                                   3--09--0689
______________________________________________________________________________
Filed August 26, 2010
                      IN THE APPELLATE COURT OF ILLINOIS

                                          THIRD DISTRICT

                                               A.D., 2010

FRANK CHRISTIAN,                    )     Appeal from the Circuit Court
                                    )     For the 10th Judicial Circuit
      Plaintiff-Appellee,           )     Peoria County, Illinois
                                    )
              v.                    )     No. 09-L-42
                                    )
LINCOLN AUTOMOTIVE COMPANY          )
and PENTAIR, INC.,                  )
                                    )     Honorable
      Defendants-Appellants.        )     Joe Vespa,
                                    )     Judge, Presiding
______________________________________________________________________________

      JUSTICE O’BRIEN delivered the opinion of the court:
______________________________________________________________________________

        Plaintiff Frank Christian filed suit to recover damages for personal injury due to an allegedly

defective hydraulic jack manufactured by the defendants, Lincoln Automotive Company and Pentair,

Inc. The defendants filed a motion to dismiss based on a lack of diligence in Christian’s service of

process. The trial court denied the defendants’ motion and certified a two-part question for review

by this court. We answer the trial court’s certified question of law in the negative, and we affirm in

part and reverse in part the trial court’s ruling.

                                                FACTS

        On February 7, 2008, the plaintiff, Frank Christian, filed suit against defendants Lincoln

Automotive and Pentair, Inc., alleging that on or about February 6, 2006, he was injured while using

a hydraulic jack designed, manufactured and distributed by the defendants. The parties agree that

the first summons issued was directed to Lincoln Automotive and was issued on June 25, 2008. The
address given on the summons was 5500 Wayzata Blvd. No. 800, Golden Valley, Minnesota. The

summons was returned unserved on July 9, 2008. On the returned summons it was stated: “Return-

Moved; Lincoln Automotive is no longer owned by Pentair. Apossible [sic] phone number is #866-

236-0044. May also be known as Century Mfg.” With the aid of new counsel, on March 3, 2009,

an alias summons was again served on Lincoln at the same address. The service was successful. At

the same time, a first summons was successfully served on Pentair, Inc.

       The defendants filed a motion to dismiss for lack of diligence pursuant to Supreme Court

Rule 103(b). Official Reports Advance Sheet No. 14 (July 4, 2007), R. 103(b), eff. July 4, 2007. On

May 27, 2009, the trial court entered an order denying the defendants’ motion. The defendants

moved for a reconsideration of the trial court’s order or, in the alternative, permission to pursue an

interlocutory appeal pursuant to Supreme Court Rule 308. 155 Ill. 2d R. 308. The trial court denied

the defendants’ motion to reconsider. However, the trial court did certify a two-part question for this

court’s review. Trial court proceedings were stayed pending the outcome of this appeal.

                                             ANALYSIS

       In its order denying the defendants’ motion for reconsideration, the two-part question posed

by the trial court was “[w]hether the public policy factor favoring adjudication of controversies on

the merits is an appropriate factor for consideration in objectively determining whether the plaintiff

exercised reasonable diligence to obtain service on defendant(s), and even if so, whether the trial

court abused its discretion in denying defendants’ motion to dismiss for lack of diligence pursuant

to Supreme Court Rule 103(b).” 1 As to the first part of the trial court’s question, we review a



       1
           Questions certified under Supreme Court Rule 308 are restricted to questions of law.

Brookbank v. Olson, 389 Ill. App. 3d 683, 685, 907 N.E.2d 426, 428 (2009). Nevertheless, in the

                                                  2
question of law under a de novo standard of review. Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d

45, 57-58, 879 N.E.2d 910, 918 (2007). As for the second part of the trial court’s question, as

correctly observed by the trial court, our review is for an abuse of discretion. Kole v. Brubaker, 325

Ill. App. 3d 944, 950, 759 N.E.2d 129, 134 (2001).

        We begin our analysis of the trial court’s certified question with a look at Supreme Court

Rule 103(b). Rule 103(b) provides, in part:

                        “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. 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.”Official Reports Advance Sheet No. 14 (July 4, 2007), R.

