Opinion
No. 1-18-1457
06-19-2020
CHRISTINA GIUNTA, as Executor for the Estate of ROMEO FUGGITI, Deceased, Plaintiff-Appellant, v. HERITAGE WOODS OF BOLINGBROOK, and GARDANT MANAGEMENT SOLUTIONS, INC., Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 17 L 004900 Honorable Christopher E. Lawler, Judge, Presiding. JUSTICE HALL delivered the judgment of the court.
Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶ 1 Held: We affirm the circuit court's order granting defendants' Illinois Supreme Court Rule 103(b) (Ill. S. Ct. R. 103(b)) motion to dismiss because plaintiff failed to exercise reasonable diligence in effectuating service. ¶ 2 Plaintiff Christina Giunta appeals from an order of the circuit court granting defendants', Heritage Woods of Bolingbrook (Heritage Woods) and Gardant Management Solutions, Inc. (Gardant), motion to dismiss pursuant to Illinois Supreme Court Rule 103(b). Ill. S. Ct. R. 103(b). For the reasons that follow, we affirm the order of the circuit court.
¶ 3 BACKGROUND
¶ 4 On May 15, 2017, plaintiff, as executor for the estate of her deceased father, Romeo Fuggiti, filed a two-count negligence complaint for personal injury and wrongful death against defendants, alleging that her father was neglected during his residency at the Heritage Woods facility, owned by Gardant, which caused his death. Plaintiff's father died on May 13, 2015. Plaintiff retained attorney Jeffrey Schlapp to represent the estate and file suit against defendants. ¶ 5 Approximately four and half months after the complaint was filed, on October 3, 2017, Judge Moira Johnson dismissed plaintiff's case for want of prosecution. On October 4, 2017, attorney Schlapp filed a motion to vacate the dismissal and reinstate the case, attaching a notice and a certificate of service which listed the names of defendants and was addressed to the registered agent for Gardant. ¶ 6 On October 19, 2017, Judge Johnson vacated the dismissal and reinstated the case, and continued the matter for status on December 5, 2017. On November 22, 2017, attorney Schlapp was disbarred based on his conduct unrelated to this matter. ¶ 7 On December 5, 2017, an attorney appeared in court on plaintiff's behalf as a "friend of the court," and plaintiff was granted leave to hire new counsel. On January 4, 2017, plaintiff's new counsel entered an appearance, and on January 5, 2018, approximately eight months after her case was filed, plaintiff issued alias summonses to Gardant and Heritage Woods served on January 8 and 10, 2018, respectively. ¶ 8 After defendants filed their appearances, on February 7, 2018, Gardant moved for a substitution of judge and plaintiff's case was reassigned to Judge Christopher Lawler. That same day, Gardant filed a motion to dismiss plaintiff's complaint for lack of diligence pursuant to Supreme Court Rule 103(b) (Ill. S. Ct. R. 103(b)), and Heritage Woods joined in Gardant's motion. ¶ 9 On March 4, 2018, plaintiff filed her response to defendants' motion to dismiss and attached her affidavit. In her affidavit, plaintiff averred that after she retained attorney Schlapp, she contacted him in February and April of 2017, and inquired about the progress of the case since she knew the statute of limitations would run on or about May 13, 2017. Attorney Schlapp informed her that she had plenty of time to file her complaint. She contacted him again in June 2017, and attorney Schlapp informed her that the complaint had been filed and the case was scheduled for case management on July 12, 2017. ¶ 10 Plaintiff further averred that in early September 2017, she contacted the clerk of the Cook County Circuit Court to request a copy of the complaint, and she learned that the next case management was scheduled for October 3, 2017. On October 4, 2017, plaintiff went to the clerk's office and was advised that the case had been dismissed for want of prosecution. A friend advised her to contact her attorney and request that he file a motion