Thompson v. Piercy

• Court: Appellate Court of Illinois
• Decided: April 14, 2026
• Docket: 1-25-1160
• Status: Unpublished

Opinion

2026 IL App (1st) 251160-U

SECOND DIVISION April 14, 2026

No. 1-25-1160

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

GREGORY T. THOMPSON, as Beneficiary of the Betty Jane ) Appeal from the Coffman Lill Revocable Trust Dated August 4, 2003, ) Circuit Court of ) Cook County Plaintiff-Appellant, ) ) v. ) No. 2025 L 000151 ) KENNETH A. PIERCEY and PIERCEY & ASSOCIATES, LTD., ) Honorable ) Jerry A. Esrig, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE D.B. WALKER delivered the judgment of the court. Presiding Justice Van Tine and Justice Ellis concurred with the judgment.

ORDER

¶1 Held: We affirm the trial court’s dismissal of plaintiff’s legal malpractice complaint where plaintiff did not exercise diligence in serving defendants pursuant to Rule 103(b).

¶2 Plaintiff Gregory T. Thompson appeals the trial court’s judgment dismissing his legal

malpractice complaint against defendants, Kenneth A. Piercey and Piercey & Associates, Ltd. In

dismissing the case with prejudice, the trial court found that plaintiff failed to exercise reasonable

diligence to obtain service on defendants. On appeal, plaintiff contends that the trial court abused No. 1-25-1160

its discretion in dismissing his complaint where (1) defendants were not prejudiced by the delay

in service; (2) considering the totality of the circumstances, plaintiff acted with reasonable

diligence; and (3) plaintiff had a statutory right to effectively extend the statute of limitations by

voluntarily dismissing his case, and he served defendants shortly after refiling his case. For the

following reasons, we affirm.

¶3 I. BACKGROUND

¶4 Defendants provided plaintiff’s mother, Betty Jane Coffman (a/k/a Betty Jane Coffman

Lill) with estate planning services for more than 20 years. During that time, defendants prepared

the Betty Jane Coffman Revocable Trust Agreement (trust agreement), which Ms. Coffman

executed on August 14, 2003. The trust gifted specific real property to each of Ms. Coffman’s

three children: plaintiff, Donna Jean Perkowski, and Homer Coffman.

¶5 In 2013, defendants drafted the operating agreement for Tyre Properties, LLC, of which

Ms. Coffman was the sole member. She executed this agreement on March 18, 2013. The operating

agreement provided for the distribution of the same real properties addressed by the trust.

¶6 On May 1, 2013, Ms. Coffman executed an amendment of the trust agreement prepared by

defendants. Ms. Coffman subsequently executed three more amendments, each drafted by

defendants. The final amendment, executed by Ms. Coffman on October 3, 2019, changed the

disposition of one of her properties from Donna to plaintiff. This disposition differed from the

distribution set forth in Tyre’s operating agreement.

¶7 Ms. Coffman died on September 4, 2021. On April 22, 2022, Donna filed a complaint in

chancery court against plaintiff and Homer seeking a declaration as to whether the trust agreement

or the operating agreement controlled the distribution of Ms. Coffman’s properties. Donna served

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subpoenas upon defendants for all their records related to Ms. Coffman and for deposition

testimony of certain attorneys, paralegals and clerks.

¶8 On August 31, 2023, while Donna’s case was pending, plaintiff filed a complaint against

defendants alleging legal malpractice. The complaint alleged that defendants breached their

standard of care when they drafted amendments to the trust agreement without similarly amending

the operating agreement, where both agreements addressed the disposition of the same properties.

Plaintiff never caused summons to issue and defendants were not served with the complaint. On

January 11, 2024, plaintiff made an oral motion to voluntarily dismiss the complaint pursuant to

section 2-1009(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009(a) (West 2024)).

The trial court granted the motion to dismiss without prejudice and with leave to reinstate.

