                                   2015 IL App (1st) 142439

                                                                              THIRD DIVISION
                                                                                  May 20, 2015


No. 1-14-2439



GERALDINE MULAR,                                           )               Appeal from the
                                                           )               Circuit Court of
      Plaintiff-Appellant,                                 )               Cook County
                                                           )
v.                                                         )               No. 12 L 7928
                                                           )
DAWN INGRAM,                                               )               Honorable
                                                           )               John H. Ehrlich,
      Defendant-Appellee.                                  )               Judge Presiding.

      JUSTICE MASON delivered the judgment of the court, with opinion.
      Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.

                                           OPINION

¶1              Plaintiff-appellant Geraldine Mular appeals the dismissal of her personal injury

      complaint against defendant-appellee Dawn Ingram arising out of injuries Mular

      sustained while she was a guest at Ingram's home.           The trial court dismissed the

      complaint based on its finding that Mular failed to exercise reasonable diligence in

      effecting service on Ingram after the complaint was filed.         Because the statute of

      limitations applicable to Mular's personal injury claim had expired, the complaint was

      dismissed with prejudice. The trial court further denied Mular leave to amend her

      complaint to assert a claim for construction negligence to which a longer statute of

      limitations applies. Finding no abuse of discretion in either ruling, we affirm.

¶2                                      BACKGROUND

¶3              On July 16, 2012, Mular filed a complaint to recover damages for injuries she

      sustained while a guest at Ingram's home on July 18, 2010. Mular fell in a backyard pool

      area at the home and claimed that, as owner of the home, Ingram owed Mular a duty to
No. 1-14-2439


      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. Mular's

      complaint did not allege that Ingram constructed the pool or was involved in its design,

      but did allege that Ingram "failed to maintain the area around the premises' pool

      maintained and properly constructed [sic]."

¶4              The complaint correctly listed the address of Ingram's home as 1694 Van Buren

      Avenue, Des Plaines, Illinois. A summons dated July 16, 2012, was issued, incorrectly

      listing Ingram's address as "1649" Van Buren Avenue, but the clerk's docket does not

      reflect that this summons was ever placed with the sheriff for service. Six weeks later, on

      August 29, 2012, Mular caused an alias summons to be issued. The alias summons again

      transposed Ingram's address as "1649" Van Buren. Service was attempted at 1649 Van

      Buren on September 1, 2012. The sheriff's affidavit of nonservice, filed with the circuit

      court on September 10, 2012, lists the reason for nonservice as "No Such Address" and

      contains a handwritten note that "after 1641, next address is 1653."

¶5              Mular did nothing for the next six months. On March 8, 2013, she caused a

      second alias summons to be issued to the same, nonexistent address. On March 21, 2013,

      this summons was again returned not served with the reason checked as "No Such

      Address." Mular's complaint was dismissed for want of prosecution on April 12, 2013,

      when her attorney failed to appear in court for a case management conference. On

      counsel's motion, the case was reinstated on May 22, 2013. Counsel also requested

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      appointment of a special process server, which was granted the same day.

¶6              Despite the appointment of a special process server, Mular waited another seven

      weeks before issuing another summons. The third alias summons, dated July 9, 2013,

      listed Ingram's correct address and was served on Ingram that same day.

¶7              On August 15, 2013, Ingram filed a motion to dismiss under Illinois Supreme

      Court Rule 103(b), which provides:

                "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 ***."

                Ill. S. Ct. R. 103(b) (eff. July 1, 2007).

      Ingram argued that Mular's delay in serving her from July 16, 2012, to July 9, 2013,

      constituted a failure to exercise reasonable diligence under the rule, pointing particularly

      to the six-month delay between the return of the first alias summons in September and

      issuance of the second alias summons in March. The motion to dismiss was supported by

      Ingram's affidavit in which she attested that she has lived at 1694 Van Buren Avenue

      continuously since 1990 and that she first learned of the suit on May 24, 2013, when she

      received a copy of Mular's motion to vacate the dismissal for want of prosecution.

