*1 CONCLUSION La Salle reasons, affirm the foregoing For the we County circuit court.
Affirmed.
O’BRIEN, McDADE, J., EJ., and concur. VERPLOEGH, GAGLIANO, Plaintiff-Appellant, v. L. SHARON J. MARK
Defendant-Appellee. Third District No. 3 — 08—0930 Opinion filed December
SCHMIDT, J., dissenting. Hercule,
Douglas (argued) and M. both of Law Office of P. Trent Gail Butcher, Stream, appellant. Trent & of Carol for Marsh, Kimberly (argued) both of Momkus A. Davis and James E McCluskey, LLC, Lisle, appellee. for of the court: opinion
JUSTICE CARTER delivered the plaintiff, Verploegh, The a Sharon 15, 2007, allegedly Gagliano, damages on August Mark The August on 2005. arising of an automobile accident out filed a and thereafter mo- served on March defendant was Supreme to Illinois Court Rule pursuant to the complaint tion dismiss 103(b) (eff. the motion July granted trial claiming The plaintiff appeals, prejudice. dismissed the granted it the defendant’s mo- its when the court abused discretion remand for further We reverse trial court’s tion. proceedings.
FACTS expira- before 2007, approximately one week August On limitations, filed a statute of tion of the negli- the defendant alleging that complaint against 23, 2005, gently operated injury a on and caused vehicle day, listing A same plaintiff. summons was issued that Lane, Addison, as 1430 Jo Ann On address Illinois. returned unserved the sheriff’s office deputy
because the defendant’s mother told the sheriff that at longer defendant no lived that address. 3, 2007, hearing
At status on informed December requested the trial court that the defendant had not been served hearing “due date.” court continued the status until February date, that 2008. On advised court that hearing not been served. The court set a new status April 2008. February
On an alias summons issued that listed Avenue, Westmont, defendant’s address as 705 Wilmette Illinois. On March process an affidavit of a special server was filed. The affidavit stated that the defendant had been on Grove, March Pershing, Downers May 12, On the defendant filed a motion dismiss complaint pursuant In his af- attached fidavit, the defendant attested he Pershing had lived at 4537 Illinois, Avenue Downers 2006. January since response filed her to the motion to dismiss on June In her *3 she the response, listed made efforts she to serve the defendant August 15, 2007, 17, and March 2008. The initial summons was returned the unserved sheriffs office on On 2007. plaintiffs the attorney change sent a of address office, form the post to which was returned on September and stated that forwarding expired. the order had The at- plaintiffs torney then an conducted Internet for the defendant and search Westmont, someone with the residing defendant’s name in On December 2007 an alias the obtained service at Westmont attempted January address. Service was on The 2008. sheriffs office returned the summons unserved because the February 8, 2008, On plaintiffs attorney moved. the sent another change office, of to address form the which was on returned February 13, 2008, indicating as “good plaintiffs addressed.” The at- then torney employed special a who process server defendant his home on March June a hearing
On held on the defendant’s motion granted to dismiss. The court the defendant’s motion to dismiss and July 25, 2008, with On prejudice. dismissed reconsider, filed motion to which was The subsequently denied. plaintiff also filed a “Motion to to Supplement Response Defendant’s motion, Court to Dismiss.” In that
Supreme Rule Motion hearing to plaintiff argued that the on the defendant’s motion dismiss conformity was not conducted in with rules of evidence because response not her that motion. The she had attached an affidavit to to plaintiffs setting an to this forth attorney attached affidavit motion efforts that she had the same to obtain service on listed motion to On October response to the defendant’s dismiss. agreed allowing the court entered an order to at- previously tach her affidavit another exhibit to her counsel’s agreed dismiss. The also response parties to defendant’s motion to that all of the contained in the affidavit were considered facts grant it made its to the motion to dismiss and court when decisions plaintiff appealed. to deny plaintiffs motion reconsider.
ANALYSIS by dismissing maintains the trial court erred her pursuant to prejudice provides: That rule Diligence. of If the fails to exercise
“Dismissal for Lack prior on a to the diligence reasonable obtain service defendant limitations, of the action as to expiration applicable may prejudice. be If the failure that defendant dismissed without diligence on a defendant oc to exercise reasonable to obtain service limitations, the after of statute of curs only prejudice dismissal be with shall party on any any claim other based vicarious shall bar liability may The dismissal that dismissed defendant’s conduct. any party or the court’s own mo application be made on the on diligence, the considering In tion. exercise reasonable including totality circumstances, both lack shall review the voluntarily dismissed diligence any previous in of reasonable prosecution, and the exercise of reasonable for want of or dismissed section 13— diligence obtaining case refiled under 103(b) (eff. July Ill. S. of Civil Procedure.” Ct. R. 217 of Code to obtain prove has burden Sacco, process. Segal service of pursu dismiss grant a decision to motion to We review *4 103(b) Segal, for an abuse of discretion.
