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04/18/89 Gladys Easa, v. Group Iii Promotions

April 18, 1989

GLADYS EASA, PLAINTIFF-APPELLANT

v.

GROUP III PROMOTIONS, INC., DEFENDANT (KAREN DOERR, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

537 N.E.2d 1063, 182 Ill. App. 3d 297, 130 Ill. Dec. 734 1989.IL.543

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and EGAN,* J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Plaintiff appeals the dismissal of her complaint with prejudice, arguing that the trial court erred in considering her activities prior to the running of the statute of limitations in ruling on defendant's Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) motion to dismiss.

Plaintiff alleges that she suffered injuries as a result of an automobile accident occurring on March 2, 1985. On July 31, 1985, she filed suit. On March 2, 1987, the statute of limitations on plaintiff's cause of action ran. On July 31, 1987, her action was dismissed for want of prosecution; nevertheless, for some obscure reason, as the trial Judge commented at the hearing on the motion to dismiss, an order permitting plaintiff to non-suit her action was entered on August 10, 1987, and she refiled the action on August 11, 1987, pursuant to section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13-217). A motion to vacate the order of July 31, 1987, which had dismissed the case for want of prosecution, was not filed until August 24, 1987, and the order granting that motion was entered October 21, 1987. (These orders are not included in the record on appeal; however, the trial Judge recited the procedural history of the case in his decision on defendant's Rule 103(b) motion, and a transcript of that hearing is included in the record. Additionally, although plaintiff did not raise the matter before this court, a review of that transcript indicates that she changed attorneys at the time she took a non-suit and refiled her action, but her new attorneys had made no "endeavor to find out why no service was had by the prior counsel.")

Group III Promotions, Inc. (Group III), was served on August 17, 1987. Return of service on Karen Doerr (defendant herein), dated August 18, 1987, revealed that she had a Tennessee address. An alias summons for service of process was issued on September 4, 1987, and defendant was served on September 15, 1987. On April 5, 1988, the trial court granted defendant's motion to dismiss pursuant to Rule 103(b) (107 Ill. 2d R. 103(b)), stating:

"If a plaintiff's failure to exercise reasonable diligence in effectuating service of process occurs prior to the passage of the applicable statute of limitations, Rule 103(b) provides that the court may dismiss the action without prejudice. Under such circumstances the court has no authority to dismiss the action with prejudice. [Citation.]

If, however, a plaintiff's failure to diligently serve process continues on past the passage of the applicable statute of limitations, then the rule mandates that the dismissal be granted with prejudice.

There is no doubt that the plaintiff acted diligently in serving the movants some 34 days after refiling, but then so also was the plaintiff in O'Connell v. St. Francis Hospital diligent in the refiled action when service was effectuated nine days after refiling.

The fact still remains that the original action herein was dismissed for want of prosecution some two years after filing and some five months after the statute of limitations had run without service ever having even been attempted on the movant.

It is clear that the plaintiff lacked any diligence in attempting service in the original action and that the failure continued past the passage of the applicable statute of limitations. As a consequence, by its very language, Rule 103(b) mandates that the plaintiff's action against this movant be dismissed and dismissed with prejudice. That's the order."

Plaintiff appeals from this order. Group III had also filed a Rule 103(b) motion, but did not pursue it before the trial court ...


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