Schusterman v. Northwestern Medical Faculty Foundation

• Decision Date: 16 March 1990
• Docket Number: No. 1-89-2092,1-89-2092
• Citation: 195 Ill.App.3d 632,142 Ill.Dec. 437,552 N.E.2d 1178
• Parties: , 142 Ill.Dec. 437 Arnold SCHUSTERMAN, Plaintiff-Appellant, v. NORTHWESTERN MEDICAL FACULTY FOUNDATION, et al., Defendants (Sheldon Berger, Neil J. Stone, Joseph J. Skom, Robert L. Murphy, James V. Talano, and Frank Krumlovsky, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

Page 1178

552 N.E.2d 1178

195 Ill.App.3d 632, 142 Ill.Dec. 437

Arnold SCHUSTERMAN, Plaintiff-Appellant, v. NORTHWESTERN MEDICAL FACULTY FOUNDATION, et al., Defendants (Sheldon Berger, Neil J. Stone, Joseph J. Skom Robert L. Murphy, James V. Talano, and Frank Krumlovsky, Defendants-Appellees).

No. 1-89-2092.

Appellate Court of Illinois First District, Sixth Division.

March 16, 1990.

Leonard M. Ring & Associates, P.C., Chicago (Leonard M. Ring and William J. Jovan, of counsel), for plaintiff-appellant.

Rooks, Pitts & Poust, Chicago (Jerome N. Groark, Patricia Cari Nowak, of counsel), Sidley & Asutin, Chicago (Fredrick J. Artwick, Amy D. Mayber, Mary M. Hachenburg, of counsel), Northwestern University Office of Legal Affairs, Evanston (Michael C. Weston, James M. Perry, of counsel), for defendants-appellees.

Presiding Justice LaPORTA delivered the opinion of the court:

Plaintiff brought an action against defendants, Sheldon Berger, Neil J. Stone, Joseph J. Skom, Robert L. Murphy, James V. Talano, and Frank Krumlovsky, seeking damages for personal injuries allegedly sustained as a result of negligent medical treatment by them. Plaintiff's claims against defendants were dismissed with prejudice pursuant to Supreme Court Rule 103(b) (107 Ill.2d R. 103(b)) for lack of diligence in effecting service of process. Plaintiff filed a notice of appeal challenging the dismissal of his claims against defendants. Prior to oral argument before this court, plaintiff entered into a settlement agreement with defendants Murphy, Talano, and Krumlovsky. Consequently, only Berger, Stone and Skom remain as defendants, and plaintiff appeals the dismissal of his claims against them.

The record reveals that on May 9, 1985, plaintiff filed a complaint naming Mark Minahan, a podiatrist, as a defendant and seeking damages for personal injuries allegedly sustained through negligent medical treatment. On August 13, 1985, plaintiff was granted leave to file an amended complaint naming additional parties, including defendants, and a special process server selected by plaintiff was appointed to effect service on defendants. Plaintiff claimed that he suffered personal injuries as a result of negligent medical treatment by defendants between October and December 1984. Summonses were issued against defendants on August 15, 1985, but the special process server's affidavits of service were not filed with the court until July 21, 1988. The special process server's affidavit reflected that defendants were not served personally, but summonses for them were left with their business partner, David S. Oyer, on August 16, 1985. Although other defendants appeared and participated in discovery, the individual defendant doctors did not appear in the action.

On October 14, 1988, plaintiff caused alias summonses to issue for the defendants, and defendants were personally served. Defendants Stone and Skom filed general appearances and motions to dismiss the complaint pursuant to Supreme Court Rule 103(b), contending that plaintiff failed to exercise due diligence in serving them. Defendant Berger initially filed a special and limited appearance and a motion to quash the summons and to contest the court's jurisdiction over him. Berger subsequently withdrew his motion to quash summons, entered a general appearance, and filed a Rule 103(b) motion to dismiss.

The trial court found that the attempt to serve defendants in 1985 was clearly improper and that plaintiff was not justified in waiting almost two years before having alias summonses issued and served upon defendants. Accordingly, the court granted defendants motions and dismissed plaintiff's claims against them with prejudice, finding that there was no just reason to delay enforcement or appeal of the order (107 Ill.2d R. 304(a)).

Plaintiff initially contends that the filing of general appearances in 1988 precluded defendants from challenging plaintiff's exercise of due diligence in effecting service.

Plaintiff has attempted to frame this issue as one of jurisdiction over defendants. The case does not, however, present a question of jurisdiction. Rather, the controversy centers on the issue of plaintiff's diligence in effecting service upon defendants.

Plaintiff asserts that because defendants did not enter special and limited appearances to contest jurisdiction, they were precluded from raising an objection under Supreme Court Rule 103(b). In support of this assertion, plaintiff argues that defendants' filing of general appearances in 1988 conceded personal jurisdiction over them and operated as general appearances in response to the defective service of defendants in 1985. This argument is without merit.

