JOE SILVERBERG, Plaintiff-Appellant, v. MOHAMED J. HAJI, Defendant-Appellee (Mohamed J. Haji, as Agent of Khalid Siddiqui and Checker Taxi Company, Inc., a Foreign Corporation; and Timo K. Harres, Defendants).
Docket No. 1-14-1321
Appellate Court of Illinois, First District, Fifth Division
May 29, 2015
July 13, 2015
2015 IL App (1st) 141321
Hon. Moira S. Johnson, Judge, presiding.
Appeal from the Circuit Court of Cook County, No. 10-L-7768. Judgment: Reversed and remanded.
Mark L. Karno and
Allen L. Wiederer, of Chicago, for appellee.
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiff, Joe Silverberg, filed suit against defendant, Mohamed J. Haji, for damages arising from a July 6, 2008, car accident. Plaintiff filed his complaint against defendant on July 6, 2010, and, after various attempts to locate and serve defendant spanning a 41-month period, service was ultimately accomplished on December 11, 2013. Defendant then filed a motion to dismiss pursuant to
¶ 2 On July 6, 2010, the last day of the statute of limitations period, plaintiff filed a complaint against defendant in connection with a July 6, 2008, three-vehicle accident on Lake Shore Drive in Chicago. Plaintiff also brought the action against Timo K. Harres, the third driver involved in the accident; and Khalid Siddiqui1 and Checker Taxi Company, which he alleged owned the taxi driven by defendant. Harres, Siddiqui, and Checker Taxi Company are not parties to this appeal.
¶ 3 Three days later, on July 9, 2010, plaintiff caused summons to issue to defendant at 6026 North Winthrop, Apartment H, in Chicago, the address listed for defendant in the police report. The sheriff attempted to serve the summons on defendant at that address on August 2, 2010, but was unsuccessful. The sheriff noted that “more info” was necessary, because the address was an eight-story building and “all [floors] have H.”
¶ 4 Plaintiff then engaged the services of LaSalle Process Servers (LaSalle) on August 12, 2010, which performed a skip trace and reported that defendant “still resided at 6026 N. Winthrop, Apartment H, Chicago, IL 60660.” Eric Elkins was appointed as a special process server on August 31, 2010, and plaintiff caused an alias summons to issue to defendant at that address. Elkins attempted service on six occasions between September 8, and
¶ 5 On October 7, 2010, LaSalle performed a second skip trace in an attempt to locate defendant, but the attempt was “unsuccessful in producing any known or last known addresses.” On November 5, 2010, plaintiff then filed a motion for service by special order pursuant to
¶ 6 The trial court granted plaintiff‘s motion on January 7, 2011, allowing him to serve defendant through the Secretary of State and by “mail[ing] said service to defendant‘s last known address and the insurance carrier for defendant‘s vehicle.” Four days later, on January 11, 2011,2 plaintiff caused a second alias summons to issue, which he then mailed to the Secretary of State. The Secretary of State accepted service on defendant‘s behalf on January 18, 2011.
¶ 7 On July 5, 2011, plaintiff filed a motion to default defendant, and, three days later, on July 8, 2011, defendant filed a motion to quash the “purported service” on the Secretary of State. In that motion, defendant did not challenge the propriety of service through the Secretary of State, but instead claimed that plaintiff had not shown that he had fully complied with the court‘s order by mailing a copy of the summons to his last known address and insurance carrier.
¶ 8 On July 12, 2011, the trial court denied plaintiff‘s motion for default and granted defendant‘s motion to quash service. Although no transcript of that hearing appears in the record, defendant maintained in subsequent filings that the alias summons was “invalid” because it “was not issued by the Clerk of the Circuit Court.” The court further granted plaintiff leave to “issue and serve alias summons in accord and compliance with” its January 7, 2011, order.
