Emrikson v. Morfin

• Decision Date: 19 September 2012
• Docket Number: No. 1–11–1687.,1–11–1687.
• Citation: 365 Ill.Dec. 66,2012 IL App (1st) 111687,977 N.E.2d 1165
• Court: United States Appellate Court of Illinois
• Parties: Patricia R. EMRIKSON, Plaintiff–Appellant, v. Fernando MORFIN, Defendant–Appellee.

2012 IL App (1st) 111687

977 N.E.2d 1165

365 Ill.Dec. 66

Patricia R. EMRIKSON, Plaintiff–Appellant,

v.Fernando MORFIN, Defendant–Appellee.

No. 1–11–1687.

Appellate Court of Illinois, First District, Third Division.

Sept. 19, 2012.

Bruce Farrel Dorn & Associates, of Chicago (Ellen J. O'Rourke and Jean Bradley, of counsel) for appellee.

Joanna C. Fryer, of Chicago, for appellant.

OPINION

Justice STERBA delivered the judgment of the court, with opinion.

[365 Ill.Dec. 67]¶ 1 Plaintiff-appellant Patricia Emrikson filed a complaint against defendant-appellee Fernando Morfin alleging negligence in connection with a traffic accident. Defendant moved to dismiss the complaint pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), arguing that plaintiff failed to use due diligence in effectuating service upon him. The trial court agreed and granted defendant's motion. On appeal, plaintiff contends that the court erred in granting defendant's motion to dismiss and in denying her motion to reconsider. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On February 16, 2007, plaintiff Patricia Emrikson was rear-ended by defendant Fernando Morfin while traveling on Lake Street in Melrose Park, Illinois. According to defendant, at the time, the Melrose Park police completed a traffic crash report (accident report) which detailed the accident. The accident report was completed at the scene and contained defendant's address—621 S. Ardmore Avenue, Addison, Illinois—telephone number, and driver's license number. Almost two years later, on February 13, 2009, three days prior to the running of the statute of limitations, plaintiff filed a complaint alleging negligence in connection with the accident.

¶ 4 Plaintiff used an Internet-based search tool, also known as a skip trace, to obtain defendant's address for service of process. A notice on the search page warns its users that the information may be defective and should be independently verified:

“The Public Records and commercially available data sources used in this system have errors. Data is sometimes entered poorly, processed incorrectly and is generally not free from defect. This system should not be relied upon as definitively accurate. Before relying on any data this system supplies, it should be independently verified.”

According to plaintiff, she performed five skip traces on defendant between July 2008 and March 2010, which revealed the following addresses with corresponding dates: 407 Country Club Drive, September 2006 through January 2007; 555 W. Cullerton Street, Apartment 2, September 1999 through October 2006; 1553 N. Mannheim Road, June 2004 through August 2006; 621 S. Ardmore Avenue, March 2006 through July 2009; and 1506 N. Mannheim Road, July 2007 through March 2009. Three of the listed addresses, including Ardmore Avenue, also had corresponding phone numbers.

¶ 5 An initial summons was issued for defendant at 407 Country Club Drive on February 13, 2009. An affidavit of “due and diligent attempt” revealed that Don Haworth was assigned to execute the summons but was unsuccessful because defendant had moved two years prior. When a request for forwarding information from the United States Postal Service did not yield any results, plaintiff moved to appoint a special process server.

¶ 6 Plaintiff was granted leave to issue an alias summons on July 31, 2009, but service was not attempted. A second alias summons was issued on September 9, 2009. In an affidavit of service dated September 10, 2009, Haworth stated that he executed service of the second alias summons upon Teresa Morfin, defendant's sister, at 555 W. Cullerton Street. On October 26, 2009, after receiving the summons and complaint from his sister, defendant moved to quash service upon Teresa. Due to several continuances requested by plaintiff, the motion was not argued until March 11, 2010, after which the circuit court granted the motion without prejudice.

¶ 7 Subsequently, plaintiff performed another skip trace and filed a third alias summons with leave of the court. The special process server was directed to serve defendant at the Ardmore address but did not find defendant there. The process server then attempted and obtained service on defendant at 1506 N. Mannheim Road, defendant's place of business, on March 17, 2010. Thirteen months had elapsed since plaintiff filed the complaint. On April 8, 2010, defendant filed a motion to dismiss pursuant to Illinois Supreme Court Rule 103(b), arguing that plaintiff failed to use due diligence in effectuating service upon him.

¶ 8 At defendant's deposition taken in connection with defendant's motion, defendant testified that prior to the spring of 2006, he lived at the Cullerton address where his mother, father, and sister still reside. However, since the spring of 2006, defendant had lived alone at the Ardmore address. He operated a tire company located at 1506 N. Mannheim Road, where he worked daily from approximately 7:30 a.m. to 8 p.m. Since he had taken up residence at the Ardmore address, defendant had not listed 555 W. Cullerton as his residence on any credit card or any other application. Further, he immediately changed the address on his driver's license to 621 S. Ardmore Avenue after he moved and provided that address to police for purposes of completing the accident report.

