text:
    ELDORADO TOWERS BY SHAF, INC., Plaintiff-Appellant, v. CHICAGO TITLE AND TRUST COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—280
    Opinion filed April 14, 1989.
    Kenneth M. Lodge, of Magee, Collins & Lodge, of Chicago, for appellant.
    Diane M. Romaniuk, of Chicago, for appellee Chicago Title and Trust Company.

      Morton Denlow and Richard C. Jones, Jr., both of Dardick & Denlow, of Chicago, for appellee Bank of Lincolnwood.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Eldorado Towers By Shaf, Inc. (Eldorado), appeals from an order of the circuit court of Cook County dismissing its complaint in a case involving a land trust. On appeal, it argues that the trial court erred in refusing to apply section 9 — 311 of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 9 — 311) to an assignment of a beneficial interest.

The undisputed facts are that by a trust agreement dated May 1, 1979, the defendant, Chicago Title and Trust Company (Chicago Title) is trustee and holder of legal title to a parcel of real estate in Highland Park, Illinois. The beneficiaries of the trust are Randall and Susan Shaf as to an undivided one-half interest and Arthur and Margaret Goebelt as to the other undivided one-half interest.

On July 28, 1980, the Shafs and Goebelts executed a collateral assignment of their beneficial interests in the trust to the defendant, Bank of Lincolnwood (Lincolnwood), to secure a note made by the trust and payable to the bank in the amount of $800,000 and a note payable to the Glenview State Bank in the amount of $150,000. Under the terms of the assignment, the Shafs and Goebelts directed Chicago Title not to accept any assignments of the beneficial interest in the trust without Lincolnwood’s written consent. More specifically, the provision states that “[t]he Trustee shall not permit any assignment or any further collateral assignment without the Bank’s written consent.” The collateral assignment also provides that “[n]o assignment of any beneficial interest shall be binding on the Trustee until the original or executed duplicate of the assignment is delivered to the Trustee and accepted by it in writing.”

On October 10, 1982, the Shafs purported to assign their beneficial interest to Vamstd Homes, Inc. On September 17, 1986, Vamstd Homes purported to assign its beneficial interest in the trust to plaintiff Eldorado. Neither assignment has ever been consented to by Lincolnwood, nor accepted by Chicago Title.

On December 4, 1986, Eldorado filed a two-count complaint naming Chicago Title and Lincolnwood as defendants. The first count, which alleged, a cause of action for replevin, was withdrawn on January 8, 1987. The second count, which sought a declaration that Lincolnwood had no right to bar the assignment of the beneficial interest in the trust to Eldorado and that Chicago Title was obligated to recognize Eldorado as the beneficiary of an undivided one-half interest in the trust, was dismissed, upon motion by defendants, with prejudice on July 8,1987, by Judge Richard Curry.

On August 4, 1987, Eldorado mailed a notice of motion and motion for rehearing to defendants and set same for hearing in the court’s motion book. However, the notice and motion were not filed with the clerk of the court until August 12, more than 30 days after the July 8 dismissal of Eldorado’s complaint, and without leave of court. Thereafter, on August 18, Eldorado filed a motion before Judge David Shields entitled “Motion For Relief From Final Judgment Pursuant to Chapter 110 Section 2 — 1401,” requesting that the court enter “an Order granting relief from the final judgment entered in this action, permitting this Court to proceed with the hearing on the motion to reconsider previously filed herein.” On August 20, Judge Shields granted Eldorado’s motion for rehearing “pursuant to the Court’s general equitable powers.” On December 16, Judge Curry, after a hearing, denied Eldorado’s motion for rehearing, and this appeal followed.

On appeal, defendants have challenged our jurisdiction to hear this matter. Specifically, they contend that we must dismiss this appeal because Eldorado’s motion for rehearing was not filed within 30 days of the entry of the July 8 order dismissing its complaint and its section 2 — 1401 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) was not directed against the final order and therefore was not sufficient to reinstate the jurisdiction of the trial court.

Under section 2 — 1203(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1203(a)), a motion for rehearing must be filed within 30 days from the entry of a judgment or within any further time the court may allow within the 30 days or any extensions thereof. A motion for rehearing filed more than 30 days after the entry of a judgment is not timely and the trial court’s jurisdiction over the case and appellate court’s potential jurisdiction over it are not extended. Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 470 N.E.2d 290.