As the record reflects, the attempt to serve defendants through a business partner in 1985 was wholly ineffective and did not confer personal jurisdiction over them. (Ill.Rev.Stat.1985, ch. 110, par. 2-203(a).) Because they had not been served and were not subject to the jurisdiction of the court, defendants were not required to appear at that time or to file any pleadings in response to the invalid service in 1985. Janove v. Bacon (1955), 6 Ill.2d 245, 128 N.E.2d 706.

In October 1988, plaintiff caused alias summonses to be issued for each of the defendants who had not been previously served, and defendants were then personally served without difficulty. The service of defendants in October 1988 automatically conferred personal jurisdiction over them. (Meldoc Properties v. Prezell (1987), 158 Ill.App.3d 212, 110 Ill.Dec. 684, 511 N.E.2d 861; In re Marriage of Hostetler (1984), 124 Ill.App.3d 31, 79 Ill.Dec. 401, 463 N.E.2d 955.) At that time, the court could properly exercise personal jurisdiction over defendants, whether or not they filed appearances or responsive pleadings. Meldoc Properties v. Prezell, 158 Ill.App.3d 212, 110 Ill.Dec. 684, 511 N.E.2d 861.

After being served in 1988, defendants filed appearances and motions to dismiss under Rule 103(b). The trial court examined the record and found that plaintiff had not exercised due diligence where defendants had been named in August 1985 but were not personally served until October 1988.

A motion for a Rule 103(b) dismissal is not the equivalent of a motion for dismissal for lack of jurisdiction. (Williams v. Bolsten (1989), 184 Ill.App.3d 832, 835, 133 Ill.Dec. 100, 102, 540 N.E.2d 966, 968; Caliendo v. Public Taxi Service, Inc. (1966), 70 Ill.App.2d 86, 88, 217 N.E.2d 369, 371.) Upon being served in 1988, defendants properly moved for dismissal under Rule 103(b). They did not, indeed could not, challenge the court's jurisdiction over them because they had been personally served in October 1988. Defendants did, however, argue that plaintiff had failed to exercise due diligence in effecting service where they had not avoided service and were eventually served without difficulty. Defendants did not claim that the trial court lacked jurisdiction, but on the contrary, specifically invoked the court's jurisdiction by requesting that plaintiff's claims be dismissed under Rule 103(b). (See Caliendo, 70 Ill.App.2d at 88, 217 N.E.2d at 371.) Defendants did not raise a jurisdictional objection, and the trial court's dismissal of plaintiff's claims against defendants was not predicated upon a lack of personal jurisdiction. Thus, although plaintiff is correct in stating that a general appearance will confer jurisdiction (Meldoc Properties, 158 Ill.App.3d 212, 110 Ill.Dec. 684, 511 N.E.2d 861), this principle has no relevance to the case at bar. The court's personal jurisdiction over defendants attached when they were personally served in October 1988, which was prior to their filing of general appearances. Contrary to plaintiff's claim, the defendants' general appearances were appropriate after personal service upon them in 1988 and had no bearing or effect on the defective service attempt in 1985.

Because defendants were not served until 1988, they had no opportunity to file a motion under Rule 103(b) until that time. (Martinez v. Erickson (1989), 127 Ill.2d 112, 118, 129 Ill.Dec. 88, 91, 535 N.E.2d 853, 856, discussing Catlett v. Novak (1987), 116 Ill.2d 63, 106 Ill.Dec. 786, 506 N.E.2d 586.) Defendants were under no obligation to file motions to quash the invalid 1985 service either in 1985 or in 1988, and the filing of general appearances and motions to dismiss did not constitute waivers of their rights to raise a defense under Rule 103(b). See Tyler v. J.C. Penney Co. (1986), 145 Ill.App.3d 967, 974, 99 Ill.Dec. 748, 753, 496 N.E.2d 323, 328; Meyer v. Wardrop (1976), 37 Ill.App.3d 243, 248, 345 N.E.2d 762, 766; Caliendo, 70 Ill.App.2d at 88, 217 N.E.2d at 371.

Moreover, plaintiff cannot assert that defendants waived any objection under Rule 103(b) by participating in the litigation where defendants promptly filed motions under Rule 103(b) and where the record contains no evidence that defendants engaged in discovery or in any way defended the action on its merits. (Montero v. University of Illinois Hospital (1978), 57 Ill.App.3d 206, 211, 14 Ill.Dec. 731, 735, 372 N.E.2d 1010, 1014.) Active participation in the defense of an action on its merits is the only kind of activity which can amount to a waiver of an objection under Rule 103(b). Daily v. Hartley (1979), 77 Ill.App.3d 697, 703, 33 Ill.Dec. 197, 202, 396 N.E.2d 586, 591.

Consequently, defendants have not waived their rights to raise objections under Rule 103(b), and the filing of general appearances after personal service in 1988 had no effect upon the prior invalid service attempt in 1985.

We next consider whether plaintiff exercised due diligence in effecting service upon defendants.

Supreme Court Rule 103(b) provides as follows:

"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...