Marks v. Rueben H. Donnelly, Inc.

• Decision Date: 31 March 1994
• Docket Number: No. 1-92-0814,1-92-0814
• Citation: 636 N.E.2d 825,260 Ill.App.3d 1042,201 Ill.Dec. 393
• Parties: , 201 Ill.Dec. 393 Diana MARKS, Plaintiff-Appellant, v. RUEBEN H. DONNELLY, INC. et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 825

636 N.E.2d 825

260 Ill.App.3d 1042, 201 Ill.Dec. 393

Diana MARKS, Plaintiff-Appellant, v. RUEBEN H. DONNELLY, INC. et al., Defendants-Appellees.

No. 1-92-0814.

Appellate Court of Illinois First District, Fifth Division.

March 31, 1994.

Jeffrey D. Hupert, Edward Salomon, Chicago, for appellant.

Michael J. Nykaza, Chicago, for appellee.

Justice GORDON delivered the opinion of the court:

Nature of the Case

Plaintiff, Diana Marks, filed a complaint on August 18, 1989 in the circuit court of Cook County against defendants, Angelina Pinela and Rueben H. Donnelly, Inc. The complaint sought damages for personal injuries allegedly sustained as a result of the negligence of defendant, Angelina Pinela, an employee of defendant, Rueben H. Donnelly, Inc. (Donnelly). Plaintiff appeals from the trial court's order of February 11, 1992, granting Donnelly's motion to dismiss for failure to exercise reasonable diligence to obtain service.

Facts

The complaint alleges that plaintiff was injured on August 22, 1987, when she stepped out of her house and fell on telephone directories after defendant, Angelina Pinela, an employee of defendant Donnelly, rang her doorbell and left the directories in the doorway. The complaint, filed on August 18, 1989, shortly before the expiration of the two year statute of limitations period, alleges negligence against defendant Pinela and seeks recovery against defendant Donnelly under the theories of respondeat superior and negligent supervision. No summons was issued for either defendant at the time the complaint was filed.

On February 21, 1990, the action was dismissed for want of prosecution when plaintiff failed to appear at a progress call set before the trial judge. Within 30 days thereafter, plaintiff filed a motion to vacate the dismissal. The record shows that notice of this motion was mailed on March 23, 1990, to Julie Haick, a claims adjuster for defendant's insurer, Hartford Insurance Company (hereinafter "Hartford"). However, plaintiff did not notice the motion for hearing until May 27, 1991, when such notice was delivered to defendant's attorney. On June 4, 1991, the court vacated the dismissal and ordered that alias summonses be issued to both defendants. The record discloses that Ms. Pinela was served with summons on June 28, 1991. The record also reflects a motion by plaintiff for voluntary dismissal as to defendant Pinela only. Apparently that motion was granted, although there is no such clear indication in the record. In any event, defendant Pinela is not involved in this appeal.

Defendant Donnelly was not served with summons until August 27, 1991. Thereafter, on September 18, 1991, Donnelly filed a motion to dismiss under Supreme Court Rule 103(b), 134 Ill.2d R. 103(b), for lack of diligence in obtaining service of process. Affidavits in opposition to said motion were filed by plaintiff's attorneys, Edward Salomon and Jeffrey D. Hupert. With its reply, defendant filed the affidavits of Hartford employees, Thomas Thoma and Julie Haick (hereinafter "Thoma" and "Haick"). A hearing on the motion took place on February 11, 1992.

The affidavit of plaintiff's attorney, Edward Salomon (hereinafter "Salomon"), states that he mailed an "attorney's lien notice" to defendant Donnelly in September, 1987, shortly after the occurrence. Subsequently, he received a letter from Shirleen Shubert on behalf of Hartford, stating that Hartford was Donnelly's insurer and would defend it in this matter. Salomon's affidavit states, "Between October 1987 and August 1989 I spoke to Ms. Shurbert (sic) and then Mr. Thomas Toma (sic) of The Hartford on a few occasions regarding settlement of this matter." Salomon also stated:

"Prior to filing a complaint within the statutory period, I spoke with Mr. Toma (sic) about resolving the matter without litigation. He told me that although The Hartford wanted to settle the matter, that I should go ahead and file a complaint and send a copy directly to him without serving it through the sheriff's office. He indicated that mailing the complaint to him would constitute formal service on Donnelly. He said we could then actively discuss settlement."

Salomon further averred that on August 19, 1989, the day after the complaint was filed, he sent a copy of the complaint to Thoma along with a letter (hereinafter "the August 19, 1989 letter") which was referenced "Marks v. Rueben Donnelly" and which stated in pertinent part: "Per our agreement, this transmittal will constitute acceptance of service for the defendant and you will be calling to discuss resolution of this claim." The letter also contained a telephone number where Salomon could be reached.

