{ "id": 2491258, "name": "JOHN BASTAS, Plaintiff-Appellant, v. RICHARD A. VICERE et al., Defendants-Appellees (Geraldine Cundari, Defendant)", "name_abbreviation": "Bastas v. Vicere", "decision_date": "1990-03-30", "docket_number": "No. 1-89-0416", "first_page": "624", "last_page": "628", "citations": [ { "type": "official", "cite": "196 Ill. App. 3d 624" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "282 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "5 Ill. App. 3d 50", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2524693 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0050-01" ] }, { "cite": "529 N.E.2d 1038", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 504", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554889 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0504-01" ] }, { "cite": "535 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "857" } ], "opinion_index": 0 }, { "cite": "127 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564696 ], "weight": 3, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0112-01" ] }, { "cite": "521 N.E.2d 932", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "935" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 41", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549593 ], "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0041-01" ] }, { "cite": "492 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "112 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5539451 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/112/0273-01" ] }, { "cite": "492 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 284", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450727 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0284-01" ] } ], "analysis": { "cardinality": 428, "char_count": 8710, "ocr_confidence": 0.77, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.3551737958467849 }, "sha256": "8c74134fb439c9ea0861097f8c66355938a4830cba1de4814b76cb70c1ec660d", "simhash": "1:8eeb23cadf0d051d", "word_count": 1440 }, "last_updated": "2023-07-14T18:37:27.698771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN BASTAS, Plaintiff-Appellant, v. RICHARD A. VICERE et al., Defendants-Appellees (Geraldine Cundari, Defendant)." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nPlaintiff, John Bastas, appeals from the dismissal of his complaint with prejudice against defendants, Richard and Jean Vicere, for failure to exercise diligence in obtaining service under Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). We address the issues of whether the trial court abused its discretion when it dismissed plaintiff\u2019s complaint with prejudice under Rule 103(b) and whether the trial court\u2019s entry of a finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) was improper. We affirm.\nOn December 13, 1985, plaintiff filed his original complaint against defendants Richard and Jean Vicere, Sir Ric\u2019s, and Geraldine Cundari. The complaint alleged that on December 16, 1983, plaintiff was injured on the premises of Jeannie\u2019s Den, a bar owned by Cundari and operated by the Viceres and Sir Ric\u2019s. The bar was located in an unincorporated part of Leyden Township in Cook County. On the same day the complaint was filed, a summons was issued for Richard and Jean Vicere. The sheriff attempted to serve the Viceres at the bar three times but each time was told they were not in. The summons was returned unserved on January 2, 1986. Plaintiff did not attempt to serve the Viceres again. Plaintiff, however, obtained service on Sir Ric\u2019s but that return of service is not present in the record.\nFifteen months after the complaint was filed, on March 16, 1987, plaintiff obtained a voluntary dismissal under section 2 \u2014 1009(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2\u20141009(a)) of the action against the Viceres and Cundari, who were not served. The case continued against Sir Ric\u2019s.\nA year after the voluntary dismissal, on March 14, 1988, plaintiff refiled his complaint under section 13 \u2014 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13\u2014217) against the Viceres and Cundari. The Viceres were served at their home in Lombard, Illinois, on March 22, 1988. Plaintiff also obtained service on Cundari.\nThe Viceres moved to dismiss the complaint pursuant to Rule 103(b) supported by their affidavits that stated their home and business addresses were listed in the telephone book since the date of plaintiff\u2019s injury. The Viceres attached copies of the pages in the telephone book showing their current listings. The business address listed in the telephone book was for Jeannie\u2019s Den at the same address where the accident occurred and where plaintiff attempted to serve the Viceres in the original action.\nIn response to the motion, plaintiff\u2019s attorney filed his own affidavit which stated that he could not obtain the Viceres\u2019 home address from the liquor license application for the bar. The application was not attached to the affidavit. Also, plaintiff\u2019s attorney spoke to Richard Vicere at Jeannie\u2019s Den but he would not give the attorney his home address. Although the Viceres argued that the affidavit should not be given any weight, they did not move to strike it in the trial court.\nThe Viceres\u2019 motion was granted on June 30, 1988, and plaintiff\u2019s action against Cundari remained pending in the trial court. On July 20, 1988, the Viceres filed a motion for a finding under Rule 304(a) that the dismissal order was final and appealable, which was granted on January 6,1989. Plaintiff filed a timely notice of appeal.