Long v. Elborno

• Decision Date: 21 January 2010
• Docket Number: No. 1-08-1733.,1-08-1733.
• Citation: 922 N.E.2d 555,337 Ill. Dec. 432
• Parties: Kathryn LONG, Plaintiff-Appellee, v. Ahmed ELBORNO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

922 N.E.2d 555 Kathryn LONG, Plaintiff-Appellee,
v.
Ahmed ELBORNO, Defendant-Appellant. No. 1-08-1733. Appellate Court of Illinois, First District, Fourth Division. January 21, 2010.

[922 N.E.2d 557]

Clausen Miller, Chicago (Edward M. Kay, Richard L. Murphy, Betsy R. Grover, Joseph J. Ferrini, of counsel), for Defendant-Appellant.

Evins & Sklare, Ltd., Chicago (Perry Grimaldi, of counsel), for Plaintiff-Appellee.

Justice NEVILLE delivered the opinion of the court.

The plaintiff, Kathryn Long, filed a negligence action against the defendants, Dr. Ahmed Elborno and Rush Oak Park Hospital (Rush). Rush filed a motion to dismiss the complaint pursuant to Supreme Court Rule 103(b) (134 Ill.2d R. 103(b)), and the trial court granted the motion based on Long's failure to exercise reasonable diligence in serving Rush with her summons and complaint. Long appealed the trial court's order granting Rush's motion to dismiss the complaint and voluntarily dismissed her complaint against Dr. Elborno. This court affirmed the trial court's order granting Rush's motion to dismiss the complaint. Long v. Elborno, 376 Ill.App.3d 970, 314 Ill.Dec. 840, 875 N.E.2d 1127 (2007) (Long I).

Long refiled her complaint against Dr. Elborno on December 19, 2005. Dr. Elborno filed a motion to dismiss the complaint pursuant to Supreme Court Rule 103(b), which the trial court denied. The trial court certified three questions for this court's review: (1) whether Judge Abishi Cunningham's determination that plaintiff failed to exercise reasonable diligence in serving Rush Oak Park Hospital became the law of the case for all subsequent stages of litigation and for the remaining party, Dr. Elborno; (2) whether by virtue of the appellate court's decision in Long I, holding that plaintiff failed to exercise reasonable diligence in serving Rush Oak Park Hospital during the first seven months of her case, plaintiff is collaterally estopped from asserting that she was reasonably diligent in serving Dr. Elborno when her actions were identical for the parties during this time period and Dr. Elborno was not served for an additional four months after service on the hospital; and (3) whether Supreme Court Rule 103(b) permits plaintiff to be given a credit for the time it took her to secure a health professional report, pursuant to section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2004)), when analyzing her reasonable diligence in serving Dr. Elborno.

BACKGROUND

On December 3, 2004, Long filed a two-count complaint against Dr. Elborno and Rush and alleged that on December 3, 2002, the defendants negligently performed a vertebroplasty procedure on Long. Long attached to the complaint an affidavit from her attorney, Bradley Lichtman. Lichtman averred that he was unable to obtain a physician's consultation as required by section 2-622(a)(1) of the Code of Civil Procedure (Code), (1) because the statute of limitations would impair the action, and (2) because the physician's consultation could not be obtained before the expiration of the statute of limitations. 735 ILCS 5/2-622(a)(1), (a)(2) (West 2004). On March 3, 2005, Long filed an affidavit and written report from Dr. Ranjit Wahi as required by section 2-622(a)(1) of the Code. 735 ILCS 5/2-622(a)(1) (West 2004).

On June 15, 2005, a summons was issued for Dr. Elborno and Rush. On July 6, 2005, the sheriff served Long's complaint and

922 N.E.2d 558

summons on Neal Levin, an authorized person to receive service for Rush.

On July 22, 2005, an alias summons was issued for Dr. Elborno. On August 15, 2005, another alias summons was issued for Dr. Elborno.

On August 19, 2005, Rush filed a motion to dismiss Long's complaint, pursuant to Supreme Court Rule 103(b), and maintained that the complaint served on the hospital did not have an affidavit and a health professional's report attached to it, and that Long failed to exercise reasonable diligence in obtaining service on Rush. 134 Ill.2d R. 103(b).

On September 2, 2005, September 9, 2005, and September 10, 2005, the Cook County sheriff unsuccessfully attempted to effectuate service of the summons and complaint on Dr. Elborno.

