Emrikson v. Morfin

ILLINOIS OFFICIAL REPORTS
Appellate Court
Emrikson v. Morfin, 2012 IL App (1st) 111687Appellate Court PATRICIA R. EMRIKSON, Plaintiff-Appellant, v. FERNANDO
Caption MORFIN, Defendant-Appellee.
District & No. First District, Third Division
Docket No. 1-11-1687
Rule 23 Order filed August 9, 2012
Rule 23 Order
withdrawn September 10, 2012
Opinion filed September 19, 2012
Held The trial court did not abuse its discretion in dismissing plaintiff’s
(Note: This syllabus negligence complaint arising from a traffic accident for failing to exercise
constitutes no part of due diligence in serving defendant, especially in view of plaintiff’s failure
the opinion of the court to consult the accident report, which contained defendant’s correct
but has been prepared address.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-001784; the
Review Hon. James D. Egan, Judge, presiding.
Judgment Affirmed.
Counsel on Joanna C. Fryer, of Chicago, for appellant.
Appeal
Bruce Farrel Dorn & Associates, of Chicago (Ellen J. O’Rourke and Jean
M. Bradley, of counsel), for appellee.
Panel JUSTICE STERBA delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Pucinski concurred in the judgment
and opinion.
OPINION
¶1 Plaintiff-appellant Patricia Emrikson filed a complaint against defendant-appellee
Fernando Morfin alleging negligence in connection with a traffic accident. Defendant moved
to dismiss the complaint pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007),
arguing that plaintiff failed to use due diligence in effectuating service upon him. The trial
court agreed and granted defendant’s motion. On appeal, plaintiff contends that the court
erred in granting defendant’s motion to dismiss and in denying her motion to reconsider. For
the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 On February 16, 2007, plaintiff Patricia Emrikson was rear-ended by defendant Fernando
Morfin while traveling on Lake Street in Melrose Park, Illinois. According to defendant, at
the time, the Melrose Park police completed a traffic crash report (accident report) which
detailed the accident. The accident report was completed at the scene and contained
defendant’s address–621 S. Ardmore Avenue, Addison, Illinois–telephone number, and
driver’s license number. Almost two years later, on February 13, 2009, three days prior to
the running of the statute of limitations, plaintiff filed a complaint alleging negligence in
connection with the accident.
¶4 Plaintiff used an Internet-based search tool, also known as a skip trace, to obtain
defendant’s address for service of process. A notice on the search page warns its users that
the information may be defective and should be independently verified:
“The Public Records and commercially available data sources used in this system have
errors. Data is sometimes entered poorly, processed incorrectly and is generally not free
from defect. This system should not be relied upon as definitively accurate. Before
relying on any data this system supplies, it should be independently verified.”
According to plaintiff, she performed five skip traces on defendant between July 2008 and
March 2010, which revealed the following addresses with corresponding dates: 407 Country
Club Drive, September 2006 through January 2007; 555 W. Cullerton Street, Apartment 2,
September 1999 through October 2006; 1553 N. Mannheim Road, June 2004 through August
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2006; 621 S. Ardmore Avenue, March 2006 through July 2009; and 1506 N. Mannheim
Road, July 2007 through March 2009. Three of the listed addresses, including Ardmore
Avenue, also had corresponding phone numbers.
¶5 An initial summons was issued for defendant at 407 Country Club Drive on February 13,
2009. An affidavit of “due and diligent attempt” revealed that Don Haworth was assigned
to execute the summons but was unsuccessful because defendant had moved two years prior.
When a request for forwarding information from the United States Postal Service did not
yield any results, plaintiff moved to appoint a special process server.
¶6 Plaintiff was granted leave to issue an alias summons on July 31, 2009, but service was
not attempted. A second alias summons was issued on September 9, 2009. In an affidavit of
service dated September 10, 2009, Haworth stated that he executed service of the second
alias summons upon Teresa Morfin, defendant’s sister, at 555 W. Cullerton Street. On
October 26, 2009, after receiving the summons and complaint from his sister, defendant
moved to quash service upon Teresa. Due to several continuances requested by plaintiff, the
motion was not argued until March 11, 2010, after which the circuit court granted the motion
without prejudice.
¶7 Subsequently, plaintiff performed another skip trace and filed a third alias summons with
leave of the court. The special process server was directed to serve defendant at the Ardmore
address but did not find defendant there. The process server then attempted and obtained
service on defendant at 1506 N. Mannheim Road, defendant’s place of business, on March
17, 2010. Thirteen months had elapsed since plaintiff filed the complaint. On April 8, 2010,
defendant filed a motion to dismiss pursuant to Illinois Supreme Court Rule 103(b), arguing
that plaintiff failed to use due diligence in effectuating service upon him.
