Carman-Crothers v. Brynda ( 2015 )

Illinois Official Reports
Appellate Court
Carman-Crothers v. Brynda, 2014 IL App (1st) 130280
Appellate Court KELLI CARMAN-CROTHERS, Plaintiff-Appellant, v. JOSEPH A.
Caption BRYNDA, Defendant-Appellee (Susan J. Carrano, Defendant).
District & No. First District, Second Division
Docket No. 1-13-0280
Filed December 2, 2014
Held The trial court did not err in dismissing plaintiff’s complaint with
(Note: This syllabus prejudice under Supreme Court Rule 103(b) based on plaintiff’s
constitutes no part of the unreasonable explanation for the 10-month delay in serving
opinion of the court but defendant, notwithstanding her claim that she tried to serve defendant
has been prepared by the at three different addresses with multiple alias summonses and her
Reporter of Decisions contention that defendant should have expected service because he
for the convenience of had been served by other persons injured in the underlying accident,
the reader.) since defendant’s knowledge of the suit does not preclude dismissal
under Rule 103(b), and the record showed that plaintiff continued to
attempt to serve defendant at addresses that the process servers found
to be invalid, rather than taking appropriate actions to discover
defendant’s real address.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-L-650050; the
Review Hon. Janet Brosnahan, Judge, presiding.
Judgment Affirmed.
Counsel on Rathbun, Cservenyak & Kozol, LLC, of Joliet (Scott Pyles and
Appeal Michael J. Lichner, of counsel), for appellant.
Pretzel & Stouffer, Chtrd., of Chicago (Robert Marc Chemers and
Philip G. Brandt, of counsel), for appellee.
Panel JUSTICE NEVILLE delivered the judgment of the court, with
opinion.
Presiding Justice Simon and Justice Pierce concurred in the judgment
and opinion.
OPINION
¶1 Plaintiff, Kelli Carman-Crothers, appeals from an order of the trial court dismissing her
complaint with prejudice for failing to exercise reasonable diligence to obtain service on
defendant, Joseph Brynda. On appeal, plaintiff contends that she exercised reasonable
diligence in her attempts to serve defendant because she attempted to serve defendant multiple
times at three addresses and ultimately served defendant.
¶2 We find that the trial court did not abuse its discretion when it found that plaintiff’s
explanation for the 10-month delay in serving the defendant was unreasonable. Therefore, we
hold that the trial court did not err when it dismissed the plaintiff’s complaint with prejudice
pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007).
¶3 BACKGROUND
¶4 The record reveals that on November 4, 2009, a vehicle operated by defendant struck a
pedestrian and a vehicle operated by plaintiff. The accident report listed defendant’s address as
20017 Graceland Lane in Frankfort, Illinois (Graceland Lane).
¶5 On November 2, 2011, plaintiff filed a personal injury complaint against defendant and
codefendant Susan Carrano.1 Plaintiff also issued a summons for service on defendant at the
Graceland Lane address. Service was unsuccessfully attempted three times at this address. The
process server’s affidavit indicated that the house was vacant and that defendant may be living
in Willow, Illinois, or New York.
¶6 On March 14, 2012, plaintiff issued an alias summons for service on defendant at the
Graceland Lane address. On March 28, 2012, an affidavit of nonservice was completed by a
process server which averred that Graceland Lane was no longer a “valid” address. In May
2012, plaintiff issued a second alias summons for service on defendant at 7711 West Roeland
Court in Frankfort, Illinois (Roeland Court). A subsequent affidavit of nonservice completed
by a process server averred that the Roeland Court address was no longer a “valid” address. In
1
Codefendant, the owner of the car defendant was operating at the time of the accident, is not a
party to this appeal.
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July, the court granted plaintiff leave to issue a fourth alias summons for service on defendant
and appointed Kevin O’Boyle as a special process server.2 Plaintiff then issued a fourth alias
summons for defendant at the Roeland Court address. The next month, plaintiff issued a fifth
alias summons for defendant at the Roeland Court address. In September 2012, plaintiff
obtained leave to file a sixth alias summons, and defendant was subsequently served at the
Vienna Correctional Center in Vienna, Illinois.
¶7 In October 2012, defendant moved to dismiss plaintiff’s complaint due to lack of diligent
service pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). The motion alleged
that because plaintiff failed to exercise diligence in effectuating service upon defendant and
because the applicable statute of limitations for the instant personal injury action had expired,
the complaint should be dismissed with prejudice. The motion further alleged that defendant
had been confined in either the Cook County jail or the Vienna Correctional Center since
November 18, 2010, and that three causes of action against defendant arising out of the 2009
accident had already been initiated, litigated, and resolved.