Eldorado recognizes the application of section 2 — 1203(a) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1203(a)), but contends that the granting of relief to it under section 2 — 1401 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) was proper because defendants were not prejudiced in any manner, having had notice of its motion for rehearing within 30 days. Section 2 — 1401 provides for relief from final orders after 30 days from their entry. It abolishes the old common law writs of error coram nobis and other remedies for relief from final orders and judgments after 30 days from their entry and provides for such relief by the filing of a petition supported by affidavit. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401.) To be entitled to relief based on this section, a party must show the existence of a meritorious defense or claim in the original case, due diligence in presenting the defense or claim in the original action, and that through no fault or negligence on his own an error of fact or valid defense or claim was not made to appear at the time the challenged judgment or order was entered. Due diligence must also be shown in filing the petition for relief under section 2 — 1401. See Lazzara v. Dreyer Medical Clinic (1983), 120 Ill. App. 3d 721, 458 N.E.2d 958.

Here, Eldorado’s motion for relief pursuant to section 2— 1401 merely asserts that it had caused its motion to reconsider (motion for rehearing) to be served on August 4 indicating it would be heard on August 20; that it neglected to have a copy of the motion filed with the clerk of the court on the same date the motion was set for hearing; that its failure to file its motion with the clerk was inadvertent and not intended to cause hardship, delay or confusion; and that it will be irreparably harmed if it is not permitted to proceed with the motion to reconsider, which motion will serve to clarify certain issues which should be raised in the trial court. The affidavits of an attorney and a law student are attached to the motion.

We find that Eldorado’s motion simply does not demonstrate a meritorious claim that was not presented in the original action, as required by section 2 — 1401. (Manning v. Meier (1983), 114 Ill. App. 3d 835, 449 N.E.2d 560.) Nor does its motion attack the final judgment; it does not request that the trial court vacate the order dismissing its complaint but rather merely requests that the court excuse its tardiness in filing its motion for rehearing. It is well settled that “[sjection 2 — 1401 is not intended to provide a review of an order from which a party could have appealed within the time fixed by rule, and cannot be invoked as a substitute for a party’s right to appeal.” (Chovan v. Floor Covering Associates, Inc. (1987), 159 Ill. App. 3d 447, 449, 512 N.E.2d 801.) Furthermore, the motion was not brought before the trial judge (Judge Curry) who rendered the original judgment. A person seeking to vacate a judgment of dismissal more than 30 days after entry is required to bring a motion for such relief before the judge who rendered the original judgment. (Lofendo v. Ozog (1983), 118 Ill. App. 3d 237, 454 N.E.2d 806.) Here, Eldorado brought the motion before Judge Shields, instead of Judge Curry, who rendered the original judgment.

Notwithstanding the foregoing, Eldorado also argues that its motion to reconsider was timely “filed” by virtue of it having been mailed on August 4, within 30 days after its complaint was dismissed. Eldorado relies on Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, where our supreme court held that notices of appeal from final orders of the circuit court mailed within the required 30-day period and received thereafter by the clerk of the circuit court are timely filed. (126 Ill. 2d at 340.) In so holding, the court stated:

“A notice of appeal, unlike many other papers filed in the circuit court, is closely related to the appellate process; when timely filed it divests the trial court of jurisdiction and confers jurisdiction upon the appellate court. [Citation.] It is therefore appropriate that the pro-mailing policy of Rule 373 should be applied to the filing of a notice of appeal under Rule 303(a). Moreover, a liberal pro-mailing policy is more equitable, since it places smaller firms which may lack telefax machines and messenger services on an equal footing with their larger competitors.” 126 Ill. 2d at 341-42.

Eldorado would have this court apply the above-cited mailing rule under the circumstances here. However, we note that the court in Harrisburg-Raleigh Authority specifically stated that it was expressing no opinion as to whether the rule would apply to other papers filed in the circuit court, such as post-trial motions. We need express no opinion either since a mailing of Eldorado’s motion for rehearing, addressed to the clerk of the court, and receipt thereof by the clerk is not at issue here. What is at issue is whether Eldorado’s placing the motion in the trial court’s motion book, setting the motion for a hearing date, and mailing a copy of the notice and motion to defendants is the equivalent of filing same with the clerk of the court. Clearly, it is not.

Accordingly, in light of the cited provisions of the Illinois Code of Civil Procedure and case law applying them, we must dismiss Eldorado’s appeal. We therefore do not address the issue of whether the provisions of the Uniform Commercial Code apply to this matter.

Appeal dismissed.

PINCHAM and COCCIA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY CLAUSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—0806
    Opinion filed April 17, 1989.