to vacate the dismissal as soon as possible. Attorney Schlapp filed the motion to vacate, which was granted. ¶ 11 Plaintiff also averred that on November 22, 2017, she learned that attorney Schlapp had been disbarred, and further stated that: "[a]t no time was I ever told, nor did I know, until after I found out that Mr. Schlapp had been disbarred, that summons had not been issued." Plaintiff averred that on December 5, 2017, another attorney appeared in court on her behalf to explain what had transpired with attorney Schlapp, and the circuit court entered an order granting her until January 23, 2018, to retain new counsel and have summons issued to the defendants. Plaintiff averred that attorney Schlapp did not keep her informed about the progress of her case, informed her that she did not need to appear for court dates, and assured her that everything was "ok" and she relied upon him. ¶ 12 Plaintiff also averred that defendants were in possession of all of her father's original records and charts, and "at all times, the [d]efendants had been aware of the basis for the lawsuit since there was a [s]tate investigation which found, among other things, that Heritage Woods of Bolingbrook 'posed an immediate jeopardy to the health and safety of residents.' Defendants had actual notice of the potential of the lawsuit." ¶ 13 On June 14, 2018, the circuit court entered an order granting defendants' motion to dismiss plaintiff's case pursuant to Rule 103(b) with prejudice. In its written order, the circuit court reasoned that, "Giunta first served Defendants on January 8 and 10, 2018—almost eight months after she filed her complaint. On this record, Defendants have made a prima facie case of lack of reasonable diligence and Giunta bears the burden to demonstrate that her lack of diligence was justified." The court noted that plaintiff had attached an affidavit to her response, but further reasoned that, "the standard for determining reasonable diligence is not a plaintiffs subjective intent and instead turns on whether the plaintiff acted objectively reasonable.," citing Segal v. Sacco, 136 Ill. 2d 282, 295 (1990) in support. The court further reasoned that "[l]itigants are also bound by the mistakes and negligence of their attorney," citing Giles v. Parks, 2018 IL App (1st) 163152. The circuit court concluded that:
"Giunta's affidavit fails to show that any of the Segal factors weigh against dismissal. As noted, she served Defendants almost eight months after the expiration of the applicable limitations period. A time period exceeding seven months between the filing of the complaint and service of the complaint and summons supports a finding of a lack of reasonable diligence. Long v. Elborno, 376 Ill. App. 3d 970, 980 (1st Dist. 2007). There is no evidence that Giunta previously sought to obtain service, and Defendants locations were matters of public record. There is also no evidence that either defendant knew of the pending action and like the plaintiff in Long, Giunta 'fails to present any authority to support her argument that inadvertent delay in effectuating service by her attorney or her attorney's support staff is a special circumstance sufficient to outweigh the other factors.' Id. at 982. The previous dismissal of this case on October 3, 2017 for want of prosecution, however, is a circumstance that further establishes Giunta's lack of reasonable diligence. Id. Viewing the totality of the circumstances, dismissal under Rule 103(b) is thus warranted
and the rule dictates that Plaintiffs complaint 'shall' be dismissed with prejudice because service on Defendant took place beyond the limitations period."¶ 14 Plaintiff filed her timely notice of appeal on July 10, 2018.
This case was assigned to the authoring justice's inventory of cases on July 1, 2019, and fully briefed on July 25, 2019. The authoring justice first circulated a proposed disposition to Justice Hoffman and Justice Rochford on June 11, 2020.
