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Silverberg v. Haji

Court of Appeals of Illinois, First District, Fifth Division

May 29, 2015

JOE SILVERBERG , Plaintiff-Appellant,
v.
MOHAMED J. HAJI, Defendant-Appellee (Mohamed J. Haji, as Agent of Khalid Siddiqui and Checker Taxi Company, Inc., a Foreign Corporation; Timo K. Harres, Defendants)

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Appeal from the Circuit Court of Cook County. No. 10 L 7768. Honorable Moira S. Johnson, Judge Presiding.

For appellant Joe Silverberg: Mark L. Karno and Anrew J. Mazzuca, Mark L. Karno and Associates, Chicago.

For appellee Mohamed J. Haji: Allen L. Wiederer, Chicago.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.

OPINION

McBRIDE, Judge

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[¶1] Plaintiff, Joe Silverberg, filed suit against defendant, Mohamed J. Haji, for damages arising from a July 6, 2008, car accident. Plaintiff filed his complaint against defendant on July 6, 2010, and, after various attempts to locate and serve defendant spanning a 41-month period, service was ultimately accomplished on December 11, 2013. Defendant then filed a motion to dismiss pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), claiming that plaintiff had failed to exercise reasonable diligence in obtaining service over him. The trial court granted that motion, dismissing the complaint as to defendant with prejudice. Plaintiff now appeals, arguing first, that the court erred as a matter of law by considering improper factors and by failing to consider the totality of the circumstances in rendering judgment; and second, that the court abused its discretion when it granted defendant's motion. We reverse the trial court's judgment and remand for further proceedings.

[¶2] On July 6, 2010, the last day of the statute of limitations period, plaintiff filed a complaint against defendant in connection with a July 6, 2008, three-vehicle accident on Lake Shore Drive in Chicago. Plaintiff also brought the action against Timo K. Harres, the third driver involved in the accident; and Khalid Siddiqui[1] and Checker Taxi Company, which he alleged owned the taxi driven by defendant. Harres, Siddiqui, and Checker Taxi Company are not parties to this appeal.

[¶3] Three days later, on July 9, 2010, plaintiff caused summons to issue to defendant at 6026 North Winthrop, Apartment H, in Chicago, the address listed for defendant in the police report. The sheriff attempted to serve the summons on defendant at that address on August 2, 2010, but was unsuccessful. The sheriff noted that " more info" was necessary, because the address was an eight-story building and " all [floors] have H."

[¶4] Plaintiff then engaged the services of LaSalle Process Servers (LaSalle) on August 12, 2010, which performed a skip trace and reported that defendant " still resided at 6026 N. Winthrop, Apartment H, Chicago, IL 60660." Eric Elkins was appointed as a special process server on August 31, 2010, and plaintiff caused an alias summons to issue to defendant at that address. Elkins attempted service on six occasions between September 8, and

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September 26, 2010, but was unable to make contact with defendant. Elkins averred that he further inquired with an employee of the apartment's management, who " checked their files" and informed him that there was " no Mohamed J. Haji actually residing at the address."

[¶5] On October 7, 2010, LaSalle performed a second skip trace in an attempt to locate defendant, but the attempt was " unsuccessful in producing any known or last known addresses." On November 5, 2010, plaintiff then filed a motion for service by special order pursuant to section 2-203.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-203.1 (West 2010)), which allows the court to permit service by an alternative method when the standard service methods are impractical. Plaintiff asserted therein that he had been unable to serve defendant despite his reasonable and diligent efforts, and attached affidavits from counsel and Elkins detailing the above-described service attempts.

[¶6] The trial court granted plaintiff's motion on January 7, 2011, allowing him to serve defendant through the Secretary of State and by " mail[ing] said service to defendant's last known address and the insurance carrier for defendant's vehicle." Four days later, on January 11, 2011,[2] plaintiff caused a second alias summons to issue, which he then mailed to the Secretary of State. The Secretary of State accepted service on defendant's behalf on January 18, 2011.

