Carman-Crothers v. Brynda

2014 IL App (1st) 130280, 23 N.E.3d 487

• Court: Appellate Court of Illinois
• Decided: December 2, 2014
• Docket: 1-13-0280
• Status: Unpublished

Opinion

2014 IL App (1st) 130280 No. 1-13-0280 December 2, 2014

SECOND DIVISION

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

KELLI CARMAN-CROTHERS, ) ) Plaintiff-Appellant, ) Appeal from the ) Circuit Court of v. ) Cook County. ) JOSEPH A. BRYNDA, ) ) No. 11 L 650050 Defendant-Appellee ) ) Honorable (Susan J. Carrano, ) Janet Brosnahan, ) Judge Presiding. Defendant). )

______________________________________________________________________________

JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Simon and Justice Pierce concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Kelli Carman-Crothers, appeals from an order of the trial court dismissing her

complaint with prejudice for failing to exercise reasonable diligence to obtain service on

defendant, Joseph Brynda. On appeal, plaintiff contends that she exercised reasonable diligence 1-13-0280

in her attempts to serve defendant because she attempted to serve defendant multiple times at

three addresses and ultimately served defendant.

¶2 We find that the trial court did not abuse its discretion when it found that plaintiff's

explanation for the 10-month delay in serving the defendant was unreasonable. Therefore, we

hold that the trial court did not err when it dismissed the plaintiff's complaint with prejudice

pursuant to Illinois Supreme Court Rule 103(b)(eff. July 1, 2007).

¶3 BACKGROUND

¶4 The record reveals that on November 4, 2009, a vehicle operated by defendant struck a

pedestrian and a vehicle operated by plaintiff. The accident report listed defendant's address as

20017 Graceland Lane in Frankfort, Illinois (Graceland Lane).

¶5 On November 2, 2011, plaintiff filed a personal injury complaint against defendant and

codefendant Susan Carrano. 1 Plaintiff also issued a summons for service on defendant at the

Graceland Lane address. Service was unsuccessfully attempted three times at this address. The

process server's affidavit indicated that the house was vacant and that defendant may be living in

Willow, Illinois or New York.

¶6 On March 14, 2012, plaintiff issued an alias summons for service on defendant at the

Graceland Lane address. On March 28, 2012, an affidavit of nonservice was completed by a

process server which averred that Graceland Lane was no longer a "valid" address. In May

2012, plaintiff issued a second alias summons for service on defendant at 7711 West Roeland

Court in Frankfort, Illinois (Roeland Court). A subsequent affidavit of nonservice completed by

a process server averred that the Roeland Court address was no longer a "valid" address. In July,

1 Codefendant, the owner of the car defendant was operating at the time of the accident, is not a party to this appeal. -2- 1-13-0280

the court granted plaintiff leave to issue a fourth alias summons for service on defendant and

appointed Kevin O'Boyle as a special process server. 2 Plaintiff then issued a fourth alias

summons for defendant at the Roeland Court address. The next month, plaintiff issued a fifth

alias summons for defendant at the Roeland Court address. In September 2012, plaintiff

obtained leave to file a sixth alias summons, and defendant was subsequently served at the

Vienna Correctional Center in Vienna, Illinois.

¶7 In October 2012, defendant moved to dismiss plaintiff's complaint due to lack of diligent

service pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). The motion alleged

that because plaintiff failed to exercise diligence in effectuating service upon defendant and

because the applicable statute of limitations for the instant personal injury action had expired, the

complaint should be dismissed with prejudice. The motion further alleged that defendant had

been confined in either the Cook County jail or the Vienna Correctional Center since November

18, 2010, and that three causes of action against defendant arising out of the 2009 accident had

already been initiated, litigated, and resolved.

¶8 In her response to the motion to dismiss, plaintiff alleged that she acted with diligence

when she reasonably relied upon the address defendant provided on the accident report and

attempted to serve him there immediately after filing the instant cause of action. Plaintiff also

alleged that defendant should have expected service from her because he was served by other

parties involved in the accident and that defendant's incarceration created a "special

circumstance" that affected her ability to serve him.