¶ 9 Two days later, on July 14, 2011, plаintiff caused a third alias summons to issue, and that summons was accepted by the Secretary of State on July 20, 2011. On February 22, 2012, defendant filed a new motion to quash service, claiming that the affidavit supporting plaintiff‘s motion for service by special order was insufficient under
¶ 10 On July 13, 2012, defendant filed a motion to dismiss the action pursuant to
¶ 11 The court continued:
“Assuming arguendo that Plaintiff properly effectuated service upon Defendant Haji via substitute service through the Secretary of State, this Court nonetheless finds that the other factors considered under a Rule 103(b) analysis are not satisfied.
For example, based on the record before this Court, there is no indication of whether Plaintiff was aware of Defendant Haji‘s location or whether Defendant Haji‘s location could be easily ascertained. Here, Plaintiff issued all Summons and Alias Summons to Defendant at the 6026 North Winthrop location. Although Plaintiff‘s Special Process Server conducted an investigation by speaking with the management company of that location, this unidentified employee purportedly stated that nobody by that name resided at that location. Plaintiff offers no information as to what other steps were taken to locate Defendant Haji‘s whereabouts. In fact, there is no evidence that Plaintiff ever conducted a skip trace search on Defendant Haji. Rather, Plaintiff merely jumped to the conclusion that Defendant Haji moved out of this State.”
¶ 12 The court then went on to observe that there was no evidence suggesting that defendant had actual notice of the lawsuit and that plaintiff “failed to assert any special circumstances” explaining the delay in effecting service. The court thus determined, “after evaluating the totality of the circumstances in this case,” that plaintiff did not demonstrate reasonable diligence in effecting service on defendant. In delivering that judgment, the court also sua sponte reversed its June 15, 2012, order denying defendant‘s prior motion to quash service.
¶ 13 On October 18, 2012, plaintiff filed a motion to reconsider that ruling. In that motion, plaintiff agreed that there was no evidence in the record to show that defendant was a nonresident, but he claimed that the substitute service on the Secretary of State had been allowed—not under the nonresident motorist statute—but instead as a method of special service under
¶ 14 On April 3, 2013, the court denied plaintiff‘s motion to reconsider, but “clarif[ied]” its ruling in a written “Amended Order.” The court reaffirmed its
¶ 15 On April 9, 2013, plaintiff caused the fourth alias summons to issue to defendant at a possible new address. Robert A. Clarke, a special process server, attempted service at 6167 North Broadway Street, Apartment 106, in Chicago on April 24, 2013. Clarke determined, however, that defendant did “not reside” there, as the address was a “DHL mailbox center.” He then attempted to serve defendant at apartment 4H of the previously known Winthrop address. Clarke was unable to make contact with defendant, and spoke to a manager at the apartment building who informed him that defendant had moved out “about a year ago.” Clarke further indicated that a “skip[ ]trace was unable to locate the defendant at this time.”
¶ 16 On May 10, 2013, a fifth alias summons issued to defendant at 585 Gundersen Drive in Carol Stream, Illinois. Doreen R. Warner, a special process server, unsuccessfully attempted to serve defendant at that address on May 22, 2013. She observed that the building was a single-family home and that defendant was “NOT LISTED ON THE DIRECTORY,” but noted that a skip trace revealed a new possible address of “3121 PILLSBURY AVE S APT 1504, MINNEAPOLIS, MN 55408-6000.”
¶ 17 Meanwhile, on May 15, 2013, plaintiff filed a subpoena to On the Go Cab Co. requesting defendant‘s personnel file. Based on the Minneapolis address found for defendant, plaintiff caused a sixth alias summons to issue for defendant on June 20, 2013, through the Secretary of State under the nonresident motorist statute. Defendant filed a motion to quash that service on July 17, 2013, observing that the affidavit of compliance “prepared and filed by plaintiff‘s attorney to induce the Secretary of State to accept service of process falsely aver[red] that the vehicle being driven by [defendant] at the time of the alleged occurrence was owned by a nonresident.”
¶ 18 Plaintiff responded to defendant‘s motion to quash and acknowledged that he had mistakenly checked the box for a nonresident “owner,” rather than “driver” on the form affidavit. He informed the court that he had submitted an amended affidavit of compliance to the Secretary of State after the error was brought to his attention. Plaintiff maintained that the error did not “negate the proper basis for the application of [the nonresident motorist statute],” and, in any case, the error had been subsequently corrected.