¶ 15 DISCUSSION
¶ 16 Plaintiff raises the following issue on appeal: whether the circuit court erred in granting defendants' motion to dismiss pursuant to Rule 103(b) based upon plaintiff's failure to exercise reasonable diligence to obtain service on defendants. ¶ 17 As an initial matter, plaintiff contends that we review the matter de novo. She contends that the abuse of discretion standard of review can only be applied if the circuit court followed Rule 103(b) criteria for dismissals, and because the circuit court did not properly apply Rule 103(b), the standard of review should be de novo as our review requires interpretation of the rule. We disagree. ¶ 18 While it is generally true that the de novo standard of review applies to issues involving the interpretation of statutes and the application of these interpreted statutes to undisputed facts (Central Illinois Light Co. v. Illinois Department of Revenue, 335 Ill. App. 3d 412, 415 (2002)), Illinois courts have consistently applied the abuse of discretion standard to review Rule 103(b) dismissals. Segal, 136 Ill. 2d at 286; see also Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 381 (1990) (a dismissal under Rule 103(b) is within the sound discretion of the trial court); Emrikson v. Morfin, 2012 IL App (1st) 111687, ¶¶ 13-14 (noting "[c]ases subsequent to Lewis have also applied an abuse of discretion standard to review Rule 103(b) dismissals," and, even though the trial court made conclusions of law, refused to apply the de novo standard of review); Lewis v. Dillon, 352 Ill. App. 3d 512, 515 (2004) (applying the abuse of discretion standard of review to a Rule 103(b) dismissal despite finding the trial court "made certain legal conclusions" and the plaintiff's argument that the de novo standard of review applied to a case "solely [about] the application of law to undisputed facts"). Our supreme court has clearly indicated that for cases involving the application of Rule 103(b), the trial court's determination of a plaintiff's lack of diligence is a fact-intensive inquiry suited to balancing, not bright lines. Lewis, 352 Ill. App. 3d at 515 (citing Womick, 137 Ill. 2d 371). An abuse of discretion occurs only when the trial court's decision is arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted by the trial court. Seymour v. Collins, 2015 IL 118432, ¶ 41. ¶ 19 Here, the construction of the rule's language is not at issue and to any extent construction is required, the plain meaning is clear in that the rule unambiguously requires parties "to exercise reasonable diligence" in serving opposing parties. Rule 103(b) (Ill. S. Ct. R. 103(b) (eff. July 1, 2007)). The circuit court reviewed and considered plaintiff's affidavit and considered and weighed the due diligence factors enumerated in Segal. We therefore decline plaintiff's invitation to apply a de novo standard of review to the instant case and review its ruling under an abuse of discretion standard. Lewis, 352 Ill. App. 3d at 515 (citing Kole v. Brubaker, 325 Ill. App. 3d 944, 949 (2001)). ¶ 20 Turning to the merits of this appeal, Rule 103(b) requires a plaintiff to act with reasonable diligence in effecting service of process on a defendant, and failure to do so requires a dismissal of plaintiff's claim. Billerbeck v. Caterpillar Tractor Co., 292 Ill. App. 3d 350, 352 (1997). Rule 103(b) provides:
(b) Dismissal for Lack of Diligence. If 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, with the right to refile if the statute of limitation has not run. 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 as to that defendant only and shall not bar any claim against any other party based on vicarious liability for that dismissed defendant's conduct. The dismissal may be made on the application of any defendant party or on the
court's own motion. In considering the exercise of reasonable diligence, the court shall review the totality of the circumstances, including both lack of reasonable diligence in any previous case voluntarily dismissed or dismissed for want of prosecution, and the exercise of reasonable diligence in obtaining service in any case refiled under section 13-217 of the Code of Civil Procedure. Ill. S. Ct. R. 103(b).