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08/18/94 HELORUS MATTHEWS v. SCOTT DONNELLY

August 18, 1994

HELORUS MATTHEWS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF KAREN MATTHEWS, DECEASED, ET AL., PLAINTIFFS-APPELLANTS,
v.
SCOTT DONNELLY, M.D., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court Cook County. Honorable Kenneth L. Gillis, Judge Presiding.

Released for Publication September 27, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Johnson, Hoffman, Cahill

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

Plaintiffs appeal from an order of the circuit court granting the motion of defendant Dr. Scott Donnelly to dismiss pursuant to Illinois Supreme Court Rule 103(b). (134 Ill. 2d R. 103(b).) On appeal, plaintiffs contend the trial court abused its discretion in dismissing defendant from their cause of action with prejudice because the evidence did not reveal a lack of reasonable diligence in their attempts to serve the defendant.

On September 16, 1990, plaintiffs filed a complaint alleging that defendant, among others, committed medical malpractice in the treatment of the deceased on or about August 22, 1988. On October 25, 1990, plaintiffs obtained summons and served it upon the codefendant hospital on October 30, 1990. On March 7, 1991, plaintiffs filed special interrogatories asking the hospital for the proper names and last known addresses of members of the hospital staff including defendant. On April 1, 1991, at the court's progress call, the court ordered the hospital to answer plaintiffs' discovery within 28 days. On February 5, 1992, plaintiffs filed a motion to compel the hospital to answer special interrogatories within 28 days. In March of 1992 the hospital complied and on April 9, 1992, plaintiffs filed a summons for the defendant with instructions to serve him at the hospital. On April 27, 1992, after six previously unsuccessful attempts at service, defendant was served. However, at a hearing on August 6, 1992, thecourt ruled that while the sheriff's return indicated that the defendant, via telephone, had instructed the sheriff to leave the summons with the risk manager of the hospital, service was not personal and thus could not withstand defendant's motion to quash service. Accordingly, the court granted defendant's motion to quash service and granted plaintiffs leave to issue an alias summons. On August 24, 1992, plaintiffs issued an alias summons and on September 8, 1992, a completed return of service indicated that service had not been accomplished. In October of 1992 a third alias summons was issued and defendant was served at his home on November 7, 1992.

During the hearing on the defendant's subsequent motion to dismiss the court stated:

"My understanding of the law is that the question of reasonable diligence under 103(b) starts from the filing of the complaint, not from the filing--not from the running of the statute of limitations.

Two sentences in 103(b) do differ whether the statute of limitations has run or not but the end of the sentence says that if the statute of limitations has not run, the dismissal is without prejudice. If the statute of limitations has run the dismissal is with prejudice.

I don't think the question is counting the time from the statute of limitations to service. Hence, I'm looking at the period of time from September 16, 1990, to April 9, 1992 or till April 27, 1992, when the disputed service was served on Doctor Donnelly.

Since the statute of limitations has run

I will dismiss the case with prejudice."

On appeal, plaintiffs contend the trial court erred in granting defendant's motion to dismiss pursuant to Supreme Court Rule 103(b). First, plaintiffs argue the trial court erred in considering their diligence or lack thereof prior to the expiration of the applicable statute of limitations in determining whether or not dismissal with prejudice under Supreme Court Rule 103(b) was appropriate. Plaintiffs argue that the rule addresses lack of diligence in two separate time frames: (1) failure to exercise reasonable diligence prior to the expiration of the statute of limitations, and (2) failure to exercise reasonable diligence after the expiration of the applicable statute of limitations. Plaintiffs contend that only a failure to exercise reasonable diligence after the expiration of the applicable statute of limitations results in a dismissal with ...


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