¶8              In response to the motion, Mular supplied the affidavit of her attorney, who

      claimed he did not receive a copy of the sheriff's return reflecting nonservice of the first

      alias summons and was simply waiting "an appropriate amount of time" after issuance of

      the summons to check on service. No other excuse for the delay was offered. Mular also

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       argued that Ingram was not prejudiced by any delay. Finally, in a single sentence without

       citation to the complaint, Mular contended that the statute of limitations on her claim

       would not run "until arguably July 18, 2014" given that the claim involved "construction

       and improvements to" Ingram's property. Mular cited the four-year statute of limitations

       applicable to construction negligence claims under section 13-214 of the Illinois Code of

       Civil Procedure (735 ILCS 5/13-214 (West 2010)).

¶9              On March 6, 2014, the trial court granted Ingram's motion to dismiss. In his oral

       ruling, the trial judge discussed the factors relevant to dismissal under Rule 103(b) and

       after enumerating the periods of delay between the filing of the lawsuit and service on

       Ingram, concluded that the "excuses and explanations" provided by Mular were

       insufficient to overcome her lack of reasonable diligence in effecting service. Given the

       expiration of the two-year limitations period applicable to personal injury claims, the

       court indicated that the complaint would be dismissed with prejudice.

¶ 10            After the court's oral ruling, Mular's counsel inquired whether the court had

       considered the argument regarding the four-year statute of limitations applicable to

       construction negligence claims. After the court indicated that the argument was not clear,

       Mular's counsel stated he would like the opportunity to amend.          The court instead

       directed the parties to file supplemental briefs focusing only on whether the dismissal

       should be with or without prejudice and postponed entry of the order pending review of

       the submissions.

¶ 11            Mular filed her brief addressing the issue on March 31, 2014, in which she argued

       that her complaint included allegations that Ingram was involved in the construction of

       the pool and that the pool was an improvement to real property, thus triggering

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No. 1-14-2439


       application of the four-year statute of limitations for construction negligence claims.

       Ingram's response contended that the complaint, other than its passing reference to

       Ingram's failure to maintain the pool "properly constructed," did not allege facts

       supporting the inference that she was in any way involved in the design, planning,

       management, observation or supervision of the pool's construction and, thus, the four-

       year statute of limitations did not apply. Finding that Mular's complaint did not allege

       facts demonstrating Ingram's involvement in the construction of the pool or an

       improvement to real property and that the case "was a trip and fall like any other trip and

       fall," the trial court granted the dismissal with prejudice in an order dated May 20, 2014.

¶ 12            On June 19, 2014, Mular filed a motion to vacate the May 20 order and for leave

       to file an amended complaint asserting a construction negligence claim. On July 11,

       2014, the trial court denied the motion and Mular timely appealed.

¶ 13                                       ANALYSIS

¶ 14            We first address the statute of limitations applicable to the claim asserted in

       Mular's complaint. This issue presents a question of law, which we review de novo.

       Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d 461, 466 (2008); United

       Airlines, Inc. v. City of Chicago, 2011 IL App (1st) 102299, ¶ 5.

¶ 15            On appeal, Mular contends that the trial court erred in refusing to apply the four-

       year statute of limitations applicable to construction negligence claims, which would

       have then resulted in the dismissal of her complaint without prejudice as the four-year

       period had not expired before Ingram was served. As noted above, the limitations period

       for claims arising from construction negligence is governed by section 13-214(a) of the

       Code of Civil Procedure, which provides:

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                "Actions based upon tort, contract or otherwise against any person for an act or

                omission of such person in the design, planning, supervision, observation or

                management of construction, or construction of an improvement to real property

                shall be commenced within 4 years from the time the person bringing an action,

                or his or her privity, knew or should reasonably have known of such act or

                omission." 735 ILCS 5/13-214(a) (West 2010).

       The types of claims to which this provision applies are specific and limited to

       construction activities related to design, planning, supervision, observation or

       management of a construction project. See Eskew v. Burlington Northern & Santa Fe Ry.

       Co., 2011 IL App (1st) 093450, ¶ 56.

¶ 16            When a plaintiff's cause of action is premised on the defendant's status as a

       landowner and not on "an act or omission of such person in the design, planning,

       supervision, observation or management of construction," section 13-214 does not apply.

