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06/27/89 Thomas L. Clemons, v. Donnell L. Atlas

June 27, 1989

THOMAS L. CLEMONS, PLAINTIFF-APPELLANT

v.

DONNELL L. ATLAS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

542 N.E.2d 40, 185 Ill. App. 3d 894, 134 Ill. Dec. 40 1989.IL.999

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BILANDIC delivered the opinion of the court. HARTMAN and DiVITO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff filed suit against the defendant on October 30, 1986. Summons issued on the same day. Defendant was not served. Thereafter, two alias summons were issued. Defendant was served on January 6, 1988, approximately 14 months after the commencement of plaintiff's action. The trial court granted defendant's motion to dismiss the complaint with prejudice pursuant to Supreme Court Rule 103(b) (87 Ill. 2d R. 103(b)). Plaintiff appeals.

The issue presented is whether, under the facts of this case, the trial court abused its discretion by dismissing plaintiff's action.

Supreme Court Rule 103(b) provides:

"(b) Dismissal for Lack of Diligence. 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." 87 Ill. 2d R. 103(b).

A motion pursuant to Rule 103(b) is addressed to the sound discretion of the trial court, and a reviewing court will interfere only where there is an abuse of discretion. Each case must be determined on its own facts, but the court will look at several factors to determine whether the plaintiff carried his burden of showing that he has exercised due diligence: (1) length of time used to obtain service; (2) activities of the plaintiff; (3) any knowledge on the part of plaintiff of the location of defendant; (4) ease with which the whereabouts of defendant could have been ascertained; (5) defendant's actual knowledge of the pendency of the action; and (6) the special circumstances which would affect plaintiff's efforts. Licka v. William A. Sales, Ltd. (1979), 70 Ill. App. 3d 929, 937, 388 N.E.2d 1261.

Plaintiff's complaint was filed and summons issued on October 30, 1986. The sheriff made three attempts to serve the defendant as 4435 South Lawler, Chicago, Illinois. The first attempt was on November 14, 1986, at 10:22 a.m.; then on November 18, 1986, at 1:05 p.m.; and finally on November 24, 1986, at 7:27 p.m. The sheriff then filed the summons on December 8, 1986, noted the three attempts, and officially returned the summons "not served."

Plaintiff's action against the defendant was for personal injuries sustained as a result of defendant's negligence in the operation of a motor vehicle on December 24, 1984. If the sheriff had completed service of the original summons, the defendant would have been served prior to the expiration of the two-year statute of limitations.

The Chicago police department made an official report of the accident which is the basis for plaintiff's action. The police report discloses defendant's address as 4435 South Lawler, Chicago, Illinois. On January 6, 1985, plaintiff's attorneys mailed a notice of attorney's lien to defendant at this address. The letter was not returned to the sender by the post office. When plaintiff placed the original summons for service, he directed the sheriff to serve the defendant at this same address. The sheriff's return shows an attempt to serve the defendant in the morning, afternoon and evening. Neither the defendant, nor any "person of the family, of the age of 13 years or upwards" was found. Ill. Rev. Stat. 1985, ch. 110, par. 2-203(a).

Subsequent events verified the fact that the defendant, and at least one "person of the family," was present at this address. Therefore, the failure to serve the defendant with the original summons cannot be blamed on the plaintiff. This should have been a routine service. Possible explanations for failure of service may be that, unfortunately for the plaintiff, the defendant and no member of his household was at home on the three occasions that the ...


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