Mayfield v. Smith

          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 ...