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Montero v. University of Illinois Hospital





APPEAL from the Circuit Court of Cook County; the Hon. MEL JIGANTI, Judge, presiding.


Rehearing denied February 28, 1978.

This appeal presents the question of whether the trial court abused its discretion by dismissing the complaint of plaintiff, Aurora Montero. In reliance upon Supreme Court Rule 103(b) (Ill. Rev. Stat. 1973, ch. 110A, par. 103(b)), the trial court dismissed with prejudice the complaint as to the individual defendants, Dr. Robert Arensman and Dr. R.E. Condon, for plaintiff's failure to exercise reasonable diligence in obtaining service upon them. Thus, the case before us relates to the individual defendants only, and not to the University of Illinois Hospital (hospital).

In her complaint filed on September 28, 1972, plaintiff alleged defendants' negligence in that their performance of a renal biopsy resulted in hemorrhaging and plaintiff's loss of a kidney. Although summons issued on September 28, 1972, defendant doctors could not be located. On November 13, 1972, the hospital through its board of trustees filed a motion to quash. Thereafter, plaintiff sought alias summons against the doctors on December 1, 1972, and February 2, 1973. Plaintiff then placed a notice to the doctors in local newspapers. The certificate of mailing notice by publication was dated April 4, 1973.

Over a year later, on May 15, 1974, plaintiff sought a third alias summons against the individual defendants. Dr. Condon was eventually served in Wisconsin; Dr. Arensman was served in Massachusetts. On August 29, 1974, the doctors moved to dismiss plaintiff's complaint alleging that the incident in question took place on January 27, 1970; that the lawsuit was not filed until September 20, 1972; that service of summons was not made upon Arensman until June 1, 1974, and upon Condon on May 29, 1974; and that plaintiff had not exercised diligence in the service of process upon them.

Plaintiff's petition to deny defendants' motion recited the facts set forth above and also stated that her attorney had inquired about the doctors' whereabouts at various intervals from the city post office and from the American Medical Society's office in Chicago. He also checked each new year's telephone book to see if defendants were listed. In March of 1973, he wrote the defendants at addresses he had, but received no response or indication that the letters had been received. The attorney called the hospital shortly after suit was filed, but was informed that the hospital did not know the doctors' new locations or that such information could not be given out. In May of 1974, plaintiff's attorney obtained a Milwaukee telephone book and saw a Dr. Condon listed. He also decided to try service on Dr. Arensman in Brookline, Massachusetts. Plaintiff also alleged that defendants, through their attorneys, had taken part in the action by serving notice of deposition and interrogatories, and thus defendants at bar had entered a general appearance, and therefore had to participate in the cause on its merits.

The trial court entered an order dismissing with prejudice plaintiff's complaint as it pertained to the individual defendants. This appeal followed.

In addition, considerable controversy has been generated by defendants' attempt to file in this court a supplemental record on appeal. The question of whether to allow its filing was taken with the case. That record consists of two affidavits, one by defendant Condon and one by defendant Arensman. Condon's affidavit listed his home and employment addresses from the time of the incident. He stated that he has been continuously listed in the American Medical Association directory during the entire period, and a telephone call to the AMA would have easily provided a current mailing address as well as a telephone number. He had also been continuously listed during the period in the directory of the American College of Surgeons, the Directory of Medical Specialists (Marquis), and the telephone directories of Northbrook, Chicago (both in Illinois), Iowa City, Iowa, and Milwaukee, Wisconsin in relationship to the appropriate time period. Lastly, each of his employers had a forwarding address and could have provided his whereabouts.

Arensman's affidavit stated that since the incident until June 1972, he lived in Chicago and was listed in the Chicago telephone directory. From July 1972 to June 1974, he lived in Brookline, Massachusetts, and was listed in the Boston telephone directory. From 1972 to the present, he had been listed in the Directory of Candidates for Group Membership of the American College of Surgeons. During his absence from the Chicago area, the University of Illinois as well as the United States Post Office had a forwarding address for him.



The dictates of Supreme Court Rule 103(b) control this case. That rule 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 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. 1973, ch. 110A, par. 103(b).)

A motion for dismissal for lack of diligence to obtain service is addressed to the sound discretion of the trial court, and it is only where there is an abuse of discretion that a reviewing court will interfere. (Martin v. Lozada (1st Dist. 1974), 23 Ill. App.3d 8, 11, 318 N.E.2d 334; Mosley v. Spears (1st Dist. 1970), 126 Ill. App.2d 35, 40, 261 N.E.2d 510.) While prevention of intentional delay in the service of summons was a primary reason for adoption of Rule 103(b) and its predecessors (Karpiel v. La Salle National Bank (2d Dist. 1970), 119 Ill. App.2d 157, 160, 255 N.E.2d 61), the rule is not based upon the subjective test of ...

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