       735 ILCS 5/13-214(a) (West 2010); see Water Tower Realty Co. v. Fordham 25 E.

       Superior, L.L.C., 404 Ill. App. 3d 658, 664-65 (2010); Lombard Co. v. Chicago Housing

       Authority, 221 Ill. App. 3d 730, 735 (1991) ("[S]ection 13-214 is not applicable to a

       landowner unless that landowner actually engaged in the professional planning,

       supervision or management of a construction project or the construction of an

       improvement to the property."); People ex rel. Skinner v. Hellmuth, Obata & Kassabaum,

       Inc., 114 Ill. 2d 252, 261 (1986) (noting that the legislative history of the statute

       supported the conclusion that it was intended to "protect[ ], on its face, anyone who

       engages in the enumerated activities" (emphasis in original)); C.S. Johnson Co. v.

       Champaign National Bank, 126 Ill. App. 3d 508, 510-11 (1984) (legislative history

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       shows that section 13-214 was intended to apply to architects, contractors and engineers

       rather than landowners). A landowner's maintenance of an existing improvement to real

       property—absent an allegation that the landowner participated in the construction of that

       improvement—does not fall within the purview of section 13-214. Bailey v. Allstate

       Development Corp., 316 Ill. App. 3d 949, 960 (2000).

¶ 17            Ingram's motion to dismiss required the trial court to examine the facts alleged in

       Mular's complaint to determine whether the acts or omissions attributed to Ingram fall

       within the ambit of section 13-214. Lombard, 221 Ill. App. 3d at 735; C.S. Johnson, 126

       Ill. App. 3d at 510 ("[I]t cannot be presumed that landowners always participate in the

       design, planning, supervision, observation or management of construction on their

       property.").

¶ 18            The sole reference to "construction" found in Mular's single-count complaint

       alleges 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]." No allegations of fact in the complaint support the inference that Ingram was

       involved in the "design, planning, supervision, observation or management of

       construction" of the pool or any other improvement to the property she owned. Mular's

       proposed amended complaint was likewise devoid of 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" (i) a safe means of ingress and egress to the property and (ii) the

       area around the pool to be free of "tripping hazards."           Mular's counsel certainly

       understood that he was pursuing a premises liability claim since he checked that box on

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       the civil action cover sheet and did not also check the box indicating that the case

       involved a construction negligence claim. Thus, fairly read, Mular's complaint asserts a

       premises liability claim against a property owner governed by the two-year statute of

       limitations and the trial court properly so ruled.

¶ 19            Our conclusion that a two-year statute of limitations applies to the claim asserted

       in Mular's complaint means that service on Ingram on July 9, 2013, for injuries sustained

       by Mular on July 18, 2010, was beyond the limitations period.                 Under these

       circumstances, unless Mular exercised reasonable diligence in her efforts to serve

       Ingram, Rule 103(b) dictates that her complaint "shall" be dismissed with prejudice.

¶ 20            The purpose of Rule 103(b)'s requirement that a plaintiff exercise reasonable

       diligence in obtaining service on a defendant is

                "to protect a defendant from unnecessary delay in the service of process and to

                prevent the plaintiff from circumventing the applicable statute of limitations,

                which is designed to afford the defendant a fair opportunity of investigation, by

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

                have the defendant[ ] served until the plaintiff is ready to proceed with the

                litigation." Kole v. Brubaker, 325 Ill. App. 3d 944, 949 (2001).

       The rule does not dictate a specific time within which a defendant must be served and

       trial courts are vested with broad discretion in determining whether a plaintiff has

       exercised reasonable diligence. Segal v. Sacco, 136 Ill. 2d 282, 285-86 (1990). Given

       the substantial discretion vested in the trial court under Rule 103(b), we review the

       dismissal of a complaint with prejudice for failure to exercise reasonable diligence in



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       obtaining service to determine whether that discretion was abused. Kole, 325 Ill. App. 3d

       at 949.

¶ 21             Once the defendant has made a prima facie showing of a lack of reasonable

       diligence, the burden 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. Id. at 949-50. The standard under the rule is

       objective and the fact that the delay in effecting service may not have been intentional is

       not determinative. Kreykes Electric, Inc. v. Malk & Harris, 297 Ill. App. 3d 936, 940

       (1998) ("Rule 103(b) is not rooted in a subjective test of the plaintiff's intent but, rather,

       upon an objective evaluation of reasonable diligence in obtaining service of process.");

       Penrod v. Sears, Roebuck & Co., 150 Ill. App. 3d 125, 129 (1986). Further, defendant

       need not demonstrate prejudice resulting from the delay in service in order to obtain

       dismissal under the rule; rather, the existence of prejudice is an "appropriate

       consideration," but the lack of prejudice will not defeat dismissal where reasonable

       diligence has not been shown. Kole, 325 Ill. App. 3d at 952.