\nOpinion\nSupreme Court Rule 103(b) provides that if a plaintiff failed to exercise reasonable diligence in obtaining service after the statute of limitations expired, the action against an unserved defendant may be dismissed and the dismissal shall be with prejudice. (107 Ill. 2d R. 103(b).) Although each case must be decided on its own facts, in ruling on a motion to dismiss under Rule 103(b), the trial court may consider the length of time used to obtain service, the ease with which defendant\u2019s address could have been ascertained, the efforts of plaintiff, plaintiff\u2019s knowledge of defendant\u2019s address, defendant\u2019s actual knowledge of the action, and any other special circumstances. (Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 492 N.E.2d 1.) In cases where a plaintiff has obtained a voluntary dismissal and subsequently refiled the action, the trial court can consider plaintiff\u2019s failure to exercise diligence in the original suit in deciding whether to grant a Rule 103(b) dismissal. (O\u2019Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322.) As stated in Muskat v. Sternberg (1988), 122 Ill. 2d 41, 49, 521 N.E.2d 932, 935, \u201c[t]he voluntary dismissal under section 2 \u2014 1009 and the refiling under section 13 \u2014 217 does not insulate the plaintiff from the lack of diligence displayed prior to the dismissal.\u201d However, the trial judge cannot disregard plaintiff\u2019s diligence in serving defendant after the case was refiled. (Martinez v. Erickson (1989), 127 Ill. 2d 112, 535 N.E.2d 853.) On appeal from a Rule 103(b) dismissal, the reviewing court must consider whether the trial court abused its discretion. Segal v. Sacco (1988), 175 Ill. App. 3d 504, 529 N.E.2d 1038.\nAt oral argument, plaintiff relied on Martinez (127 Ill. 2d 112, 535 N.E.2d 853), where the supreme court reversed the trial court\u2019s Rule 103(b) dismissal of plaintiff\u2019s complaint. In Martinez, plaintiff filed two actions which were factually related, but plaintiff did not attempt to serve the defendants. Plaintiff obtained a voluntary dismissal of one case after seven months, and the other was dismissed for want of prosecution after nine months. After refiling the cases as a single action, plaintiff obtained service on defendants within three weeks. The supreme court reversed the trial court\u2019s dismissal of the action and remanded the case for a new hearing because \u201cthe circuit judge may not have accorded adequate weight to the plaintiff\u2019s conduct in effecting service on the defendants following the refiling of his action[.]\u201d Martinez, 127 Ill. 2d at 121, 535 N.E.2d at 857.\nPlaintiff apparently urges a similar disposition as in Martinez; however, a review of a Rule 103(b) dismissal is dependent on the facts of the case and we do not believe that a remandment is warranted here. Although plaintiff in this case at least made an attempt to serve the Viceres in the original action, the action remained pending for 15 months without service on the Viceres. In that time, plaintiff issued only one summons for them. The return of service indicated that the Viceres were not present at the time the sheriff attempted to serve them at the bar, but plaintiff did not attempt to serve them again. Plaintiff\u2019s attorney stated in his affidavit that he could not obtain their address from the liquor license application for the bar and that he spoke to Richard Vicere, at the bar, who refused to give him his home address. The Viceres\u2019 affidavits establish that it was relatively simple to locate them as their home and business addresses were listed in the telephone book since the date plaintiff was injured. After refiling his complaint, plaintiff obtained service on the Viceres in eight days.\nAlthough plaintiff\u2019s diligence in serving the Viceres after refiling his complaint cannot be disregarded, plaintiff\u2019s lack of diligence exhibited in the original action outweighs his diligence in the refiled action. The length of time that passed without serving the Viceres, the fact that plaintiff only attempted to serve them once, the fact that their home address was listed in the telephone book, and the fact that plaintiff had their business address are sufficient to justify the trial court\u2019s dismissal of plaintiff\u2019s complaint against them. For these reasons, the trial court\u2019s dismissal of plaintiff\u2019s action was not an abuse of discretion.\nPlaintiff also argues that the trial court improperly entered a Rule 304(a) finding on the Viceres\u2019 motion. Plaintiff\u2019s attorney filed an affidavit that stated plaintiff could not afford multiple appeals and, therefore, a Rule 304(a) finding should not have been entered. The Viceres did not address this issue in their appellate brief. Plaintiff did not include a transcript of the January 6, 1989, court hearing in the record. The entry of a Rule 304(a) finding is discretionary (Statistical Tabulating Corp. v. Hauck (1972), 5 Ill. App. 3d 50, 282 N.E.2d 524), and there is no evidence of an abuse of discretion.\nAffirmed.\nMURRAY and GORDON, JJ., concur.", "type": "majority", "author": "JUSTICE LORENZ" } ], "attorneys": [ "Frank J. Hucek and Ann M. Hucek, both of Berwyn, for appellant.", "Robert C. Farrar, of Heineke, Burke, Healy & Bodach, of Chicago, for appellees." ], "corrections": "", "head_matter": "JOHN BASTAS, Plaintiff-Appellant, v. RICHARD A. VICERE et al., Defendants-Appellees (Geraldine Cundari, Defendant).\nFirst District (5th Division)\nNo. 1\u201489\u20140416\nOpinion filed March 30, 1990.\nFrank J. Hucek and Ann M. Hucek, both of Berwyn, for appellant.\nRobert C. Farrar, of Heineke, Burke, Healy & Bodach, of Chicago, for appellees." }, "file_name": "0624-01", "first_page_order": 646, "last_page_order": 650 }