¶8 In her response to the motion to dismiss, plaintiff alleged that she acted with diligence
when she reasonably relied upon the address defendant provided on the accident report and
attempted to serve him there immediately after filing the instant cause of action. Plaintiff also
alleged that defendant should have expected service from her because he was served by other
parties involved in the accident and that defendant’s incarceration created a “special
circumstance” that affected her ability to serve him.
¶9 The trial court subsequently granted defendant’s motion and dismissed plaintiff’s
complaint with prejudice pursuant to Rule 103(b), because, inter alia, defendant’s location was
“easily ascertainable” and plaintiff issued several alias summonses to an address that was
reported invalid in May 2012. The court also noted that plaintiff did not show any actual
attempts at service for the period of May through September 2012 or measures, such as skip
traces or Internet searches, to determine defendant’s whereabouts.
¶ 10 ANALYSIS
¶ 11 On appeal, plaintiff contends that the trial court erred in dismissing her complaint because
she exercised reasonable diligence in her attempts to serve defendant and was ultimately able
to serve defendant. Specifically, plaintiff argues that she attempted service on defendant seven
times at three addresses, including three attempts immediately after filing the instant action.
Plaintiff further argues that based upon the other causes of action against defendant arising out
of the 2009 accident, defendant knew or should have known about the instant cause of action.
Plaintiff finally argues that defendant’s “physical transience” was a special circumstance
affecting her ability to serve him.
¶ 12 Whether an action should be dismissed for lack of diligent service pursuant to Rule 103(b)
is a decision that rests within the sound discretion of the trial court (Segal v. Sacco, 136 Ill. 2d
282, 286 (1990)), and the court’s ruling will not be disturbed on review absent an abuse of that
discretion. Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207, 213 (2007). An abuse of
discretion will be found where the trial court’s decision is arbitrary, unreasonable, or where no
reasonable person would adopt the court’s view. Emrikson v. Morfin, 2012 IL App (1st)
111687, ¶ 14.
2
The record does not contain a third alias summons.
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¶ 13 Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) states “[i]f the failure to exercise
reasonable diligence to obtain service on a defendant occurs after the expiration of the
applicable statute of limitations, the dismissal shall be with prejudice as to that defendant.” Our
supreme court has held that the purpose of Rule 103(b) is to protect defendants from
unnecessary delays in receiving service of process and to prevent plaintiffs from
circumventing the statute of limitations. Segal, 136 Ill. 2d at 286. Rule 103(b) does not provide
a specific time by which a defendant must be served; rather, a court must consider the amount
of time that has passed in relation to all the other facts and circumstances of each individual
case. Case, 227 Ill. 2d at 213; see Long v. Elborno, 376 Ill. App. 3d 970, 980 (2007)
(seven-month delay showed a lack of reasonable diligence).
¶ 14 When moving for dismissal pursuant to Rule 103(b), a defendant must make a prima facie
showing that the plaintiff failed to act with reasonable diligence in effectuating service after
filing the complaint. Emrikson, 2012 IL App (1st) 111687, ¶ 17. The trial court evaluates
whether the defendant has made this showing on a case-by-case basis. Kole v. Brubaker, 325
Ill. App. 3d 944, 949 (2001). Once the defendant shows that the length of time between the
filing of the complaint and the date of service suggests a lack of diligence, the burden shifts to
the plaintiff to provide a reasonable explanation for the delay. Emrikson, 2012 IL App (1st)
111687, ¶ 17. To meet this burden, the plaintiff must present an affidavit or other evidentiary
materials which show that the delay in service was reasonable and justified under the
circumstances. Kole, 325 Ill. App. 3d at 949-50. If the plaintiff fails to provide a reasonable
explanation for the delay, the court may dismiss the action against the defendant pursuant to
Rule 103(b). Emrikson, 2012 IL App (1st) 111687, ¶ 17.
¶ 15 The trial court may consider several factors when evaluating a motion to dismiss pursuant
to Rule 103(b), including: (1) the length of time the plaintiff used to obtain service of process;
(2) the plaintiff’s activities during that time; (3) the plaintiff’s knowledge of the defendant’s
location; (4) the ease with which the plaintiff could have ascertained the defendant’s
whereabouts; (5) whether the defendant had actual knowledge of the pending action; (6) any
special circumstances that affected the plaintiff’s efforts; and (7) whether the defendant was
actually served. Segal, 136 Ill. 2d at 287.
