Court of Appeals of Illinois, First District, Fourth Division
Appeal
from the Circuit Court of Cook County. No. 16 L 005859 The
Honorable Moira S. Johnson, Judge Presiding.
Attorneys for Appellant: Michael G. Kelly, of Chadwick &
Lakerdas, of Chicago, for appellant.
Attorneys for Appellee: Bruce Farrel Dorn & Associates,
of Chicago (Ellen J. O'Rourke and James L. Byrne, of
counsel), for appellee.
GORDON, JUSTICE delivered the judgment of the court, with
opinion. Presiding Justice McBride and Justice Burke
concurred in the judgment and opinion.
OPINION
GORDON, JUSTICE.
¶
1 The instant appeal arises from the dismissal of plaintiff
Michelle Mayfield's complaint with respect to defendant
Jacoby Hoskins due to improper service. Plaintiff filed a
personal injury lawsuit against defendants Frederick Smith
and Jacoby Hoskins after she was injured in an automobile
collision. Defendant Hoskins filed a motion to quash service,
claiming that he had never been served with the summons and
complaint, and the motion was granted. Defendant then moved
to dismiss the complaint with respect to him pursuant to
Illinois Supreme Court Rule 103(b) (eff. July 1, 2007),
claiming that plaintiff had exhibited a lack of diligence in
serving him. The trial court granted the motion to dismiss,
dismissing the case against defendant Hoskins with prejudice.
Plaintiff appeals, and for the reasons that follow, we
reverse.
¶
2 BACKGROUND
¶
3 On June 13, 2016, plaintiff filed a two-count complaint
against defendants alleging that on June 22, 2014, she was a
passenger in a vehicle operated by defendant Smith when
Smith's vehicle struck a vehicle driven by defendant
Hoskins when Hoskins attempted to turn left into a parking
lot in front of Smith's vehicle, causing plaintiff to
sustain injury. Plaintiff alleged that each defendant was
negligent in operating his vehicle.
¶
4 On July 8, 2016, the sheriffs office filed an affidavit of
service with respect to defendant Hoskins, stating that the
sheriffs office had attempted service at an address on
Kingston Avenue on June 22, June 27, June 29, and July 5, but
was unable to effectuate service of the summons and complaint
on defendant Hoskins.
¶
5 On August 10, 2016, the trial court entered a case
management order in which Eric Gatewood was appointed as a
special process server and plaintiff was ordered to issue an
alias summons within 14 days. An alias summons was issued as
to each defendant on September 19, 2016. A case management
order dated September 20, 2016, continued the matter for a
subsequent case management conference on October 18, 2016,
with respect to "Proper Service." An October 18,
2016, case management order continued the matter for a
subsequent case management conference on November 15, 2016,
with respect to "Proper Service" and "status
for alternative service."
¶
6 On November 15, 2016, the trial court entered an order
dismissing the case for want of prosecution. On December 15,
2016, plaintiff filed a motion to vacate the dismissal,
claiming that her counsel inadvertently failed to note the
court date and therefore did not appear for the November 15,
2016, case management conference. In the motion, plaintiff
claimed that "Plaintiff obtained service upon the
Defendant Jacoby Hoskins prior to the [dismissal]." The
trial court granted the motion to vacate on January 5, 2017,
and reinstated the case.
¶
7 On the same day, plaintiff filed a "Motion for Service
by Special Order of Court," in which she alleged that
she had been unable to serve defendant Smith because he did
not reside at the address listed with the Illinois Secretary
of State and neither the sheriffs office nor the special
process server had been able to locate him. Plaintiff
requested that the court permit her to serve defendant Smith
by filing the summons and complaint with the Illinois
Secretary of State, by certified mail to his last known
address, and by certified mail to his automobile insurance
carrier. Plaintiffs motion was granted and an alias summons
was issued with respect to defendant Smith on February 22,
2017.
¶
8 On March 1, 2017, the trial court entered a case management
order continuing the matter for a subsequent case management
conference on April 19, 2017, for "Appearance of
Defendants"; the order also provided that
"Plaintiff shall file any motion [for] default and
schedule it for 4-19-17." On March 2, 2017, plaintiff
filed a "Proof of Service of Process as to Defendant
Frederick Smith."
¶
9 On April 19, 2017, the trial court entered a case
management order continuing the matter to May 31, 2017, for a
subsequent case management conference for "Proper
Service" and "Appearance of Defendants." The
order also provided: "Defendants allowed leave to file
appearance, answer or other pleading, [and] jury demand on or
before May 17, 2017. Plaintiff to provide proof of service to
Defendant Hoskins in 7 days." Defendant Smith filed an
appearance, answer, and cross-claim for contribution on May
3, 2017.
¶
10 On May 31, 2017, the trial court entered a case management
order continuing the matter for a subsequent case management
conference on July 12, 2017, for "Proper Service,"
"Appearance of Defendants," and "Discovery
Status."
¶
11 On July 12, 2017, the trial court entered a case
management order providing that written discovery was to be
issued by July 19, 2017, as to plaintiff and continued the
matter for a subsequent case management conference on August
30, 2017, with respect to "Proper Service,"
"Appearance of Defendants," and "Discovery
Status." Another electronic notice provides that the
cause was scheduled to appear on the court's "trial
setting call" on September 12, 2017.
¶
12 On August 24, 2017, Gatewood, the special process server,
filed an affidavit of service providing that he served
defendant Hoskins by leaving a copy of the summons and
complaint with an individual named Jonnett Hoskins on
September 25, 2016, at defendant's address on Kingston
Avenue and also mailed a copy of the summons and complaint to
defendant on September 26, 2016. The affidavit was not
notarized, and this is the first document contained in the
record indicating that defendant Hoskins was served.
¶
13 On August 30, 2017, the trial court entered a case
management order continuing the matter for a subsequent case
management conference on September 27, 2017, with respect to
"Discovery Status" and "status on defendant
Hoskins Motion to Quash Service."
¶
14 On September 14, 2017, defendant Hoskins filed a motion to
quash service, claiming that plaintiff had produced an
affidavit of service in open court on July 12, 2017, which
provided that Gatewood served defendant on September 25,
2016, through substitute service on his grandmother, Jonnett
Hoskins. However, defendant and his grandmother denied that
defendant was ever served.[1] Attached to the motion to quash was an
e-mail dated September 28, 2016, and addressed to plaintiffs
attorney, which provided in full:
"Affidavit of Special Process ...