      John T. Kelly, of Orland Park, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Judy L. Groeneveld, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Stanley Clauson (defendant) appeals his conviction of misdemeanor criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 15) following a bench trial and his sentence of one year’s conditional discharge, 30 days in the Cook County Department of Corrections, and a $500 fine. Defendant contends that the trial court erred in allowing the State to introduce evidence of a prior homosexual incident and testimony from a witness whose statements were not previously disclosed to the defense, that defendant was not proven guilty beyond a reasonable doubt, and that defendant did not waive his constitutional right to a jury trial. We reverse defendant’s conviction and grant him a new trial.

At trial, the State presented the following witnesses. D.E., a resident of Midlothian, Illinois, testified to the events which occurred on July 15, 1986, when he was 15 years old. At approximately 3:30 or 4 p.m. on that day, after assisting in an arts and craft class at the First United Methodist Church in Harvey, Illinois, he left the church with defendant, who was a codirector of the church youth program, and two girls in defendant’s van. After defendant dropped off the two girls at their homes in Dolton, Illinois, D.E. fell asleep in the backseat captain’s chair on their way to D.E.’s home in-Midlothian.

When D.E. awoke, D.E.’s pants were down around his knees, defendant was at his side with his mouth on D.E.’s penis, and there was a policeman knocking on the window of the van. D.E. was wearing a shirt, jeans, a belt with a buckle, and underpants at the time. Defendant then arose, and D.E. brought his pants back up and exited the van “real quick.”

Outside the van, one of the two police officers present took D.E. to a police car and asked him his age. Later, at the police station, D.E. told the police officer that “he had my pants down and his mouth on my penis.”

D.E. further stated that he had known defendant for approximately six or seven years and that he had never been assaulted by defendant before. D.E. admitted that defendant had counseled him once for always getting in trouble, that he was in trouble for lying in the past, that a month prior to the incident defendant’s wife was angry with him because he had been in their daughter’s bedroom, and that defendant or his wife had once accused him of shooting a “BE” gun.

John Merrick, president of Custom Plate Glass, located at 147th and Mozart Streets in Midlothian, testified that at approximately 5 p.m. on July 15, 1986, he observed a van going to the end of Mozart Street and turn into his private driveway. He recognized it as the same beige van he had seen six months earlier, on or about January 15, 1986, parked at the same location. On that previous date, he had looked inside the van, which had tinted windows and Venetian blinds, and observed one man “chewing” on the other man’s penis. Merrick was unable to see their faces at that time, but he saw the side of the driver’s face as the van was leaving. Merrick made an in-court identification of defendant as the man he had seen on approximately January 15, 1986.

Merrick further testified that on July 15, 1986, he observed the side of the driver’s face as the van went by approximately 20 miles per hour, and he told his wife to call the police. When the police arrived a few minutes later, Merrick related to an officer “what was going on at the end of the block.”

Sergeant Dirk Petry testified that after responding to a suspicious-vehicle call at approximately 5:10 p.m. on July 15, 1986, Merrick directed him to the van. Petry looked through the driver’s side window as he approached the van and saw defendant walk up from the rear of the van to the driver’s seat and noticed D.E. sitting in the rear passenger seat. Petry had both of them exit the van, and D.E.’s clothes were not in disarray when he exited.

In response to Petry’s inquiry into “what was going on,” defendant stated that they were just having a conversation and D.E. stated that he discovered defendant sucking on his penis when he awoke after having fallen asleep on their ride home. Petry then told defendant to follow him to the police station, and Petry drove D.E. to the station in his squad car.

The defense presented the following evidence in its case in chief. Defendant testified that he had been employed at Thornridge High School for 27 years as a teacher and was married with three children. On July 15, 1986, at 4:20 p.m., he left the church with his two children, Angela Willis, Denise Hubbert, and D.E., after having loaded 20 to 30 bags of paper into his van for eventual recycling. He dropped off his children, ages 8 and 12, at home in South Holland first because his son had to change clothes and eat before a “T-Ball” game at 5:30. Defendant then dropped off Angela Willis and Denise Hubbert in Dolton. At approximately 5 p.m., on his way to drop D.E. off in Midlothian, he stopped a block or two from D.E.’s home to counsel him, parking away from D.E.’s home because D.E. had a communication problem at home and they could not talk there.