¶ 22             On this record, Ingram made out a prima facie case of a lack of reasonable

       diligence. Nearly one year elapsed between the date Mular's lawsuit was filed and the

       date Ingram was served. This was sufficient to shift to Mular the burden of establishing

       that she acted with reasonable diligence. See Emrikson v. Morfin, 2012 IL App (1st)

       111687, ¶ 19 (delay of five months between filing and service is sufficient to shift the

       burden).

¶ 23             Courts consider a number of factors in determining whether a plaintiff has

       exercised reasonable diligence in effecting service, including (i) the length of time it took

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       to serve defendant; (ii) plaintiff's efforts to effect service; (iii) whether plaintiff knew

       where defendant could be served; (iv) whether information regarding defendant's

       whereabouts could have been easily obtained; (v) whether defendant was actually aware

       of the lawsuit; (vi) any special circumstances bearing on the reasonableness of plaintiff's

       efforts; and (vii) actual service on defendant. Segal, 136 Ill. 2d at 287; Case v. Galesburg

       Cottage Hospital, 227 Ill. 2d 207, 212-13 (2007); Kole, 325 Ill. App. 3d at 950.

¶ 24            The length of time elapsed between the filing of the complaint and service,

       standing alone, has no " 'talismanic effect' " given that each case must be decided on its

       own facts. Dupon v. Kaplan, 163 Ill. App. 3d 451, 455-56 (1987) (quoting Licka v.

       William A. Sales, Ltd., 70 Ill. App. 3d 929, 938 (1979)). Although periods during which

       a lawsuit is voluntarily dismissed by the plaintiff are not included in calculating the

       length of the delay in service (Case, 227 Ill. 2d at 219), we believe the time during which

       a lawsuit is involuntarily dismissed for want of prosecution where the suit is later

       reinstated should be included as such dismissals are relevant to a plaintiff's claimed

       exercise of reasonable diligence. While it is not possible to serve a defendant during any

       period in which the suit is not pending, whether because of a voluntary or involuntary

       dismissal, the fact that a portion of the period of delay is due to plaintiff's inattention to

       the lawsuit is relevant to an assessment of the totality of the circumstances under Rule

       103(b). Any other result would reward the dilatory plaintiff who allows the lawsuit to be

       dismissed for want of prosecution when service has not been obtained, but, after

       reinstatement, is allowed to exclude that period in determining whether she has exercised

       reasonable diligence. Thus, we consider the effect of Mular's nearly one-year delay in



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No. 1-14-2439


       serving Ingram, which includes the period of slightly over five weeks when the case was

       dismissed for want of prosecution.

¶ 25            Turning to the relevant factors, Mular was undoubtedly aware of Ingram's correct

       address because it was included in her complaint. That Ingram was easy to locate is also

       demonstrated by the fact that she was served on the same day the third alias summons

       was issued. See Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 381 (1990)

       ("the fact that service was effectuated in only one day reflects the ease with which service

       of summons could have been had"). And we accept at face value the assertion that the

       transposition of the numbers of Ingram's address on the initial summons (which was

       never, in fact, placed with the sheriff for service) and the first and second alias

       summonses was inadvertent.

¶ 26            But, as noted, the fact that counsel did not deliberately delay obtaining service is

       not determinative. Here the factors that weigh heavily against Mular are the length of

       time it took to serve Ingram as well as the adequacy of the efforts made to effect service.

       The only explanation offered by Mular's counsel for the six-month gap between issuance

       of the first and second alias summons was that he did not receive the return reflecting

       non-service and was waiting "an appropriate amount of time" after issuance of the first

       alias summons to check on service. But, as Ingram points out, the summons on its face

       indicates that it may not be served more than 30 days after its date—August 29, 2012. Ill.

       S. Ct. R. 102(b). Thus, by October 2012, Mular's counsel should have checked on the

       status of service whether or not he received the sheriff's affidavit of non-service. See

       Penrod, 150 Ill. App. 3d at 129 (plaintiff did not exercise reasonable diligence where

       complaint filed four days before expiration of statute of limitations and counsel made no

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       inquiry of clerk's office concerning the summons for four months after complaint was

       filed; service effected seven months after filing). Further, counsel's claim that he did not

       receive the affidavit indicating that there was no such address as "1649 Van Buren" begs

       the question of first, why counsel would have waited six months to check and, second,

       why counsel did not ascertain the reason for lack of service when he determined that

       Ingram had not been served. Had he done so, counsel would have learned of the error.