Thoma's affidavit stated that he never spoke with Salomon until August 15, 1989, at which time Salomon said that he would mail to him a courtesy copy of the complaint which he was about to file along with an itemization of plaintiff's "specials." Thoma's affidavit denied that he received the August 19, 1989 letter and any of its alleged enclosures. He also denied agreeing that Hartford's receipt of the complaint would be acceptable in lieu of formal service of summons on Donnelly. Thoma averred that, after two unsuccessful attempts to contact Salomon by telephone, he closed his file on the matter on November 14, 1989, and that he had no contact whatsoever with Salomon other than that single telephone conversation on August 15, 1989.

The affidavit of Hartford claims adjuster Julie Haick denied receipt of any notices or other correspondence during March, 1990. The only conversation she had with Salomon was during a January 14, 1991, telephone call from him, expressing an interest in settlement negotiations. According to her affidavit, Haick told Salomon that she would not discuss settlement until she verified that a complaint had been filed and that the insured had been served. Haick stated that she first received a copy of the complaint from Salomon on February 13, 1991. Although Salomon had indicated on January 14, 1991, that he would contact Haick again, he never did.

The affidavit of Jeffrey D. Hupert, additional counsel for plaintiff, states that a second action was filed in 1991 based on the same events and that defendant Donnelly was served in connection with that action. Mr. Hupert avers that he spoke with William Lacy, Donnelly's attorney in May, 1991, at which time Mr. Lacy indicated he was aware of the first suit. It is undisputed that the second suit was voluntarily dismissed after the DWP was vacated in the first suit.

At the hearing on the Rule 103(b) motion, the trial court granted Donnelly's Rule 103(b) motion to dismiss with prejudice, finding that plaintiff had not exercised reasonable diligence in obtaining service upon defendant Donnelly. At that hearing the court found that the August 19, 1989 letter was sent and received, but made no finding that any agreement was reached to obviate formal service of summons. Plaintiff appeals from the trial court's order granting Donnelly's motion.

Opinion

On appeal, plaintiff takes the position that the trial court abused its discretion in dismissing this cause pursuant to a Rule 103(b) motion. First, plaintiff contends that receipt of the August 19, 1989 letter from her attorney to Donnelly's insurer constitutes a special circumstance which should excuse plaintiff's failure to promptly obtain formal service on Donnelly. Alternatively, plaintiff contends that, even if the letter is not sufficient when considered alone, the pattern of communications between Donnelly's insurer and plaintiff's attorney, in combination with the receipt of the letter, constitute special circumstances sufficient to excuse the failure to obtain prompt formal service. Plaintiff also contends that the court should find a special circumstance in the fact that defendant would be unjustly enriched if plaintiff's failure to effect prompt service was attributable to defendant's misleading conduct. Finally, plaintiff contends that Donnelly is estopped from claiming that proper service was not timely effected.

Supreme Court Rule 103(b) provides:

"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 appropriate 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."

134 Ill.2d R. 103(b).

The purpose of Rule 103(b) is to provide for expeditious handling of suits by protecting defendants from unnecessary delays in service of process and by preventing plaintiffs from circumventing the statute of limitations, which seeks to give defendants the opportunity to investigate the circumstances of the case while evidence is still accessible. (Segal v. Sacco (1990), 136 Ill.2d 282, 285-86, 144 Ill.Dec. 360, 555 N.E.2d 719; Green v. Wilmot Mountain, Inc. (1980), 92 Ill.App.3d 176, 181, 47 Ill.Dec. 763, 415 N.E.2d 1076.) To this end, the trial court is given wide discretion to dismiss a suit under Rule 103(b) where a plaintiff fails to exercise reasonable diligence in obtaining service. (Segal, 136 Ill.2d at 285, 144 Ill.Dec. 360, 555 N.E.2d 719.) The trial court's ruling on such a motion will not be disturbed on appeal absent an abuse of discretion. Zincoris v. Hobart Brothers Co. (1993), 243 Ill.App.3d 609, 616, 183 Ill.Dec. 679, 611 N.E.2d 1327.

Rule 103(b) "is not based upon the subjective test of plaintiff's intent but, rather, upon the objective test of reasonable diligence in effecting service." (Parker v. Universal Packaging Corp. (1990), 200 Ill.App.3d 882, 886, 146 Ill.Dec. 240, 558 N.E.2d 203.) The burden is on the plaintiff to demonstrate that reasonable diligence in effecting...