On October 11, 2005, Long filed a response to Rush's motion to dismiss. Attached to the response was an affidavit from Lichtman. Lichtman averred that he personally filed the complaint on December 3, 2004, and that he believed the support staff at his law firm would have the sheriff serve the defendants. Lichtman further averred that, while examining Long's case filed on March 3, 2005, he noticed that the summons and complaint had not been served. He again directed the law firm's support staff to have the sheriff serve the defendants. Lichtman further averred that, between March 3, 2005, and June 15, 2005, he directed the law firm's support staff on multiple occasions to obtain service on the defendants. Finally, Lichtman averred that on June 15, 2005, a clerk at the law firm had the clerk of the circuit court file stamp the summons, and that on June 17, 2005, the summons and the complaint were delivered to the Cook County sheriff to be served on the defendants.

On November 4, 2005, an alias summons was issued for Dr. Elborno, and the trial court appointed a special process server to serve the summons and complaint on Dr. Elborno. On November 6, 2005, the special process server served the summons and complaint on Dr. Elborno.

On November 7, 2005, the trial court granted Rush's motion to dismiss the complaint with prejudice. On November 9, 2005, Long filed a motion to voluntarily dismiss the action against Dr. Elborno without prejudice, and it was granted by the trial court. Long filed an appeal (Long I) with this court.

On December 19, 2005, Long refiled her negligence complaint against Dr. Elborno. Attached to the refiled complaint was the affidavit and written report of Dr. Ranjit Wahi. On December 19, 2005, a summons was issued for Dr. Elborno. On January 5, 2006, Dr. Elborno was personally served with the summons and refiled complaint.

On February 6, 2006, Dr. Elborno filed a motion to dismiss the refiled complaint pursuant to Supreme Court Rule 103(b). In the motion, Dr. Elborno argued that Long failed to exercise reasonable diligence in effectuating service on him because Long filed her original complaint on December 3, 2004, Long placed the summons with the sheriff on June 15, 2005, and he was served with the original complaint on November 5, 2005.

On August 21, 2006, Long filed a response to Dr. Elborno's motion to dismiss the complaint. Attached to Long's response was the deposition of Neal Levin, the risk manager for Rush. Levin testified at his deposition that between December 2004 and January 2005, he informed Dr. Elborno that a lawsuit had been filed naming Dr. Elborno as a defendant. Levin further testified at the deposition that he had a copy of the complaint during his meeting with Dr. Elborno.

922 N.E.2d 559

On September 14, 2006, the trial court conducted a hearing on Dr. Elborno's motion to dismiss the complaint. The trial court gave Long credit for the three months between the time she filed the complaint on December 3, 2004, and secured the physician affidavit and written report required by section 2-622(a)(1) of the Code on March 3, 2005. 735 ILCS 5/2-622(a)(1) (West 2004). The trial found that the case was not "worthy of Rule 103(b) relief" and denied Dr. Elborno's motion to dismiss the complaint.

On September 20, 2007, this court affirmed the trial court's order granting Rush's motion to dismiss the complaint. Long I, 376 Ill.App.3d at 982, 314 Ill.Dec. 840, 875 N.E.2d 1127. With regard to Long's argument that the trial court abused its discretion when it found that she failed to exercise reasonable diligence in obtaining service of her summons and complaint on Rush, this court reviewed the seven factors a court must consider when determining whether to grant a motion to dismiss pursuant to Supreme Court Rule 103(b). See Segal v. Sacco, 136 Ill.2d 282, 287, 144 Ill.Dec. 360, 555 N.E.2d 719 (1990). With regard to the first Segal factor—the length of time used to obtain service of process—this court found that a time period exceeding seven months between the filing of the complaint on December 3, 2004, and service of the summons and complaint on Rush on July 6, 2005, supported a finding of a lack of reasonable diligence. With regard to the second Segal factor—the plaintiff's activities—this court found (1) that Long's difficulty in obtaining a section 2-622(a)(1) report did not excuse her from her duty to timely effectuate service, and (2) that the law firm's support staff's failure to have the summons issued by the clerk of the court, even though inadvertent and unintentional, did not support her position because it is an objective, not subjective, test that is used to determine whether the plaintiff exercised reasonable diligence. With regard to the third Segal factor—the plaintiff's knowledge of defendant's location—and the fourth Segal factor—the ease with which the defendant's whereabouts could have been ascertained—Long conceded that Rush prevailed. With regard to the fifth Segal factor—whether the defendant had actual knowledge of the pending action—this court found that Long failed to present facts which established that Rush had actual knowledge of the pending action. With regard to the sixth Segal factor—special circumstances that would affect plaintiff's efforts—this court found that no special circumstances existed. Finally, with regard to the seventh Segal factor—whether the defendant was actually served—this court found that service on Rush was not difficult to obtain because Rush was successfully served on the first attempt. Therefore, because this court found that the seven Segal factors favored Rush, this court held that the trial court did not abuse its discretion when it granted Rush's motion to dismiss Long's complaint because Long failed to exercise...