At approximately 5:15 p.m., the police arrived while defendant was standing in the aisle by the captain’s chairs stacking papers behind the front driver’s seat and talking to D.E. The officer knocked on the window and requested that defendant and D.E. exit the van. Upon their exiting the van, the officer asked D.E. his age, to which D.E. first retorted “17,” then stated “16.” The officer then asked D.E., “Do you always do that?” to which D.E. replied that he was asleep. The officer thereafter instructed D.E. to go into the police car and told defendant to follow them to the station.

Defendant denied committing the acts charged. He had never seen Merrick before trial. He was not in the vicinity of 147th and Mozart Streets on January 15, 1986, but was in school at that time. He also stated that he continually reprimanded D.E. because of his poor behavior and that he had reprimanded him for making sexual advances to defendant’s daughter one month prior to the incident.

Denise Hubbert testified that she left the church that day with defendant, D.E., Angela, and defendant’s two children. She stated on cross-examination that the newspapers were “way in the back behind the seat” and were not up by the front of the van near D.E. D.E. was awake when defendant dropped her off in Dolton at approximately 4:45 p.m.

Six character witnesses testified that defendant’s reputation for truthfulness was outstanding, including a pastor of the First Methodist Church who had known defendant for 16 years, a university director with the Illinois Education Association who had daily contact with defendant as a teacher, and a number of other school teachers.

A neighbor, a cook at the church, and two teachers also testified that D.E. had a bad reputation for truthfulness.

On appeal, we first address defendant’s contention that he did not waive his constitutional right to a jury trial. Defendant argues that because the transcripts of proceedings are devoid of any indication that defendant waived a jury trial or that any admonishments were given to defendant regarding his jury rights, because no signed jury waiver exists, and because the only suggestion of defendant’s jury waiver is a reference “J/W” on the half sheet, there is no “understanding waiver” as constitutionally and statutorily required. (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 6; Ill. Const. 1970, art. I, §8; U.S. Const., amend. VI.) The State responds that the record taken as a whole clearly shows that defendant knowingly and intelligently waived his right to a jury trial and a finding to this effect would be consistent with Illinois case law.

Before addressing the Illinois case law on this issue, it is necessary to outline the chronological history of the case as it relates to the jury issue. On September 18, 1986, attorney Redell appeared on behalf of defendant before Judge Martin McDonough. The court denied Redell’s request for a continuance but complied with his oral demand for a jury trial by transferring the case to a jury courtroom. At a hearing before Judge Foxgrover on that same date, Redell requested a continuance and a jury demand. Foxgrover vehemently stated that he would set only one status date and a trial date.

On the October 23, 1986, status date, the court asked Redell whether “this was a definite jury matter,” to which he responded “at this time it would definitely be a jury trial.” A trial date was then set for February 16, 1987, but was later changed to the 17th after the court notified the parties that the 16th was a court holiday.

On February 17, 1987, attorney John T. Kelly filed his appearance on behalf of defendant. The entry on the half sheet for that date states “PNG JW Trial 2-18-87.” A bench trial commenced on that date. The transcript for the 17th indicates that defendant was present at the beginning of the trial, but it does not reflect that the court admonished defendant of his jury rights, nor is there any discussion as to whether the trial was to proceed by bench or jury.

The transcript of the hearing on the post-trial motions on March 17, 1987, reflects a conversation the court had with attorney Kelly with regard to his actions and representations in this matter. Kelly stated that he had “no knowledge [or inquiry of defendant] that he had not waived his jury until the third or fourth witness testified at trial.” Kelly acknowledged that he did not make a motion for a mistrial on these grounds. The court then questioned Kelly as to certain representations he had made to the court during discussions in chambers in defendant’s absence. Kelly acknowledged that he stated that there would be no problem with scheduling the witnesses for trial because it was a bench trial. He also admitted that accommodations had been made to accord with his representation that it was a bench trial and that he had discussed the accommodations with defendant.

After setting forth counsel’s representations for the record, the trial court then relied on People v. Murrell (1975), 60 Ill. 2d 287, 326 N.E.2d 762, and found that defendant had waived his right to a jury trial through his attorney’s expressed waiver. The court also noted the half sheet indicating a plea of not guilty, jury waived, and stated “it was specifically asked” by the court at the time the trial commenced.

