Kramer v. Ruiz
| Docket Number | 5-20-0026 |
| Decision Date | 20 May 2021 |
| Citation | 2021 IL App (5th) 200026,197 N.E.3d 710,459 Ill.Dec. 56 |
| Parties | Marc KRAMER, Personal Representative of the Estate of Steven Greene, Deceased, Plaintiff-Appellant, v. Gabriel RUIZ, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Lanny Darr, of Darr Law Offices, Ltd., of Alton, and Jennifer Suttmoeller Bernacki, of Cervantes & Associates, of St. Louis, Missouri, for appellant.
Jane Unsell and Erin M. Phillips, of Unsell, Schattnik & Phillips, P.C., of Wood River, for appellee.
¶ 1 Plaintiff Marc Kramer, personal representative of the estate of Steven Greene, deceased, filed a complaint in the circuit court of Madison County for wrongful death against the defendant, Gabriel Ruiz. After the defendant was served with an alias summons, he filed a motion to dismiss the complaint pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), asserting that the plaintiff failed to exercise reasonable diligence in effectuating the service on the defendant. Following a hearing on the motion, the circuit court granted the defendant's motion and dismissed the complaint with prejudice. For the reasons that follow, we affirm the circuit court's dismissal of the plaintiff's case.
¶ 3 The underlying matter arises out of a December 22, 2016, automobile/pedestrian collision that resulted in the death of Steven Greene. On December 18, 2018, four days prior to the expiration of the applicable statute of limitations, the plaintiff filed a complaint and summons against the defendant for wrongful death arising from that accident. The circuit court's docket sheet reveals that, on December 20, 2018, a summons was issued for the defendant and sent to the plaintiff's counsel via "efile"1 for counsel to effectuate service. No further action was taken on this case by the plaintiff or plaintiff's counsel. On May 1, 2019, the circuit court set the matter for a case management conference to be held on August 21, 2019.
¶ 4 On August 9, 2019, nearly eight months after the complaint was filed and the statute of limitations had expired, plaintiff's counsel, Jennifer Suttmoeller, took her first action towards effecting service on the defendant when she requested, and the circuit clerk issued via "efile," an alias summons for the defendant. Eleven days later, on August 20, 2019, the defendant was served with the alias summons and a copy of the plaintiff's complaint.
¶ 5 On September 19, 2019, counsel for the defendant entered his appearance and filed a motion to dismiss the plaintiff's complaint pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). The motion alleged that the plaintiff failed to exercise reasonable diligence in serving process on the defendant after the expiration of the statute of limitations. The defendant also attached to his Rule 103(b) motion the Illinois traffic crash report regarding the accident at issue and an affidavit, dated September 18, 2019, which had been executed by the defendant. In his affidavit, the defendant listed his address at the time of the accident and asserted that he had not changed addresses since December 2016. The defendant further stated that he had not been employed outside of his home since December 18, 2018, and that he did not attempt to evade service. The Illinois traffic crash report listed the defendant's address as the same set forth in the defendant's affidavit.
¶ 6 On November 20, 2019, the plaintiff filed a response to the defendant's motion to dismiss. In his response, the plaintiff argued that the defendant was not deprived of a fair opportunity to investigate the circumstances upon which liability against the defendant was predicated while the facts were accessible and that the plaintiff had not intentionally delayed service of process on the defendant. Attached to his response to the defendant's motion to dismiss, the plaintiff also submitted several documents, including (1) an affidavit that had been executed by the defendant on January 17, 2017, (2) correspondence between the defendant's co-attorneys Kacerovskis and Unsell, (3) correspondence from the plaintiff's attorney Leonard Cervantes, (4) a computer printout of the circuit court docket, (5) an affidavit from the plaintiff's counsel, and (6) a copy of the alias summons served upon the defendant.
¶ 7 The defendant's January 17, 2017, affidavit stated that he "was involved in a motor vehicle collision on December 22, 2016[,] in Madison County, Illinois" and that he had only one insurance policy that was applicable to the accident, which was from Traveler's Insurance. He also provided the policy number for the insurance policy. On January 18, 2017, Unsell sent the defendant's affidavit to Kacerovskis.
