2024 IL App (1st) 231907-U
No. 1-23-1907
Order filed November 22, 2024
FIFTH DIVISION
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
KENNETH WILKEY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 19 L 66031 ) FOREST VIEW MOBILE HOME PARK, INC., ) Honorable ) Michael B. Barrett, Defendant-Appellee. ) Judge, presiding.
JUSTICE MITCHELL delivered the judgment of the court. Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.
ORDER
¶1 Held: The circuit court’s grant of defendant’s motion to dismiss under Illinois Supreme Court Rule 103(b) is affirmed where the record on appeal is insufficient to determine whether the circuit court abused its discretion in granting the motion to dismiss.
¶2 Plaintiff Kenneth Wilkey appeals the circuit court’s grant of defendant Forest View Mobile
Home Park, Inc.’s motion to dismiss pursuant to Illinois Supreme Court Rule 103(b). Ill. S. Ct. R.
103(b) (eff. July 1, 2007). The issue on appeal is whether the circuit court abused its discretion in
granting Forest View’s motion to dismiss despite special circumstances that prevented service of
process on Forest View for over three years. For the following reasons, we affirm. No. 1-23-1907
¶3 I. BACKGROUND
¶4 On June 12, 2017, plaintiff Kenneth Wilkey was allegedly injured by an explosion caused
by a gas leak inside his mobile home. On June 11, 2019, one day before the statute of limitations
expired (735 ILCS 5/13-202 (West 2018)), Wilkey filed a complaint against defendants Forest
View Mobile Home Park, Inc., Northern Illinois Gas Company d/b/a Nicor Gas Company, Aaron’s
Inc., and Cassandra Hunt. In his complaint, Wilkey alleged that defendants’ negligence caused the
gas leak, explosion, and his injuries.
¶5 While summons were issued against the defendants, none were placed for service of
process with the Cook County Sheriff’s Office or a special process server. Over a period of almost
four years, no alias summons were issued and the case was continued over a dozen times. In April
2023, Wilkey fired his attorney and obtained new counsel, who promptly sent out alias summons
to all defendants via a special process server. Wilkey obtained service on Forest View on May 8,
2023.
¶6 Nicor and Aaron’s filed motions to dismiss pursuant to Illinois Supreme Court Rule 103(b),
which were granted. Forest View filed its own motion to dismiss pursuant to Rule 103(b), arguing
that Wilkey had failed to exercise reasonable diligence in serving summons upon it. In response,
Wilkey argued that there were special circumstances that justified the extensive delay in obtaining
service on Forest View: the fraudulent misconduct of Wilkey’s original attorney. After a hearing,
the circuit court granted Forest View’s motion, dismissing it from the action with prejudice
pursuant to Rule 103(b). This timely appeal followed. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).
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¶7 II. ANALYSIS
¶8 Wilkey argues that the circuit court abused its discretion in granting Forest View’s motion
to dismiss pursuant to Illinois Supreme Court Rule 103(b) because special circumstances justified
the extensive delay in service of process on Forest View.
¶9 Rule 103(b) states that if a plaintiff’s “failure to exercise reasonable diligence to obtain
service on a defendant occurs after the expiration of the applicable statute of limitations,” then the
action as to that defendant may be dismissed with prejudice. Ill. S. Ct. R. 103(b). “In considering
the exercise of reasonable diligence, the court shall review the totality of the circumstances.” Id.
Therefore, when ruling on a motion to dismiss pursuant to Rule 103(b), a court may consider
factors including, but not limited to: (1) the length of time used to obtain service of process; (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 the
defendant of pendency of the action as a result of ineffective service; (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).
¶ 10 “The standard used in resolving a Rule 103(b) motion is not based on the subjective intent
of the plaintiff but, rather, an objective one of reasonable diligence in effectuating service.” Kole
v. Brubaker, 325 Ill. App. 3d 944, 950 (2001). While “[d]ismissal of a cause with prejudice under
Rule 103(b) is a harsh penalty,” it is justified “when the delay in service of process is of a length
which denies a defendant a fair opportunity to investigate the circumstances upon which liability
against [the defendant] is predicated while the facts are accessible.” (Internal quotation marks
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omitted.) Segal v. Sacco, 136 Ill. 2d 282, 288 (1990). A circuit court’s ruling on a Rule 103(b)
motion to dismiss is reviewed for abuse of discretion. Case, 227 Ill. 2d at 213.
