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09/19/96 ZYGMUNDT WOJTOWICZ v. PAUL CERVANTES AND

September 19, 1996

ZYGMUNDT WOJTOWICZ, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF TOMASZ GOLINSKI, AND GERTRUDE WOJTOWICZ AND TADEUSZ WOJTOWICZ, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
PAUL CERVANTES AND HOLMES FREIGHT LINES, INC., A NEBRASKA CORPORATION, AUTHORIZED TO DO BUSINESS IN THE STATE OF ILLINOIS, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Howard Miller, Judge Presiding.

The Honorable Justice O'brien delivered the opinion of the court: Cahill, J., and Theis, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Plaintiff's cause of action arises from a fatal truck-bicycle accident occurring on May 29, 1987, at the intersection of Addison and California Streets in Chicago. Defendant Paul Cervantes, a driver for Holmes Freight Lines (Holmes), crushed plaintiff's decedent, 15-year-old bicyclist Tomasz Golinski, under the right rear tandem tires of his semi tractor-trailer. Plaintiff filed a wrongful death complaint against Cervantes and Holmes on June 17, 1987. Following a jury trial, plaintiff obtained a verdict against defendants. The defendants filed a post-trial motion seeking, inter alia, judgment notwithstanding the jury's verdict or, alternatively, a new trial. Citing a statement made by plaintiff's counsel during closing argument regarding special interrogatories, the trial court granted defendants' motion for a new trial.

Plaintiff appeals from the trial court's interlocutory order pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306). Holmes cross-appeals, alleging the trial court erred in failing to grant its post-trial motion for judgment notwithstanding the verdict and in refusing to grant its pre-trial motion to dismiss for lack of due diligence in service of process.

I. Service of Process

The accident at issue in this case occurred on May 29, 1987, and plaintiff timely filed suit on June 17, 1987. According to the return of service filed with the court clerk, defendant Cervantes was personally served on June 20, 1987. According to a statement by its agent for receipt of service of process, defendant Holmes was served on June 22, 1987; however, no return of service was filed. More than two years later, on September 29, 1989, summons was again served on Holmes and proof of service properly filed with the court on October 11, 1989.

Citing Werner v. W.H. Shons Co., 341 Ill. 478, 486, 173 N.E. 486, 490 (1930), Holmes contends that until plaintiff's affidavit of compliance is filed with the clerk, the trial court can have no basis for determining whether service was proper and therefore the trial court erred in refusing to grant its pretrial motion to dismiss for lack of due diligence in service of process. We disagree.

Supreme Court Rule 103(b) provides in pertinent part:

"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." 134 Ill. 2d R. 103(b).

However, Supreme Court Rule 102(d) clearly states that "failure of the officer or other person to return the summons or file proof of service does not invalidate the summons or the service thereof, if had." 134 Ill. 2d R. 102(d). Supreme Court Rule 12(b)(1) further provides that service may be proved by written acknowledgement signed by the person served. 145 Ill. 2d R. 12(b)(1). There is no requirement that the acknowledgement be in the form of a formal affidavit.

Plaintiff's response to defendant's motion to dismiss was filed with the court on December 29, 1989. Attached thereto were two exhibits relevant to the Rule 103(b) issue. Exhibit A was a letter dated December 19, 1989, to plaintiff's attorney from CT Corporation System, Holmes' registered agent for receipt of service of process. Exhibit B was an undated document entitled "Affidavit." Both documents were signed by CT Corporation System's employee Debra Schull and stated that she had received service of process for Holmes regarding the instant action on June 22, 1987.

Accordingly, on February 8, 1990, when the trial court decided Holmes' Rule 103(b) motion, it had before it a binding admission by Holmes' agent that process had in fact been received on June 22, 1987. Holmes' motion to dismiss was therefore properly denied. See Burton v. Autumn Grain Transport, Inc., 222 Ill. App. 3d 755, 757, 584 N.E.2d 377, 165 Ill. Dec. 198 (1991).

II. Closing Arguments

Following a two-week trial, the jury returned a verdict awarding plaintiff $2,533,538 for the wrongful death of Tomasz Golinski. On May 11, 1993, the circuit court entered a judgment on the jury's verdict. In its post-trial motion, defendants sought a new trial, in part, on grounds the following passage from plaintiff's closing argument impermissibly advised the jury to harmonize its general verdict with its answers to the special interrogatories. The comment at issue was as follows:

"MR. OLSON: Now, there will be instructions that ask you to consider whether Tom was comparatively negligent, and I submit to you that Tom was not. There will be what's called a special interrogatory, questions that you'll have to answer in addition to going through the verdict forms.

I submit to you that they should be answered in a very particular manner because if they're inconsistent with the general ...


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