¶ 19 On July 25, 2013, the court entered a written order quashing service through the Secretary of State, without elaboration. Plaintiff then caused a seventh alias summons to issue to defendant through the Secretary of State on the same day, with the appropriate box checked on the affidavit of compliance. The summons was accepted by the Secretary of State on July 31, 2013, and plaintiff filed a motion to default defendant on September 27, 2013.
¶ 21 That same day, plaintiff filed a motion to conduct “limited discovery with respect to the issue of Defеndant Haji‘s residence” under
¶ 22 On November 18, 2013, counsel for defendant indicated to the court that defendant was out of the country and had not yet answered plaintiff‘s discovery requests. The court ordered defendant to disclose his current residential address to plaintiff, and the following day, counsel for defendant informed plaintiff of his address at 6301 North Paulina Street, Apartment 2B, in Chicago. An eighth alias summons issued for defendant at that address on November 22, 2013, although defendant‘s last name was misspelled as “Jaji” on the document.
¶ 23 Special process server Clarke subsequently attempted to serve defendant at the Paulina address on two occasions but was unsuccessful. Clarke statеd that on November 29, 2013, he spoke to Ahmed Ali, who told him that he lived there with “Mr. Warsame, and Mr. Abdirkarin” and that he did not know defendant. Clarke returned on December 11, 2013, and spoke to another male subject who claimed to be a resident of the unit, but also “didn‘t know who [defendant] was.”
¶ 24 On January 6, 2014, the court entered an order quashing the prior service through the Secretary of State. It noted, however, that defendant “agree[d] that he was served” via abode service on December 11, 2013, “and the return *** of non-service was the result of misnomer.” Defendant was then granted until February 3, 2014, to answer or otherwise plead.
¶ 25 On January 31, 2014, defendant filed a motion to dismiss the action against him pursuant to
“THE COURT: Let me ask this question.
PLAINTIFF: Sure.
THE COURT: When Judge Savage granted the Motion to Dismiss pursuant to [Rule] 103(b), it was without prejudice; is that correct?
DEFENDANT: No.
PLAINTIFF: Because the statute of limitations would have elapsed by the time in question, I believe, that it was necessarily with prejudice.
THE COURT: Okay. So how did we get here?
PLAINTIFF: There was a motion brought subsequent to her ruling on [Rule] 103(b) to reconsider that ruling *** [and] she does vacate her order granting [Rule] 103(b) reversal.
* * *
PLAINTIFF: *** [D]uring her ruling on the [Rule] 103(b)[, she] reconsidered sua sponte, and she reversed herself ***
so that service was still considered quashed. But the case was resurrected. The dismissal with prejudice was vacated. THE COURT: And she gave some analysis in her order granting the original [Rule] 103(b) motion, correct?
PLAINTIFF: Correct.
THE COURT: I want the record to be clear, because we‘re starting at the very beginning where certain attempts at service was [sic] made.
A judge that preceded me made some rulings and some observations and first granted the motion [pursuant to Rule] 103(b), with prejudice and then reversed herself?
PLAINTIFF: Correct.
THE COURT: I don‘t really feel comfortable getting into the middle of whethеr what she did was correct or not.
So since she quashed service but made some analysis about whether a [Rule] 103(b) motion should have been granted, I want the record to be clear that I‘m not making decisions about whether or not Judge Savage was correct in granting the [Rule] 103(b) motion, and I don‘t want my decision today to be dependent on some analysis that she made when she granted a Motion to Dismiss pursuant to [Rule] 103(b) and then vacated it. I presume that she—I don‘t know what she did.
So my main focus now will be subsequent to the situation that Judge Savage was involved in. I want to hear what attempts at service were made after the Motion to Quash.
That‘s what I‘m interested in, because otherwise I think I might be tempted to have to try to figure out whether I agree with Judge Savage‘s analysis.
* * *
And as far as I can say, in light of what happened, to me that‘s a muddle that I don‘t want to get into.
