concurring in part and dissenting in part:
I respectfully dissent vis-a-vis the majority finding which dismissed plaintiff’s claim against the Bank of Naperville trust No. 2626. My colleagues rely on Womick v. Jackson County Nursing Home (1990), 137 Ill. 2d 371, Penrod v. Sears, Roebuck & Co. (1986), 150 Ill. App. 3d 125, and Luebbing v. Copley Memorial Hospital (1978), 60 Ill. App. 3d 780, to justify their conclusion that the plaintiff failed to exercise reasonable diligence to obtain service of summons on defendant. I find these cases distinguishable on the basis that none involve the element of “special circumstances which would affect plaintiff’s efforts.” (See Womick, 137 Ill. 2d at 377). In Womick, the plaintiff was represented by an attorney who filed suit two days before the statute of limitations expired and did not place summons for service until nine months after the statute had expired and offered no explanation for this inactivity. Thus, in that case, no special circumstances existed which would affect plaintiff’s efforts in serving the summons. In Penrod, plaintiff’s lawsuit was filed two days before the expiration of the statute of limitations. Plaintiff’s attorney mailed the complaint and summons to the circuit clerk requesting filing of the complaint and issuance of summons. Approximately four months later, plaintiff’s attorney contacted the circuit clerk regarding status of the summons and was advised that summons had not issued. Approximately two months later, plaintiff’s attorney again contacted the clerk regarding the status of summons and was advised to prepare another summons. This summons was never returned to plaintiff’s attorney. A month later, plaintiff’s attorney prepared an alias summons which issued from the clerk and was served on defendant. In total, seven months elapsed from filing the lawsuit until service of summons on defendant. Penrod does not involve special circumstances which would affect plaintiff’s efforts. In Luebbing, plaintiff did not place summons until 10 months after the lawsuit was filed. There was no explanation given for the failure to place summons and the element of special circumstances affecting plaintiff’s effort was not involved.
In the present case, I believe the following special circumstances affected plaintiff’s diligence in obtaining service of summons: (1) from January 21, 1991, until April 5, 1991, he was without the services of an attorney and (2) during this time, he was unable to obtain the attorney’s file on this case because of a fee dispute. When the discharged attorney formally withdrew from plaintiff’s case on March 28, 1991, plaintiff promptly retained another attorney within one week’s time. Because of the continuing fee dispute, plaintiff’s newly retained attorney was unable to obtain file information pertinent to service of summons on the bank until July 1991. Based on this information, plaintiff’s attorney had an alias summons issued on August 20, 1991, and the Bank of Naperville trust No. 2626 was served with summons on September 3, 1991.
I believe the plaintiff’s case more closely comports with the circumstances of Cannon v. Dini (1992), 226 Ill. App. 3d 82, than the circumstances of Womick, Penrod, or Luebbing. In Cannon, the reviewing court overturned the trial court’s decision that plaintiff’s delay of 13 months to effect service on defendant was not reasonably diligent as required by Supreme Court Rule 103(b). In Cannon, plaintiff filed a complaint on November 7, 1988, four days prior to expiration of the statute of limitations period. Eleven days later, summons on defendant Dini issued. A return of service of that summons indicated attempted service on four separate occasions during the life of the summons. Plaintiff’s complaint was stricken on March 29, 1989, and an amended complaint filed on April 3, 1989. On August 3, 1989, seven months and six days after the initial summons was returned, plaintiff was issued an alias summons for service on defendant at the same address as the first summons. This alias summons was returned and not served. Next, a special process server unsuccessfully attempted service at the same address. His return of summons indicated defendant had apparently moved. A third alias summons issued and was served on defendant December 27, 1989. The facts indicated that defendant Dini had practiced medicine in Chicago for many years and was listed in the telephone directory yellow pages. His home address was listed in the telephone directory, and he had resided there for many years. He had not attempted to evade service. Although he moved his business office in February 1989, he had sent plaintiff several billing notices with a current office address. Thus, in Cannon special circumstances existed which affected plaintiff’s efforts in serving summonses. In considering defendant’s challenge that the plaintiff did nothing for seven months after the initial summons was returned, the reviewing court held the seven-month period of alleged “inactivity,” during which plaintiff’s complaint was stricken and refiled and the second motion to dismiss remained pending for four months, could not comprise the basis of a finding that plaintiff failed to exercise reasonable diligence in serving Dini. Cannon, 226 Ill. App. 3d at 88.
Similarly, I believe that plaintiff’s lack of legal representation between January 21, 1991, when he discharged his attorney, and April 5, 1991, when he retained new counsel, coupled with the inability of his new counsel to obtain essential parts of the discharged attorney’s investigative file until July 1991 constitute “special circumstances.” As stated in the majority opinion, special circumstances constitute one of the factors which a court may consider in ruling on a Rule 103(b) motion. (Womick, 137 Ill. 2d at 377.) I determine that the existence of special circumstances cannot comprise the basis of a finding that plaintiff failed to exercise due diligence in serving the Bank of Naperville trust No. 2626. Accordingly, I would find that the trial court abused its discretion by dismissing plaintiff’s claim against the Bank of Naperville trust No. 2626 based on a violation of Supreme Court Rule 103(b).
Because there are no special circumstances involved, I concur in the finding of my colleagues that the trial court did not abuse its discretion in finding that plaintiff’s claim against defendants J.V.M. Realty and Jim Madary be dismissed based on a violation of Supreme Court Rule 103(b).
I concur in part and dissent in part.