Matthews v. Donnelly

639 N.E.2d 193, 203 Ill. Dec. 154, 265 Ill. App. 3d 1016
CourtAppellate Court of Illinois
DecidedAugust 18, 1994
Docket1-93-2426
StatusPublished
Cited by8 cases

This text of 639 N.E.2d 193 (Matthews v. Donnelly) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matthews v. Donnelly, 639 N.E.2d 193, 203 Ill. Dec. 154, 265 Ill. App. 3d 1016 (Ill. Ct. App. 1994).

Opinion

JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs appeal from an order of the circuit court granting the motion of defendant Dr. Scott Donnelly to dismiss pursuant to Illinois Supreme Court Rule 103(b). (134 111. 2d R. 103(b).) On appeal, plaintiffs contend the trial court abused its discretion in dismissing defendant from their cause of action with prejudice because the evidence did not reveal a lack of reasonable diligence in their attempts to serve the defendant.

On September 16, 1990, plaintiffs filed a complaint alleging that defendant, among others, committed medical malpractice in the treatment of the deceased on or about August 22, 1988. On October 25, 1990, plaintiffs obtained summons and served it upon the codefendant hospital on October 30, 1990. On March 7, 1991, plaintiffs filed special interrogatories asking the hospital for the proper names and last known addresses of members of the hospital staff including defendant. On April 1, 1991, at the court’s progress call, the court ordered the hospital to answer plaintiffs’ discovery within 28 days. On February 5, 1992, plaintiffs filed a motion to compel the hospital to answer special interrogatories within 28 days. In March of 1992 the hospital complied and on April 9, 1992, plaintiffs filed a summons for the defendant with instructions to serve him at the hospital. On April 27, 1992, after six previously unsuccessful attempts at service, defendant was served. However, at a hearing on August 6, 1992, the court ruled that while the sheriff’s return indicated that the defendant, via telephone, had instructed the sheriff to leave the summons with the risk manager of the hospital, service was not personal and thus could not withstand defendant’s motion to quash service. Accordingly, the court granted defendant’s motion to quash service and granted plaintiffs leave to issue an alias summons. On August 24, 1992, plaintiffs issued an alias summons, and on September 8, 1992, a completed return of service indicated that service had not been accomplished. In October of 1992 a third alias summons was issued and defendant was served at his home on November 7, 1992.

During the hearing on the defendant’s subsequent motion to dismiss the court stated:

"My understanding of the law is that the question of reasonable diligence under 103(b) starts from the filing of the complaint, not from the filing — not from the running of the statute of limitations.
Two sentences in 103(b) do differ whether the statute of limitations has run or not but the end of the sentence says that if the statute of limitations has not run, the dismissal is without prejudice. If the statute of limitations has run the dismissal is with prejudice.
I don’t think the question is counting the time from the statute of limitations to service. Hence, I’m looking at the period of time from September 16, 1990, to April 9, 1992 or till April 27, 1992, when the disputed service was served on Doctor Don[n]el[l]y.
Since the statute of limitations has run I will dismiss the case with prejudice.”

On appeal, plaintiffs contend the trial court erred in granting defendant’s motion to dismiss pursuant to Supreme Court Rule 103(b). First, plaintiffs argue the trial court erred in considering their diligence or lack thereof prior to the expiration of the applicable statute of limitations in determining whether or not dismissal with prejudice under Supreme Court Rule 103(b) was appropriate. Plaintiffs argue that the rule addresses lack of diligence in two separate time frames: (1) failure to exercise reasonable diligence prior to the expiration of the statute of limitations, and (2) failure to exercise reasonable diligence after the expiration of the applicable statute of limitations. Plaintiffs contend that only a failure to exercise reasonable diligence after the expiration of the applicable statute of limitations results in a dismissal with prejudice. Accordingly, plaintiffs argue that the trial court’s consideration of the plaintiffs’ diligence or lack thereof in obtaining service prior to the expiration of the statute of limitations was error. We agree.

•1 Supreme Court Rule 103(b) provides:

"If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute 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).)

The commentary to Supreme Court Rule 103(b) states:

"Paragraph (b) was *** revised in 1969 to provide that a dismissal with prejudice shall be entered only when the failure to exercise due diligence to obtain service occurred after the expiration of the applicable statute of limitations. Prior to the expiration of the statute, a delay in service does not prejudice a defendant.” (Emphasis added.) (134 Ill. 2d R. 103, Committee Comments.)

The plain language of Rule 103(b), as noted in the Comments, authorizes dismissal with prejudice only when the plaintiff fails to exercise reasonable diligence to obtain service after the expiration of the applicable statute of limitations. (134 Ill. 2d R. 103, Committee Comments.) If the failure occurs before the running of the statute, the dismissal is without prejudice. If the failure occurs after the running of the statute, the dismissal is with prejudice. See Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932.

Accordingly, we find that in determining whether or not a defendant may be dismissed with prejudice under Rule 103(b), the crucial inquiry is whether or not an examination of the plaintiff’s actions following the expiration of the statute of limitations reveals a failure to exercise reasonable diligence. This approach was adopted by the Fifth District Appellate Court in Langford v. Sentry Insurance of Illinois, Inc. (1990), 193 Ill. App. 3d 386, 549 N.E.2d 951, where the court stated:

"In ruling on a Rule 103(b) motion, a court may not consider the period or activities before the expiration of the statute of limitations. ***
A public policy inherent in the rule and its application is to encourage the process of discovery before trial when the claim is not yet stale. To indicate that a court could consider the time and actions before the running of the statute would encourage the filing of claims at the tail end of the statute of limitations so the prestatute time would not be held against a plaintiff. This is clearly contrary to the policy and intent of the rule.” (Langford v. Sentry Insurance of Illinois, Inc., 193 Ill. App. 3d at 388-89.)

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Cite This Page — Counsel Stack

Bluebook (online)
639 N.E.2d 193, 203 Ill. Dec. 154, 265 Ill. App. 3d 1016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matthews-v-donnelly-illappct-1994.