       Although counsel represented that he "assumed" Ingram was not served because she was

       not at home when service was attempted, there is no basis for this assumption. Instead,

       apparently without checking the affidavit of nonservice, counsel repeated his mistake and

       issued yet another summons to a nonexistent address, resulting in further delay. Finally,

       after obtaining the appointment of a special process server, counsel waited another seven

       weeks to issue the third alias summons. Mular offered no excuse or explanation for this

       delay.

¶ 27            Mular's delay in effecting service is particularly problematic here given that her

       lawsuit was filed one day prior to the expiration of the statute of limitations. 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. Polites v. U.S. Bank National Ass'n, 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 where the same delay in a suit filed close to its expiration may not.

¶ 28            No "special circumstances" appear of record that would excuse the nearly one-

       year delay between the filing of Mular's complaint and service on Ingram.                  See

       McRoberts v. Bridgestone Americas Holding, Inc., 365 Ill. App. 3d 1039, 1043-44 (2006)

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No. 1-14-2439


       (one-year delay in service excused where consumer informed tire manufacturer's adjuster

       that he would withhold service pending settlement discussions, requested adjuster to

       advise whether this was acceptable and adjustor said nothing); Kincaid v. Ames

       Department Stores, Inc., 283 Ill. App. 3d 555, 563-64 (1996) (where employer's

       bankruptcy proceedings automatically stayed employee's lawsuit and employee obtained

       service on employer shortly after obtaining order lifting stay, delay in service excused).

¶ 29            Finally, although Ingram was aware of the pendency of the lawsuit by virtue of

       her receipt in May 2013 of a copy of the motion to vacate the dismissal for want of

       prosecution and was actually served in July 2013, Ingram's first notice of the suit came

       10 months after the statute of limitations had expired and she was served almost a year

       after the deadline for filing. While a defendant's awareness of the pendency of a lawsuit

       before service may be a relevant consideration where reasonable but unsuccessful efforts

       to effect service have been made, notice to the defendant of the pendency of the lawsuit

       long after the limitations period has expired is irrelevant where the other factors do not

       weigh in the plaintiff's favor.

¶ 30            We cannot characterize Mular's efforts as the exercise of "reasonable diligence" in

       obtaining service on Ingram. Far shorter delays have led to dismissals with prejudice for

       failure to exercise the reasonable diligence required under Rule 103(b). See Long v.

       Elborno, 376 Ill. App. 3d 970, 980 (2007) (seven-month delay); Tischer v. Jordan, 269

       Ill. App. 3d 301, 308 (1995) (4½-month delay in issuing alias summons after plaintiff's

       counsel realized summons had not been placed for service and total 6-month delay in

       effecting service warranted dismissal). Even if we exclude the period of time during

       which the lawsuit was dismissed for want of prosecution, the result would be the same:

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       under the circumstances of this case, Mular's 10½-month delay in serving Ingram

       exhibits a lack of reasonable diligence and the trial court properly exercised its discretion

       in dismissing her complaint with prejudice.

¶ 31            Given our discussion above, the trial court likewise did not abuse its discretion in

       denying Mular's motion to reconsider and for leave to file an amended complaint. The

       purpose of a motion to reconsider is to bring to the court's attention newly discovered

       evidence that was not available at the time of the hearing, changes in the law or errors in

       the court's previous application of existing law. Kaiser v. MEPC American Properties,

       Inc., 164 Ill. App. 3d 978, 987 (1987). Mular's motion to reconsider did not fulfill any of

       the foregoing functions and because this case involves a premises liability and not a

       construction negligence claim, there would have been no point in allowing Mular leave to

       file her amended complaint and in requiring Ingram to again move for dismissal.

¶ 32                                CONCLUSION

¶ 33            Mular did not exercise reasonable diligence to obtain service on Ingram and, as a

       result, the trial court properly dismissed with prejudice her complaint asserting a

       premises liability claim. We therefore affirm the judgment of the circuit court of Cook

       County.

¶ 34            Affirmed.




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