Huskins v. Tapley

2019 IL App (4th) 190292-U

CHAD HUSKINS, Plaintiff-Appellant, v. GRAMM B. TAPLEY and KANDAS R. PARM, Defendants-Appellees.

NO. 4-19-0292

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

December 12, 2019

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 Champaign County

No. 17L79

Honorable Brett N. Olmstead, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court.

Justices Turner and Harris concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, finding the trial court did not abuse its discretion in determining plaintiff failed to exercise reasonable diligence in serving defendant. The appellate court further denied plaintiff's request to certify a question for the Illinois Supreme Court's review, finding the request unwarranted at this time.

¶ 2 In February 2019, the trial court dismissed plaintiff Chad Huskins's claims against defendant Gramm B. Tapley pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) for failing to exercise reasonable diligence in obtaining service. Huskins filed a motion to reconsider, which the court denied.

¶ 3 On appeal, Huskins argues the trial court erred in granting the motion to dismiss, claiming (1) he exercised reasonable diligence in serving Tapley and (2) the circuit clerk's docketing error and subsequent correction prejudiced him because it either constituted an unauthorized nunc pro tunc order or was made without notification to the parties and resulted in the delay in serving Tapley. Huskins also argues this court should certify a question to the Illinois Supreme Court regarding whether Illinois public policy favoring adjudication of controversies on the merits is inapplicable in determining the exercise of reasonable diligence under Rule 103(b). We affirm the trial court's judgment and deny Huskins's request for certification.

¶ 4 I. BACKGROUND

¶ 5 On May 24, 2017, Huskins filed a complaint seeking to recover damages from defendants Tapley and Kandas R. Parm in connection with a June 19, 2015, auto accident. In conjunction with the complaint, Huskins requested the Champaign County circuit clerk issue summonses for both defendants. On May 26, 2017, summonses were issued and Huskins arranged for the Champaign County Sheriff's Office to serve Tapley. Separate arrangements were made to serve Parm, who is a Kentucky resident.

¶ 6 On June 7 or 8, 2017, a deputy from the sheriff's office attempted to serve Tapley at the Urbana, Illinois, address provided on the summons. The deputy was unable to complete service because Tapley had moved to Savoy, Illinois, in June 2015. The deputy promptly completed a service of process affidavit, stating Tapley had not been served because the address on the summons was "not [a] good address" and was the "wrong address." The unserved summons and affidavit were filed with the clerk's office on June 8, 2017. Although Tapley had not been served, the county clerk inadvertently entered a notation on the court's electronic docket showing service on June 8, 2017. The notation was not corrected until July 13, 2017, when new entries indicated the June 8 clerk's entry was in error and was then corrected to reflect a lack of service.

¶ 7 Sometime between June 8, 2017, and July 13, 2017, Huskins's attorney and a legal assistant for Huskins's attorney viewed the electronic court docket to determine whether Tapley had been served. After seeing the original notation and believing service had been obtained, Huskins's attorney said he noted in his file that service had been completed. No one from the attorney's office contacted the sheriff's office, checked the actual court file, or obtained a copy of the proof of service to confirm Tapley had been served.

¶ 8 Huskins's attorney did not discover the corrected entry or realize Tapley had not been served until late April 2018, when a legal assistant brought it to his attention. Once he realized the mistake, he took steps to serve Tapley by requesting the issuance of an alias summons in May 2018. However, because the alias summons contained the same incorrect address used in the first summons, service on Tapley could not be completed. At the same time, Huskins's attorney also obtained an alias summons for Parm, who likewise had not yet been served.

¶ 9 In August 2018, Huskins sought to serve Tapley and Parm through alternative means, stating in the motion for alternative service it was his reasonable belief both defendants had taken "extreme measures to evade service." Before the court heard Huskins's motion, a "skip trace" conducted at Huskins's request found Tapley's Savoy, Illinois, address. As a result, in September 2018, the court granted Huskins leave to serve Tapley at the Savoy address through a second alias summons. The second alias summons was issued on September 12, 2018, and Tapley was served on September 14, 2018. The court also allowed Huskins to serve Parm through the Secretary of State.