                103(b), eff. July 4, 2007.

        Rule 103(b) does not set forth a specific time in which a defendant must be served; rather,

it requires a plaintiff to exercise reasonable diligence to provide service in a timely manner. Kole,




interest of judicial economy, we have chosen to address both of the trial court’s queries. See

Billerbeck v. Caterpillar Tractor Co., 292 Ill. App. 3d 350, 357, 685 N.E.2d 1018, 1023 (1997)

(a reviewing court may, at its discretion, go beyond the question presented to review the order

giving rise to the appeal).

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325 Ill. App. 3d at 948-49, 759 N.E.2d at 133. “The rule was adopted to effectuate the historical and

constitutional mandate that justice be fairly and promptly rendered. Kole, 325 Ill. App. 3d at 949,

759 N.E.2d at 133. Rule 103(b) further aims to protect a defendant from unnecessary delay in the

service of process and to prevent the plaintiff from circumventing the applicable statute of limitations

by filing suit before the expiration of the limitations period but taking no action to have defendants

served until the plaintiff is ready to proceed with the litigation. Kole, 325 Ill. App. 3d at 949, 759

N.E.2d at 133. The rule’s further purpose is to promote the expeditious handling of suits by giving

trial courts wide latitude to dismiss when service is not effected with reasonable diligence. Brezinski

v. Vohra, 258 Ill. App. 3d 702, 704, 631 N.E.2d 345, 347 (1994). Notwithstanding these

generalizations, dismissal of a cause with prejudice under Rule 103(b) is considered a harsh penalty.

Brezinski, 258 Ill. App. 3d at 705-06, 631 N.E.2d at 348.

        As noted by the trial court in this case, public policy in Illinois favors determining

controversies according to the substantive rights of the parties. McCormack v. Leons, 261 Ill. App.

3d 293, 295, 634 N.E.2d 1, 2-3 (1994). For this reason, courts have held that Rule 103(b) is not to

be used merely to clear a crowded docket. Leons, 261 Ill. App. 3d at 295, 634 N.E.2d at 3.

Furthermore, although controversies should ordinarily be resolved on their merits after both sides

have had their day in court, a plaintiff may not complain where the dismissal resulted from his own

lack of diligence in effectuating service. Kole, 325 Ill. App. 3d at 953, 759 N.E.2d at 136-37. After

the defendant has made a case-specific prima facie showing the plaintiff failed to exercise reasonable

diligence in effectuating service after filing suit, the burden shifts to the plaintiff to offer an

explanation for his actions. Kole, 325 Ill. App. 3d at 949, 759 N.E.2d at 133. Rule 103(b) is not

based upon the subjective test of plaintiff’s intent, but rather, upon the objective test of reasonable

diligence in effecting service. Cannon v. Dini, 226 Ill. App. 3d 82, 86, 589 N.E.2d 653, 656 (1992).

                                                   4
As noted above, there is no specific time limitation provided by Rule 103(b); rather, a court must

consider the passage of time in relation to all the other facts and circumstances of each case. Case

v. Galesburg Cottage Hospital, 227 Ill. 2d 207, 213, 880 N.E.2d 171, 175 (2007). Factors the trial

court may consider in determining whether to allow or deny a Rule 103(b) motion include: the length

of time used to obtain service of process; the activities of plaintiff; plaintiff’s knowledge of

defendant’s location; the ease with which defendant’s whereabouts could have been ascertained;

actual knowledge on the part of the defendant of pendency of the action as a result of ineffective

service; special circumstances that would affect plaintiff’s efforts; and actual service on defendant.

