Byndom v. Board of Education Urbana School District 116

2024 IL App (5th) 230253-U

• Court: Appellate Court of Illinois
• Decided: January 4, 2024
• Docket: 5-23-0253
• Status: Unpublished

Opinion

2024 IL App (5th) 230253-U NOTICE NOTICE Decision filed 01/04/24. The This order was filed under text of this decision may be NO. 5-23-0253 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

SAMUEL J. BYNDOM, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Champaign County. ) v. ) No. 21-L-109 ) BOARD OF EDUCATION URBANA ) SCHOOL DISTRICT #116, ) Honorable ) Benjamin W. Dyer, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BOIE delivered the judgment of the court. Presiding Justice Vaughan and Justice Barberis concurred in the judgment.

ORDER

¶1 Held: We affirm the judgment of the circuit court dismissing the plaintiff’s complaint where the circuit court properly found that the plaintiff had failed to exercise reasonable diligence in obtaining service on the defendant.

¶2 The plaintiff, Samuel J. Byndom, appeals the judgment of the circuit court of Champaign

County dismissing his complaint against the defendant, Board of Education Urbana School District

#116, based upon its findings that the plaintiff’s complaint was filed beyond the 90-day statutory

limitation period, and that the plaintiff had failed to exercise reasonable diligence in obtaining

service on the defendant. For the following reasons, we affirm the judgment of the circuit court.

1 ¶3 I. BACKGROUND

¶4 On March 30, 2020, the plaintiff filed allegations of retaliation and racial discrimination

against the defendant with the Illinois Department of Human Rights (IDHR). The IDHR dismissed

the plaintiff’s allegations for lack of substantial evidence on March 12, 2021. The IDHR’s notice

of dismissal advised the plaintiff that if he disagreed with the IDHR’s decision, he could commence

a civil action in the appropriate state circuit court within 90 days after receipt of the dismissal

notice.

¶5 On June 28, 2021, the plaintiff filed a complaint in the circuit court of Champaign County,

Illinois, realleging the retaliation and racial discrimination allegations previously filed with the

IDHR. The complaint, however, was not served on the defendant until November 17, 2022. As

such, on December 20, 2022, the defendant filed a motion to dismiss pursuant to section 2-619 of

the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2022)). The defendant’s motion to

dismiss alleged that the plaintiff’s complaint was filed beyond the 90-day statutory limitation

period and, pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), that the plaintiff

had failed to exercise reasonable diligence in obtaining service of the complaint on the defendant.

¶6 The circuit court heard arguments on the defendant’s motion to dismiss on March 24, 2023,

and issued a written order on March 31, 2023. The circuit court’s written order stated that, for the

reasons set forth on the record, the defendant’s motion to dismiss was granted and the plaintiff’s

complaint was dismissed with prejudice. The plaintiff filed a timely notice of appeal and now

appeals the judgment of the circuit court.

¶7 II. ANALYSIS

¶8 In order to support a claim of error on appeal, our supreme court has long held that the

appellant has the burden to present a sufficiently complete record. Webster v. Hartman, 195 Ill. 2d

2 426, 432 (2001) (citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984)). “Where the issue on

appeal relates to the conduct of a hearing or proceeding, this issue is not subject to review absent

a report or record of the proceeding.” Id. In this matter, the order appealed stated that the circuit

court’s reasons for granting the dismissal were “set forth on the record,” yet no record of

proceedings regarding the circuit court’s hearing on March 24, 2023, has been properly filed with

this court.

¶9 We further note that Illinois Supreme Court Rule 342 requires that, in civil appeals, an

appellant’s brief shall include, as an appendix, the following:

“a table of contents to the appendix, the judgment appealed from, any opinion,

memorandum, or findings of fact filed or entered by the trial judge or by any administrative

agency or its officers, any pleadings or other materials from the record that are the basis of

the appeal or pertinent to it, the notice of appeal, and a complete table of contents, with

page references, of the record on appeal.” Ill. S. Ct. R. 342 (eff. Oct. 1, 2019).

Although the plaintiff’s Illinois Supreme Court Rule 341(c) (eff. Oct. 1, 2020) certificate of

compliance states that “those matters to be appended to the [appellant’s] brief under Rule 342(a)

is approximately 18 pages,” there is no appendix, either attached to the appellant’s brief or in a

separate filing.