ant to Court Rule at Ill. 2d at 555 N.E.2d 136 103(b), passage, for its primary reason Rule purpose of “ ‘ delay of summons intentional service “[prevention
is the statutory after a for an indefinite time postpone would which ’ ” Cottage Hospital, Galesburg run.” Case period of limitations has
1045 207, 221-22, (2007), 227 Ill. 2d quoting Segal, 880 N.E.2d 180 136 286-87, Ill. 2d at 555 at quoting Karpiel N.E.2d v. LaSalle (1970). National Bank Chicago, 2d 160 noted As court, the supreme “[dismissal of a prejudice cause with under 103(b) penalty justified is a harsh delay which is when the service is of a length which denies a defendant a ‘fair opportunity to investigate liability the circumstances upon [the which ” is predicated defendant] while the facts are Segal, accessible.’ 136 Ill. 2d at 555 N.E.2d at quoting Geneva Construction Co. v. Martin 273, 289-90, & 4 Storage Ill. 2d 122 N.E.2d Transfer (1954). The trial plaintiff’s court’s determination of a lack of objective is an one and a inquiry “fact-intensive suited to balancing, bright Bridgestone lines.” McRoberts v. Americas Hold Inc., (2006). ing, Ill. App. 3d 851 N.E.2d specific
“There is no
provided
time limitation
by Rule
Rather, a court must consider the passage of time in relation to all the
other facts and circumstances of each
individually.”
Case v. Gales
burg Cottage
(2007).
Hospital,
227 Ill. 2d
880 N.E.2d
Courts consider a number of factors when determining whether to
grant
(1)
motion,
a Rule
including but not limited
length
to:
(2)
of time used to obtain service of process;
the activities of the
(3)
plaintiff;
(4)
plaintiffs knowledge of the
location;
ease with which the defendant’s whereabouts
could have been
(5)
ascertained;
special circumstances which would affect plaintiffs ef
(6)
forts; and
actual
Case,
service on the defendant.
In this the defendant was approximately seven months after the filed her complaint. During those seven months, took a number steps to ascertain the defendant’s address and serve him with a summons. The im mediately placed a summons for service with the sheriff at the address listed as the defendant’s address on the accident report. Approximately two weeks after that summons was unserved, returned requested information from the post office regarding the defendant’s change of address. Within two months of the office informing the change of address information expired, plaintiff conducted an Internet search defendant’s address and possible nine later, addresses. One month an alias summons was *5 in the for service at an address Westmont.
issued and sent to
sheriff
the
returned unserved because
after that summons was
One month
moved,
again requested address
allegedly
plaintiff
the
defendant had
month,
plaintiff
next
the
office. Within the
post
information from the
good
was a
that the Westmont address
informed
office
was
server,
ultimately served the
address,
and
employed special process
at an address in Downers Grove.
defendant
efforts
may
elapsed
have
Although a month or even two
him,
and
this is
locate the defendant
serve
plaintiff
taken
or
service
plaintiff
attempting
not a case where
Unlike the cases cited
of limitations.
circumvent
at a time
her case for months
defendant,
plaintiff
ignore
did not
Penrod v.
or serve the defendant.
attempts
and make no
to locate
Cf.
(1986)
Sears,
3d
CONCLUSION time between period of relatively short Considering the steps the number of and the date of service and the of the that the trial determine we took to serve by dismissing plaintiffs complaint. abused its discretion Accord- ingly, County circuit court is reversed and Will further proceedings. the matter is remanded for Reversed and remanded.
WRIGHT, J., concurs. SCHMIDT, dissenting:
JUSTICE I disagree majority’s with the finding that trial court abused its discretion when it found failed to exercise reasonable diligence in obtaining service of on defendant. The trial *6 judge’s ruling should not be overturned absent an abuse discretion. (1990). Sacco, Segal 282, 286, 719, v. 136 Ill. 2d An 555 N.E.2d 720 abuse of discretion be only person will where no reasonable adopted by would take the view the trial court or where the trial court acted arbitrarily. Gridley v. State Farm Mutual Automobile Insurance 217 (2005); Ill. 2d 840 N.E.2d 276 People Woodrum, (2006). 223 Ill. 2d 270-71
The majority contends that no reasonable could find that plaintiff diligently failed to act serving expiration defendant after the applicable statute of Illinois, limitations. In the statute of limita- tions for an injury person, to the plaintiffs herein, such as claim is (West 2006). years. two 735 ILCS Defendant was served 5/13—202 seven expiration months after the of the statute of limitations. Plaintiff, therefore, extended the by nearly statute of limitations 30%. Let us look at the plaintiffs efforts to serve defendant in this case: August
(cid:127)On and summons were for- Page County warded to the Du sheriff for serviceon defendant. On Page County the Du sheriff returned the sum- mons unserved.