I would rather begin where she quashed service, vacated her [Rule] 103(b) order, and start there with the attempts at service.”
¶ 26 Plaintiff then outlined the attempts at service since the previous dismissal was vacated, then asked:
“PLAINTIFF: Now, am I correct Your Honor does not want us to address activities prior to or—
THE COURT: Well, you can make the record. I just want the record to be clear that I‘m not getting into her analysis.
PLAINTIFF: I understand. Sure.
DEFENDANT: To be perfectly clear, you‘re not going to disregard their lack of diligence up front? You‘re just not going to consider Judge Savage‘s analysis of that? Am I correct?
THE COURT: I feel that Judge Savage became involved in the issue of [Rule] 103(b) and whether or not there was proper service, and so you can make your record, but I don‘t feel comfortable doing some kind of an analysis which may or may not agree with what Judge Savage did. And that‘s the problem.
You can make your record. I don‘t have any problem with that. But I really am looking at what happened subsequent to what Judge Savage did.
* * *
So I want you to make your record, but I just want the record to be clear that I‘m not in here second guessing whatever her analysis was. I just can‘t do that.”
¶ 27 Plaintiff then outlined his prior attempts to serve defendant for “the record,” and, at the conclusion of argument, the trial court stated, “In this case, I‘m going to grant the motion [pursuant to Rule] 103(b). There‘s been a multitude of errors and mistakes and inability of the
¶ 28 In this court, plаintiff argues that the court erred in granting defendant‘s motion to dismiss because it failed to properly consider the factors relevant to a
¶ 29 Under
“If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant prior to the expiration of the applicable statute of limitations, the action as to that defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service on a defendant occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice as to that defendant ***. In considering the exercise of reasonable diligence, the court shall review the totality of the circumstances ***”
Ill. S. Ct. R. 103(b) (eff. July 1, 2007).
¶ 30 The purpose of
¶ 31 Our supreme court has further noted that “[d]ismissal of a cause with prejudice under
¶ 32 The trial court‘s determination of a рlaintiff‘s lack of diligence is an objective one and a “fact-intensive inquiry suited to balancing, not bright lines.” (Internal quotation marks omitted.) McRoberts v. Bridgestone Americas Holding, Inc., 365 Ill. App. 3d 1039, 1042 (2006). As such,
¶ 33 Plaintiff first contends that the court failed to сonsider the totality of the circumstances when it focused solely on activity subsequent to the vacatur of the previous dismissal. Plaintiff also maintains that the court erred by not basing its decision on an analysis of the factors relevant to
¶ 34 Generally, a trial court‘s ruling on a motion to dismiss pursuant to
¶ 35 The record in this cаse shows that the court did not consider the totality of the circumstances in ruling on defendant‘s motion to dismiss as it was required to do under
¶ 36 Defendant, however, contends that the trial court‘s statements were proper and make clear—not that it was ignoring the earlier time period—that it was not relying on the prior judge‘s analysis and, instead, was conducting an independent analysis of the appropriate time frame. We disagree. The court specifically indicated that it did not wish to review the entire time period, calling the activity prior to the vacatur a “muddle that [it did not] want to get into.” Instead, the court informed the parties that it was interested only in the activity occurring after the prior motion to dismiss was vacated.