Illinois case law reveals that the determination of whether a jury waiver was knowingly and intelligently made cannot rest on a precise formula and necessarily turns on the facts and circumstances of each particular case. (People v. Frey (1984), 103 Ill. 2d 327, 469 N.E.2d 195; People v. Gay (1972), 4 Ill. App. 3d 652, 281 N.E.2d 738.) Courts have routinely held, however, that where the defendant’s attorney expressly advises the court of defendant’s choice to proceed by bench trial in the defendant’s presence without objection from defendant, a valid waiver may be found from the defendant’s acquiescence to that waiver. People v. Spain (1980), 91 Ill. App. 3d 900, 906, 415 N.E.2d 456, 460; People v. Frey (1984), 103 Ill. 2d 327, 332, 469 N.E.2d 195, 197.

The State argues here that the circumstances in the instant case demonstrate defendant’s understanding waiver. First, it is clear that defense counsel understood the trial would not proceed by jury. He also admitted at the post-trial motion hearing that he had discussed the accommodation of witnesses with defendant and that these arrange-merits accorded with the time frame needed for a bench trial. Second, defendant was highly educated, having a bachelor’s degree and a master’s degree in business administration. Finally, defendant was present when the trial commenced and did not object at that time or any time throughout the trial. To support its position, the State cites a number of Illinois cases wherein courts have considered a variety of similar circumstances as factors to finding an understanding jury waiver. Frey, 103 Ill. 2d 327, 469 N.E.2d 195, and People v. Turner (1986), 145 Ill. App. 3d 446, 495 N.E.2d 1056 (the defendant’s intelligence, experience, and education and his failure to object to the absence of a jury); People v. Mitchell (1974), 21 Ill. App. 3d 171, 315 N.E.2d 101, and People v. Baker (1969), 126 Ill. App. 2d 1, 262 N.E.2d 7 (whether defendant had a meaningful opportunity to consult with his attorney before trial on the question of jury waiver).

In all of the above cases, the defendant was present when his counsel made the express waiver to the court. We do not believe defendant can be held to have acquiesced to his counsel’s waiver made outside his presence. The supreme court’s remarks in the case relied on by the trial court, People v. Murrell (1975), 60 Ill. 2d 287, 326 N.E.2d 762, are noteworthy:

“In each of these cases now under consideration the waiver of the right to jury trial was not presumed, nor is the record silent on the question of waiver. The record shows that the waiver was made by counsel in open court in the presence of the defendant, who acquiesced in the waiver. The record is only silent as to the defendant’s knowledge and intent.” (Murrell, 60 Ill. 2d at 290, 326 N.E.2d at 764.)

Unlike Murrell, the record is silent as to whether defendant was aware of the jury waiver. In fact, the record shows that at all times when the jury matter was discussed while defendant was present in court, his counsel had indicated there would be a jury trial. Furthermore, Kelly, who had just recently filed his appearance in the case, stated after trial that defendant mentioned the matter after the third or fourth witness had been called. We do not believe the fact that Kelly failed to inform the court of the matter when defendant brought it to his attention or the fact that defendant is an educated man in areas other than the law justifies a conclusion that defendant knowingly and understandingly waived his constitutional right to a jury trial. In effect, the State is asking us not only to presume that defendant intended the waiver but that because of the docket entry and counsel’s representations outside defendant’s presence, he was also aware of the waiver. We will not do so.

Under these circumstances and in light of Illinois case law, we hold that defendant has not waived his right to a jury trial. We, therefore, reverse defendant’s conviction and remand the case for a new trial.

Because defendant will be granted a new trial, we need not address his contention that he was prejudiced by unfair surprise by the admission of testimony of a witness whose statements were not disclosed in the State’s response to defendant’s request for misdemeanor discovery. Any unfair surprise is mooted by the new trial, as defendant is now aware of the substance of the testimony. It is necessary, though, to address the other claims of error raised by defendant.

Defendant contends that Merrick’s testimony of a prior incident involving defendant unfairly prejudiced him because it lacked relevance to the charge and its sole purpose was to demonstrate defendant’s propensity to commit the crime. Merrick testified that six months earlier, defendant had driven the same van, had parked at the same dead-end street, and had engaged in the same sex act as on July 15,1986.

Generally, evidence of other crimes is inadmissible if offered merely to establish a defendant’s propensity to commit a crime (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238), but it may be admissible if relevant to prove modus operandi, intent, identity, motive or absence of mistake. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) The Illinois Supreme Court has even more broadly stated that evidence of other offenses is admissible if relevant for any purpose other than to merely show a defendant’s propensity to commit a crime. People v. McDonald, 62 Ill. 2d at 455, 343 N.E.2d at 493; People v. Dewey (1969), 42 Ill. 2d 148,157, 246 N.E.2d 232, 237.