¶8 At defendant’s deposition taken in connection with defendant’s motion, defendant
testified that prior to the spring of 2006, he lived at the Cullerton address where his mother,
father, and sister still reside. However, since the spring of 2006, defendant had lived alone
at the Ardmore address. He operated a tire company located at 1506 N. Mannheim Road,
where he worked daily from approximately 7:30 a.m. to 8 p.m. Since he had taken up
residence at the Ardmore address, defendant had not listed 555 W. Cullerton as his residence
on any credit card or any other application. Further, he immediately changed the address on
his driver’s license to 621 S. Ardmore Avenue after he moved and provided that address to
police for purposes of completing the accident report.
¶9 After hearing argument on the motion, the trial court made a specific finding that the
delay in service was not due to plaintiff’s attempt to secure a tactical advantage, but it was
troubled by plaintiff’s failure to consult the accident report to determine the address, stating:
“[T]here is no explanation of why service was not attempted on the address that the
defendant gave on a police report. It’s a motor vehicle accident. I would think that would
be the most logical place to look, is on the police report before going anywhere else.”
Ultimately, the court concluded that this failure to rely on the accident report coupled with
the lack of verification of the addresses provided in the skip trace was evidence of a lack of
diligence and granted defendant’s motion with prejudice.
¶ 10 Following the dismissal, plaintiff learned that Haworth had attempted service in July or
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August 2009 at defendant’s Ardmore address. According to plaintiff, Haworth also revealed
that he placed defendant under surveillance from February 2009 to March 2010. Specifically,
Haworth stated that he surveilled the Ardmore and Cullerton addresses, but was unable to
locate defendant at either address. Plaintiff subsequently filed a motion to reconsider based
primarily on the information revealed by Haworth. The trial court denied the motion and
plaintiff timely filed this appeal.
¶ 11 ANALYSIS
¶ 12 On appeal, plaintiff argues the trial court erred in finding that she failed to use reasonable
diligence to obtain service on defendant. Initially, the parties dispute the standard of review
for Rule 103(b) dismissals. Plaintiff urges us to apply a de novo standard, while defendant
argues the more lenient abuse of discretion standard is applicable. We agree with defendant.
¶ 13 Our supreme court in Segal v. Sacco, 136 Ill. 2d 282, 286 (1990), held that dismissal
under Rule 103(b) is within the sound discretion of the circuit court. Nevertheless, plaintiff,
relying on Lewis v. Dillon, 352 Ill. App. 3d 512 (2004), argues that we should proceed under
a de novo standard because the trial court in the instant case based its findings on conclusions
of law. In Lewis, however, we declined to apply a de novo standard notwithstanding the fact
that the trial court made certain legal conclusions. Id. at 515. We noted that because the trial
court reviewed affidavits and weighed numerous factors in deciding whether the plaintiff
exercised reasonable diligence, the lower court’s ruling was subject to review for abuse of
discretion. Id. at 515-16. Cases subsequent to Lewis have also applied an abuse of discretion
standard to review Rule 103(b) dismissals. See, e.g., Case v. Galesburg Cottage Hospital,
227 Ill. 2d 207, 213 (2007) (“[a] ruling on a motion to dismiss pursuant to Rule 103(b) will
not be disturbed absent an abuse of discretion”); McRoberts v. Bridgestone Americas
Holding, Inc., 365 Ill. App. 3d 1039, 1042 (2006) (describing trial court’s determination of
a plaintiff’s lack of diligence as a fact-intensive inquiry).
¶ 14 We decline to depart from this authority and hold that the appropriate standard of review
is an abuse of discretion. A trial court abuses its discretion when its decision is “arbitrary,
fanciful, or unreasonable, or where no reasonable person would adopt the court’s view.”
Evitts v. DaimlerChrysler Motors Corp., 359 Ill. App. 3d 504, 513 (2005).
¶ 15 We turn next to the merits of plaintiff’s claim that the trial court abused its discretion in
dismissing her complaint with prejudice. Rule 103(b) allows for the dismissal of a complaint
based on a plaintiff’s failure to exercise reasonable diligence in effectuating service upon a
defendant. The rule provides the dismissal shall be with prejudice where the lack of diligence
in service occurs after the expiration of the statute of limitations. Ill. S. Ct. R. 103(b) (eff.
July 1, 2007).