¶9 On March 28, 2024, the parties entered into a settlement agreement regarding Donna’s

cause of action. Pursuant to the agreement, Donna’s complaint was dismissed with prejudice, and

plaintiff was to take all steps necessary to deliver the title and interest in the Iowa property as set

forth in the agreement.

¶ 10 On January 6, 2025, plaintiff refiled his legal malpractice complaint. Plaintiff caused

summons to issue on January 7, 2025, and on January 22, 2025, defendants were served with the

complaint.

¶ 11 On March 6, 2025, defendants filed a motion to dismiss plaintiff’s complaint pursuant to

Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). Defendants alleged that plaintiff failed to

exercise due diligence in obtaining service on them. After briefing by the parties and oral

argument, the trial court granted the motion to dismiss with prejudice.

¶ 12 In dismissing the action, the trial court made the following findings: (1) the “overall length

of time” used to obtain service on defendants “was 149 countable days or approximately five

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months;” (2) plaintiff made no effort during the first 133 countable days to serve defendants; (3)

defendants’ location was “easily ascertainable,” and plaintiff knew their location when he filed the

original complaint; (4) there was no evidence defendants knew of the complaint before being

served in January 2025; (5) no special circumstances existed that would have affected plaintiff’s

ability to serve defendants during the pendency of the original action; (6) the statute of limitations

commenced no later than September 4, 2021, and expired no later than September 4, 2023; and (7)

plaintiff did not exercise reasonable diligence to obtain service on defendants. The trial court

further found that

“plaintiff’s failure to serve the defendant was not the result of negligence, inadvertence or

inattention. Rather, plaintiff admits that [he] intentionally decided not to serve defendant

as a matter of strategic choice given the pendency of the underlying litigation, its uncertain

outcome and the relation of the outcome in the underlying case to the viability of this case.

While the court understands plaintiff’s motivation, the court finds plaintiff was not justified

in deliberately withholding service of process and therefore notification of the pending

action from defendants ***. The court finds that the purpose behind Rule 103(b) is to

prevent both significant delays in service of process, whether strategic and deliberate, or

the result of negligence or inattention. Segal v. Sacco, 136 Ill. 2d 282, 286-87 (1990).”

¶ 13 Plaintiff filed this appeal.

¶ 14 II. ANALYSIS

¶ 15 Plaintiff first contends that dismissal of his complaint pursuant to Rule 103(b) was

improper where the trial court never determined whether defendants were prejudiced by the delay

in service. Plaintiff argues that pursuant to Segal, dismissal was not justified where defendants

“were well aware of the facts and circumstances giving rise to the malpractice allegations,” and

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thus they were not prejudiced in their ability to investigate the circumstances of their liability while

the facts remained accessible.

¶ 16 In Segal, the plaintiff filed a complaint alleging assault by deputy sheriffs but did not place

the complaint for service until 19 weeks later. Segal, 136 Ill. 2d at 284. Plaintiff explained that he

had “inadvertently forgot[ten]” to place the summons for service and upon realizing the omission,

he moved for leave to appoint a special process server. Id. at 287. Our supreme court agreed that

dismissal of the action with prejudice was not appropriate where the delay was unintentional, the

plaintiff was not undermining or attempting to circumvent the statute of limitations, and there was

“no indication” that the 19-week delay caused the evidence “to grow stale.” Id. at 288. The court

held that dismissal under these circumstances would not serve the purposes of Rule 103(b) to

protect defendants from unnecessary delays and prevent the circumvention of the statute of

limitations. Id. at 289.

¶ 17 Our supreme court found that prejudice caused by the delay in service was but one factor

for the trial court to consider when deciding whether to dismiss an action under Rule 103(b).

Moreover, the fact that a defendant had actual notice of the allegations prior to being served is not

sufficient to preclude dismissal where there is evidence of the plaintiff’s “obvious lack of

diligence.” Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 381 (1990); see also Mular

v. Ingram, 2015 IL App (1st) 142439, ¶ 21 (noting that while the existence of prejudice is a relevant

consideration, the lack of prejudice will not preclude dismissal if reasonable diligence has not been

shown). Therefore, the trial court’s mere failure to find whether defendants were prejudiced by the

delay did not render its dismissal order improper.