¶9 The trial court subsequently granted defendant's motion and dismissed plaintiff's

complaint with prejudice pursuant to Rule 103(b), because, inter alia, defendant's location was

2 The record does not contain a third alias summons. -3- 1-13-0280

"easily ascertainable" and plaintiff issued several alias summonses to an address that was

reported invalid in May 2012. The court also noted that plaintiff did not show any actual

attempts at service for the period of May through September 2012 or measures, such as skip

traces or Internet searches, to determine defendant's whereabouts.

¶ 10 ANALYSIS

¶ 11 On appeal, plaintiff contends that the trial court erred in dismissing her complaint

because she exercised reasonable diligence in her attempts to serve defendant and was ultimately

able to serve defendant. Specifically, plaintiff argues that she attempted service on defendant

seven times at three addresses, including three attempts immediately after filing the instant

action. Plaintiff further argues that based upon the other causes of action against defendant

arising out of the 2009 accident, defendant knew or should have known about the instant cause

of action. Plaintiff finally argues that defendant's "physical transience" was a special

circumstance affecting her ability to serve him.

¶ 12 Whether an action should be dismissed for lack of diligent service pursuant to Rule

103(b) is a decision that rests within the sound discretion of the trial court (Segal v. Sacco, 136

Ill. 2d 282, 286 (1990)), and the court's ruling will not be disturbed on review absent an abuse of

that discretion. Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207, 213 (2007). An abuse of

discretion will be found where the trial court's decision is arbitrary, unreasonable, or where no

reasonable person would adopt the court's view. Emrikson v. Morfin, 2012 IL App (1st) 111687,

¶ 14.

¶ 13 Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) states "[i]f 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." Our supreme

-4- 1-13-0280

court has held that the purpose of Rule 103(b) is to protect defendants from unnecessary delays

in receiving service of process and to prevent plaintiffs from circumventing the statute of

limitations. Segal, 136 Ill. 2d at 286. Rule 103(b) does not provide a specific time by which a

defendant must be served; rather, a court must consider the amount of time that has passed in

relation to all the other facts and circumstances of each individual case. Case, 227 Ill. 2d at 213;

see Long v. Elborno, 376 Ill. App. 3d 970, 980 (2007) (seven-month delay showed a lack of

reasonable diligence).

¶ 14 When moving for dismissal pursuant to Rule 103(b), a defendant must make a prima

facie showing that the plaintiff failed to act with reasonable diligence in effectuating service after

filing the complaint. Emrikson, 2012 IL App (1st) 111687, ¶ 17. The trial court evaluates

whether the defendant has made this showing on a case-by-case basis. Kole v. Brubaker, 325 Ill.

App. 3d 944, 949 (2001). Once the defendant shows that the length of time between the filing of

the complaint and the date of service suggests a lack of diligence, the burden shifts to the

plaintiff to provide a reasonable explanation for the delay. Emrikson, 2012 IL App (1st) 111687,

¶ 17. To meet this burden, the plaintiff must present an affidavit or other evidentiary materials

which show that the delay in service was reasonable and justified under the circumstances. Kole,

325 Ill. App. 3d at 949-50. If the plaintiff fails to provide a reasonable explanation for the delay,

the court may dismiss the action against the defendant pursuant to Rule 103(b). Emrikson, 2012

IL App (1st) 111687, ¶ 17.

¶ 15 The trial court may consider several factors when evaluating a motion to dismiss pursuant

to Rule 103(b), including: (1) the length of time the plaintiff used to obtain service of process;

(2) the plaintiff's activities during that time; (3) the plaintiff's knowledge of the defendant's

location; (4) the ease with which the plaintiff could have ascertained the defendant's

-5- 1-13-0280

whereabouts; (5) whether the defendant had actual knowledge of the pending action; (6) any

special circumstances that affected the plaintiff's efforts; and (7) whether the defendant was

actually served. Segal, 136 Ill. 2d at 287.

¶ 16 Here, we find that defendant made a prima facie showing that plaintiff failed to act with

reasonable diligence in effectuating service upon him. Plaintiff filed her complaint in November

2011, and defendant was not served until September 2012, 10 months later. This 10-month delay

suggested a lack of diligence, and the burden then shifted to plaintiff to provide a satisfactory

explanation for this delay. See Emrikson, 2012 IL App (1st) 111687, ¶ 19 (a time period of as

little as five months between the filing of a complaint and subsequent service is sufficient to

make the prima facie showing).

