Sinn v. Elmhurst Medical Building, Ltd.

612 N.E.2d 932, 243 Ill. App. 3d 787, 184 Ill. Dec. 56, 1993 Ill. App. LEXIS 553
CourtAppellate Court of Illinois
DecidedApril 22, 1993
DocketNo. 2-92-0357
StatusPublished
Cited by14 cases

This text of 612 N.E.2d 932 (Sinn v. Elmhurst Medical Building, Ltd.) 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
Sinn v. Elmhurst Medical Building, Ltd., 612 N.E.2d 932, 243 Ill. App. 3d 787, 184 Ill. Dec. 56, 1993 Ill. App. LEXIS 553 (Ill. Ct. App. 1993).

Opinions

JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Vernon Sinn, appeals the circuit court’s orders dismissing his complaint against defendants Bank of Naperville, as trustee for trust No. 2626, J.V.M. Realty (J.V.M.), and Jim Madary for failure to diligently obtain service of summons and refusing to reconsider its decision. Plaintiff contends that the court abused its discretion in dismissing the action with prejudice against these three defendants.

On December 28, 1988, plaintiff allegedly slipped and fell on property at 533 West North Avenue, Elmhurst. He immediately reported the occurrence to his doctor, whose office was located on the premises, and Madary, the property manager.

On December 27, 1990, plaintiff signed a retainer contract with the law firm of Ramsell & Associates (Ramsell). On December 28, 1990, Ramsell filed a complaint on plaintiff’s behalf concerning this incident. That complaint named, among others, the three defendants who are parties to this appeal.

No summonses were issued at the time the complaint was filed. Ramsell apparently had ordered a tract search of the subject premises on January 2, 1991.

On January 21, 1991, plaintiff informed Ramsell that he no longer wished that firm to represent him. On January 24, 1991, Donald Ramsell informed plaintiff by telephone and letter that summons had not been issued and that he “must serve summons on defendants as soon as possible,” or risk losing the case. Ramsell also stated that plaintiff owed the firm $1,241 for legal services.

On March 28, 1991, the court granted Ramsell leave to withdraw as plaintiff’s counsel. On April 5, 1991, plaintiff retained the firm of Botti, Marinaccio, DeSalvo & Tameling, Ltd. (Botti), to take over the case. That same day, Botti contacted Ramsell to make arrangements to turn over the file.

Apparently a fee dispute ensued between plaintiff and Ramsell during which time Ramsell refused to release plaintiff’s file. Sometime late in May 1991, Ramsell agreed to send plaintiff the tract search upon payment of $50. On July 11, 1991, Botti sent Ramsell the $50 and received the tract search.

Plaintiff obtained an “alias summons” for defendant Bank of Naperville on August 20, 1991. The summons was served on September 3,1991.

On December 6, 1991, plaintiff obtained “alias summonses” for J.V.M. and Madary, which were served on December 16, 1991.

The bank filed an appearance and a motion to dismiss the complaint with prejudice for failure to comply with Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) regarding diligent service of summons. The court granted the motion on January 9, 1992.

Plaintiff moved the court to reconsider its January 9 ruling. Meanwhile, J.V.M. and Madary also moved to dismiss pursuant to Rule 103(b). On February 20, the court denied plaintiff’s motion to reconsider the previous ruling, granted the motion of J.V.M. and Madary to dismiss, and denied plaintiff’s oral motion to reconsider that ruling. Plaintiff filed a notice of appeal March 23,1992.

On appeal, plaintiff contends (1) the court erred in dismissing his complaint against the bank with prejudice for failure to procure diligently service of summons and (2) the court erred in dismissing his complaint against J.V.M. and Madary for the same reason.

Defendants respond that the court did not abuse its discretion in dismissing the action with prejudice where plaintiff made no attempt to serve the bank until nearly eight months after the complaint was filed and no attempt to serve J.V.M. and Madary until more than 11 months after the filing.

Supreme Court Rule 103(b) provides as follows:

“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.” 134 Ill. 2d R. 103(b).

The primary purpose of the rule is to promote the expeditious handling of lawsuits by giving the court wide discretion to dismiss when service is not effected with reasonable diligence. The rule protects defendants from unnecessary delay in service and prevents circumvention of the statute of limitations. (Segal v. Sacco (1990), 136 Ill. 2d 282, 286.) Rule 103(b) is not based upon the subjective test of plaintiff’s intent, but upon the objective test of reasonable diligence in effecting service. (Cannon v. Dini (1992), 226 Ill. App. 3d 82, 86; Penrod v. Sears, Roebuck & Co. (1986), 150 Ill. App. 3d 125, 129.) Plaintiff has the burden to show reasonable diligence in obtaining service of process. (Cannon, 226 Ill. App. 3d at 86; Schusterman v. Northwestern Medical Faculty Foundation (1990), 195 Ill. App. 3d 632, 639.) Dismissal under Rule 103(b) is within the sound discretion of the trial court. Segal, 136 Ill. 2d at 286.

Factors which a court may consider in ruling on a Rule 103(b) motion include (1) the length of time used to obtain service; (2) the activities of plaintiff; (3) plaintiff’s knowledge of defendant’s location; (4) the ease with which defendant’s whereabouts could have been ascertained; (5) actual knowledge on the part of defendant of the pendency of the action as the result of ineffective service; (6) special circumstances which would affect plaintiff’s efforts; and (7) actual service on defendant. Womick v. Jackson County Nursing Home (1990), 137 Ill. 2d 371, 377; Segal, 136 Ill. 2d at 287.

Plaintiff contends that applying these factors to the instant case leads to the conclusion that the court abused its discretion in dismissing the action against the bank. Plaintiff contends that the length of time required to effect service, 7 months and 23 days, is not as long as some other cases in which courts found reasonable diligence. He claims he became embroiled in a dispute with his original attorneys who failed to serve defendants and thereafter “held hostage” his file. After his original attorneys withdrew, he “immediately” obtained new counsel, who proceeded to conduct an investigation to determine who were proper parties. Plaintiff contends: “Once Bank of Naperville was determined to be the owner of the property where Plaintiff was injured *** Summons was issued.”

Plaintiff also contends that since he immediately reported the incident, defendant had actual notice of the action. Moreover, plaintiff contends that “special circumstances” existed due to the conflict with his former attorneys and the illness of his mother during the pendency of the suit.

We cannot agree that the circuit court abused its discretion in dismissing the bank from the case under these circumstances. Contrary to plaintiff’s assertion, the record does not reveal reasonable diligence in obtaining service against the bank. Rather, the record shows the following. Plaintiff filed his complaint the day the statute of limitations was to run. Shortly thereafter, a dispute developed between plaintiff and his attorneys. Although plaintiff “fired” Ram-sell on January 21, Ramsell did not obtain leave to withdraw until March 28, and plaintiff did not consult Botti until April 5.

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Bluebook (online)
612 N.E.2d 932, 243 Ill. App. 3d 787, 184 Ill. Dec. 56, 1993 Ill. App. LEXIS 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sinn-v-elmhurst-medical-building-ltd-illappct-1993.