¶ 18 Plaintiff also contends that, given the totality of the circumstances, he acted with reasonable

diligence to serve summons on defendants. Therefore, dismissal pursuant to Rule 103(b) was

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inappropriate. The trial court has wide discretion to dismiss a complaint when a plaintiff has not

shown reasonable diligence in effecting service, and we review the trial court’s determination for

an abuse of that discretion. Segal, 136 Ill. 2d at 285-86. An abuse of discretion occurs when no

reasonable person would take the view adopted by the trial court. Fennell v. Illinois Central

Railroad Co., 2012 IL 113812, ¶ 21.

¶ 19 Rule 103(b) provides:

“Dismissal for Lack of Diligence. 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).

¶ 20 By adopting Rule 103(b), our supreme court recognized that due diligence in serving

process was essential to the prompt and fair rendering of justice because “it is the sole legally

sufficient means of alerting defendants to the pendency of a civil suit.” O’Connell v. St. Francis

Hospital, 112 Ill. 2d 273, 282 (1986). The rule thus requires a plaintiff to exercise reasonable

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diligence in obtaining service in order “to protect a defendant from unnecessary delay in the service

of process and to prevent the plaintiff from circumventing the applicable statute of limitations,

which is designed to afford the defendant a fair opportunity of investigation.” Kole v. Brubaker,

325 Ill. App. 3d 944, 949 (2001).

¶ 21 In moving for dismissal under Rule 103(b), defendants must first make a prima facie

showing that plaintiff failed to exercise reasonable diligence in effectuating service after filing

suit. Id. at 949. Once defendants make that showing, the burden shifts to plaintiff to show that he

exercised reasonable diligence. Id. at 949–50.

¶ 22 Here, the trial court found that plaintiff filed his original legal malpractice complaint less

than a week before the statute of limitations expired on September 4, 2023. It further found that

the applicable length of time used to obtain service on defendants was “149 countable days or

approximately five months,” and that plaintiff made no effort during the first 133 days to serve

defendants. Courts have upheld dismissals pursuant to Rule 103(b) where the plaintiff made no

effort to serve the defendant for a significant period of time after the statute of limitations had

expired. See Womick, 137 Ill. 2d at 380 (finding no evidence of diligence where the plaintiff “made

no attempt to place summons for a period of almost nine months after the expiration of the statute

of limitations”); O’Connell, 112 Ill. 2d at 282 (finding a lack of due diligence where the plaintiff

filed his complaint on the last day before the statute of limitations expired and waited eight months

before attempting service of process). Defendants thus made a prima facie showing that plaintiff

failed to exercise reasonable diligence, and plaintiff must show that he exercised reasonable

diligence given the totality of the circumstances. Kole, 325 Ill.App.3d at 949–50.

¶ 23 Factors to consider when ascertaining a plaintiff’s diligence include, but are not limited to:

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

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knowledge of defendant’s location; (4) whether defendant’s location could be ascertained with

ease; (5) defendant’s actual knowledge of the pendency of the action; (6) special circumstances

that would affect plaintiff’s efforts; and (7) actual service on defendant. Case v. Galesburg Cottage

Hospital, 227 Ill. 2d 207, 212-13 (2007). The specific amount of time that has passed is not

determinative. “Rather, a court must consider the passage of time in relation to all the other facts

and circumstances of each case individually.” Id. at 213. When a claim is voluntarily dismissed

and then refiled, courts do not consider the time that elapsed between the dismissal and the refiling

in calculating the amount of time for purposes of Rule 103(b). Id. at 222.