¶ 8 The Leonard Cervantes correspondence attached to the plaintiff's response was faxed to Traveler's Insurance on June 21, 2017. That document stated that Cervantes & Associates had assumed representation of the plaintiff regarding the December 22, 2016, automobile/pedestrian accident. The letter stated that the firm of Cervantes & Associates was to receive a percentage of any amount recovered "whether by compromise or by suit."
¶ 9 Plaintiff's counsel, Jennifer Suttmoeller, also filed an affidavit to support the plaintiff's response. In that affidavit, plaintiff's counsel stated that she was the attorney for the plaintiff and had requested a summons on the date she filed the wrongful death complaint against the defendant. She further denied that she ever received notice that the summons was issued on December 20, 2018, as reflected by the "Madison County Circuit Court Docket Sheet." She also denied she ever received notice that the court, on May 1, 2019, set the matter for a case management conference. Instead, plaintiff's counsel alleged that she discovered the notice of the case management conference on "the Madison County Circuit Court's website" sometime in July 2019. Plaintiff's counsel then alleges that this event led to the realization that the original summons was never served and prompted her to request that an alias summons be issued by the circuit court on August 9, 2019. The affidavit also indicated that plaintiff's counsel was out of the office for extended periods of time during the months of March and April 2019.
¶ 10 On November 21, 2019, the circuit court heard arguments from the parties regarding the defendant's motion to dismiss. Following the hearing, the court took the matter under advisement. The court also directed the plaintiff to file a supplemental affidavit and allowed the defendant to file a brief in response to the plaintiff's cases cited during the hearing.
¶ 11 On November 26, 2019, plaintiff's counsel filed her supplemental affidavit. In the affidavit, counsel stated that she was an associate with the law firm of Cervantes & Associates in St. Louis, Missouri, and that the law firm was owned and operated by Leonard Cervantes "until his unexpected death on June 23, 2018." Plaintiff's counsel attested that "[p]rior to his death, this matter was solely being handled by Leonard Cervantes." Further, she stated that Mr. Cervantes's "untimely and unexpected death left the office personnel to figure out the status of several matters previously *** handled by Mr. Cervantes, including administrative issues." The plaintiff's file was ultimately identified, and the lawsuit was filed four days prior the expiration of the statute of limitations.
¶ 12 The plaintiff's counsel next averred that she had never handled any Illinois cases without supervision from Cervantes and she "mistakenly believed the Madison County Circuit Clerk's office would prepare and return the summons to [her] for service." Plaintiff's counsel denied receiving the summons issued by the circuit clerk's office. Plaintiff's counsel went on to explain that when she did not receive the summons shortly after filing the complaint on December 18, 2018, she assumed it was due to the Christmas and New Year's Eve holidays. Plaintiff's counsel admitted that, "[d]ue to the press of other business, [she] failed to follow up to secure the summons." Plaintiff's counsel then stated that she suffered from a chronic medical condition, multiple sclerosis
, that required her to take an extended leave of absence from her work during March and April of 2019. This leave of absence "compounded the backload of work at Cervantes & Associates," which was still shorthanded due to Cervantes's unexpected death. Finally, plaintiff's counsel ended her affidavit by stating that her "failure to serve [the defendant] shortly after the expiration of the statute of limitations was due to inadvertence" and further that she could not identify any "harm or prejudice that resulted to [the defendant] for the delay in service of summons."
¶ 13 On November 27, 2019, the defendant filed his memorandum in support of his motion to dismiss, which addressed the cases they had referenced during the hearing on the motion to dismiss.
¶ 14 On December 30, 2019, the circuit court entered its order granting the defendant's motion to dismiss. In its order, the court found that the "record reflects that nothing transpired in the case until an [a]lias [s]ummons was issued by the [c]lerk on August 9, 2019" and that the "record does not reveal an affidavit of service," but that the defendant had testified he was served on August 20, 2019, and had entered his appearance for the purposes of filing the motion to dismiss.
¶ 15 In its analysis, the circuit court stated:
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