¶ 37 Moreover, the court never articulated the
¶ 38 The only other remark the court made in dismissing the case against defendant was that there was nothing to show that he was “hiding from service.” While a defendant‘s avoidance of service could be relevant to a
¶ 39 Even more importantly, we find that a proper analysis of the
¶ 40 Other than a general citation to the rule of civil procedure requiring certification of pleadings (
¶ 41 In applying the
¶ 42 In this respect, we find this case analogous to Licka, 70 Ill. App. 3d at 937-38. In that case, although the plaintiff did not actually effect service on the defendant until 13 months after the amended complaint was filed, the court noted that the plaintiff had been “justifiably lulled” for four months of that period when service was mistakenly accomplished on a different doctor who shared the same name as the defendant. Licka, 70 Ill. App. 3d at 937. The court also observed that the plaintiff had otherwise actively and persistently searched for the defendant‘s proper address and had sent four alias summonses within this period of time. Licka, 70 Ill. App. 3d at 937-38. In those circumstances, the court found that the trial court had abused its discretion in dismissing the action against the defendant under
¶ 43 Similarly, in this case, there were vast portions of the overall time period when plaintiff was justifiably lulled by either apparently successful service or by the court dismissing defendant, only to later vacate its order of dismissal. See Licka, 70 Ill. App. 3d at 937. During the times after plaintiff learned that his previous service attempts had been unsuccessful, plaintiff did not sit idly by (see Brezinski v. Vohra, 258 Ill. App. 3d 702, 705 (1994)), but instead made numerous attempts to rectify the situation and locate and effect service on defendant. Plaintiff retained special process servers, utilized various skip traces to locate defendant, and filed a motion for service by special order after service could not be obtained using standard methods. Over the course of these proceedings, plaintiff issued an initial summons and eight alias summonses. We believe that plaintiff‘s efforts in this case are sufficient to demonstrate his reasonable diligence in effecting service on defendant.
¶ 44 We also find nothing in the record to show that plaintiff actually knew of defendant‘s location or that his location could have been easily ascertаined. To the contrary, plaintiff‘s efforts to serve defendant at the various addresses which were revealed by skip traces were wholly unsuccessful, and plaintiff was informed on more than one occasion that defendant did not live at those addresses or had moved away.
¶ 45 We find Licka, 70 Ill. App. 3d 929, instructive on this point as well. The physician defendant in Licka filed an affidavit in support of his
¶ 46 This case, by contrast, presents even stronger grounds for reversal, as defendant never disclosed in either of his
¶ 47 The primary evidence defendant relies on to show his residence at the Winthrop address is the April 24, 2013, report from a process server that a manager of the apartment building said that Haji had moved out of that address “about a year ago.” Presumably, defendant maintains that this statement shows that he was actually living at the address during the early months of these proceedings and that plaintiff failed to exercise reasonable diligence in serving him there during that time. This argument, however, ignores the evidence in the record showing that as early as September 2010—just over two months after the complaint was filed—another process server unsuccessfully attempted to serve defendant at that building on six occasions and was told by apartment management that there was “no Mohamed J. Haji actually residing at the address.” At oral argument, defendant maintained that this court should disregard the September 2010 statement because it is hearsay but that we should consider the April 2013 statement for its truth because plaintiff has never objected to his use of it.
¶ 48 We reject defendant‘s hearsay argument becausе we consider these statements—not for their truth—as evidence of plaintiff‘s knowledge as to where defendant could be found, and therefore, plaintiff‘s diligence in effecting service on him. As such, they are not hearsay. See People v. Peoples, 377 Ill. App. 3d 978, 983 (2007) (“Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted.“). In this case, regardless of defendant‘s actual residence at the Winthrop address, the process servers retained by plaintiff spoke to representatives at the apartment building, and were told on both occasions that defendant did not live in the building at that time.
¶ 49 Defendant additionally points to a copy of his driver‘s license and a document, purportedly from the Secretary of State, listing defendant‘s address as 6026 North Winthrop Avenue, Apartment 4H. He acknowledges that his driver‘s license was issued in January 2008, but cites Powers v. Kelley, 83 Ill. App. 2d 289, 297 (1967), for the proposition that “residence once established is рresumed to continue until the contrary is shown.”
¶ 50 The defendant in Powers appealed the judgment entered against him after a jury trial, contending that the trial court had erred by allowing the plaintiff to read the deposition testimony of a witness into evidence. Powers, 83 Ill. App. 2d at 294. The Fifth District Appellate Court noted that the deposition testimony indicated that he lived in Missouri, and the defendant had made no showing which would rebut the presumption of the deponent‘s continued residence there. Powers, 83 Ill. App. 2d at 296-97. The court thus concluded
¶ 51 This case, by contrast, does not concern the rule regarding the admission of deposition testimony at trial. Moreover, there was no initial showing that defendant lived in any particular place during the proceedings, such that a presumption of that residеncy could continue. At best, the Secretary of State documents indicate that defendant reported the Winthrop address as his residence in January of 2008—six months prior to the car accident at issue—but there is nothing in the record to show that he kept the Secretary of State apprised of his current address thereafter. As we have noted, the record indicates that plaintiff was informed that defendant did not live at that address as early as two months following the initiation of these proceedings. We thus find Powers distinguishable from the case at bar.