¶ 16 A primary reason for the passage of Rule 103(b) was to prevent the intentional delay of
service of summons upon a defendant for an indefinite amount of time in order to circumvent
the applicable statute of limitations. Karpiel v. LaSalle National Bank of Chicago, 119 Ill.
App. 2d 157, 160 (1970). In Karpiel, the court stated that “[t]he rule *** has an essential
purpose in promoting the expeditious handling of suits by giving trial courts wide discretion
to dismiss when service is not effected with reasonable diligence.” Id. at 161. However, Rule
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103(b) does not set forth a specific time in which a defendant must be served. Cannon v.
Dini, 226 Ill. App. 3d 82, 86 (1992). Rather, it requires a plaintiff to exercise reasonable
diligence in timely effectuating service upon the defendant. Id.¶ 17 In moving for dismissal under Rule 103(b), the defendant must initially make a prima
facie showing that the plaintiff failed to exercise reasonable diligence in effectuating service
after filing the complaint. Kole v. Brubaker, 325 Ill. App. 3d 944, 949 (2001). Once the
defendant establishes that the time between the filing of the complaint and the date of service
suggests a lack of diligence, the burden then shifts to the plaintiff to provide a satisfactory
explanation for the delay in service. Id. In the absence of a satisfactory explanation, the trial
court is justified in granting a Rule 103(b) dismissal. Id. at 951.
¶ 18 In the case sub judice, plaintiff filed suit on February 13, 2009, and effectuated service
upon defendant 13 months later on March 17, 2010. As a preliminary matter, plaintiff argues
that the five-month period beginning when defendant moved to quash the service attempt on
his sister, in October 2009, and ending when defendant’s motion to quash was granted, in
March 2010, should not be considered in determining due diligence. By that calculation, the
time it took to effect service would be 7 rather than 13 months. However, in either case, the
length of time raises an inference of a lack of reasonable diligence.
¶ 19 We have held that a time period of even five months between the filing of a complaint
and subsequent service is sufficient to establish a prima facie showing of failure to diligently
effect service. Verploegh v. Gagliano, 396 Ill. App. 3d 1041, 1045 (2009); see also Long v.
Elborno, 376 Ill. App. 3d 970, 980 (2007) (seven months between filing and service supports
a finding of lack of reasonable diligence). Therefore, we hold that regardless of whether 7
months or 13 months had elapsed before service occurred, the trial court did not abuse its
discretion in finding that defendant successfully made a prima facie showing that plaintiff
failed to timely execute service.
¶ 20 The burden then shifts to plaintiff to explain the reason for the delay and how her efforts
demonstrated reasonable diligence. Kole, 325 Ill. App. 3d at 949-50. Importantly, dismissal
under Rule 103(b) is based on the objective test of reasonable diligence; a plaintiff’s
subjective intent is immaterial. Christian v. Lincoln Automotive Co., 403 Ill. App. 3d 1038,
1042 (2010). A trial court may consider several factors to determine whether a plaintiff has
met its burden, including but not limited to: (1) the length of time used to obtain service of
process; (2) the activities of plaintiff; (3) plaintiff’s knowledge of defendant’s location; (4)
the ease with which defendant’s whereabouts could have been ascertained; (5) actual
knowledge on the part of the defendant of the pendency of the action as a result of ineffective
service; (6) special circumstances which would affect plaintiff’s efforts; and (7) actual
service on defendant. Segal, 136 Ill. 2d at 287.
¶ 21 Turning first to the length of time, plaintiff devotes a substantial part of her argument to
what she deems the trial court’s erroneous consideration of the five-month period between
the purported service upon defendant’s sister and the granting of the motion to quash in
determining the time it took to effect service. This argument fails in large part because, as
plaintiff acknowledges, the court never explicitly stated the time period it was considering
in ruling on defendant’s Rule 103(b) motion. Moreover, to the extent that the court did
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consider this five-month period in its calculations, it in no way implied that it found the time
period between filing and service dispositive in reaching its conclusion.1 To the contrary, the
court correctly viewed the length of time it took to effect service in conjunction with other
relevant factors (see Christian, 403 Ill. App. 3d at 1042), stating: “I believe that the length
of time when having–with [defendant’s address] being written in the police report on
February of 2007 weighs heavily for the defense.”
