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04/29/94 ELEONORA MCCORMACK v. SOPHIE LEONS AND

April 29, 1994

ELEONORA MCCORMACK, PLAINTIFF-APPELLANT,
v.
SOPHIE LEONS AND VILLAGE OF ROMEOVILLE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois. Honorable Herman Haase, Judge, Presiding

Released for Publication June 1, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

A premises liability action was brought in the circuit court of Will County by Eleonora McCormack against Sophie Leons and the Village of Romeoville. Upon motion of Leons, plaintiff's cause was dismissed for want of due diligence in the service of summons pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)). Plaintiff appeals from the order of dismissal. We reverse and remand.

This action was originally filed on August 23, 1990. Plaintiff alleged that she was injured on September 26, 1989, when she fell over a water shut-off valve located on the premises owned by Leons. Both defendants were timely served, and after discovery was completed, the cause was set for a jury trial on August 16, 1991. At the final pre-trial status call, plaintiff failed to appear, and the trial court dismissed the case for want of prosecution.

As authorized in section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1992)), plaintiff refiled her premises liability action on September 30, 1991, and summons issued. The Village was served immediately, but Leons was not found at the residence where she had resided at the time of the accident and where she had been served with summons in 1990. Plaintiff then hired an investigator, Weldon Veazey, who went to Leons' house in Romeoville. He found it unoccupied. When questioning neighbors of Leons, he was told that she resided in both Romeoville and Florida, but no one knew her Florida location. Hoping to find Leons at home, Veazey made eight trips to the Romeoville address between December of 1991 and December of 1992 without ever finding her. He also checked Will County and Chicago area telephone directories without finding Leons' name and address.

Since plaintiff was a niece of Leons, she tried to learn where Leons lived in Florida from family members, but because of hard feelings among her relatives over the lawsuit, no one would give her Leons' Florida address. The office of the Illinois Secretary of State was contacted and responded that Leons did not have an Illinois driver's license. An inquiry directed to the postmaster disclosed that Leons' forwarding order had expired. Plaintiff was not able to locate Leons until December of 1992 when a relative finally told plaintiff what Leons' Florida address was. Alias summons was obtained, and service was made at Leons' residence in Gulfport, Florida, on February 10, 1993.

Leons filed a motion to dismiss the complaint on the grounds that plaintiff had not exercised due diligence in serving process on her in violation of Supreme Court Rule 103(b). Plaintiff filed a response to the motion supported by Veazey's affidavit, and following a hearing, the trial court granted Leons' motion to dismiss with prejudice. Plaintiff's motion to reconsider was denied.

The issue on appeal is whether the trial court abused its discretion in dismissing plaintiff's action against Leons with prejudice. 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."

The purpose of Rule 103(b) is to prevent intentional delay in the service of summons which would postpone service until some time after the statutory period of limitations has run. ( Segal v. Sacco (1990), 136 Ill. 2d 282, 286, 555 N.E.2d 719, 720, 144 Ill. Dec. 360.) In Segal, the court stated:

"Dismissal of a cause with prejudice under Rule 103(b) is a harsh penalty which is justified when the delay in service of process is of a length which denies a defendant a 'fair opportunity to investigate the circumstances upon which liability against [the defendant] is predicated while the facts are accessible.'" 136 Ill. 2d at 288, 555 N.E.2d at 721.

Dismissal of this cause for lack of due diligence does not come within the purpose and intent of the statute. Leons has not been deprived of an opportunity to investigate the circumstances surrounding the claim against her because discovery had been completed and the cause was ready for trial before the original complaint was dismissed. Also, although plaintiff had one year to refile her lawsuit after the trial court's dismissal for want of prosecution (735 ILCS 5/13-217), she in fact ...


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