Case, 227 Ill. 2d at 212-13, 880 N.E.2d at 175. Also of significance as an indication of diligence is

a plaintiff’s efforts to obtain service through an alias summons. Brezinski, 258 Ill. App. 3d at 705,

631 N.E.2d at 348.

        Based on the foregoing discussion, in answer to the trial court’s first query, we consider that

the policy factor favoring adjudication of controversies on the merits is not an appropriate factor for

consideration in objectively determining whether a plaintiff exercised reasonable diligence to obtain

service on a defendant. The case law indicates that the purpose of Rule 103(b) is to aid the trial court

in the expeditious handling of suits, to protect the defendant from unnecessary delay in the service

of process and prevent the circumvention of the statute of limitations. Mention is made of the policy

of determining controversies according to substantive rights; however, in this regard trial courts are

not to use the rule merely to clear a crowded docket. The policy is not one discussed when

considering the objective factors a plaintiff must show in supporting the denial of a Rule 103(b)

motion to dismiss. In fact, as noted above, it has been stated that a plaintiff may not complain where

the dismissal resulted from his own lack of diligence, notwithstanding that controversies ordinarily

should be resolved on their merits. For this reason, we answer the trial court’s first question in the

                                                   5
negative.

        Having discounted the public policy favoring adjudication of controversies on the merits as

an objective Rule 103(b) factor, we now consider whether the trial court abused its discretion in

denying the defendant’s Rule 103(b) motion to dismiss. Under the circumstances here, with respect

to defendant Pentair, Inc., we find the plaintiff has failed to meet his burden of providing objective

factors upon which the trial court may rely in denying the motion to dismiss. It is undisputed the

plaintiff waited until the very day the statute of limitations expired to file suit. Furthermore, the

plaintiff initially requested and attempted service on only defendant Lincoln. There was no attempt

on the part of the plaintiff to serve Pentair until 13 months after the expiration of the statute of

limitations, no explanation for the lengthy delay and no indication that Pentair had not always

remained at the address of service in Golden Valley, Minnesota. Furthermore, except for a reference

to a change in counsel, the plaintiff in this case has not given the court any indication of activity on

his part during the pendency of the service that would indicate due diligence in seeking to obtain it.

For these reasons, we must consider the trial court abused its discretion in denying the defendants’

motion to dismiss Pentair, Inc. We reverse the trial court’s order in this regard and dismiss Pentair,

Inc., with prejudice.

        Plaintiff’s efforts to obtain service on Lincoln were more diligent. The initial attempt at

service was only five months after the complaint was filed. The first summons was returned with the

apparently misleading information that Lincoln was no longer located at the Golden Valley address.

After obtaining new counsel, the plaintiff eventually served Lincoln with an alias summons at the

Golden Valley address. That the plaintiff issued an alias summons is another factor that weighs in

his favor. As we have noted, we will reverse a trial court’s ruling on a Rule 103(b) motion to dismiss

only if the decision is an abuse of discretion. Kole, 325 Ill. App. 3d at 950, 759 N.E.2d at 134. An

                                                   6
abuse of discretion occurs when a ruling is “so arbitrary, fanciful, or unreasonable that no reasonable

person would take the view it adopted.” People v. Lisle, 376 Ill. App. 3d 67, 78, 877 N.E.2d 119, 129

(2007). In the instant case, we do not believe the trial court’s denial of the defendants’ motion to

dismiss with respect to Lincoln was so unreasonable that no reasonable person would have adopted

the trial court’s view. Furthermore, “we may affirm the judgment of the trial court on any basis in

the record, regardless *** of whether the trial court’s reasoning was correct.”Alpha School Bus Co.

Inc. v. Wagner, 391 Ill. App. 3d 722, 734-35, 910 N.E.2d 1134, 1148 (2009). As we have pointed

out, the record in this case supports the trial court’s ruling. For this reason, we affirm the trial court’s

decision with respect to Lincoln.

          We are perplexed by the dissent’s wanderings in the midst of a Rule 103(b) discussion into

a lengthy digression concerning section 2-1301(e) of the Illinois Code of Civil Procedure (735 ILCS

5/2-1301(e) (West 2006)). Among the dissent’s musings is the following query comparing this case

with a decision based on section 2-1301(e): “How could any reasonable person agree with both of

these decisions?” Slip op at 12. We are uncertain of the point of this question; we see no reason to

reconcile these two cases. However, without going into a lengthy digression ourselves, we are led

to emphasize the obvious: both cases represent courts of review upholding discretionary rulings. As

the dissent is aware, reasonable minds may differ. We are bound to remember that the question is

not whether we agree with the trial court (see People v. Wear, 371 Ill. App. 3d 517, 529, 867 N.E.2d

1027, 1038 (2007)), but whether the trial court’s decision is “so arbitrary, fanciful, or unreasonable

that no reasonable person would take the view it adopted.” Lisle, 376 Ill. App. 3d at 78, 877 N.E.2d

at 129.