¶ 22 Plainly, what troubled the court was not the time that elapsed between service and filing,
but plaintiff’s activities during that time, when considered in light of the ease of locating
defendant and plaintiff’s own knowledge of defendant’s location. Specifically, the court
based its dismissal largely on the fact that plaintiff failed to consult the accident report of
February 2007, which contained defendant’s correct address. Plaintiff argues that a copy of
the accident report was not in her possession and, therefore, the court erred in imputing the
knowledge of its contents to her. However, while plaintiff may not have been in possession
of the report, there is no suggestion that she did not know such a report existed, or that an
address for defendant was listed therein. As such, it was reasonable for the court to weigh
this fact against her. See Semersky v. West, 166 Ill. App. 3d 637, 643 (1988) (delay in service
weighed against the plaintiff where the defendants’ addresses were listed in a telephone
directory and their location was “readily ascertainable”).
¶ 23 To be sure, we have never held that a plaintiff’s failure to consult a crash report in an
automobile accident constitutes a lack of diligence per se, but we have taken this
circumstance into account in affirming Rule 103(b) dismissals. For example, in North Cicero
Dodge, Inc. v. Victoria Feed Co., 151 Ill. App. 3d 860, 862 (1987), the defendant moved for
dismissal pursuant to Rule 103(b) following a 20-month delay in service. The plaintiff had
examined 10 different telephone directories in order to locate and ultimately serve defendant
with an alias summons. Id. at 862. However, at all relevant times, the defendant was
registered with the Secretary of State and the police accident report contained its correct
mailing address. Id. Therefore, we affirmed the lower court’s dismissal of plaintiff’s
complaint, reasoning that the plaintiff could have taken advantage of these more productive
avenues to locate defendant. Id. at 863. Indeed, where the plaintiff has consulted an accident
report, we have routinely reversed Rule 103(b) dismissals. See, e.g., Stash v. Doll, 223 Ill.
App. 3d 662, 664 (1992) (distinguishing North Cicero on the grounds that the plaintiff
initially attempted to serve the defendant at the address on the accident report and consulted
the Secretary of State to obtain the defendant’s address); Verploegh, 396 Ill. App. 3d at 1045-
1
A similar problem plagues plaintiff’s contention that the court improperly took into account
the fact that the complaint was filed three days before expiry of the statute of limitations. This also
did not comprise the basis for the court’s decision, as the court mentioned it only in passing, much
as reviewing courts have done as a matter of course in considering appeals from Rule 103(b)
dismissals. See, e.g., Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 374 (1990) (noting
that complaint was filed two days before expiration of statute of limitations); Penrod v. Sears,
Roebuck & Co., 150 Ill. App. 3d 125, 129 (1986) (mentioning that the plaintiff filed his complaint
four days before expiration of statute of limitations); Verploegh, 396 Ill. App. 3d at 1042 (complaint
was filed one week before the statute of limitations expired).
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47 (noting that the plaintiff immediately consulted police report to ascertain the defendant’s
address and reversing dismissal).
¶ 24 Thus, in the instant case, plaintiff’s failure to consult the accident report was an important
factor to consider when determining her diligence, or lack thereof, in service. Plaintiff
erroneously cites Alsobrook v. Cote, 133 Ill. App. 2d 261 (1971), for the contrary
proposition. There, the plaintiff attempted to serve the defendant at the address on the
accident report, but after this attempt failed, the only further efforts to locate defendant he
made for a period of two years was an inspection of eight telephone directories. Id. at 264-65.
We concluded that these efforts did not reflect reasonable diligence. Id. at 265. However, this
conclusion was not based on the fact that the plaintiff consulted a two-year-old accident
report to determine the defendant’s address but, rather, on the fact that after an unsuccessful
service attempt at that address, the plaintiff did not take appropriate further action to locate
the defendant. Id. at 265-66.
¶ 25 Even assuming arguendo that plaintiff was unaware that an accident report existed and
she was inappropriately charged with constructive knowledge of its contents, her activities
still support a finding of lack of reasonable diligence in light of the ease with which
defendant could be located. See Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 734
(2009) (we may affirm trial court’s judgment on any basis in the record). Plaintiff aptly notes
that skip trace searches, an inquiry to the post office, an immediate attempt at service upon
filing the complaint, and the issuance of three alias summonses have generally been deemed
to be indicative of reasonable diligence. See Verploegh, 396 Ill. App. 3d at 1045 (Internet
searches and post office inquiries); Brezinski v. Vohra, 258 Ill. App. 3d 702, 704-05 (1994)
(prompt attempt at service and issuance of alias summonses).