¶ 11 Wilkey argues that the circuit court’s grant of Forest View’s motion to dismiss was an
abuse of discretion because timely service of process on Forest View was prevented by the
fraudulent misconduct of Wilkey’s original attorney. Additionally, Wilkey argues that the circuit
court abused its discretion because it “never articulated the Rule 103(b) factors or expressed any
consideration of how they related to the facts of this case.” Silverberg v. Haji, 2015 IL App (1st)
141321, ¶ 37 (holding that the circuit court abused its discretion, in part, because while “Rule
103(b) does not require a trial court to specifically delineate the reasons for its decision, we find
that the court’s commentary in this case suggests that it did not actually consider the appropriate
factors when deciding defendant’s motion to dismiss”).
¶ 12 However, the record on appeal does not include a report of proceedings for the hearing on
Forest View’s motion to dismiss, and we have no way of knowing which of the Rule 103(b) factors,
if any, the circuit court addressed when making its decision. “[A]n appellant has the burden to
present a sufficiently complete record of the proceedings *** to support a claim of error[.]” Foutch
v. O'Bryant, 99 Ill. 2d 389, 391 (1984). “[I]n the absence of such a record on appeal, it will be
presumed that the order entered by the trial court was in conformity with law and had a sufficient
factual basis. Any doubts which may arise from the incompleteness of the record will be resolved
against the appellant.” Id. at 392. Further, the common law record demonstrates that, in support of
its motion to dismiss, Forest View presented the circuit court with the relevant legal standard and
made cogent arguments based on all seven Rule 103(b) factors. Comparatively, Wilkey failed to
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address six of the factors and only argued that special circumstances justified the extensive delay
in service of process on Forest View.
¶ 13 We acknowledge that the result here visits a hardship upon Wilkey due to the conduct of
his original counsel, and he may well have a remedy against his former lawyer.
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2024 IL App (1st) 231907-U
No. 1-23-1907
Order filed November 22, 2024
FIFTH DIVISION
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
KENNETH WILKEY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 19 L 66031 ) FOREST VIEW MOBILE HOME PARK, INC., ) Honorable ) Michael B. Barrett, Defendant-Appellee. ) Judge, presiding.
JUSTICE MITCHELL delivered the judgment of the court. Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.
ORDER
¶1 Held: The circuit court’s grant of defendant’s motion to dismiss under Illinois Supreme Court Rule 103(b) is affirmed where the record on appeal is insufficient to determine whether the circuit court abused its discretion in granting the motion to dismiss.
¶2 Plaintiff Kenneth Wilkey appeals the circuit court’s grant of defendant Forest View Mobile
Home Park, Inc.’s motion to dismiss pursuant to Illinois Supreme Court Rule 103(b). Ill. S. Ct. R.
103(b) (eff. July 1, 2007). The issue on appeal is whether the circuit court abused its discretion in
granting Forest View’s motion to dismiss despite special circumstances that prevented service of
process on Forest View for over three years. For the following reasons, we affirm. No. 1-23-1907
¶3 I. BACKGROUND
¶4 On June 12, 2017, plaintiff Kenneth Wilkey was allegedly injured by an explosion caused
by a gas leak inside his mobile home. On June 11, 2019, one day before the statute of limitations
expired (735 ILCS 5/13-202 (West 2018)), Wilkey filed a complaint against defendants Forest
View Mobile Home Park, Inc., Northern Illinois Gas Company d/b/a Nicor Gas Company, Aaron’s
Inc., and Cassandra Hunt. In his complaint, Wilkey alleged that defendants’ negligence caused the
gas leak, explosion, and his injuries.
¶5 While summons were issued against the defendants, none were placed for service of
process with the Cook County Sheriff’s Office or a special process server. Over a period of almost
four years, no alias summons were issued and the case was continued over a dozen times. In April
2023, Wilkey fired his attorney and obtained new counsel, who promptly sent out alias summons
to all defendants via a special process server. Wilkey obtained service on Forest View on May 8,
2023.
¶6 Nicor and Aaron’s filed motions to dismiss pursuant to Illinois Supreme Court Rule 103(b),
which were granted. Forest View filed its own motion to dismiss pursuant to Rule 103(b), arguing
that Wilkey had failed to exercise reasonable diligence in serving summons upon it. In response,
Wilkey argued that there were special circumstances that justified the extensive delay in obtaining
service on Forest View: the fraudulent misconduct of Wilkey’s original attorney. After a hearing,
the circuit court granted Forest View’s motion, dismissing it from the action with prejudice
pursuant to Rule 103(b). This timely appeal followed. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).
-2- No. 1-23-1907
¶7 II. ANALYSIS
¶8 Wilkey argues that the circuit court abused its discretion in granting Forest View’s motion
to dismiss pursuant to Illinois Supreme Court Rule 103(b) because special circumstances justified
the extensive delay in service of process on Forest View.