          For the foregoing reasons, we answer the trial court’s certified question of law in the

negative, and we affirm in part and reverse in part the judgment of the circuit court of Peoria County.

                                                     7
        Certified question answered; affirmed in part and reversed in part.

        LYTTON, J. concurs.

        JUSTICE SCHMIDT, concurring in part and dissenting in part:

        I concur with the majority's conclusion that the public policy favoring adjudication of

controversies on the merits is not an appropriate factor for consideration in objectively determining

whether plaintiff exercised reasonable diligence to obtain service on defendants.

        I further agree that plaintiff's failure to issue summons for more than one year after the

expiration of the statute of limitations, without any explanation for failing to do so earlier, constitutes

a lack of due diligence as a matter of law and, therefore, Pentair must be dismissed with prejudice

under Supreme Court Rule 103(b). However, the trial court abused its discretion with respect to

Lincoln Automotive and I, therefore, dissent from the majority's finding to the contrary.

        The most obvious abuse of discretion by the trial court with respect to Lincoln was to apply

the wrong standard. See People v. Ortega, 209 Ill. 2d 354, 808 N.E.2d 496 (2004). The majority

ignores this aspect of the court's exercise of its discretion. It is clear from the record that the trial

court gave great weight to the public policy in favor of trying a case on its merits when deciding this

motion. This is evidenced by both its comments and the certified question. If the trial judge did not

find this dispositive to the exercise of his discretion, why would he certify the question? It is

undisputed on appeal that in making its ruling, the trial court stated it understood the arguments

raised by the parties and that Supreme Court Rule 103(b) and its interpretative case law supported

defendant's position, but expressed its preference that controversies be decided on the merits rather

than on the basis of lack of due diligence in obtaining service of process. Our supreme court has
pointed out that there is also public policy behind the adoption of Supreme Court Rule 103(b): to

protect against unreasonable delay in the service of process and to prevent the circumvention of the

statute of limitations. Segal v. Sacco, 136 Ill. 2d 282, 555 N.E.2d 719 (1990).

        In Segal, our supreme court explained that the length of time is not the only factor a court

should consider when ruling on a Rule 103(b) motion. Rather, a court must consider the passages

of time in relation to all the other facts and circumstances of each case individually. The supreme

court discussed various factors that a court may consider in determining whether to allow or deny

a Rule 103(b) motion, including, but 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 defendant of the pendency of the action as a result of ineffective service; (6) special circumstances

that would affect plaintiff's efforts; and (7) actual service upon the defendant. Segal, 136 Ill. 2d at

286-87.

        On what facts could the trial court determine that plaintiff exercised due diligence in service

on Lincoln Automotive after the running of the statute of limitations? The initial summons on

Lincoln was issued more than four months after the expiration of the statute of limitations with

absolutely no explanation for this delay. How can a trial court find that plaintiff acted diligently

when plaintiff offered no explanation for the 4½-month delay in issuing summons against Lincoln

after the expiration of the statute of limitations? That alone should end the discussion. However,



                                                   9
the first alias summons was issued approximately eight months after the return of service on the

initial summons with only the explanation that there had been a change of counsel. It was never

explained exactly when counsel was substituted.

       The majority states that the first summons issued to Lincoln "was returned with the apparently

misleading information that Lincoln was no longer located at the Golden Valley address." Slip op.

at 6. This statement is in itself misleading. The unserved summons was returned with the notation:

"Return - Moved; Lincoln Automotive is no longer owned by Pentair. Apossibble [sic] phone

number is #866-236-0044, May also be known as Century Mfg." There is no suggestion that this was

false. When service was attempted again eight months later at the same address, someone at Pentair

apparently determined that Pentair owned Lincoln at the time alleged in the complaint and

voluntarily accepted service on behalf of Lincoln, which was not located at that address. There was

nothing misleading about the statement contained on the returned summons.

