Muskat v. Sternberg

• Decision Date: 28 March 1991
• Docket Number: No. 1-89-0327,1-89-0327
• Citation: 211 Ill.App.3d 1052,156 Ill.Dec. 220,570 N.E.2d 696
• Parties: , 156 Ill.Dec. 220 Sylvia MUSKAT, Plaintiff-Appellant, v. Paul STERNBERG, M.D., Paul Sternberg, M.D.S.C., Defendants-Appellees (Robert Block, M.D., Eugene Cutler, O.D., Highland Park Hospital, a corporation, Intermedics Intraocular, Inc., a Texas corporation, and Intermedics, Inc., a Texas corporation, Defendants).
• Court: United States Appellate Court of Illinois

Page 696

570 N.E.2d 696

211 Ill.App.3d 1052, 156 Ill.Dec. 220

Sylvia MUSKAT, Plaintiff-Appellant, v. Paul STERNBERG, M.D., Paul Sternberg, M.D.S.C. Defendants-Appellees (Robert Block, M.D., Eugene Cutler O.D., Highland Park Hospital, a corporation, Intermedics Intraocular, Inc., a Texas corporation, and Intermedics Inc., a Texas corporation, Defendants).

No. 1-89-0327.

Appellate Court of Illinois First District, First Division.

March 28, 1991.

Rehearing Denied April 30, 1991.

Harold A. Liebenson (Paula Brooks Tarr, of counsel) and Norbert N. Rosenthal & Assoc., Ltd. (Norbert N. Rosenthal, of counsel), Chicago, for plaintiff-appellant.

Johnson, Cusack & Bell, Ltd. (Thomas H. Fegan, Brian C. Fetzer, and Emilio E. Machado, of counsel), Chicago, for defendants-appellees.

Justice O'CONNOR delivered the opinion of the court:

Sylvia Muskat appeals from the trial court's order that dismissed her complaint with prejudice against Dr. Paul Sternberg and his professional corporation Paul Sternberg M.D.S.C. (collectively referred to as the defendants) under Supreme Court Rule 103(b) (Ill.Rev.Stat.1987, ch. 110A, par. 103(b)) for her failure to exercise reasonable diligence to obtain service of summons prior to the expiration of the applicable statute of limitations. Muskat contends that the trial court abused its discretion by dismissing her action with prejudice. For the reasons set forth below, we affirm.

Between July 23 and July 26, 1980, the defendants were allegedly involved in Muskat's cataract removal surgery. Almost two years after her surgery, on July 22, 1982, Muskat's attorney filed a complaint which alleged negligence and products liability against the defendants for injuries allegedly caused by the cataract removal surgery. Specifically, Muskat's complaint alleges that after July 24, 1980 the implanted lens became loose and descended into her eyeball; that between one to two months after her surgery, she visited at least three other physicians who told her that the implanted lens became loose and descended into her eyeball, which physicians each treated her eye; and that she suffered pain, diminished vision, and a serious threat that if the lens migrated further into her eye, she could lose her sight.

On July 23, 1984, more than two years after Muskat's complaint was filed, her action was dismissed for want of prosecution because service of process was neither attempted nor obtained upon either of the defendants.

Another year passed before Muskat's attorney refiled her complaint on July 23, 1985, pursuant to section 13-217 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 13-217). Finally, between August 19 and October 25, 1985, the defendants were served with process in the refiled action. Service of process was obtained more than three years after the action was originally filed and more than five years after the alleged injury.

On December 5, 1985, the defendants' attorney filed a notice of motion, a motion to vacate technical defaults, an appearance, a jury demand, an answer to complaint, interrogatories and a request for production. Muskat did not answer the defendants' interrogatories, did not respond to the production request and was not required to do so because the response period had not yet expired.

Then, on December 20, 1985, fifteen days later, the defendants filed their motion to dismiss Muskat's complaint pursuant to Supreme Court Rule 103(b) (Ill.Rev.Stat.1987, ch. 110A, par. 103(b)), contending that Muskat failed to exercise reasonable diligence in effectuating service of process. Rule 103(b) states that:

"[i]f 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." (Ill.Rev.Stat.1987, ch. 110A, par. 103(b).)

The trial court heard the motions to dismiss and denied them on the grounds that the appropriate time period by which to measure Muskat's diligence in obtaining service of process commences with the refiling of the lawsuit.