¶ 52 We also conclude that the fifth factor, defendant‘s actual knowledge of the proceedings, weighs in favor of denying defendant‘s motion to dismiss under
¶ 53 Plaintiff additionally maintains that the “special circumstances” factor weighs in his favor. He specifically contends that the “other case activity” which occurred in this matter should be considered, and “can excuse delay in a [Rule] 103(b) context.” Plaintiff points to evidence in the record showing that during the time plaintiff was attempting to effect service on defendant, he was also attempting to locate and serve the other defendаnts and responding to motions to quash service on or dismiss those other defendants.
¶ 54 In support, plaintiff cites Brezinski, 258 Ill. App. 3d at 705, in which this court found that the circuit court had abused its discretion in concluding that the plaintiff‘s attempts at serving the defendant had not been diligent. This court observed that the record showed:
“[D]uring the period in which [the defendant] went unserved, plaintiff was not idly ignoring his case. Indeed, plaintiff was responding to six motions to dismiss the action brought by other defendants. These six motions were brought during a period from October 5, 1990, to February 1991. This court has held that activity of this type on plaintiff‘s part constitutes diligence within the context of a motion to dismiss pursuant to
Supreme Court Rule 103(b) .” Brezinski, 258 Ill. App. 3d at 705 (citing Cannon v. Dini, 226 Ill. App. 3d 82 (1992)).
¶ 55 Similarly, in Cannon, 226 Ill. App. 3d at 89, this court concluded that the trial court‘s dismissal
¶ 56 Defendant, however, disagrees with plaintiff‘s interpretation of these cases and contends that our decision in Brezinski was based on a misreading of Cannon and was therefore erroneous. He asserts, without citation to authority, that “[o]bviously, a plaintiff‘s conduct in respect to prosecuting a case against some defendants can have nothing to do with whether reasonable diligence was exercised in serving another defendant.” We cannot agree.
¶ 57 As both Brezinski and Cannon illustrate, other activity occurring in a case at the time a plaintiff is attempting to serve a defendant may properly be considered as a special circumstance in a
¶ 58 We also find another special circumstance present in this case. On July 14, 2011, plaintiff caused the third alias summons to issue for defendant through the Secretary of State, pursuant to the trial court‘s previous order allowing such special service under
¶ 59 Although the trial court‘s order quashing service is not specifically before this court for review, we observe that the court‘s judgment was based on a misapplication of the law, which reasonably affected plaintiff‘s efforts to serve defendant.
¶ 61 Separately, the nonresident motorist statute allows substituted service on an out-of-state motorist by serving the Secretary of State. The statute specifically provides:
“[The] use and operation by any person or his duly authorized agent or employee of a vehicle over or upon the highways of the State of Illinois, shall be deemed an appointment by such person of the Secretary of State to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him, growing out of such use or resulting in damage or loss to person or property, and the use or operation shall be signification of his agreement that such process against him which is so served, shall be of the same legal force and validity as though served upon him personally if such person is a non-resident of this State or at the time a cause of action arises is a resident of this State but subsequently becomes a non-resident of this State, or in the event the vehicle is owned by a non-resident and is being opеrated over and upon the highways of this State with the owner‘s express or implied permission.”
625 ILCS 5/10-301(a) (West 2010).
¶ 62 Unlike under
¶ 63 As the plain language of these statutes make clear,
¶ 64 In closing, we note that the
¶ 65 Based on our review of the entire record, and our analysis of the relevant factors, we conclude that the trial court abused its discretion in dismissing this lawsuit pursuant to
¶ 66 Reversed and remanded.