¶ 10 The defendant, however, did file an appendix to its brief which contained the report of

proceedings for the circuit court’s hearing on the defendant’s motion to dismiss. Rule 342 does

permit an appellee’s brief to include a supplementary appendix of other materials from the record

that are also the basis of the appeal or are essential to any understanding of the issues raised in the

appeal. Ill. S. Ct. R. 342 (eff. Oct. 1, 2019). Placing documents in a brief’s appendix, however,

does not make the documents part of the appellate record. Oruta v. B.E.W., 2016 IL App (1st)

3 152735, ¶ 32 (materials not taken from the record may not generally be placed before the appellate

court in an appendix). Illinois Supreme Court Rule 324 (eff. July 1, 2017) requires that the record

on appeal, which shall include any report of proceedings prepared in accordance with Illinois

Supreme Court Rule 323 (eff. July 1, 2017), be prepared and certified by the clerk of the circuit

court, as does any supplement to the record on appeal. See Ill. S. Ct. R. 321 (eff. Oct. 1, 2021)

(contents of the record on appeal); R. 323 (eff. July 1, 2017) (report of proceedings); R. 324 (eff.

July 1, 2017) (preparation and certification by the circuit clerk of the record on appeal); R. 329

(eff. July 1, 2017) (supplement to the record on appeal). As such, the report of proceedings

contained in the appellee’s appendix is not “other materials from the record” since the report of

proceeding is not contained in the record on appeal prepared and certified by the clerk of the circuit

court.

¶ 11 A party may generally not rely on matters outside of the record to support its position on

appeal. Keener v. City of Herrin, 235 Ill. 2d 338, 346 (2009). “When a party’s brief fails to comply

with that rule, a court of review may strike the brief, or simply disregard the inappropriate

material.” Id. It is also within the discretion of this court to consider the merits of an appeal,

notwithstanding any deficiencies in the parties’ briefs, where the briefs are sufficient to apprise

this court of the appellant’s arguments, the facts necessary to understand the issues are simple, and

judicial economy warrants consideration on the merits. See Zadrozny v. City Colleges of Chicago,

220 Ill. App. 3d 290, 293 (1991).

¶ 12 Here, the appellant’s brief is sufficient to apprise this court of the plaintiff’s arguments,

and the facts necessary to understand the plaintiff’s issues on appeal are simple and contained

within the record of appeal. We also note that the defendant only cited to the report of proceedings

in the background section of its brief but does not cite to any portion of the report of proceeding

4 in its arguments. Finally, this court may affirm the circuit court’s decision on any basis supported

by the record, regardless of the reasoning employed by the circuit court. Scassifero v. Glaser, 333

Ill. App. 3d 846, 860 (2002).

¶ 13 As such, we do not find that the flaws identified above regarding the appendixes to be of

such a nature as to interfere with our ability to understand and adjudicate this matter. We are,

however, disregarding the report of proceedings contained in the appellee’s appendix as material

outside of the record, and we admonish the parties’ counsels to carefully adhere to the requirements

of the supreme court rules in any future appeals. Having addressed these deficiencies, we will now

proceed to the merits of the plaintiff’s issues on appeal.

¶ 14 The plaintiff raises two issues for this court’s review. The first issue raised on appeal is

whether the circuit court improperly dismissed the plaintiff’s complaint under section 2-619 of the

Code (735 ILCS 5/2-619 (West 2022)). The second issue raised by the plaintiff on appeal is

whether the circuit court erred in dismissing the plaintiff’s complaint pursuant to Illinois Supreme

Court Rule 103(b) (eff. July 1, 2007). For judicial economy, we will first address the plaintiff’s

second issue.

¶ 15 The plaintiff acknowledges that “there is little question but that the lawsuit was not served

in a diligent fashion,” as it took more than a year for the complaint to be served on the defendant.

The plaintiff argues, however, that he was represented by counsel at the time of the filing of the

complaint and that, after the filing of the complaint, he had difficulty communicating with the

attorney and was not provided an update on the status of the case. As such, the plaintiff states that

he hired new counsel who entered an appearance on October 10, 2022, and obtained service on the

defendant on November 17, 2022. Therefore, the plaintiff argues that the failure to timely serve

the defendant rested with the plaintiff’s prior counsel, not with the plaintiff himself, and that this

5 court should reverse the circuit court’s dismissal since there was no lack of diligence on the part

of the plaintiff.

¶ 16 We review a circuit court’s grant of a Rule 103(b) dismissal under an abuse of discretion

standard. Emrikson v. Morfin, 2012 IL App (1st) 111687, ¶ 14. A circuit court abuses its discretion

when its decision is arbitrary, fanciful, unreasonable, or where no reasonable person would adopt

the court’s view. Id. The plaintiff bears the burden of showing reasonable diligence in the service

of process and must give a reasonable explanation for any apparent lack of diligence. Kramer v.

