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09/25/95 BERNARD LIPKIN AND SYLVIA LIPKIN v.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION


September 25, 1995

BERNARD LIPKIN AND SYLVIA LIPKIN, PLAINTIFFS-APPELLANTS,
v.
FRANCISCO GUTIERREZ, M.D., DEFENDANT-APPELLEE, AND NORTHWESTERN MEMORIAL HOSPITAL, DEFENDANT.

Appeal from the Circuit Court Cook County. No. 92 L 2822. Honorable Odas Nicholson, Judge Presiding.

Released for Publication September 26, 1995. Petition for Leave to Appeal Denied April 3, 1996.

Buckley, J., with Campbell, P.j. and Wolfson, J., concurring.

The opinion of the court was delivered by: Buckley

SUPPLEMENTAL ORDER ON GRANT OF REHEARING

This is a supplemental order upon granting the petition for rehearing filed by plaintiffs. For reasons that follow we grant the petition for rehearing and reverse the order of the trial court.

Plaintiffs Bernard Lipkin and his wife Sylvia Lipkin refiled this action on March 5, 1992. Bernard sought damages for medical malpractice, and Sylvia sued for loss of consortium. Dr. Gutierrez was served with process on November 16, 1992. The trial court dismissed the action against Dr. Gutierrez under Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) for failure to use reasonable diligence in serving process on him and found no reason to delay enforcement of its order under Supreme Court Rule 304(a). (34 Ill. 2d R. 304(a).) On appeal, plaintiffs contend the trial court abused its discretion in dismissing their action against Dr. Gutierrez because they immediately attempted to serve him on March 5, 1992, their subsequent attempts were not successful, defendant was avoiding services at his office and defendant was aware of the lawsuit.

This claim originates from Bernard's hospitalization in August 1984. A prior case (No. 85 L 19678) was voluntarily dismissed on March 8, 1991. Plaintiffs refiled the lawsuit on March 5, 1992, and on the same day summons issued for defendant at 707 Fairbanks Court in Chicago. Service was attempted on March 24, 1992 and March 30, 1992. The return filed April 3, 1992 also stated, "on vacation will return on or about April 15, 1992." On September 24, 1992, an alias summons issued to defendant marked "only Monday mornings," and service was unsuccessfully attempted on September 28, 1992 and October 1, 1992, with the notation "on vacation until October 19, 1992, per office nurse." An alias summons issued October 5, 1992, was returned not found. Five further attempts at service were made from November 6, through November 16, 1992, and defendant was finally served on November 16, 1992.

Plaintiff has the burden of showing reasonable diligence in service of process, and our supreme court has enumerated some of the factors the trial court may consider in ruling on a Rule 103(b) motion. ( Segal v. Sacco (1990), 136 Ill. 2d 282, 286-87, 555 N.E.2d 719, 144 Ill. Dec. 360.) The trial court in this case emphasized that plaintiffs knew or should have known that defendant was to return from vacation about April 15, 1992, but they took no steps to serve him until late the following September even though plaintiffs knew defendant's office address and eventually served him there in November 1992.

The record shows that plaintiffs attempted service immediately upon refiling their complaint on March 5, 1992, and that they followed up with numerous alias summonses. Similar actions were found to be indicative of diligence in Brezinski v. Vohra (1994), 258 Ill. App. 3d 702, 704-05, 631 N.E.2d 345, 197 Ill. Dec. 342. Diligence was found too in Brezinski, where the overall time elapsed between filing the complaint and service was 22 months compared to less than nine months here. Plaintiffs explained that at times when summonses were being issued, they were conferring with defendant's office staff and trying to learn his home address. They point out that courts have not required plaintiffs to hire a special process server to locate and serve defendant. ( McCormack v. Leons (1994), 261 Ill. App. 3d 293, 296, 634 N.E.2d 1, 199 Ill. Dec. 401.) Plaintiffs encountered unusual difficulty serving defendant at his office, as he often kept irregular hours and was "on vacation" on some occasions when service was attempted. The purpose of Rule 103(b) is to promote expeditious handling of lawsuits, but mere inadvertence does not justify the harsh penalty of dismissal with prejudice. ( Brezinski v. Vohra, 258 Ill. App. 3d at 705-06.) We therefore conclude that plaintiffs were diligent and the circuit court abused its discretion in dismissing plaintiffs' action.

Therefore, plaintiffs' petition for rehearing is granted, the order of the circuit court of Cook County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

BUCKLEY, J., with CAMPBELL, P.J. and WOLFSON, J., concurring.

19950925

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