(cid:127)On plaintiffs attorney change sent a of ad- dress form to the United States Post Officewhich was returned on September 12, 2007, “forwarding expired.” ordered (over
(cid:127)On later), November plaintiffs two months at- torney performed an Internet search which revealed nine potential addresses for defendant’s name. Plaintiff chose the first address on search, the internet Avenue, Westmont, 705 Wilmette (over later), (cid:127)On December one month plaintiff obtained an alias summons for service on defendant at the Westmont ad- dress. January 4, 2008,
(cid:127)On Page County the Du sheriff returned the return indicating of service the defendant had moved. (over later), February 13, plaintiff one month sent a
(cid:127)On requesting letter to the United States Postal Service second form defendant, citing address. information for the Westmont address good. postal that the address was service stated a second alias summons February (cid:127)On caused for defendant at the same address. to be issued Westmont server, (cid:127)Finally, special process by plaintiff, hired on March Illinois. This oc- served defendant at his home Downers after the curred seven months
of limitations.
above,
there were
during
period,
As illustrated
this seven-month
done.
periods totaling
nothing
four months when
was
“[ujnlike
Yet,
the cases cited
majority
later states that
time,”
her
for months at a
ignore
did not
case
attempting
where the
and that
this is “not
case
delay
or circumvent the statute of limitations.” 396
above,
for
ignore
did indeed
at 1046. As set forth
Moreover,
attempting
months at a time.
whether or
is,
no
delayed
fact
service was
delay
point;
service is not the
minimal
reason. Plaintiffs efforts were
at best.
plausible
the fact that the ultimate
majority
entirely upon
relies almost
ap
of service was
perfection
time between the case
However,
only one factor
months.
the time
is
proximately seven
above,
majority
explained
consideration. As
court’s
determining whether
a number of factors when
courts consider
103(b)
its own
Each case must be decided on
grant a Rule
motion.
Cottage Hospital,
Galesburg
and circumstances. Case v.
particular facts
of Rule
is to
primary purpose
Ill. 2d
*7
by
the court wide
handling
giving
of lawsuits
promote expeditious
with reasonable
perfected
when service is not
discretion to dismiss
Ltd.,
Building,
Medical
diligence. Sinn v. Elmhurst
787,
Here, judge that the trial the record reflects did not act factors, ultimately concluded the relevant judge explained: diligently. Specifically, in the are set forth needs to consider “The factors that reasonable support are in motion. And those service, ap- length time to obtain which diligence, the months, plaintiff. They are the activities of the proximately seven have And I think that we pleadings. set forth various there they show that I think that discussed them on the record. knowledge on the diligence. any And frankly not reasonable location, has of defendant’s part of the during [the] at the same address that he has been represented entire period. seven-month The ease the defendant’s with which whereabouts could have been ascertained. He lives was served actually apparently recently Downers had not relocated Any special to that address. circumstances that would affect—I’m sorry plaintiffs. I think don’t that there are —made special knowledge circumstances. Actual of the defendant of the pendency of the action. There is no indication that he was aware of then, course, this action. And service, actual which was effected today’s So, seven months after upon everything, date. based having the pleadings parties, reviewed having actually cases, read the opinion on, because I wrote an an order on a motion, and I already. read all the I cases So am familiar I am granting law. the motion.” judge The trial correctly totality considered the of the circum- and, therefore, stances did arbitrarily. Moreover, not act one cannot say that no would take the adopted by view trial court. It is undisputed that over the seven-month period, two service attempts were made to false addresses once approximately every days. Plaintiff did not rebut that the entirety of her actions taken perfect upon defendant during those seven months amounted to “under an hour” Finally, of work. undisputed it is time retained her attorney, defendant had been living at his current nearly months, address for and continued to reside there at the time of the hearing.
The majority fails to cite a single case where an abuse of discre- tion was found on behalf of the trial judge when the service of summons was over six months after statute of limitations. Even assuming that reasonable people could disagree with the trial court’s ruling, say one cannot that the ruling was an abuse of majority discretion. The ignored has the standard of review and substituted its for that of the trial court. The trial judge should be affirmed. For foregoing reasons, I respectfully dissent.