¶9 Rule 103(b) states that if a plaintiff’s “failure to exercise reasonable diligence to obtain
service on a defendant occurs after the expiration of the applicable statute of limitations,” then the
action as to that defendant may be dismissed with prejudice. Ill. S. Ct. R. 103(b). “In considering
the exercise of reasonable diligence, the court shall review the totality of the circumstances.” Id.
Therefore, when ruling on a motion to dismiss pursuant to Rule 103(b), a court may consider
factors including, but not limited to: (1) the length of time used to obtain service of process; (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 the
defendant of pendency of the action as a result of ineffective service; (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).
¶ 10 “The standard used in resolving a Rule 103(b) motion is not based on the subjective intent
of the plaintiff but, rather, an objective one of reasonable diligence in effectuating service.” Kole
v. Brubaker, 325 Ill. App. 3d 944, 950 (2001). While “[d]ismissal of a cause with prejudice under
Rule 103(b) is a harsh penalty,” it is justified “when the delay in service of process is of a length
which denies a defendant a fair opportunity to investigate the circumstances upon which liability
against [the defendant] is predicated while the facts are accessible.” (Internal quotation marks
-3- No. 1-23-1907
omitted.) Segal v. Sacco, 136 Ill. 2d 282, 288 (1990). A circuit court’s ruling on a Rule 103(b)
motion to dismiss is reviewed for abuse of discretion. Case, 227 Ill. 2d at 213.
¶ 11 Wilkey argues that the circuit court’s grant of Forest View’s motion to dismiss was an
abuse of discretion because timely service of process on Forest View was prevented by the
fraudulent misconduct of Wilkey’s original attorney. Additionally, Wilkey argues that the circuit
court abused its discretion because it “never articulated the Rule 103(b) factors or expressed any
consideration of how they related to the facts of this case.” Silverberg v. Haji, 2015 IL App (1st)
141321, ¶ 37 (holding that the circuit court abused its discretion, in part, because while “Rule
103(b) does not require a trial court to specifically delineate the reasons for its decision, we find
that the court’s commentary in this case suggests that it did not actually consider the appropriate
factors when deciding defendant’s motion to dismiss”).
¶ 12 However, the record on appeal does not include a report of proceedings for the hearing on
Forest View’s motion to dismiss, and we have no way of knowing which of the Rule 103(b) factors,
if any, the circuit court addressed when making its decision. “[A]n appellant has the burden to
present a sufficiently complete record of the proceedings *** to support a claim of error[.]” Foutch
v. O'Bryant, 99 Ill. 2d 389, 391 (1984). “[I]n the absence of such a record on appeal, it will be
presumed that the order entered by the trial court was in conformity with law and had a sufficient
factual basis. Any doubts which may arise from the incompleteness of the record will be resolved
against the appellant.” Id. at 392. Further, the common law record demonstrates that, in support of
its motion to dismiss, Forest View presented the circuit court with the relevant legal standard and
made cogent arguments based on all seven Rule 103(b) factors. Comparatively, Wilkey failed to
-4- No. 1-23-1907
address six of the factors and only argued that special circumstances justified the extensive delay
in service of process on Forest View.
¶ 13 We acknowledge that the result here visits a hardship upon Wilkey due to the conduct of
his original counsel, and he may well have a remedy against his former lawyer. That attorney’s
misdeeds have been documented by the Attorney Registration and Disciplinary Commission. In
re Thomas Alexander Kantas, M.R. 031805 (May 22, 2023) (statement of charges); Ill. S. Ct.,
M.R. 031805 (eff. Sept. 21, 2023) (disbarment upon consent). But those unfortunate circumstances
do not change the outcome. See, e.g., Rizzuto v. Soja, 2024 IL App (1st) 231868, ¶¶ 16-21
(affirming Rule 103(b) dismissal because the circuit court did not abuse its discretion in granting
motion to dismiss despite plaintiff arguing that there were special circumstances involving
analogous conduct by the same attorney); Tureli v. Martinez, 2024 IL App (1st) 231867-U, ¶¶ 19-
20 (affirming Rule 103(b) dismissal in a case involving analogous conduct by the same attorney
because appellant failed to provide a sufficient record on appeal to determine whether the circuit
court had abused its discretion). Since we have no basis for determining whether the circuit court
abused its discretion in weighing the Rule 103(b) factors, we affirm. Romito v. City of Chicago,
2019 IL App (1st) 181152, ¶¶ 23-24; Illinois Founders Insurance Co. v. Williams, 2015 IL App
(1st) 122481, ¶ 56.
¶ 14 III. CONCLUSION
¶ 15 The judgment of the circuit court of Cook County is affirmed.
¶ 16 Affirmed.
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