Contrary to defendant’s assertion, no Illinois court has broadly held that in sex crime cases evidence of defendant’s prior sexual acts is only admissible if committed with the complaining witness. The cases cited by defendant for this proposition, People v. McMillan (1980), 86 Ill. App. 3d 208, 407 N.E.2d 207, and People v. Rogers (1926), 324 Ill. 224, 154 N.E. 909, did not involve modus operandi testimony. These cases narrowly held that the same prior sex crime with another person was not admissible to prove the defendant’s intent to commit the sex crime with the complaining witness.

The State responds to defendant’s contention by arguing that the prior incident is relevant to show defendant’s intent and modus operandi in parking the van at that particular location. Defendant, on the other hand, asserts that the testimony could not be relevant for these purposes because identity is not in issue here and intent is not an element of the charge of criminal sexual abuse.

We find that such evidence would be relevant to material issues in this case. Evidence of a defendant’s modus operandi may be relevant not only to the issue of who committed the crime but also to the issue of whether a crime was in fact committed. (People v. Fuller (1983), 117 Ill. App. 3d 1026, 1034, 454 N.E.2d 334, 341; People v. Osborn (1977), 53 Ill. App. 3d 312, 318, 320-23, 368 N.E.2d 608, 612, 615; People v. Partin (1987), 156 Ill. App. 3d 365, 372, 409 N.E.2d 662, 666.) The instant case is similar to People v. Partin (1987), 156 Ill. App. 3d 365, 509 N.E.2d 662. In Partin, the 14-year-old complainant, who had worked for the defendant for three years, charged the defendant with fondling him and taking pornographic pictures. The court found that evidence of the defendant’s prior acts with minors performed at the same location and in the same manner were relevant and admissible where the identity of the defendant was not is dispute, but defendant had placed in issue whether the crime in fact was committed. (Partin, 156 Ill. App. 3d at 372, 509 N.E.2d at 666.) Like Partin, Merrick’s testimony of defendant’s modus operandi is relevant to the material disputed issues of defendant’s purpose in parking the van at that location and whether defendant performed the act in issue.

We further find that proof of defendant’s modus operandi was sufficiently established by Merrick’s testimony. In Illinois, evidence of modus operandi may be admitted upon a strong and persuasive showing of a similarity of the crime charged and the separate offense that establishes a substantial and meaningful link between the offenses being compared. (People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470; People v. Partin, 156 Ill. App. 3d 365, 509 N.E.2d 662.) Some distinctive feature not common to most offenses of that type must be present to establish this link. Tate, 87 Ill. 2d at 142-43, 429 N.E.2d at 474-75; Partin, 156 Ill. App. 3d at 370, 509 N.E.2d at 665.

In our judgment, several distinctive features are present in the case at bar. Merrick’s testimony disclosed that defendant here in each incident drove a beige van with tinted windows and Venetian blinds to the same private drive on a dead-end street to engage in a specific sex act. Similar to the situation here is the court’s admission of modus operandi testimony in People v. Hayes (1988), 168 Ill. App. 3d 816, 522 N.E.2d 1279, where the assailant used a silver-colored gun in each robbery and a bag for the robbed money, and the robberies were committed about the same time and in the same shopping center. Although Merrick’s testimony here did not reveal whether the other male on the prior occasion was a youth and, thus, even a crime, exact identity of the offenses is not required to admit evidence of other crimes. (Partin, 156 Ill. App. 3d at 371, 509 N.E.2d at 665; Fuller, 117 Ill. App. 3d at 1035, 454 N.E.2d at 342.) The State is required only to prove the defendant committed the crime, wrong, or act and not that the defendant was convicted for the same crime or a similar crime. People v. Embry (1988), 177 Ill. App. 3d 96, 531 N.E.2d 1130 (evidence that the defendant, who was charged with child abduction in ordering minor girls into his car, had previously asked a 17-year-old girl in similar circumstances whether she wanted a ride held admissible).

Finally, we find that Merrick’s testimony sufficiently identified defendant as the person involved in the January incident. Not only did Merrick describe the van in detail and identify it as the same van involved in the July incident, he also stated that when the van was leaving on that January day, he observed the side of the driver’s face and unequivocally identified defendant at trial as that driver. The fact that Merrick could not observe the faces of the two male persons when he observed them performing the sex act does not discredit Merrick’s modus operandi testimony. The obvious and logical inference to be drawn from his testimony that the defendant was the driver of the van is that defendant was also the person who engaged in the sex act moments earlier.

