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12/02/87 Raymond Kappel, v. Errera

December 2, 1987

RAYMOND KAPPEL, PLAINTIFF-APPELLANT

v.

VINCENT ERRERA, DEFENDANT (VINCENT BARRACO, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

518 N.E.2d 226, 164 Ill. App. 3d 673, 115 Ill. Dec. 701 1987.IL.1768

Appeal from the Circuit Court of Cook County; the Hon. Francis Barth, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. McNAMARA, P.J., and FREEMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

In this personal injury action, plaintiff, Raymond Kappel, appeals from an order of the circuit court granting defendant Vincent Barraco's motion to be dismissed from the lawsuit with prejudice pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). The rule permits dismissal of a defendant with prejudice where the plaintiff fails to exercise reasonable diligence to obtain service on the defendant after the expiration of the applicable limitations period. We affirm.

Kappel filed a complaint on March 4, 1977, against the City of Chicago and Drovers National Bank as trustee under trust No. 75037. Kappel sought to recover for injuries he allegedly sustained when he fell in an open manhole in the sidewalk in front of the property which constituted the res of the land trust. The accident occurred on May 21, 1976. In a letter dated March 22, 1977, Drovers National Bank sent Kappel's counsel a letter informing him that Vincent Errera and Vincent Barraco were the beneficiaries of land trust No. 75037. Kappel then filed an amended complaint on August 12, 1977, in which he added Barraco and Vincent Errera as defendants. Errera is not a party to this appeal. Kappel subsequently moved for the entry of an order of default against Barraco based on Barraco's failure to answer or otherwise plead to Kappel's complaint. The trial court did not rule on the motion to default Barraco. Meanwhile, on December 2, 1982, the court entered an order embodying a settlement agreement entered into between Kappel and the City of Chicago.

On July 5, 1984, Kappel again filed a motion to have Barraco declared in default. In his motion, Kappel alleged that service on Drovers National Bank as trustee of trust No. 75037 constituted service on Barraco as a beneficiary. Barraco's attorney filed a special and limited appearance on behalf of Barraco and then filed a motion to quash any purported service of summons that was based upon service on Drovers National Bank as trustee. A hearing was held on these matters before Judge Barth on July 9. The court determined that summons on Drovers National Bank did not constitute service on Barraco, and it ordered that Kappel serve Barraco with summons within a reasonable time. The court denied Kappel's motion for default. The next day, the court entered an order appointing a special process server. Barraco was ultimately served with summons on July 13, 1984.

On July 23, 1984, Barraco filed a motion to dismiss Kappel's complaint with prejudice as it related to Barraco pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) for Kappel's failure to exercise reasonable diligence in obtaining service on Barraco. A hearing was held before Judge Barth on July 23, 1985. The trial court found that Kappel had not exercised reasonable diligence in serving Barraco with summons, and it therefore granted Barraco's motion to be dismissed as a defendant with prejudice.

On appeal, Kappel argues that the trial court abused its discretion in granting Barraco's Rule 103(b) motion. Relying on language contained in section 2-616(d)(3) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-616), Kappel contends that Rule 103(b) is inapplicable here because service of process on Drovers National Bank (Bank) as trustee of trust No. 75037 constituted service on Barraco as a beneficiary. As a result, the trial court possessed jurisdiction over Barraco and it was not necessary for Kappel to obtain service of process on Barraco individually. Therefore, Kappel argues that there was no failure to obtain service of process within the applicable limitations period. Barraco, however, contends that the provisions of section 2-616(d)(3) provide only for amendments to pleadings, and that the language of subsection (3) is not a substitute for the jurisdictional requirement of service of process. We agree.

Section 2 -- 616(d) of the Code provides that an amendment to a pleading which adds a person as a defendant relates back to the date of the filing of the original pleading if certain terms and conditions are met. The provision of section 2 -- 616 upon which Kappel relies states:

"(d)(3) [Service] of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary." (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(d).)

Specifically, Kappel points to that portion of subsection (d)(3) which states "service of summons was in fact had upon . . . a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary." (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(d)(3).) Kappel relies on this excerpt as the basis for his argument that the trial court had jurisdiction of Barraco prior to Kappel's service of summons pursuant to court order. We believe that Kappel's argument lacks merit.

Section 2 -- 616 of the Code is commonly known as the relationback doctrine and relates solely to amendment of pleadings. This section of the Code was drafted and subsequently adopted to preclude a defendant from using the statute of limitations as a defense to a ...


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