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Mular v. Ingram

Court of Appeals of Illinois, First District, Third Division

May 20, 2015

GERALDINE MULAR, Plaintiff-Appellant,
v.
DAWN INGRAM, Defendant-Appellee

Page 772

[Copyrighted Material Omitted]

Page 773

Appeal from the Circuit Court of Cook County. No. 12 L 7928. Honorable John H. Ehrlich, Judge Presiding.

Affirmed.

For APPELLANT, Law Office of George C. Xamplas, Chicago, IL (George C. Xamplas, of counsel).

For APPELLEE, The Hunt Law Group, LLC, Chicago, IL (Brian J. Hunt and Courtney E. Healey, of counsel).

JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.

OPINION

MASON, Judge

Page 774

[¶1] Plaintiff-appellant Geraldine Mular appeals the dismissal of her personal injury complaint against defendant-appellee Dawn Ingram arising out of injuries Mular sustained while she was a guest at Ingram's home. The trial court dismissed the complaint based on its finding that Mular failed to exercise reasonable diligence in effecting service on Ingram after the complaint was filed. Because the statute of limitations applicable to Mular's personal injury claim had expired, the complaint was dismissed with prejudice. The trial court further denied Mular leave to amend her complaint to assert a claim for construction negligence to which a longer statute of limitations applies. Finding no abuse of discretion in either ruling, we affirm.

[¶2] BACKGROUND

[¶3] On July 16, 2012, Mular filed a complaint to recover damages for injuries she sustained while a guest at Ingram's home on July 18, 2010. Mular fell in a backyard pool area at the home and claimed that, as owner of the home, Ingram owed Mular a duty to maintain her property in a safe condition, which Ingram breached by (i) failing to provide a safe means of ingress and egress to the area, (ii) failing to keep the area free of tripping hazards, (iii) allowing the area around the pool to become unsafe due to uneven surfaces and poorly maintained concrete and concrete expansion joints, (iv) failing to inspect the area for hazardous conditions and (v) failing to warn others of such conditions. Mular's complaint did not allege that Ingram constructed the pool or was involved in its design, but did allege that Ingram " failed to maintain the area around the premises' pool maintained and properly constructed [ sic ]."

[¶4] The complaint correctly listed the address of Ingram's home as 1694 Van Buren Avenue, Des Plaines, Illinois. A summons dated July 16, 2012, was issued, incorrectly listing Ingram's address as " 1649" Van Buren Avenue, but the clerk's docket does not reflect that this summons was ever placed with the sheriff for service. Six weeks later, on August 29, 2012, Mular caused an alias summons to be issued. The alias summons again transposed Ingram's address as " 1649" Van Buren. Service was attempted at 1649 Van Buren on September 1, 2012. The sheriff's affidavit of nonservice, filed with the circuit court on September 10, 2012, lists the reason for nonservice as " No Such Address" and contains a handwritten note that " after 1641, next address is 1653."

[¶5] Mular did nothing for the next six months. On March 8, 2013, she caused a second alias summons to be issued to the same, nonexistent address. On March 21, 2013, this summons was again returned not served with the reason checked as " No

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Such Address." Mular's complaint was dismissed for want of prosecution on April 12, 2013, when her attorney failed to appear in court for a case management conference. On counsel's motion, the case was reinstated on May 22, 2013. Counsel also requested appointment of a special process server, which was granted the same day.

[¶6] Despite the appointment of a special process server, Mular waited another seven weeks before issuing another summons. The third alias summons, dated July 9, 2013, listed Ingram's correct address and was served on Ingram that same day.

[¶7] On August 15, 2013, Ingram filed a motion to dismiss under Illinois Supreme Court Rule 103(b), ...


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