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Kreykes Electric Inc. v. Malk and Harris

June 30, 1998

KREYKES ELECTRIC, INC., PLAINTIFF-APPELLANT,
v.
MALK AND HARRIS, A LAW PARTNERSHIP, CHARLES R. MALK AND ASSOCIATES, LTD., CHARLES R. MALK, INDIV., STEVEN M. HARRIS, LTD., STEVEN M. HARRIS, INDIV., AND STEVEN W. WORKMAN, INDIV., DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Cousins

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

No. 95-L-016287

THE HONORABLE DAVID G. LICHTENSTEIN, JUDGE PRESIDING.

Plaintiff, Kreykes Electric, Inc., is an electrical contractor that brought a legal malpractice action against the law firm and individual attorneys it had retained to prosecute a mechanics lien foreclosure. The circuit court of Cook County granted defendants' motions to dismiss pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), finding that plaintiff failed to exercise reasonable diligence in obtaining service of process. On plaintiff's motion for reconsideration, the circuit court allowed its prior order to stand and specifically rejected plaintiff's argument that defendants waived their Rule 103(b) defense. On appeal, plaintiff argues that the circuit court erred by: (1) granting defendants' motions to dismiss plaintiff's malpractice claim; and (2) not properly considering plaintiff's waiver argument against defendants' motion to dismiss.

BACKGROUND

In 1993, plaintiff retained the law firm of Malk & Harris *fn1 to commence a mechanics lien action. Malk & Harris made an untimely filing of plaintiff's mechanics lien complaint on March 4, 1993. By early April 1993, plaintiff substituted the law firm of McFadden & Dillon for Malk & Harris. On May 3, 1993, the owner of the subject property filed a motion to dismiss the mechanics lien claim on the grounds that it was untimely filed.

Soon thereafter, plaintiff's new counsel, with the aid of attorneys at or associated with Malk & Harris, prepared the response to the aforementioned motion to dismiss the mechanics lien suit. During that time, plaintiff also sent a letter to an attorney at Malk & Harris stating, inter alia, that, should the dismissal of plaintiff's mechanics lien action be upheld, plaintiff would seek damages from Malk & Harris for malpractice.

On November 17, 1993, the circuit court dismissed the mechanics lien suit with prejudice on the grounds that it was not timely filed. According to plaintiff, an attorney at Malk & Harris subsequently requested that plaintiff file a notice of appeal of the November 17, 1993, order and that plaintiff refrain from proceeding with a malpractice action until the underlying dismissal order could be challenged on appeal. During the next two years, the issues on appeal were briefed with some input from Malk & Harris and argued in October 1995.

As the end of the two-year period following the entry of the November 17, 1993, dismissal order approached, the decision of the appellate court was still pending. Consequently, plaintiff filed the instant complaint on November 16, 1995; one day before the applicable statute of limitations expired. On December 22, 1995, the appellate court affirmed the dismissal order. Shortly thereafter, plaintiff decided to proceed with its malpractice action against defendants and purportedly began preparing summonses for service upon defendants.

On January 24, 1996, before any summonses were placed for service, plaintiff failed to appear for a status hearing, and the trial court dismissed plaintiff's claim for want of prosecution. Plaintiff subsequently filed a motion to vacate the dismissal, which was granted on March 1, 1996. Defendants were finally served with process on April 10, 1996, nearly five months after plaintiff's malpractice complaint was filed. Defendants answered with motions pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), asserting that plaintiff's lack of diligence in obtaining service after the expiration of the statute of limitations warranted dismissal of plaintiff's claim with prejudice.

On May 14, 1997, the circuit court granted defendants' motions to dismiss plaintiff's malpractice claim with prejudice on the grounds that plaintiff failed to exercise reasonable diligence in effectuating service of process. In addition, the court, on its own motion, dismissed defendants Steven M. Harris, Ltd., and Malk & Harris on the grounds that plaintiff never effectuated service upon them. Plaintiff subsequently filed a motion for reconsideration, which was granted, in part, by the circuit court on August 22, 1997. In the order on reconsideration, the circuit court amended its prior order by rejecting plaintiff's argument that defendants waived their Rule 103(b) defense, stating that plaintiff's waiver argument was insufficient. The circuit court upheld its prior order in all other respects, and plaintiff appeals from both the May 14, 1997, and August 22, 1997, orders.

We affirm.

ANALYSIS

Plaintiff first contends that the circuit court erred by granting defendants' motions to dismiss based upon Supreme Court Rule 103(b). 134 Ill. 2d R. ...


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