[¶7] On July 5, 2011, plaintiff filed a motion to default defendant, and, three days later, on July 8, 2011, defendant filed a motion to quash the " purported service" on the Secretary of State. In that motion, defendant did not challenge the propriety of service through the Secretary of State, but instead claimed that plaintiff had not shown that he had fully complied with the court's order by mailing a copy of the summons to his last known address and insurance carrier.

[¶8] On July 12, 2011, the trial court denied plaintiff's motion for default and granted defendant's motion to quash service. Although no transcript of that hearing appears in the record, defendant maintained in subsequent filings that the alias summons was " invalid" because it " was not issued by the Clerk of the Circuit Court." The court further granted plaintiff leave to " issue and serve alias summons in accord and compliance with" its January 7, 2011, order.

[¶9] Two days later, on July 14, 2011, plaintiff caused a third alias summons to issue, and that summons was accepted by the Secretary of State on July 20, 2011. On February 22, 2012, defendant filed a new motion to quash service, claiming that the affidavit supporting plaintiff's motion for service by special order was insufficient under section 2-203.1 of the Code. Defendant alleged that the supporting affidavit of plaintiff's counsel did not " adequately state the nature and extent of the investigation done to determine defendant's whereabouts." The court denied that motion on June 15, 2012, and granted defendant until July 13, 2012, to answer or otherwise plead.

[¶10] On July 13, 2012, defendant filed a motion to dismiss the action pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), asserting that plaintiff had failed to exercise reasonable diligence in serving him with process " as evidenced by the passage of more than 12 months from the filing of this suit until service of summons through the Secretary of State by special order of court." After briefing was

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completed, the trial court entered an order granting defendant's motion to dismiss on September 18, 2012. In its written order, the court noted that section 10-301 of the Illinois Vehicle Code (nonresident motorist statute) (625 ILCS 5/10-301 (West 2010)), allowed service on a defendant by serving the Secretary of State, " provided that the claim arises from the use of a motor vehicle within this State, the defendant is a nonresident or subsequently becomes a nonresident, and notice of the action is sent to the nonresident defendant's last known address." The court observed, however, that " strict compliance" with the statute must be met, and that " [t]here is no record before this Court that Defendant Haji is not a resident of the State of Illinois."

[¶11] The court continued:

" Assuming arguendo that Plaintiff properly effectuated service upon Defendant Haji via substitute service through the Secretary of State, this Court nonetheless finds that the other factors considered under a Rule 103(b) analysis are not satisfied.
For example, based on the record before this Court, there is no indication of whether Plaintiff was aware of Defendant Haji's location or whether Defendant Haji's location could be easily ascertained. Here, Plaintiff issued all Summons and Alias Summons to Defendant at the 6026 North Winthrop location. Although Plaintiff's Special Process Server conducted an investigation by speaking with the management company of that location, this unidentified employee purportedly stated that nobody by that name resided at that location. Plaintiff offers no information as to what other steps were taken to locate Defendant Haji's whereabouts. In fact, there is no evidence that Plaintiff ever conducted a skip trace search on Defendant Haji. Rather, Plaintiff merely jumped to the conclusion that Defendant Haji moved out of this State."

[¶12] The court then went on to observe that there was no evidence suggesting that defendant had actual notice of the lawsuit and that plaintiff " failed to assert any special circumstances" explaining the delay in effecting service. The court thus determined, " after evaluating the totality of the circumstances in this case," that plaintiff did not demonstrate reasonable diligence in effecting service on defendant. In delivering that judgment, the court also sua sponte reversed its June 15, 2012, order denying defendant's prior motion to quash service.

[¶13] On October 18, 2012, plaintiff filed a motion to reconsider that ruling. In that motion, plaintiff agreed that there was no evidence in the record to show that defendant was a nonresident, but claimed that the substitute service on the Secretary of State had been allowed--not under the nonresident motorist statute--but instead as a method of special service under section 2-203.1 of the Code, due to the impracticality of standard service methods. Plaintiff further noted that the factors used by the court to dismiss the matter were contradicted by the record and plaintiff's motion for special service, which had outlined plaintiff's investigation into defendant's whereabouts, including the use of two separate skip traces. Plaintiff argued that there was " no indication that Defendant Haji's location could be easily ascertained through other reasonable means" and that it was not reasonable for the court to charge this factor against him where defendant had not argued or created a record showing that he was amenable to such service.

