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Smith v. Menold Construction

June 09, 2004

RANDELL L.D. SMITH, PLAINTIFF-APPELLANT,
v.
MENOLD CONSTRUCTION, INC., D/B/A MENOLD RESTORATION, DEFENDANT-APPELLEE.



Appeal from Circuit Court of McLean County. No. 02L209. Honorable Donald D. Bernardi, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

PUBLISHED

In December 2002, plaintiff, Randell L.D. Smith, filed a five-count complaint against defendant, Menold Construction, Inc., doing business as Menold Restoration. Defendant did not receive service of process until June 2003. In July 2003, defendant filed a motion to dismiss, asserting, inter alia, plaintiff's complaint should be dismissed pursuant to Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)) because plaintiff failed to exercise due diligence to obtain service on defendant. After a hearing on defendant's motion, the trial court granted the motion and dismissed the action with prejudice because the statute of limitations had expired.

Plaintiff appeals pro se, asserting (1) the trial court erred in finding he had not exercised due diligence in serving defendant and (2) the statutes of limitations had not expired on three of his five claims. We affirm in part, reverse in part, and remand with directions.

I. BACKGROUND

In May 1998, plaintiff's home located on Ireland Grove Road in Bloomington, Illinois, was severely damaged by fire. Defendant admitted in a prior case that the parties had entered into a written agreement, under which defendant would repair the fire damage to plaintiff's home. Smith v. Menold Construction, No. 01-L-25 (Cir. Ct. McLean Co.).

In the prior case, plaintiff filed a February 2001 complaint against defendant, asserting breach of contract and common-law negligence. Defendant filed an answer to the breach-of-contract count and a motion to dismiss the common-law negligence count. In May 2001, the McLean County circuit court approved defendant's current counsel to be substituted as defendant's counsel in that matter. Plaintiff later amended his complaint to include claims of the following: common-law fraud, a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 through 12 (West 1998)), theft and conversion, and aggravated home repair fraud (815 ILCS 515/5 (West 1998)). In August 2001, the circuit court dismissed the theft and conversion count and the aggravated home repair fraud count. In February 2000, plaintiff rejected the arbitrator's award that had found in favor of defendant on all of the remaining counts. In June 2002, plaintiff filed a motion for voluntary dismissal, which the circuit court granted. Smith v. Menold Construction, No. 01-L-25 (Cir. Ct. McLean Co.).

On December 27, 2002, plaintiff filed pro se the complaint at issue, asserting the following claims: (1) breach of contract (count I), (2) common-law fraud (count II), (3) a violation of the Consumer Fraud Act (count IV), (4) theft and conversion (count V), and (5) aggravated home repair fraud (count VI). Plaintiff attached to his complaint (1) a June 6, 1998, repair estimate from defendant; (2) a June 8, 1998, proposal from defendant, for which the acceptance of proposal had not been signed; and (3) correspondence between the parties regarding responsibility for unfinished work (including a May 27, 1999, letter written by plaintiff). The trial court entered a May 1, 2003, docket entry, noting plaintiff failed to appear at the case-management conference and ordering plaintiff to obtain service and to set the matter for another conference within 30 days. On June 11, 2003, defendant received service of process.

In July 2003, defendant filed a motion to dismiss plaintiff's complaint for several reasons, including lack of due diligence in service of process pursuant to Rule 103(b). In its request for dismissal under Rule 103(b), defendant asserted plaintiff's complaint should be dismissed with prejudiced because "the appropriate statute of limitations has expired."

In turn, plaintiff filed a motion to strike defendant's motion to dismiss as well as a reply to defendant's motion. With his reply, plaintiff attached his affidavit and several exhibits. In his affidavit, plaintiff stated that, on December 27, 2002, he sent a copy of the summons and complaint to Developmental Research Consultants, Inc. (DRC), a process server. A copy of the December 27, 2002, letter to DRC was attached as an exhibit. The letter listed DRC's address as 7501 North University, Suite 17A, Peoria, Illinois, and defendant's address as 1050 West Jefferson Street, Morton, Illinois. The letter also requested DRC to bill plaintiff for its services. According to plaintiff, that letter was returned to him.

On January 2, 2003, plaintiff sent another letter to DRC, which was also attached to his affidavit. That letter is the same as the first except that it listed DRC's address as 414 Hamilton Boulevard, Peoria, Illinois. Plaintiff did not hear back from DRC and assumed it had served defendant. Plaintiff later received a copy of the trial court's May 1, 2003, docket entry, which was when he first learned DRC had not served defendant. The record indicates a copy of the docket entry was mailed to plaintiff on June 5, 2003.

Upon receiving the docket entry, plaintiff went to the McLean County circuit clerk's office and requested the issuance of an alias summons. The record indicates the alias summons was issued on June 9, 2003. After receiving the summons, plaintiff wrote a letter that same day to another process server, Sloan Investigation and Process Service (Sloan), which listed the same address for defendant as the letters to DRC. Plaintiff then received a bill dated June 11, 2003, from Sloan. The record indicates Sloan served defendant on June 11, 2003. Plaintiff later learned DRC went out of business in September 2002. Plaintiff filed another reply to the motion to dismiss, asserting that, if he had known the first process server had gone out of business, he would have immediately hired another process server to do the job.

In August 2003, defendant filed a supplement to its motion to dismiss, attaching copies of the documents filed in the prior case, requesting the trial court to take judicial notice of the prior case, and asserting plaintiff knew where defendant could be served and the identity of defendant's counsel. Plaintiff also supplemented his evidence with an affidavit from Susan Foster and a page from the 2002-03 Peoria area Yellow Book that listed DRC under the title "process servers" with the University Street address. Foster stated she informed plaintiff on June 9, 2003, that, to her knowledge, DRC was no longer in business. Thereafter, she spoke to Natalie Stoessel, a former DRC employee, who stated DRC had gone out of business around September 2002.

In August 2003, the trial court held a hearing on defendant's motion to dismiss only as it related to Rule 103(b). At the hearing, the court asked plaintiff why he was not obligated to check and make sure the process server had in fact served defendant. He also inquired if plaintiff had a tickler system. Plaintiff replied that, when he sent the letter to DRC, he assumed it was processed because he had "stuff" to do besides work on this case. Plaintiff also stated he knew Sloan had served defendant because he received a bill. Additionally, plaintiff admitted he knew, from the prior lawsuit, what law firm represents ...


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