¶ 10 After being served, Tapley filed a motion to dismiss the complaint against him with prejudice pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). Tapley asserted Huskins failed to "exercise reasonable diligence in obtaining service." Tapley contended he was moving from the Myra Ridge address on the date of the accident and had lived at the Savoy address for the intervening two years. Tapley also contended, after the complaint was filed in May 2017, the docket reflected no further activity in the case until the first alias summons was issued in May 2018, and it took Huskins over a year to effectuate service. Tapley also stated he was unaware of the lawsuit prior to being served and argued his address was easily discoverable since he had maintained the Savoy address as his permanent address since June 2015, reported the Savoy address to the Secretary of State, and used the Savoy address for the traffic proceedings resulting from the accident in Douglas County, Illinois (case No. 2015-TR-959). At the hearing on the motion, Tapley also indicated Huskins was not reasonably diligent because, instead of relying solely on the electronic public record to confirm service, he should have either contacted the sheriff's office or reviewed the court file to obtain a copy of the affidavit of service.

¶ 11 In his response, Huskins asserted he had acted with reasonable diligence in serving Tapley, as any delay was caused by the clerk's error, and mere inadvertence on his part did not warrant dismissal. Additionally, counsel indicated, once he knew of the correction to the erroneous docket entry, he acted quickly and served Tapley within five months of discovering the problem. At the hearing on the motion, Huskins also indicated he had actively attempted to serve Parm during the delay, rather than doing nothing to advance the case. After hearing the arguments of counsel, the trial court took the matter under advisement.

¶ 12 On February 7, 2019, the trial court entered a written order granting Tapley's motion to dismiss. The court found, after considering the facts and law at issue, Huskins had not been reasonably diligent in obtaining service. Although the court recognized Huskins "reasonably could rely on the mistaken docket entry for a time," Huskins failed to exercise reasonable diligence because he "stopped paying attention to this matter for months after the mistake was corrected," causing an "excessive delay before [Tapley] was served in this case." The court reached this conclusion by considering the factors provided by our supreme court in Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 377, 561 N.E.2d 25, 27 (1990), which states:

"Thus, while actual notice or knowledge of the pendency of a suit or the lack of prejudice to the defendant are significant in that they may affect the judge's determination as to whether the plaintiff was diligent, they are but two factors to be considered by the court in making that determination. Other factors include: (1) the length of time used to obtain service of process; (2) the activities of the plaintiff; (3) plaintiff's knowledge of the defendant's location; (4) the ease with which the defendant's whereabouts could have been ascertained; (5) special circumstances which would affect plaintiff's efforts; and (6) actual service on the defendant [citation], and all of these factors are to be considered with a view toward fulfilling the constitutional mandate of rendering justice fairly and promptly [citation]."

¶ 13 Specifically, the trial court noted the complaint was filed less than a month before the statute of limitations was to expire, the result of which was "almost all of Plaintiff's actions in pursuing and not pursuing service occurred after the limitations period expired." The court observed it took Huskins's attorney 16 months from the point the complaint was filed to eventually effectuate service on Tapley. While the court recognized the error in the docket as a special circumstance affecting service and considered Huskins's activities and reliance on the docket reasonable until at least July 13, 2017, it found Huskins had still done nothing from that point until late April 2018 to either "effect service, or to prosecute his lawsuit." The court also considered Huskins's attempt to serve the first alias summons "unreasonably misdirected" and causing "a further unreasonable delay," since Huskins used the same incorrect address from the first summons, in spite of the fact the affidavit filed with the clerk, along with the unserved summons, should have alerted Huskins to the fact Tapley's address had changed. The court noted further how Tapley's address was easily obtainable from his driver's license and the court record of the traffic case resulting from the accident. The court expressly commented on counsel's assertion in the motion for alternative service filed August 29, 2018,...