[¶14] On April 3, 2013, the court denied plaintiff's motion to reconsider, but " clarif[ied]" its ruling in a written " Amended Order." The court reaffirmed its sua

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sponte decision to quash service on defendant, observing that, where special service under section 2-203.1 of the Code is allowed through service on the Secretary of State, the " additional strict requirements of [the nonresident motorist statute] must be met [including] the non-residency or subsequent non-residency of the defendant." The court reiterated the lack of evidence showing that defendant was a nonresident, and determined that service was invalid. The court then determined that once service was quashed, it no longer had jurisdiction to consider defendant's motion to dismiss. Consequently, it vacated the order of September 18, 2012, dismissing defendant, and the " portion of the June 15, 2012 Order of Court that denied Defendant Haji's Motion to Quash." Plaintiff was granted leave to file another alias summons instanter.

[¶15] On April 9, 2013, plaintiff caused the fourth alias summons to issue to defendant at a possible new address. Robert A. Clarke, a special process server, attempted service at 6167 North Broadway Street, Apartment 106, in Chicago on April 24, 2013. Clarke determined, however, that defendant did " not reside" there, as the address was a " DHL mailbox center." He then attempted to serve defendant at apartment 4H of the previously known Winthrop address. Clarke was unable to make contact with defendant, and spoke to a manager at the apartment building who informed him that defendant had moved out " about a year ago." Clarke further indicated that a " skip[ ]trace was unable to locate the defendant at this time."

[¶16] On May 10, 2013, a fifth alias summons issued to defendant at 585 Gundersen Drive in Carol Stream, Illinois. Doreen R. Warner, a special process server, unsuccessfully attempted to serve defendant at that address on May 22, 2013. She observed that the building was a single-family home and that defendant was " NOT LISTED ON THE DIRECTORY," but noted that a skip trace revealed a new possible address of " 3121 PILLSBURY AVE S APT 1504, MINNEAPOLIS, MN 55408-6000."

[¶17] Meanwhile, on May 15, 2013, plaintiff filed a subpoena to On the Go Cab Co. requesting defendant's personnel file. Based on the Minneapolis address found for defendant, plaintiff caused a sixth alias summons to issue for defendant on June 20, 2013, through the Secretary of State under the nonresident motorist statute. Defendant filed a motion to quash that service on July 17, 2013, observing that the affidavit of compliance " prepared and filed by plaintiff's attorney to induce the Secretary of State to accept service of process falsely aver[red] that the vehicle being driven by [defendant] at the time of the alleged occurrence was owned by a nonresident."

[¶18] Plaintiff responded to defendant's motion to quash and acknowledged that he had mistakenly checked the box for a nonresident " owner," rather than " driver" on the form affidavit. He informed the court that he had submitted an amended affidavit of compliance to the Secretary of State after the error was brought to his attention. Plaintiff maintained that the error did not " negate the proper basis for the application of [the nonresident motorist statute,]" and, in any case, the error had been subsequently corrected.

[¶19] On July 25, 2013, the court entered a written order quashing service through the Secretary of State, without elaboration. Plaintiff then caused a seventh alias summons to issue to defendant through the Secretary of State on the same day, with the appropriate box checked on the affidavit of compliance. The summons was accepted by the Secretary of State on July 31, 2013, and plaintiff filed a motion to default defendant on September 27, 2013.

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[¶20] Thereafter, on October 7, 2013, defendant filed a motion to quash service through the Secretary of State, this time alleging that he " was not a non-resident of the State of Illinois at the time of the alleged occurrence or at the time of the purported service of process of the Secretary of State." In support, defendant submitted an affidavit claiming that he was currently an Illinois resident and that he had been an Illinois resident at the time of the accident and on July 25 and July 31, 2013.

[¶21] That same day, plaintiff filed a motion to conduct " limited discovery with respect to the issue of Defendant Haji's residence" under Illinois Supreme Court Rule 201(l) (eff. Jan. 1, 2013), in order to " investigate and properly respond to" defendant's motion to quash service. The court granted plaintiff's motion on October 7, 2013, and plaintiff immediately served ...


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