Ruiz, 2021 IL App (5th) 200026, ¶ 24.

¶ 17 Illinois Supreme Court Rule 103(b) states as follows:

“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 only and shall not bar any claim

against any other party based on vicarious liability for that dismissed defendant’s conduct.

The dismissal may be made on the application of any party or on the court’s own motion.

In considering the exercise of reasonable diligence, the court shall review the totality of the

circumstances, including both lack of reasonable diligence in any previous case voluntarily

dismissed or dismissed for want of prosecution, and the exercise of reasonable diligence in

obtaining service in any case refiled under section 13-217 of the Code of Civil Procedure.”

Ill. S. Ct. R. 103(b) (eff. July 1, 2007).

¶ 18 “There is no specific time limitation provided by Rule 103(b). Rather, a court must consider

the passage of time in relation to all the other facts and circumstances of each case individually.”

6 Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207, 213 (2007). When determining whether to

grant a Rule 103(b) motion, the courts consider the following nonexclusive factors: (1) the length

of time used to obtain service of process; (2) the activities of the plaintiff; (3) the plaintiff’s

knowledge of the defendant’s location; (4) the ease with which the defendant’s whereabouts could

have been ascertained; (5) special circumstances which would affect the plaintiff’s efforts; and

(6) actual service on the defendant. Id. at 212-13; see also Segal v. Sacco, 136 Ill. 2d 282, 287

(1990); Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 377 (1990). Here, the only

factor argued by the plaintiff is that a special circumstance affected the plaintiff’s efforts, i.e., that

his attorney failed to affect service.

¶ 19 The defendant cites to Karpiel v. LaSalle National Bank of Chicago, 119 Ill. App. 2d 157

(1970), in support of its argument that the circuit court did not err in dismissing the plaintiff’s

complaint. In Karpiel, the plaintiff’s attorneys admitted that they could offer no excuse for the

almost 14-month delay in serving the amended complaint on the defendants except for an office

error. Id. at 160. The Karpiel court noted that the plaintiff knew exactly where the defendants could

be served and that the failure to obtain timely service was in no way caused or contributed to by

the defendants. Id. at 161. As such, the Karpiel court declined to substitute its judgment for that of

the trier of fact and affirmed the lower court’s dismissal of the plaintiff’s complaint pursuant to

Rule 103(b). Id. at 162.

¶ 20 Other courts have also considered delays caused by a plaintiff’s counsel and, upon

consideration of all factors, affirmed the lower courts’ Rule 103(b) dismissals. See Kramer, 2021

IL App (5th) 200026, ¶ 37 (while sympathetic to the position of plaintiff’s counsel following death

of her colleague, Rule 103(b) dismissal affirmed); Sinn v. Elmhurst Medical Building, Ltd., 243

Ill. App. 3d 787, 790-91 (1993) (dispute with plaintiff’s original attorney who failed to obtain

7 service did not excuse nearly eight-month delay in service). As the court in Kramer noted, although

the prevention of intentional delay in service was a primary reason for the adoption of Rule 103(b),

the rule is not based upon the subjective test of the plaintiff’s intent, but, rather, “ ‘upon the

objective test of reasonable diligence in effecting service.’ ” Kramer, 2021 IL App (5th) 200026,

¶ 33 (quoting Cannon v. Dini, 226 Ill. App. 3d 82, 86 (1992)).

¶ 21 In this matter, as the plaintiff has acknowledged, there is no doubt that the lawsuit was not

served in a diligent fashion. The complaint was filed on June 28, 2021, and service was not

obtained until November 17, 2022, resulting in an almost 16-month delay in service. Although the

plaintiff argues that the delay should be attributed to his prior counsel alone, he has provided no

precedent that would support a determination that the failure of counsel to obtain service should

not be attributed to the plaintiff. As such, we do not find that the circuit court’s decision was

arbitrary, fanciful, unreasonable, or that no reasonable person would adopt the circuit court’s view.

Therefore, we find that the circuit court did not abuse its discretion in dismissing the plaintiff’s

complaint with prejudice for failing to exercise reasonable diligence in effecting service. Because

we have determined that dismissal was proper under Rule 103(b), we need not address the

plaintiff’s first issue of whether dismissal was proper pursuant to section 2-619 of the Code (735

ILCS 5/2-619 (West 2022)).

¶ 22 III. CONCLUSION

¶ 23 Based on the above, we affirm the judgment of the circuit court of Champaign County

dismissing the plaintiff’s complaint with prejudice.

¶ 24 Affirmed.