Kreykes Electric, Inc. v. Malk & HarrisKreykes Electric, Inc. v. Malk & Harris
delivered the opinion of the court:
Plaintiff, Kreykes Electric, Inc., is an electrical contractor that brought a legal malpractice action against the law firm and individual attorneys it had retained to prosecute a mechanics lien foreclosure. The circuit court of Cook County granted defendants’ motions to dismiss pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), finding that plaintiff failed to exercise reasonable diligence in obtaining service of process. On plaintiffs motion for reconsideration, the circuit court allowed its prior order to stand and specifically rejected plaintiffs argument that defendants waived their Rule 103(b) defense. On appeal, plaintiff argues thаt the circuit court erred by: (1) granting defendants’ motions to dismiss plaintiffs malpractice claim; and (2) not properly considering plaintiffs waiver argument against defendants’ motion to dismiss.
BACKGROUND
In 1993, plaintiff retained the law firm of
Soon thereafter, plaintiffs new counsel, with the aid of attorneys at or associated with Malk & Harris, prepared the response to the aforementioned motion to dismiss the mechanics lien suit. During that time, plaintiff also sent a letter to an attorney at Malk & Harris stating, inter alia, that, should the dismissal of plaintiffs mechanics lien action be upheld, plaintiff would seek damages from Malk & Harris for malpractice.
On November 17, 1993, the circuit court dismissed the mechanics lien suit with prejudice on the grounds that it was not timely filed. According to plaintiff, an attorney at Malk & Harris subsequently requestеd that plaintiff file a notice of appeal of the November 17, 1993, order and that plaintiff refrain from proceeding with a malpractice action until the underlying dismissal order could be challenged on appeal. During the next two years, the issues on appeal were briefed with some input from Malk & Harris and argued in October 1995.
As the end of thе two-year period following the entry of the November 17, 1993, dismissal order approached, the decision of the appellate court was still pending. Consequently, plaintiff filed the instant complaint on November 16, 1995; one day before the applicable statute of limitations expired. On December 22, 1995, the apрellate court affirmed the dismissal order. Shortly thereafter, plaintiff decided to proceed with its malpractice action against defendants and purportedly began preparing summonses for service upon defendants.
On January 24, 1996, before any summonses were placed for service, plaintiff failed to appear for a status hearing, and the trial court dismissed plaintiffs claim for want of prosecution. Plaintiff subsequently filed a motion to vacate the dismissal, which was granted on March 1, 1996. Defendants were finally served with process on April 10, 1996, nearly five months after plaintiffs malpractice complaint was filed. Defendants answеred with motions pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), asserting that plaintiffs lack of diligence in obtaining service after the expiration of the statute of limitations warranted dismissal of plaintiffs claim with prejudice.
On May 14, 1997, the circuit court granted defendants’ motions to dismiss plaintiffs malpractice claim with prejudice on the grounds that рlaintiff failed to exercise reasonable diligence in effectuating service of process. In addition, the court, on its own motion, dismissed defendants Steven M. Harris, Ltd., and Malk & Harris on the grounds that plaintiff never effectuated service upon them. Plaintiff subsequently filed a motion for reconsideration, which was granted, in part, by the circuit court on August 22, 1997. In the order on reconsideration, the circuit court amended its prior order by rejecting plaintiffs argument that defendants waived their Rule 103(b) defense, stating that plaintiffs waiver argument was insufficient. The circuit court upheld its prior order in all other respects, and plaintiff appeals from both the May 14, 1997, and August 22, 1997, orders.
We affirm.
ANALYSIS
Plaintiff first contends that the circuit court erred by granting defendants’ motions to dismiss based upon Supreme Court Rule 103(b). 134 Ill. 2d R. 103(b). That rule provides as follows:
“Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statutе of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice.If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” 134 Ill. 2d R. 103(b).
We note that “[t]he rules of our supreme court are not aspirational. ‘They have the force of law, and the presumption must be that they will be obeyed and enforced as written.’ ” Billerbeck v. Caterpillar Tractor Co.,
All parties in the instant case cite the Illinois Supreme Court case of Segal as being favorable to their respective cases. We agrеe that Segal is instructive in this matter, as it delineates a seven-factor rule for determining whether a court should grant a Rule 103(b) motion. The elements to be weighed are:
(1) the length of time used to obtain service of process;
(2) the activities of the plaintiff;
(3) the plaintiffs knowledge of the defendant’s location;
(4) the ease with which the defendant’s whereabouts could have been ascertained;
(5) actual knowledge on the part of the defendant of the pеndency of the action;
(6) special circumstances which would affect the plaintiffs efforts; and
(7) actual service on the defendant.
In the case sub judice, the trial judge made specific findings with respect to each of the aforementioned factors. Regarding the first two factors, the trial court found that plaintiff made virtually no attempt to serve defendants until nearly five months after the expiration of the two-year statute of limitations. The trial court was unpersuaded by plaintiffs argument that it, nonetheless, began to prepare the summonses for service sometime after the new year and that its efforts were hampered by the unexpected dismissal for want of prоsecution.