¶ 24 The plain language of Rule 103(b) states that dismissal is proper when a plaintiff “fails to

exercise reasonable diligence to obtain service on a defendant.” Ill. S. Ct. R. 103(b) (eff. July 1,

2007). Rule 103(b) is not concerned with subjective reasons for delaying service. Lewis v. Dillon,

352 Ill. App. 3d 512, 518 (2004). Rather, “the standard used in resolving a Rule 103(b) motion is

an objective test of reasonable diligence in effecting service.” Id.

¶ 25 Here, the trial court found that “plaintiff’s failure to serve the defendant was not the result

of negligence, inadvertence or inattention. Rather, plaintiff admits that [he] intentionally decided

not to serve defendant as a matter of strategic choice ***.” The record shows that plaintiff

intentionally did not serve summons to defendants for 133 days before he voluntarily dismissed

the action. He made no effort to effectuate service even though defendants’ location was “easily

ascertainable,” and plaintiff knew of their location when he filed the original complaint. The statute

of limitations expired on September 4, 2023. After voluntarily dismissing and then refiling the

complaint, plaintiff caused summons to issue on January 7, 2025, and defendants were served on

January 22, 2025, sixteen months after the limitations period expired. The trial court found that no

special circumstances affected plaintiff’s ability to serve defendants during the pendency of the

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original action. It therefore concluded that plaintiff did not exercise reasonable diligence to obtain

service on defendants.

¶ 26 Plaintiff argues that he had a reasonable explanation for the delay in that he was awaiting

the conclusion of ongoing chancery proceedings. Plaintiff contends that he filed the complaint to

preserve his cause of action, and after filing, he focused his efforts on the chancery proceeding

because if it resolved in his favor, his malpractice complaint would be rendered moot. When it

became clear that the chancery case would not “conclude in a reasonable amount of time,” plaintiff

voluntarily dismissed the malpractice case with a right to refile within a year. Plaintiff contends

that he timely refiled the malpractice action on January 6, 2025, and caused summons to issue on

January 7, 2025. Defendants were served on January 22, 2025. Plaintiff argues that given the

totality of the circumstances, he acted with reasonable diligence to serve summons on defendants.

¶ 27 While plaintiff has provided an explanation for his delay in serving summons, courts have

found that the purposes of Rule 103(b) are not well-served when a plaintiff files suit just before

the limitations period expired but then “tak[es] no action to have the defendants served until the

plaintiff is ready to proceed with the litigation.” Kole, 325 Ill. App. 3d at 949. Plaintiff argues that

the Code gives him the statutory right to extend the statute of limitations by one year through a

voluntary dismissal, and he should not be faulted for exercising that right. However, the

availability of this statutory right does not relieve plaintiff of his independent duty under Rule

103(b) to exercise diligence in serving defendants in the first place. It is well-established that taking

a voluntary dismissal does not insulate plaintiff from any lack of diligence that occurred prior to

the dismissal. Case, 227 Ill. 2d at 219.

¶ 28 In this case, plaintiff could have timely served defendants and then moved to stay the

proceedings pending resolution of the chancery case. He would not have to pursue a potentially

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moot claim, and defendants would have been given a fair opportunity to investigate the claim or

any defenses they may have. Instead, plaintiff filed the malpractice claim against defendants,

intentionally chose not to serve them, and then voluntarily dismissed the action after four months.

He refiled the action approximately one year later, and nine months after the parties settled in the

chancery case. Defendants did not know that plaintiff had filed a malpractice claim against them

until they were served on the refiled complaint, sixteen months after the statute of limitations had

expired. In assessing a plaintiff’s diligence, courts may consider the “overall span of time between

the filing of the first complaint and the ultimate service of summons in the second case.” Case,

227 Ill. 2d at 214. The trial court found that plaintiff failed to exercise reasonable diligence to

obtain service on defendants. Considering the totality of the circumstances, we cannot say that the

trial court’s determination was so arbitrary or unreasonable that no reasonable person would adopt

the trial court’s view. We find that the trial court did not abuse its discretion in dismissing

plaintiff’s complaint under Rule 103(b).

¶ 29 III. CONCLUSION

¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 31 Affirmed.

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