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Gatto v. Nelson

OPINION FILED MARCH 13, 1986.

PATRICIA GATTO, PLAINTIFF-APPELLANT,

v.

ALMA NELSON, DEFENDANT AND THIRD-PARTY PLAINTIFF (JOHN CLASS ET AL., THIRD-PARTY DEFENDANTS AND DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

JUSTICE MCMORROW DELIVERED HE OPINION OF THE COURT:

Rehearing denied May 2, 1986.

Plaintiff, Patricia Gatto, appeals from the order of the circuit court of Cook County dismissing with prejudice her complaint against defendants John Class, Debbie Class and Timothy Gallagher under Supreme Court Rule 103(b) (87 Ill.2d R. 103(b)) for her failure to exercise reasonable diligence to obtain service of summons on defendants prior to the expiration of the statute of limitations. Plaintiff contends that the court abused its discretion in dismissing her action with prejudice and that defendants waived their objection to her alleged lack of diligence. We affirm.

Plaintiff was allegedly injured in an automobile accident which occurred on May 18, 1979. On May 13, 1981, shortly before the two-year statute of limitations expired, plaintiff filed a complaint for personal injuries and property damage against Alma Nelson, who was the owner and operator of one of the other two vehicles involved in the accident, Timothy Gallagher, who was the operator of the second vehicle, and John Class and Debbie Class, who were the owners of the vehicle that Gallagher was driving. Alma Nelson was personally served with summons on May 20, 1981. She filed her appearance and answer to the complaint on August 17, 1981.

The initial summons for John Class and Debbie Class, whose address was given as 405 Jefferson Court, Wheeling, Illinois, was returned "NOT FOUND" on June 3, 1981, after four attempts at service. An alias summons subsequently taken out for service at the same address was returned "NOT FOUND" on July 14, 1981, after four attempts at service. The initial summons for Timothy Gallagher, whose address was given as 8701 Lowell, Overland Park, Johnson County, Kansas, was returned unserved on July 10, 1981, by a deputy sheriff of Johnson County, Kansas, after eight attempts at service. An alias summons, apparently taken out for service at the same address, was returned unserved on August 24, 1981, after 10 attempts at service. Plaintiff's counsel did not cause any additional service to be issued for any of the three unserved defendants until August 31, 1983, which was more than two years after the last alias summons had been returned unserved.

In a letter dated May 18, 1982, plaintiff's counsel informed counsel for defendant Alma Nelson that numerous attempts at service had been made upon the three unserved defendants. The letter continued:

"While your suggestion that the other defendants be served is appreciated, since you feel that they are `culpable,' please feel free to file a third party action against them and attempt to serve them yourself — I hope you have a better success than I have had to date."

On November 29, 1982, Alma Nelson filed a third-party action for contribution against John Class, Debbie Class and Timothy Gallagher. Gallagher was personally served with summons on January 23, 1983, at 142 South Winston Drive, Palatine, Illinois. The third-party defendants were given leave to file their appearance and their answer to the action on March 9, 1983.

On May 11, 1983, defendants John Class, Debbie Class and Timothy Gallagher filed motions to dismiss plaintiff's complaint under Supreme Court Rule 103(b) (87 Ill.2d R. 103(b)) for lack of diligence in obtaining service and to extend the time for discovery. The motions were mailed to plaintiff's counsel on April 19, 1983. On May 12, 1983, the pretrial judge assigned the motion to dismiss to Judge O'Brien for hearing and continued the pretrial to September 1, 1983. On August 30, 1983, defendants' counsel notified plaintiff's counsel by mail that he was going to appear before Judge O'Brien on September 9, 1983, and move for an immediate hearing on his previously filed motion to dismiss. On August 31, 1983, plaintiff's counsel caused another alias summons to be issued for all three unserved defendants. The summons listed Timothy Gallagher's address as 8701 Lowell, Overland Park, Kansas, and the Classes' address as 830 Corey Lane, Wheeling, Illinois. On September 1, 1983, plaintiff's counsel notified defendants' counsel by mail that he was going to move for the appointment of a special process server to serve defendants. On September 2, 1983, an alias summons for Timothy Gallagher was served on the Secretary of State of Illinois because, at the time of the accident, Gallagher was a nonresident motorist. Notice of substituted service was sent to Gallagher's Overland Park, Kansas, address. On September 9, 1983, Judge O'Brien entered an agreed order to appoint a special process server and to continue defendants' motion to dismiss to September 29, 1983. The special process server personally served Timothy Gallagher and John Class on September 11, 1983, and effected abode service on Debbie Class on September 16, 1983. The affidavit of service did not indicate where Gallagher and John Class were served; the abode service on Debbie Class was effected at 1434 South Busse Road, Apartment 1D, Mount Prospect, Illinois.

On September 29, 1983, Judge O'Brien granted defendants' motion to dismiss plaintiff's complaint with prejudice. On October 28, 1983, Judge O'Brien denied plaintiff's motion to vacate the order of dismissal. On December 3, 1984, Judge O'Brien entered a new order, dismissing with prejudice plaintiff's complaint, in which he found that there was no just reason for delaying enforcement of or appeal from the order. This appeal follows.

I

Plaintiff initially contends that the trial court abused its discretion in dismissing her action with prejudice pursuant to Supreme Court Rule 103(b). We disagree.

Supreme Court Rule 103(b) 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 ...


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