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Mular v. Ingram

Court of Appeals of Illinois, First District, Second Division

December 13, 2016

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

         Appeal from the Circuit Court of Cook County, No. 14 L 7928 Honorable Kathy M. Flanagan, Judge Presiding.

          JUSTICE MASON delivered the judgment of the court, with opinion. Justices Neville and Pierce concurred in the judgment and opinion.

          OPINION

          MASON, JUSTICE

         ¶ 1 Plaintiff Geraldine Mular appeals from the trial court's dismissal of her construction negligence complaint against defendant Dawn Ingram, arising out of injuries Mular allegedly sustained when she fell while a guest at Ingram's house. The trial court dismissed the complaint based upon its finding that the cause was barred by the doctrine of res judicata. On appeal, Mular contends that the trial court erred when it applied the doctrine of res judicata to this case because she attempted to bring her construction negligence claim in her original complaint but was denied the opportunity to do so. Mular further contends that res judicata should not be applied to this case in the interests of fundamental fairness. We affirm.

         ¶ 2 This court set forth the facts relevant to this cause in our prior decision. See Mular v. Ingram, 2015 IL App (1st) 142439 (Mular I). As we previously noted, this cause arises out of injuries Mular claimed she suffered when she fell in the backyard pool area of Ingram's home during a social gathering on July 18, 2010.

         ¶ 3 On July 16, 2012, Mular filed a complaint, in case number 12 L 7928, alleging that Ingram, as homeowner, 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. The complaint also alleged that Ingram "failed to maintain the area around the premises' pool maintained and properly constructed [sic]."

         ¶ 4 On August 15, 2013, Ingram filed a motion to dismiss pursuant to Supreme Court Rule 103(b), alleging that a nearly one-year delay in service constituted a failure to exercise reasonable diligence. See Ill. S.Ct. R. 103(b) (eff. July 1, 2007) ("[i]f the plaintiff fails to exercise reasonable diligence to obtain service on a defendant prior to the expiration of the applicable statute of limitations, the action as to that defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service on a defendant occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice"). Specifically, the complaint was filed on July 16, 2012, and Ingram was not served until July 9, 2013. The motion also alleged, inter alia, that there was a six-month delay between the return of the first alias summons in September 2012 and the issuance of a second alias summons in March 2013, that the two alias summonses were issued to the wrong address, and that Ingram had continuously lived at the same address since 1990. The motion further alleged that Mular knew Ingram's correct address and that the proper address was listed in the complaint.

         ¶ 5 In granting the motion to dismiss, the trial court first noted "the length of time" it took Mular to serve Ingram, that is, "four days short of one year." The court then stated that the addresses on the first and second alias summonses were incorrect and that the first attempt to serve Ingram was done after the expiration of the two-year statute of limitations. The court found it "particularly troubling to understand" the delay because Mular knew where Ingram lived and the proper address was listed in the complaint. The court was unpersuaded by Mular's "excuses and explanations" and held that Mular did not act with reasonable diligence in attempting to serve Ingram. The court dismissed the cause with prejudice because Ingram was not served until almost 11 months after the end of the two-year statute of limitations applicable to personal injury cases.

         ¶ 6 Mular's counsel then asked whether the court considered the four-year statute of limitations applicable to construction negligence claims "as there is an allegation pursuant to the construction of the improvement of the property." Counsel asked for the opportunity to amend the complaint if the trial court felt that claim was "not clearly stated." The court directed the parties to file additional briefing as to whether the dismissal of the case should be with prejudice and postponed entry of the order.

         ¶ 7 At a later hearing, the trial court stated that it "re-reviewed everything" and failed to see how the cause was a construction case "at all" when nothing alleged that construction was "going on." Rather, the case was a "trip and fall like any other trip and fall." Accordingly, on May 20, 2014, the trial held that the four-year statute of limitations applicable to construction negligence did not apply to the cause of action as pled and dismissed the cause with prejudice pursuant to Supreme Court Rule 103(b). The trial court denied Mular's motion to vacate and reconsider, and to file an amended complaint. Mular filed an appeal. ¶ 8 In July 2014, during the pendency of the appeal in case 12 L 7928, Mular filed a complaint alleging construction negligence and seeking damages for injuries arising out of the same occurrence. Mular claimed that as the owner of the home, Ingram owed a duty to exercise ordinary care for the safety of persons who entered the property and that she violated that duty by, inter alia, negligently allowing the area around the pool to be unsafe due to uneven surface levels and poorly maintained concrete. The complaint further alleged that Ingram owed a duty to exercise ordinary care to design and construct improvements and repairs to the property and that she breached this duty when she (i) failed to design and construct a safe means of ingress and egress to the property; (ii) failed to design and construct the area of the pool to be clear of tripping hazards; (iii) constructed the area around the pool in an unsafe condition by having uneven surface levels and poorly maintained concrete and concrete expansion gaps; (iv) designed the premises and in particular the area around the pool; and (v) constructed and designed the premises and area around the pool.

         ¶ 9 In December 2014, Ingram filed a motion to dismiss pursuant to section 2-619(a)(4) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4) (West 2014)), alleging the instant cause was barred by the doctrine of res judicata pursuant to trial court's May 20, 2014 order dismissing case 12 L 7928 with prejudice. The motion further alleged that the cause was barred by the two-year statute of limitations, and, assuming that Mular had sufficiently alleged that Ingram was involved in the construction of the pool area, a fact Ingram disputed because the pool was built before she purchased the house, the claim was barred by the 10-year construction statute of repose (735 ILCS 5/13-214(b) (West 2014)).

         ¶ 10 In February 2015, the trial court stayed its ruling on the issue on res judicata pending a ruling on Mular's appeal from the trial court's dismissal with prejudice in case number 12 L 7928. On May 20, 2015, this court issued its opinion.

         ¶ 11 On appeal, this court first considered Mular's argument that the four-year statute of limitations applicable to construction negligence claims applied to the case. We noted that the types of claims to which section 13-214(a) of the Code (735 ILCS 5/13-214(a) (West 2010)), applied were limited to construction activities related to the design, planning, supervision, observation, or management of a construction project. Mular I, 2014 IL App (1st) 142439, ¶¶ 15-16. Therefore, a landowner's maintenance of an existing improvement to real property, without an allegation that the landowner took part in the construction of that improvement, did not fall within the purview of section 13-214. Id. ¶ 16. The "sole" reference to construction found in Mular's one-count complaint alleged that Ingram was guilty of negligence because she " '[c]arelessly and negligently failed to maintain the area around the premises' pool maintained and properly constructed [sic].' " Id. ¶ 18. No allegations of fact in the complaint supported the inference that Ingram participated in the design, planning, or supervision of the construction of the pool. Id. We also noted that the proposed amended complaint lacked any well-pled facts other than conclusory allegations that Ingram was under a duty to design and construct improvements to her property to be safe for persons entering the property and failed to design and construct the area around the pool to be free of tripping hazards. Id.

         ¶ 12 Mular I therefore concluded that Mular's complaint asserted a premises liability claim against a property owner governed by a two-year statute of limitations, and, consequently, service on Ingram on July 9, 2013 for injuries sustained by Mular on July 18, 2010, was beyond the applicable two-year statute of limitations. Id. ¶¶ 18-19. Dismissal with prejudice pursuant to Illinois Supreme Court Rule 103(b) was proper when, inter alia, nearly one year elapsed between the filing of the lawsuit and the date Ingram was served, and Ingram was "easy to locate." Id. ΒΆ 25. Accordingly, under the circumstances of the case, Mular's delay ...


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