Subsequently, this court granted the defendants' joint application for interlocutory appeal under Supreme Court Rule 308 (Ill.Rev.Stat.1987, ch. 110A, par. 308), and the following question was certified:

"Whether, in a case in which the plaintiff's original lawsuit was dismissed for want of prosecution, and no Supreme Court Rule 103(b) motion was filed and no service of process was attempted or obtained in the original lawsuit, a trial court may consider any lack of reasonable diligence in obtaining service of process in the original lawsuit in ruling on a Supreme Court Rule 103(b) motion in the refiled lawsuit."

We answered the certified question in the affirmative, reversed the trial court's denial of the Rule 103(b) motion to dismiss and remanded for further proceedings. (Muskat v. Sternberg (1986), 151 Ill.App.3d 304, 104 Ill.Dec. 439, 502 N.E.2d 1099.) Thereafter, the Illinois Supreme Court granted Muskat's petition for leave to appeal and the court affirmed our decision. Muskat v. Sternberg (1988), 122 Ill.2d 41, 118 Ill.Dec. 455, 521 N.E.2d 932.

On remand from the supreme court, the defendants renewed their motions to dismiss pursuant to Supreme Court Rule 103(b) (Ill.Rev.Stat.1987, ch. 110A, par. 103(b)) and Muskat filed her answer.

On October 11, 1988, the trial court heard the motions to dismiss. However, during the hearing, Muskat's attorney asked for leave to amend Muskat's complaint to include fraudulent concealment allegations against the defendants, contending that Sternberg "willfully and fraudulently concealed ... that it was imminent and necessary that [Muskat] be examined immediately after her release from the hospital because the ... intraocular lens [could] become dislodged and sink into [Muskat's] eyeball and irreparably injure her," that Sternberg "intentionally concealed his malpractice" and that on or about July 22, 1985, Muskat discovered her injury when a medical consultant advised her of the specific area in which any deviation from normal treatment might have occurred.

Ruling on the motion, the trial court stated that the defendants were made a party in the 1982 suit; that despite the "wall of silence," Muskat knew she had an action against the defendants; that she knew enough to file a suit; and that the fact that "the 1982 case was filed would indicate that the plaintiff had knowledge that she had been injured, and that injury was wrongfully caused, or I can't see how she could file the suit and name these ... parties." Accordingly, the trial court denied the motion to amend Muskat's complaint on the grounds that it would not address the problems raised by the Rule 103(b) motions to dismiss. Then, the court continued the hearing with respect to the Rule 103(b) motions to December 29, 1988.

At the December 29, 1988 hearing, Muskat's attorney argued a motion to reconsider the motion to file an amended complaint, which the trial court denied. Additionally, the trial court heard arguments with respect to the Rule 103(b) motions. After the court determined that there was not sufficient participation in discovery to amount to waiver, it dismissed Muskat's complaint against the defendants with prejudice. The court stated that "maybe someone has an action against an attorney ... an attorney has no right to withhold service of summons until he can pinpoint who did what when he's named them in the first place."

Muskat appeals the Rule 103(b) dismissal with prejudice.

Muskat argues that the trial court abused its discretion by dismissing her complaint because the defendants waived any objection to Supreme Court Rule 103(b) by not filing motions for two to four months after being served, by answering her complaint and by filing interrogatories and a request for production. We disagree.

The defendants did not waive their objection of an unreasonable delay in obtaining service because they raised their Rule 103(b) in the initial stages of the litigation and did not actively participate in defending the action on its merits. (Gatto v. Nelson (1986), 142 Ill.App.3d 284, 292, 96 Ill.Dec. 932, 492 N.E.2d 1.) The defendants timely raised their Rule 103(b) objection since they filed their motion merely two to four months after they were served with notice of the action. Similarly, in Meyer v. Wardrop (1976), 37 Ill.App.3d 243, 345 N.E.2d 762, the appellate court determined that a Rule 103(b) objection was not waived even though defendant Wardrop filed his Rule 103(b) motion to dismiss more than 11 months after he was served and had filed an appearance. (Meyer, 37 Ill.App.3d at 247, 345 N.E.2d 762.) Therefore, we cannot conclude that the defendants relinquished their right to raise a defense under Rule 103(b) on the grounds that two to four months had passed between the time they were served and the time they filed their motion to dismiss.

Furthermore, the defendants did not "actively" participate in defending the action on the merits simply by filing an appearance, an answer to Muskat's complaint, interrogatories and a request for production. (See Gatto v. Nelson (1986), 142 Ill.App.3d 284, 292, 96 Ill.Dec. 932, 492 N.E.2d 1, where the appellate court determined that third party defendants had not waived their Rule 103(b) objections even though they filed their motion to dismiss plaintiff's action two months after they filed their appearance and answer to the third-party action, and four months before they were served by plaintiff.) The defendants never required Muskat to answer the interrogatories and to respond to the production request, and they neither...