¶ 26 However, the unique circumstances of this case render it distinguishable from Verploegh
and Brezinski. First, unlike the plaintiff in Verploegh, who followed up with a second service
attempt a little over four months after her initial attempt was unsuccessful (Verploegh, 396
Ill. App. 3d at 1043), plaintiff here made a single service attempt on February 26, 2009, and
did not make a subsequent attempt until seven months later, in September 2009.
Additionally, with regard to the Internet skip traces employed in the instant case, the Web
site warned users of the information’s potential inaccuracy and urged independent
verification of the results, but plaintiff nevertheless elected to rely on the information. More
significantly, though the Web site contained corresponding phone numbers for three out of
the five addresses it listed for defendant, there is no evidence plaintiff made calls to these
numbers to determine which address was correct. Also relevant was plaintiff’s decision not
to attempt service on defendant at the Ardmore and 1506 Mannheim addresses, listed in the
initial search results, when the dates corresponding to those addresses indicated they were
more current. Instead, plaintiff attempted to serve defendant at the Country Club and
Cullerton addresses, though the Web site reflected that defendant had not lived there since
2006. Under these circumstances, it was not arbitrary or unreasonable for the trial court to
find that plaintiff’s activities, the ease of accessing defendant’s location, and plaintiff’s
knowledge of defendant’s address all weighed heavily against plaintiff.
¶ 27 Finally, as to the remaining factors courts may consider in ruling on a Rule 103(b)
motion, it is true both that actual service was had on defendant and that defendant had
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knowledge of the pendency of the suit against him. However, the presence of these factors
and any resulting lack of prejudice to defendant do not preclude a trial court from finding a
lack of due diligence on the part of the plaintiff. Womick, 137 Ill. 2d at 377. Nor do we find
that any “special circumstances” existed in this case, notwithstanding plaintiff’s contention
that because defendant was at work the majority of the day, any earlier attempts at service
at the Ardmore address would have been unsuccessful. This argument is entirely speculative
given that there was only evidence of one service attempt at that address. Accordingly, we
cannot say that no reasonable person would have reached the conclusion arrived at by the
trial court, and we hold that there was no abuse of discretion in dismissing plaintiff’s
complaint.
¶ 28 Plaintiff’s second contention on appeal is that the trial court erred in denying her motion
to reconsider the dismissal of her complaint. The grant or denial of a motion to reconsider
lies within the discretion of the lower court. American National Trust Co. v. Kentucky Fried
Chicken of Southern California, Inc., 308 Ill. App. 3d 106, 120 (1999).
¶ 29 The purpose of a motion to reconsider is to bring to the court’s attention newly
discovered evidence that was not available at the time of the hearing, changes in the law, or
errors in the court’s previous application of existing law. Kaiser v. MEPC American
Properties, Inc., 164 Ill. App. 3d 978, 987 (1987). Here, plaintiff points to both newly
discovered evidence as well as errors in the court’s application of the law to support her
motion. First, as newly discovered evidence, plaintiff submitted the affidavit of the special
process server, who averred that he had defendant under surveillance and had been to the
Ardmore address as early as July or August 2009 to attempt service.
¶ 30 Initially, we must determine whether this information in fact constitutes newly discovered
evidence. “Newly discovered evidence” is evidence that was not available prior to the
hearing. See Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242,
248 (1991). In the absence of a reasonable explanation regarding why the evidence was not
available at the time of the original hearing, the circuit court is under no obligation to
consider it. Landeros v. Equity Property & Development, 321 Ill. App. 3d 57, 66 (2001). At
the hearing on plaintiff’s motion to reconsider, she failed to provide an explanation as to why
she was unable to learn of the process server’s attempt at service in July or August 2009, or
of his surveillance, prior to the hearing on the motion to dismiss. Therefore, there was no
reason for the circuit court to reconsider its decision on the basis of this evidence. See
Gardner, 213 Ill. App. 3d at 248-49 (affidavit not considered “newly discovered evidence”
because the plaintiff did not offer reasonable explanation of why it was not submitted prior
to hearing).
¶ 31 Also in support of her motion to reconsider, plaintiff echoed her previous claims and
maintained that the pendency of the motion to quash should not have been considered in
assessing her due diligence and that her reliance on the Internet-based searches was
reasonable. For the reasons discussed above, we hold that the trial court did not err in its
original ruling with respect to these issues. As such, we conclude that the trial court’s denial
of plaintiff’s motion to reconsider was not an abuse of discretion.
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¶ 32 CONCLUSION
¶ 33 For the reasons stated, we affirm the trial court’s dismissal of plaintiff’s complaint and
denial of plaintiff’s motion to reconsider.
¶ 34 Affirmed.
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