[365 Ill.Dec. 69]¶ 9 After hearing argument on the motion, the trial court made a specific finding that the delay in service was not due to plaintiff's attempt to secure a tactical advantage, but it was troubled by plaintiff's failure to consult the accident report to determine the address, stating:

“[T]here is no explanation of why service was not attempted on the address that the defendant gave on a police report. It's a motor vehicle accident. I would think that would be the most logical place to look, is on the police report before going anywhere else.”

Ultimately, the court concluded that this failure to rely on the accident report coupled with the lack of verification of the addresses provided in the skip trace was evidence of a lack of diligence and granted defendant's motion with prejudice.

¶ 10 Following the dismissal, plaintiff learned that Haworth had attempted service in July or August 2009 at defendant's Ardmore address. According to plaintiff, Haworth also revealed that he placed defendant under surveillance from February 2009 to March 2010. Specifically, Haworth stated that he surveilled the Ardmore and Cullerton addresses, but was unable to locate defendant at either address. Plaintiff subsequently filed a motion to reconsider based primarily on the information revealed by Haworth. The trial court denied the motion and plaintiff timely filed this appeal.

¶ 11 ANALYSIS

¶ 12 On appeal, plaintiff argues the trial court erred in finding that she failed to use reasonable diligence to obtain service on defendant. Initially, the parties dispute the standard of review for Rule 103(b) dismissals. Plaintiff urges us to apply a de novo standard, while defendant argues the more lenient abuse of discretion standard is applicable. We agree with defendant.

¶ 13 Our supreme court in Segal v. Sacco, 136 Ill.2d 282, 286, 144 Ill.Dec. 360, 555 N.E.2d 719 (1990), held that dismissal under Rule 103(b) is within the sound discretion of the circuit court. Nevertheless, plaintiff, relying on Lewis v. Dillon, 352 Ill.App.3d 512, 287 Ill.Dec. 748, 816 N.E.2d 715 (2004), argues that we should proceed under a de novo standard because the trial court in the instant case based its findings on conclusions of law. In Lewis, however, we declined to apply a de novo standard notwithstanding the fact that the trial court made certain legal conclusions. Id. at 515, 287 Ill.Dec. 748, 816 N.E.2d 715. We noted that because the trial court reviewed affidavits and weighed numerous factors in deciding whether the plaintiff exercised reasonable diligence, the lower court's ruling was subject to review for abuse of discretion. Id. at 515–16, 287 Ill.Dec. 748, 816 N.E.2d 715. Cases subsequent to Lewis have also applied an abuse of discretion standard to review Rule 103(b) dismissals. See, e.g., Case v. Galesburg Cottage Hospital, 227 Ill.2d 207, 213, 316 Ill.Dec. 693, 880 N.E.2d 171 (2007) (“[a] ruling on a motion to dismiss pursuant to Rule 103(b) will not be disturbed absent an abuse of discretion”); McRoberts v. Bridgestone Americas Holding, Inc., 365 Ill.App.3d 1039, 1042, 303 Ill.Dec. 585, 851 N.E.2d 772 (2006) (describing trial court's determination of a plaintiff's lack of diligence as a fact-intensive inquiry).

¶ 14 We decline to depart from this authority and hold that the appropriate standard of review is an abuse of discretion. A trial court abuses its discretion when its decision is “arbitrary, fanciful, or unreasonable, or where no reasonable person would adopt the court's view.” Evitts v. DaimlerChrysler Motors Corp., 359 Ill.App.3d 504, 513, 296 Ill.Dec. 137, 834 N.E.2d 942 (2005).

¶ 15 We turn next to the merits of plaintiff's claim that the trial court abused its discretion in dismissing her complaint with prejudice. Rule 103(b) allows for the dismissal of a complaint based on a plaintiff's failure to exercise reasonable diligence in effectuating service upon a defendant. The rule provides the dismissal shall be with prejudice where the lack of diligence in service occurs after the expiration of the statute of limitations. Ill. S.Ct. R. 103(b) (eff. July 1, 2007).

¶ 16 A primary reason for the passage of Rule 103(b) was to prevent the intentional delay of service of summons upon a defendant for an indefinite amount of time in order to circumvent the applicable statute of limitations. Karpiel v. LaSalle National Bank of Chicago, 119 Ill.App.2d 157, 160, 255 N.E.2d 61 (1970). In Karpiel, the court stated that “[t]he rule * * * has an essential purpose in promoting the expeditious handling of suits by giving trial courts wide discretion to dismiss when service...