Based on the foregoing and because the determination of whether the evidence is admissible for such a purpose and whether the probative value of the evidence outweighs its prejudicial effect is within the sound discretion of the trial court (People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334), we hold that the trial court did not abuse its discretion in admitting Merrick’s testimony.

As to defendant’s final contention concerning the reasonable doubt issue, we find that the evidence adduced at trial sufficiently supports the trial court’s conclusion that defendant was proved guilty beyond a reasonable doubt.

Accordingly, due to the absence of defendant’s jury waiver, we reverse defendant’s conviction and remand this case to the trial court for a new trial consistent with this opinion.

Reversed and remanded.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE O’CONNOR

text:
    BOBBIE THOMAS, Plaintiff-Appellant, v. UNIQUE FOOD EQUIPMENT, INC., d/b/a Hollymatic Sales and Service, Defendant-Appellee (Hollymatic Corporation, Defendant).
    First District (1st Division)
    No. 1—88—1057
    Opinion filed April 17, 1989.
    Michael D. Gerstein, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Glenn F. Fencl, Kathryn A. Spalding, and Joseph A. Spitzzeri, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Bobbie Thomas brought an action alleging strict products liability and negligence against the manufacturer of a meat grinder, Hollymatic Corporation, not party to this appeal, and distributor Unique Food Equipment, Inc. (Unique). The strict liability claim was dismissed due to expiration of the statute of limitations. For the reasons below, we affirm.

On September 4, 1969, Thomas’ employer, the Chicago board of education, purchased a meat-grinding machine from Unique. On March 30, 1984, Thomas was injured while using the machine. Thomas filed a complaint for a bill of discovery against the board of education and learned that the machine had been manufactured by Hollymatic Corporation. Thomas dismissed the school board and named Unique and Hollymatic as defendants. Subsequently, Thomas filed amended complaints alleging strict products liability and negligence against both defendants.

On March 29, 1988, the trial court dismissed the strict liability count of the fourth amended complaint pursuant to the applicable statute of limitations, section 13 — 213(b) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(b)), which bars product liability actions beyond 10 years from the date of first sale to the initial user. The trial court also found substantial grounds for difference of opinion regarding the question whether section 2— 621(b)(1) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-621(b)(1)) created a statutory exception to section 13 — 213(b), and certified Thomas’ appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).

Section 13 — 213(b) states:

“Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.” Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(b).

Section 2 — 621 states in relevant part:

“Product liability actions, (a) In any product liability action based in whole or in part on the doctrine of strict liability in tort commenced or maintained against a defendant or defendants other than the manufacturer, that party shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage. The commencement of a product liability action based in whole or in part on the doctrine of strict liability in tort against such defendant or defendants shall toll the applicable statute of limitation and statute of repose relative to the defendant or defendants for purposes of asserting a strict liability in tort cause of action.
(b) Once the plaintiff has filed a complaint against the manufacturer or manufacturers, and the manufacturer or manufacturers have or are required to have answered or otherwise pleaded, the court shall order the dismissal of a strict liability in tort claim against the certifying defendant or defendants, provided the certifying defendant or defendants are not within the categories set forth in subsection (c) of this Section. Due diligence shall be exercised by the certifying defendant or defendants in providing the plaintiff with the correct identity of the manufacturer or manufacturers, and due diligence shall be exercised by the plaintiff in filing an action and obtaining jurisdiction over the manufacturer or manufacturers.
The plaintiff may at any time subsequent to the dismissal move to vacate the order of dismissal and reinstate the certifying defendant or defendants, provided plaintiff can show one or more of the following:
(1) That the applicable period of statute of limitation or statute of repose bars the assertion of a strict liability in tort cause of action against the manufacturer or manufacturers of the product allegedly causing the injury, death or damage; or
* * *
(d) Nothing contained in this Section shall be construed to grant a cause of action in strict liability in tort or any other legal theory, or to affect the right of any person to seek and obtain indemnity or contribution.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621.

Thomas’ claim arose when she was injured in 1984, 15 years after the Hollymatic machine was sold to the board of education and placed in service. Section 13 — 213(b) therefore bars Thomas’ products liability claim. But Thomas argues that section 2 — 621(b)(1) creates an exception allowing strict products liability actions to proceed against nonmanufacturing defendants, such as Unique, where the limitations period has expired with respect to the manufacturer. We disagree.