¶ 16 Here, we find that defendant made a prima facie showing that plaintiff failed to act with
reasonable diligence in effectuating service upon him. Plaintiff filed her complaint in
November 2011, and defendant was not served until September 2012, 10 months later. This
10-month delay suggested a lack of diligence, and the burden then shifted to plaintiff to
provide a satisfactory explanation for this delay. See Emrikson, 2012 IL App (1st) 111687,
¶ 19 (a time period of as little as five months between the filing of a complaint and subsequent
service is sufficient to make the prima facie showing).
¶ 17 Our review of the record reveals that plaintiff has failed to meet this burden. Although
plaintiff correctly argues that she obtained a summons and multiple alias summonses
following the filing of the complaint and attempted to serve defendant at three different
addresses, the record also reflects that plaintiff continued to attempt to serve defendant at
addresses after they were characterized as vacant or no longer valid by process servers.
Specifically, after service was unsuccessfully attempted at the Graceland Lane address in
November 2011 and the process server’s affidavit indicated that the house was vacant, plaintiff
obtained an alias summons and again attempted to serve defendant at that address. With regard
to the Roeland Court address, plaintiff obtained a fourth and fifth alias summons for defendant
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at that address, even after an affidavit of nonservice averred that the address was no longer
valid. The record does not contain affidavits of nonservice for those summonses. Plaintiff
offers no explanation for her continued attempts to serve defendant at addresses that her own
process servers deemed not valid; rather, she argues that she exercised due diligence when she
attempted to serve defendant at the address listed on the accident report.
¶ 18 Here, the accident report was generated in 2009, and the instant suit was filed in 2011.
Contrary to plaintiff’s argument on appeal that defendant’s “physical transience” created a
special circumstance that made it difficult to locate and serve defendant, it is reasonably
foreseeable that a person might move during a two-year period. The discovery that the address
listed on an accident report is no longer valid does not relieve a plaintiff of the obligation to
take further appropriate actions to locate the defendant. See Alsobrook v. Cote, 133 Ill. App. 2d
261, 264-65 (1971). In any event, although a plaintiff’s failure to consult the accident report is
an important factor to consider when determining diligence, or lack thereof (Emrikson, 2012
IL App (1st) 111687, ¶ 23), a plaintiff must do more than merely attempt to serve the defendant
at the address listed in the accident report in order to establish reasonable diligence.
¶ 19 Alsobrook v. Cote, 133 Ill. App. 2d 261 (1971), is instructive. There, after the plaintiff
unsuccessfully attempted to serve the defendant at the address listed on the accident report, the
only further efforts that the plaintiff’s counsel took over the next two years were to write two
letters and look for the defendant in eight telephone directories. Alsobrook, 133 Ill. App. 2d at
264-65. The court found that plaintiff’s efforts did not reflect reasonable diligence after
considering the fact that the plaintiff consulted the accident report to determine the defendant’s
address as well as the fact that after the unsuccessful service attempt at the address on the
accident report, the plaintiff did not take appropriate further action to locate the defendant. Id.
at 265-66.
¶ 20 Similarly here, once plaintiff learned that the addresses she had obtained for defendant,
including the one listed in the accident report, were not valid, plaintiff continued to obtain alias
summonses for those addresses rather than taking appropriate further action to locate
defendant.
¶ 21 As to the remaining factors that the trial court may consider when ruling on a Rule 103(b)
motion, although it is true that defendant was ultimately served, this court rejects plaintiff’s
contention that defendant knew or should have known of the instant suit because the record
contains no evidence to suggest that defendant knew of the instant cause of action. Even if this
court was to accept plaintiff’s assertion that defendant knew or should have known about the
instant case prior to being served because of the other cases, that knowledge does not
necessarily preclude dismissal pursuant to Rule 103(b). See Polites v. U.S. Bank National
Ass’n, 361 Ill. App. 3d 76, 86 (2005) (the fact that a defendant “had notice of the lawsuit before
being served did not preclude dismissal under Rule 103(b)”).
¶ 22 In this case, after reviewing all the factors and considering the totality of the circumstances,
we do not find that the trial court abused its discretion when it found plaintiff’s explanation for
the 10-month delay in serving the defendant was unreasonable. Emrikson, 2012 IL App (1st)
111687, ¶¶ 14, 17. Therefore, we hold that the trial court did not err when it dismissed
plaintiff’s complaint with prejudice pursuant to Rule 103(b). Segal, 136 Ill. 2d at 286.
¶ 23 Accordingly, the judgment of the circuit court of Cook County is affirmed.
¶ 24 Affirmed.
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