Hanna v. Kelly

• Decision Date: 12 December 1980
• Docket Number: No. 79-1787,79-1787
• Parties: , 47 Ill.Dec. 146 Dierdre J. HANNA, Plaintiff-Appellant, v. James P. KELLY, Defendant-Appellee, and Peter F. Kelly, William Wickersham and Dorothy Wickersham, Defendants.
• Court: United States Appellate Court of Illinois

Page 1262

414 N.E.2d 1262

91 Ill.App.3d 896, 47 Ill.Dec. 146

Dierdre J. HANNA, Plaintiff-Appellant, v. James P. KELLY, Defendant-Appellee, and Peter F. Kelly, William Wickersham and Dorothy Wickersham, Defendants.

No. 79-1787.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 12, 1980.

Schwartzberg, Barnett & Cohen, Heller & Morris, Chicago (Benjamin H. Cohen, Hugh J. Schwartzberg, Chicago, of counsel), for plaintiff-appellant.

Jacobs, Williams & Montgomery, Ltd., Chicago (Barry L. Kroll, Chicago, of counsel), for defendant-appellee.

WILSON, Justice:

Plaintiff appeals from a trial court order dismissing her claim as to defendant James P. Kelly for failure of diligent service of process as required by Rule 103(b) (Ill.Rev.Stat.1977, ch. 110A, par. 103(b)). On appeal, the only issue for review is whether Plaintiff filed a complaint on July 8, 1976 against James P. Kelly, (James) Peter F. Kelly, (Peter) and two other defendants for injuries allegedly sustained by her arising out of an automobile accident which occurred on July 24, 1974. Summons was issued that day for service on all defendants. Three defendants were served, however, the summons directed to James at 3840 Gaslight Drive, Alsip, Illinois, was returned by the sheriff marked "not found."

[47 Ill.Dec. 148] plaintiff exercised sufficient diligence to obtain service of process. We affirm the trial court. The pertinent facts follow.

On plaintiff's motion, an order was entered on September 1, 1976 suspending discovery "until all parties have appeared, or in the alternative, until good cause is shown." Plaintiff, however, commenced discovery when she served interrogatories on Peter on September 23, 1976. Interrogatory No. 2 asked: "State the full name and address of each person who witnessed or claims to have witnessed the occurrence alleged in the complaint."

In January, 1977, counsel for Peter inquired why plaintiff had not answered the interrogatories sent her. Counsel for plaintiff sent the September 1 order in response. Counsel for defendant Peter replied on February 9 that: "I am somewhat puzzled at your reluctance to answer our interrogatories propounded to the plaintiff inasmuch as all parties obviously appeared."

Plaintiff's attorney wrote to Peter's counsel on July 14, 1977 inquiring about answers to interrogatories to be filed by Peter. He was advised on July 22, 1977 that the answers were prepared and required only Peter's signature. Plaintiff's counsel inquired about the answers to interrogatories again on August 31 and October 6, 1977. Peter's answers were filed on January 5, 1978.

In response to Interrogatory No. 2 requesting the full names and addresses of each person who witnessed or claimed to have witnessed the occurrence alleged in the complaint, Peter gave Plaintiff's name (with no address), James Kelly (with no address), and Kathy Greaney (with an address). Further answers to the interrogatories indicated that Peter owned the vehicle involved in the accident and was covered under a public liability insurance policy which was in effect on the date of the occurrence. The complaint alleged that James was driving a vehicle owned by Peter.

In May, 1978, plaintiff's counsel made a routine check of the case filed and discovered that no summons had been served on James or an appearance filed by him. On August 9, 1978, Peter's counsel advised plaintiff's counsel that James lived at either an address in Justice or in Chicago Ridge. Plaintiff issued an alias summons to James at both addresses, and he was finally served on August 25, 1978.

James filed a motion to dismiss in October, 1978. An order was entered on July 26, 1979 dismissing plaintiff's lawsuit against him. Her motion to reconsider and vacate was denied on September 26, 1979.

OPINION

Plaintiff asserts that under the circumstances she was sufficiently diligent to bar dismissal of her claim against James under Rule 103(b) (Ill.Rev.Stat.1977, ch. 110A, par. 103(b)). We disagree.

Rule 103(b) provides that:

"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."

The standard for determining "reasonable diligence" is an objective one, and the burden is upon the plaintiff to show that he has exercised reasonable diligence in his efforts to obtain service (Dailey v. Hartley (1979), 77 Ill.App.3d 697, 33 Ill.Dec. 197, 396 N.E.2d 586), and the defendant need not establish that he was prejudiced by the delay. Greenwood v. Blondell (1980), 85 Ill.App.3d 186, 40 Ill.Dec. 503, 406 N.E.2d 204.

A motion to dismiss pursuant to Rule 103(b) is addressed to the sound discretion of the trial court, and a reviewing court will not substitute its judgment for that of the trial court absent a showing of an abuse of discretion. (Wallace v. Smith (1st Dist. 1979), 75 Ill.App.3d 739, 31 Ill.Dec. 463, 394 N.E.2d 665; Licka v. William A. Sales, Ltd. (1979), 70 Ill.App.3d 929, 27 Ill.Dec. 212, 388 N.E.2d 1261.) There are six factors that courts consider in determining whether plaintiff's efforts to obtain service reflect reasonable diligence. These are: the length of time used to obtain service, the activities of the plaintiff, any knowledge on the part of the plaintiff of defendant's whereabouts, the ease with which defendant's whereabouts could have been ascertained, the actual knowledge of defendant of the pendency of the action, and special circumstances which would affect the plaintiff's efforts. Daily; Licka; Montero v. Univ. of Ill. Hosp. (1978), 57 Ill.App.3d 206, 14 Ill.Dec. 731, 372 N.E.2d 1010.

Applying these factors to the present case, the record reflects that upon the filing of plaintiff's suit, summonses were issued to all four named defendants, however, the sheriff's returns established that only three had been served and James' summons was returned marked "not found". Plaintiff's efforts consisted of a motion on September 1, 1976 seeking a stay of discovery until all parties have appeared and serving interrogatories on Peter on September 23, 1976 seeking names and addresses of witnesses to the occurrence. She, in effect, nullified the order granting her motion to suspend discovery three weeks later when she commenced her own discovery by serving interrogatories on the served defendants, filing notices to produce and notices of depositions. None of these discovery...