¶ 21 "The purpose of Rule 103(b) is to protect defendants from unnecessary delay in the service of process on them and to prevent the circumvention of the statute of limitations." Segal, 136 Ill. 2d at 286. ¶ 22 A defendant seeking dismissal pursuant to Rule 103(b) must first establish a prima facie showing of a lack of reasonable diligence in effectuating service. Emrikson, 2012 IL App (1st) 111687, ¶ 17; Kole, 325 Ill. App. 3d at 949. Once a prima facie showing is established, the burden of proof shifts to the plaintiff "to demonstrate, by way of affidavit or other competent evidentiary materials, that reasonable diligence was exercised and that any delays in effecting service were justified." Mular v. Ingram, 2015 IL App (1st) 142439, ¶ 21 (citing Kole, 325 Ill. App. 3d at 949-50); Emrikson, 2012 IL App (1st) 111687, ¶ 17. ¶ 23 A number of Illinois cases have determined that a shorter period of time than transpired in this case, specifically five and seven months, established a prima facie showing of a lack of due diligence. See Emrikson, 2012 IL App (1st) 111687, ¶ 19 (a time period of even five months between the filing of a complaint and subsequent service is sufficient to establish a prima facie showing of failure to diligently effect service); Verploegh v. Gagliano, 396 Ill. App. 3d 1041, 1045 (2009) (a time period of five months between the filing of a complaint and subsequent service is sufficient to establish a prima facie showing of failure to diligently effect service); Long v. Elborno, 376 Ill. App. 3d 970, 980 (2007) (seven months between filing and service supports a finding of lack of reasonable diligence); Lewis, 352 Ill. App. 3d at 515 (plaintiff failed it issue summons or effectuate service within a five-month period). In this case, we agree with the circuit court that a period of eight months was sufficient to establish a prima facie showing of failure to diligently effect service and shifted the burden to plaintiff to establish that she acted with reasonable diligence to serve defendants or provide a satisfactory explanation for the delay in service. Emrikson, 2012 IL App (1st) 111687, ¶ 17 (citing Kole, 325 Ill. App. 3d at 949). ¶ 24 A dismissal under Rule 103(b) is based on the objective test of reasonable diligence; a plaintiff's subjective intent is immaterial. Emrikson, 2012 IL App (1st) 111687, ¶ 20; Christian v. Lincoln Automotive Co., 403 Ill. App. 3d 1038, 1042 (2010); Lewis, 352 Ill App 3d at 518; Parker v. Universal Packaging Corp., 200 Ill. App. 3d 882, 886 (1990). ¶ 25 Our supreme court has identified the following factors a court must consider when determining whether to grant a Rule 103(b) motion, which include, but are not limited to: (1) the length of time used to obtain service of process; (2) the activities of plaintiff; (3) plaintiff's knowledge of defendant's location; (4) the ease with which defendant's whereabouts could have been ascertained; (5) actual knowledge on the part of the defendant of pendency of the action as a result of ineffective service; (6) special circumstances which would affect plaintiff's efforts; and (7) actual service on defendant. Womick, 137 Ill. 2d at 377 (citing Segal, 136 Ill. 2d at 287). Courts have determined that if a plaintiff waits until close to the expiration of the limitations period to file suit, a lengthy delay in service nullifies the protection against stale claims the statute of limitations is designed to afford. Mular, 2015 IL App (1st) 142439, ¶ 27 (citing Polites v. U.S. Bank National Association, 361 Ill. App. 3d 76, 86 (2005)). Thus, a delay in service in a case filed well in advance of the expiration of the statute of limitations may be excused while the same delay in a suit filed close to its expiration may not. Mular, 2015 IL App (1st) 142439, ¶ 27. ¶ 26 The first factor in determining the exercise of reasonable diligence - the length of time used to obtain service of process - weighs in defendants' favor. Plaintiff contends that Rule 103(b) does not prescribe an exact amount of time for effecting service on a defendant and that an eight-month lapse in time between the filing of her complaint and the service of summons "has no bearing in and of itself." In her response to defendants' Rule 103(b) motion, she also contended that the eight-month period of time between the filing of her complaint and service on the defendants, "is not, per se, unreasonable. There are numerous cases in which service is far greater than that amount of time." ¶ 27 Although plaintiff is correct that there are cases in which there was a longer lapse in time between the date a complaint was filed and the date service was effectuated, the trial court's determination of a plaintiff's lack of diligence is a fact-intensive inquiry suited to balancing, not bright lines. Lewis, 352 Ill. App. 3d at 515 (citing Womick, 137 Ill. 2d 371). The circuit court weighed all the factors and determined that the length of time used to obtain service
¶ 41 CONCLUSION
¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 43 Affirmed.