       Let us look at the other side of this coin. What happens when a defendant is defaulted and

then comes to court with a 2--1301(e) motion to vacate a default judgment? Note that a 2--1301(e)

motion must be filed within 30 days of a default. After that, we move to section 2--1401.

       In the recent case of Jacobo v. Vandervere, Nos. 2--08--1104, 2--10--0192 cons. (May 19,

2010), the appellate court affirmed refusal to vacate a default judgment entered in favor of plaintiff.

The basic facts were as follows: Plaintiff filed her complaint on June 8, 2008, and personally served

defendant with summons on June 27, 2008. A return date of July 16, 2008, was continued to July



                                                 10
23, 2008. When defendant failed to appear on July 23, the court entered a default order and the case

was continued to August 6, 2008, for prove up. Defendant did not appear on August 6, 2008, and

following a prove up, a default judgment was entered in favor of plaintiff in the amount of $10,219.

Twenty days after the default judgment was entered and only two months after being served with

summons, defendant filed a motion to vacate the default judgment. The trial court found that

defendant failed to establish any good cause for her failure to appear and therefore denied the motion

to vacate, noting the defendant failed to establish that she "had any valid reason for ignoring the three

initial court dates and for taking no action from June 27, 2008, until August 26, 2008." Jacobo v.

Vandervere, Nos. 2--08--1104, 2--10--0192 cons., slip op. at 3 (May 19, 2010); see also Domingo

v. Guarino, 2--09--0852 (June 25, 2010).

        The appellate court found that the proper standard of review was abuse of discretion and

found that the trial court did not abuse its discretion in refusing to vacate the default judgment

because defendant had done nothing for two months after being served and provided no explanation

for the inaction during those two months. How could any reasonable person agree with both of these

decisions? In one case, a defendant does nothing for two months and is defaulted. In another case,

a plaintiff does nothing for over four months without any explanation and is not "defaulted." The

majority has a good argument that this discussion is irrelevant to our decision here. I add this to

point out that reasonable people could conclude that there is a double standard in the way our courts

evaluate the diligence of plaintiffs and defendants when deciding whether to dispose of a case on



                                                  11
something other than the merits. I recognize that different trial judges will exercise their discretion

in different ways. However, there must be some objectivity.

        I would answer the second half of the certified question in the affirmative, finding an abuse

of discretion by the trial court in using the wrong standard to make its decision. People v. Ortega,

209 Ill. 2d 354, 360 (2004). It is also my view that doing nothing for four months with absolutely

no excuse and after filing a lawsuit on the eve of the expiration of the statute of limitations

constitutes a lack of due diligence as a matter of law. This is even more true here where plaintiff was

given an opportunity to explain the inaction for that period and offered nothing. Since plaintiff

offered no facts upon which the court could find due diligence, the trial court's decision to the

contrary should be reversed as a matter of law.

        The majority offers the legal maxim that we may affirm the judgment of the trial court on any

basis in the record regardless of whether the trial court's reasoning was correct. Slip op. at 7. This

is certainly true where the trial court's ruling below was correct as a matter of law. We do not know

how the trial court would have ruled had it applied the appropriate standard. Again, the fact that the

trial judge certified the question before us suggests he might have ruled differently. At the very least,

the matter should be reversed and remanded for the trial court to address the Rule 103(b) motion as

to Lincoln and to properly exercise its discretion using the appropriate standard. The majority has

found that the trial court applied the wrong standard and yet affirms the trial court. I submit that the

majority can only do this by exercising its discretion to resolve the issue. The discretionary call at



                                                  12
issue here is to be made by the trial court, not the appellate court. When the trial court uses the

wrong standard in exercising its discretion, the remedy is to remand to allow the trial court to

exercise its discretion using the proper standard. People v. Longoria, 375 Ill. App. 3d 346, 351, 872

N.E.2d 1083, 1087 (2007).

       For the foregoing reasons, I dissent from that portion of the majority decision which affirms

the trial court's denial of defendant Lincoln's Rule 103(b) motion..




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