¶ 17 Our review of the record reveals that plaintiff has failed to meet this burden. Although

plaintiff correctly argues that she obtained a summons and multiple alias summonses following

the filing of the complaint and attempted to serve defendant at three different addresses, the

record also reflects that plaintiff continued to attempt to serve defendant at addresses after they

were characterized as vacant or no longer valid by process servers. Specifically, after service

was unsuccessfully attempted at the Graceland Lane address in November 2011 and the process

server's affidavit indicated that the house was vacant, plaintiff obtained an alias summons and

again attempted to serve defendant at that address. With regard to the Roeland Court address,

plaintiff obtained a fourth and fifth alias summons for defendant at that address, even after an

affidavit of nonservice averred that the address was no longer valid. The record does not contain

affidavits of nonservice for those summonses. Plaintiff offers no explanation for her continued

attempts to serve defendant at addresses that her own process servers deemed not valid; rather,

-6- 1-13-0280

she argues that she exercised due diligence when she attempted to serve defendant at the address

listed on the accident report.

¶ 18 Here, the accident report was generated in 2009, and the instant suit was filed in 2011.

Contrary to plaintiff's argument on appeal that defendant's "physical transience" created a special

circumstance that made it difficult to locate and serve defendant, it is reasonably foreseeable that

a person might move during a two-year period. The discovery that the address listed on an

accident report is no longer valid does not relieve a plaintiff of the obligation to take further

appropriate actions to locate the defendant. See Alsobrook v. Cote, 133 Ill. App. 2d 261, 264-65

(1971). In any event, although a plaintiff's failure to consult the accident report is an important

factor to consider when determining diligence, or lack thereof (Emrikson, 2012 IL App (1st)

111687, ¶ 23), a plaintiff must do more than merely attempt to serve the defendant at the address

listed in the accident report in order to establish reasonable diligence.

¶ 19 Alsobrook v. Cote, 133 Ill. App. 2d 261 (1971), is instructive. There, after the plaintiff

unsuccessfully attempted to serve the defendant at the address listed on the accident report, the

only further efforts that the plaintiff's counsel took over the next two years were to write two

letters and look for the defendant in eight telephone directories. Alsobrook, 133 Ill. App. 2d at

264-65. The court found that plaintiff's efforts did not reflect reasonable diligence after

considering the fact that the plaintiff consulted the accident report to determine the defendant's

address as well as the fact that after the unsuccessful service attempt at the address on the

accident report, the plaintiff did not take appropriate further action to locate the defendant. Id. at

265-66.

-7- 1-13-0280

¶ 20 Similarly here, once plaintiff learned that the addresses she had obtained for defendant,

including the one listed in the accident report, were not valid, plaintiff continued to obtain alias

summonses for those addresses rather than taking appropriate further action to locate defendant.

¶ 21 As to the remaining factors that the trial court may consider when ruling on a Rule 103(b)

motion, although it is true that defendant was ultimately served, this court rejects plaintiff's

contention that defendant knew or should have known of the instant suit because the record

contains no evidence to suggest that defendant knew of the instant cause of action. Even if this

court was to accept plaintiff's assertion that defendant knew or should have known about the

instant case prior to being served because of the other cases, that knowledge does not necessarily

preclude dismissal pursuant to Rule 103(b). See Polites v. U.S. Bank National Ass'n, 361 Ill.

App. 3d 76, 86 (2005) (the fact that a defendant "had notice of the lawsuit before being served

did not preclude dismissal under Rule 103(b)”).

¶ 22 In this case, after reviewing all the factors and considering the totality of the

circumstances, we do not find that the trial court abused its discretion when it found plaintiff's

explanation for the 10-month delay in serving the defendant was unreasonable. Emrikson, 2012

IL App (1st) 111687, ¶¶ 14, 17. Therefore, we hold that the trial court did not err when it

dismissed plaintiff's complaint with prejudice pursuant to Rule 103(b). Segal, 136 Ill. 2d at 286.

¶ 23 Accordingly, the judgment of the circuit court of Cook County is affirmed.

¶ 24 Affirmed.

-8-