, 43; In re Marriage of

Verdung , 126 Ill. 2d 542, 547, 535 N.E.2d 818, 820 (1989). Th is rule is based on a party’s right

to its day in court before a judgment may be entered against it. BAC Home Loans Servicing
, 2014 IL 116311, ¶ ¶ 28, 43. It is intended to protect a part y’s due process rights by preventing the

entry of a judgmen t without prior notice and an opportunity to be heard. BAC Home Loans

Servicing , 2014 IL 116311, ¶ ¶ 28, 43. Whether the circuit court obtained personal jurisdiction

over a party presents a question of law that is reviewed de novo. BAC Home Loans Servicing,

LP , 2014 IL 116311, ¶ 17.

¶ 14 In this case, no summons was issued, and State Farm was not served with the plaintiffs’

petition for appointment of an appraisal umpire. The order appointing an appraisal umpire was

entered on April 27, 2016, the same date that t he petition was filed, and several days before State

Farm entered its appearance in the case. The circuit court did not have personal jurisdiction over

State Farm when it entered the order appointing the appraisal umpire

, and th at order must be

vacated

. ¶ 15 Th e plaintiffs argue that summons and notice w ere not required because this was not an

action at law and because the appraisal provision did not require the issuance of summons and

service of the petition for appointment of an appraisal umpire. The plaintiff s contend that , under

the appraisal provision

, either the insurer or the insured could ask a judge of a court of record in



### 6the state where the residen ce was located to select an umpire and that they simply presented their

petition to a judge of a court of record in the state.

¶ 16 We disagree

. It is apparent to us that the section of the appraisal provision permitting

either the insured or the insurer to ask “ a judge of a court of record ” to select an appraisal umpire

contemplate d the filing of a petition and ju dic ial action

. This was not simply an ex parte request

to a person who happen ed to hold the office of circuit judge. Furthermore , the plaintiffs filed a

petition in the circuit court of M adison County , entered a formal appearance by counsel, and paid

the filing fees. In the petition, the plaintiffs request ed “this Court of Record, having jurisdiction,”

to appoint an appraisal umpire and retain the case for the filing of the appraisal award and “ for

any and all such other and further relief” as the court deems just and proper. Thus, the plaintiffs

elected to invoke judicial action by the circuit court and were bound to follow the established

rules of civil procedure.

¶ 17 This wa s a judicial proceeding, and in such proceeding s, a party to be bound thereby

must have notice and an opportunity to be heard

, unless that party had waived th ose right s. BAC

Home Loans Servicing , 2014 IL 116311, ¶ 28; Ingraham v. Whitmore , 75 Ill. 24, 30-31 (1874).

After reviewing the appraisal provision, we do not find that State Farm waived its r ight to notice

of the plaintiffs’ petition seeking the appointment of an appraisal umpire and the opportunity to

be heard. Thus , the order appointing Dale F. Peek as the apprais al umpire must be vacated. So

too must the subsequent order confirming the appraisal award. In vacating these orders, we are

not disqualifying Dale F. Peek from the plaintiffs’ list of candidates for appointment as the

appraisal umpire, nor are we making any findings with respect to the propriety of the appraisal

award. We are merely stating that State Farm was entitled to notice an d an opportunity to be



### 7heard before the court ruled on t he plaintiffs ’ petition for the judicial appointment of an appraisal

umpire.

¶ 18 Accordingly, the circuit court’s order denying State Farm’s motion to vacate the judicial

appointment of an appraisal umpire is reversed , the order appointing Dale F. Peek as the

appraisal umpire and the order confirming the appraisal award are hereby vacated

, and t he ca u se

is rem anded to the circuit court for further proceedings.

¶ 19 Orders v acated ; re versed and remanded.



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______________________________________________________________________________ 2018 IL App (5th) 170001

NO. 5 -17-0001

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

RONALD WITCHER and JODI WITCHER, ) Appeal from the ) Circuit Court of Plaintiffs

- Appellees, ) Madison County. )

v. ) No. 16- MR -116 ) STATE FARM FIRE AND CASUALTY ) COMPANY, ) Honorable ) John B. Barberis, Jr., Defendant -Appellant. ) Judge, presiding.

Rule 23 Order Filed: January 26, 2018 Motion to Publish Granted: March 6 , 2018 Opinion Filed: March 6 , 2018

Justices: Honorable Judy L. Cates, J.

Honorable Thomas M. Welch, J., and Honorable James R. Moore, J., Concur

Attorney Michael J. Bedesky, Reed, Armstrong, Mudge & Morrissey, P.C., for 115 N. Buchanan, P.O. Box 368, Edwardsville, IL 62025 Appellant

Attorney William S. Daniel, Daniel Law Offices, 222 Keeneland Court, for Collinsville, IL 62234-1493 Appellee s