Similarly, the trial court’s findings with respect to the third and fourth Segal factors militated in favor of defendants. Plaintiff argues that it had special difficulty in locating defendants due to the disbanding of the Malk & Harris law partnership. The evidence revealed, however, that both Charles Malk and Steven Harris were, at all times, praсticing attorneys who were registered with the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, listed in numerous law directories, and who maintained the same offices and addresses following the dissolution of their partnership. Significantly, the trial court noted that plaintiff made no attempt to make an evidеntiary showing that the dissolution of
Despite plaintiff’s contention that defendants had notice of рlaintiffs malpractice action by virtue of a letter dated June 23, 1993, warning defendants that plaintiff might seek damages from them, the trial court found that the fifth Segal factor weighed in defendants’ favor due to lack of evidence that defendants had knowledge of the malpractice action prior to the date of service. We agree. In our view, the cautionary letter relied upon by plaintiff, as well as defendants’ intermittent assistance in plaintiffs response to the motion to dismiss its mechanics lien action, did not establish that defendants had knowledge of the filing of plaintiffs malpractice complaint before receiving actuаl service on April 10, 1996.
As to the sixth factor, the trial court found that no special circumstances existed to justify plaintiffs delay in effectuating service of process. The trial court noted that the only item of record at the time the Rule 103(b) motion to dismiss was decided was plaintiffs assertion that it intentionally delayed in filing suit at the rеquest of an attorney at Malk & Harris. Importantly, in granting defendants’ motion to dismiss plaintiffs malpractice claim, the court made the following finding:
“No claim is made that [plaintiff] delayed effecting service of summons at the request of any defendant representative, nor is *** any satisfactory explanation made as to why, hаving decided to file suit, *** plaintiff decided that the fact of the filing could be kept from the defendants being sued by intentionally delaying issuance of summons.” (Emphasis added.)
Finally, although plaintiff eventually obtained actual service upon certain defendants, it occurred nearly five months after the expiration of the statute оf limitations. Importantly, plaintiff never caused summons to issue to defendants Steven M. Harris, Ltd., and Malk & Harris. Indeed, the trial court noted that the record was replete with evidence that plaintiff failed to exercise reasonable diligence. In brief, it was shown that plaintiff intentionally chose not to cause summons to issue, caused its case to be dismissed for want of prosecution, delayed in moving to vacate that dismissal, and again delayed nearly one entire month before causing summons to issue after its case was reinstated.
Although all parties in the instant case cite Segal, 136 111. 2d 282, as supportive of their respective contentions, in our view, the trial court did not abuse its discretion by dismissing plaintiff’s claim. Significantly, in Segal, the Illinois Supreme Court wrote, in pertinent part:
“The purpose of Rule 103(b) is to protect defendants from unnecessary delay in the service of process on them and to prevent the circumvention of the statute of limitations.” Segal,136 Ill. 2d at 286 , citing Hanna v. Kelly,91 Ill. App. 3d 896 , 900,414 N.E.2d 1262 , 1266 (1980), and Galvan v. Morales,9 Ill. App. 3d 255 , 258,292 N.E.2d 36 , 38 (1972).
In our view, plaintiff’s conduct in the case sub judice, in effect, extended the statute of limitations and thereby abridged Rule 103(b).
Importantly, in Segal, the supreme court stated:
“It has long been noted that ‘[prevention of intentional delay in the service of summons which would postpone service for an indefinite time after a statutory period of limitations has run, was a primary reason for the passage of Supreme Court Rule 103(b) and its predecessors.’ ” (Emphasis added.) Segal,136 Ill. 2d at 286 , quoting Karpiel v. La Salle National Bank,119 Ill. App. 2d 157 , 160,255 N.E.2d 61 , 63 (1970), and citing Meyer v. Wardrop,37 Ill. App. 3d 243 ,345 N.E.2d 762 (1976).
In the instant case, the trial court made a specific finding that plaintiff intentionally delayed the issuance of summons. While plaintiff posits that the facts of the instant case cannot be distinguished from the facts in Segal, we disagree. In Segal, thе supreme
Plaintiff, nevertheless, cites as dispositive the following language in Segal:
“In this case, because the length of the delay in the service of process was such that the purpose of Rule 103(b) would not be served by dismissing plaintiffs action, the allowance of defendants’ Rule 103(b) motion by the circuit court was an abuse of discretion. It would not be an abuse of discretion for a circuit court to allow a dismissal with prejudice under Rule 103(b) for а delay equal to or shorter than the delay present in this case if the delay occurs under circumstances which serve to deny the defendants a ‘fair opportunity to investigate the circumstances upon which liability against [the defendants] is predicated while the facts are accessible.’ ” Segal,
Plaintiff’s contеntion, however, ignores the previously mentioned policy considerations underlying Supreme Court Rule 103(b) that Se-gal and other cases have deemed instructive. In the present case, we believe that the trial court’s dismissal of plaintiffs claim served the purpose of Rule 103(b) by recognizing that plaintiffs intentional five-month delay in service improperly protracted the applicable statute of limitations. See Womick v. Jackson County Nursing Home,
Our review of the record on appeal leads us to agree with the trial court that plaintiff failed to meet its burden of demonstrating reasonable diligence in attempting to obtain timely service upon defendants. Accordingly, we hold that the trial court did not abuse its discretion in dismissing plaintiffs claim due to lack of diligence.
Lastly, plaintiff contends that the trial court erred in its ruling that plaintiffs waiver argument was insufficient. Specifically, plaintiff argues that defendants waived their right to assert a Rule 103(b) defense by failing to properly interpose their objections and, instead, defending the merits of the malpractice action.
Plaintiff correctly states the general rule that a party must interpose an objection in a timely manner and prior to defending a suit on its merits. Cannon v. Dini,
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
McNULTY, PJ., and RAKOWSKI, J., concur.
Notes
Malk & Harris was a partnership between the two professional corporations, Charles R Malk & Associates, Ltd., and Steven M. Harris, Ltd., both of which have been named in the instant malpractice suit. In addition, Charles R. Malk, Steven M. Harris, and Steven W. Workman, an associate of Malk & Harris, have been named in their individual capacities.