Section 13 — 213(b) states that “no product liability action *** shall be commenced except within *** 10 years from the date of first sale, lease or delivery to its initial user.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(b).) Thomas’ proposed interpretation requires finding an exception to section 13 — 213(b) in section 2— 621(b)(1). The time limits for filing an action are governed by the applicable statutes of limitations alone, however, and are not affected by other statutes. (See Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 511 N.E.2d 706, appeal denied (1987), 117 Ill. 2d 543.) Further, to maintain a strict products liability action under section 2 — 621(b)(1) where the statute of limitations has expired, it would be necessary to find in section 2 — 621 some basis for the cause of action regardless of the statute of limitations. Section 2 — 621(d) states, however, that “[njothing contained in this Section shall be construed to grant a cause of action in strict liability in tort or any other legal theory.” (See also Sims v. Teepak, Inc. (1986), 143 Ill. App. 3d 865, 871, 493 N.E.2d 721.) If section 2-621(b)(1) provided a basis for liability without regard to the statute of limitations, then neither section 2 — 621(d) nor section 13 — 213(b) would have any practical effect. We therefore hold that no product liability action may be brought or maintained, except within the time period provided by the applicable statute of limitations or statute of repose, and without reference to the provisions of other statutes.

Under section 2 — 621(a), a strict liability action brought against nonmanufacturing defendants requires those defendants to identify the manufacturer of the unsafe or defective product. Identifying the manufacturer tolls the statutes of limitations and repose with respect to the nonmanufacturing defendants. Section 2 — 621(b) provides that once a complaint is filed against the manufacturer, the non-manufacturing defendants may be dismissed. Section 2 — 621(b)(1) provides that dismissal of the nonmanufacturer may be vacated where the plaintiff can show that the applicable statute of limitations or statute of repose bars action against the manufacturer. Section 2— 621(b)(1), read with the tolling provision of section 2 — 621(a), contemplates a situation where the action against the nonmanufacturer was filed within the limitations period, but the action against the manufacturer was filed after the limitations period expired. Vacating the dismissal of the nonmanufacturing defendants is possible because the statute of limitations was tolled.

Even if Thomas’ products liability claim was allowed to proceed, she could maintain an action against neither Unique nor Hollymatic. Thomas brought her original claim against the Chicago board of education more than 10 years after the sale to the board of education. The board identified the manufacturer, Hollymatic, and was dismissed. Clearly, the statute of limitations had expired with respect to the manufacturer before Thomas’ action was filed against the board. Thomas, according to the interpretation urged, would not have an action against Unique, however, because the board was the certifying defendant. Instead, Thomas would face the absurd result of a products liability action against the board, ultimate consumer of the product. This assumes, however, that dismissal could be vacated where the case was originally filed after the statute of limitations ran, leaving no statute of limitations or repose left to toll. The difficulties inherent in Thomas’ proposed interpretation are apparent. Further, Thomas’ proposed interpretation might allow a plaintiff to maintain a products liability action after the statute of limitations had expired, even where the manufacturer was known, simply by naming a nonmanufacturing defendant.

In contrast to Thomas’ proposed interpretation, section 2 — 621 provides a mechanism by which a plaintiff may reach the manufacturer of a defective or dangerous product, but allows the action to proceed against nonmanufacturing defendants that were previously dismissed, if the manufacturers cannot be identified or sued within the statute of limitations. Section 2 — 621 thus ensures that the burden of loss due to a defective or dangerous product remains on those who placed the product in the stream of commerce. But no part of section 2 — 621 allows an action that is not filed within the time allotted by the statute of limitations. Read in context, section 2 — 621(b)(1) states one of five circumstances in which dismissal of certain parties may be vacated and creates no exception to the statute of limitations.

Thomas’ proposed interpretation forces section 2 — 621(b)(1) to be read out of context and defeats the purpose of section 13 — 213(b), an unacceptable result where a different, reasonable interpretation of the two statutes serves the purposes of both statutes and follows their plain language. We therefore hold that section 2 — 621(b)(1) creates no exception to section 13 — 213; Thomas’ products liability count was barred by the statute of limitations, and accordingly, dismissal of the count is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE SCARIANO

text:
    SYLVIA PALUMBO et al., Plaintiffs-Appellants, v. FRANK’S NURSERY AND CRAFTS, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 1—88—286
    Opinion filed April 18, 1989.
    A. Denison Weaver, Ltd., of Chicago (Jeffery C. Arnier, of counsel), for appellants.
    Gorham, Metge, Bowman & Hourigan, of Chicago (Edward H. MacCabe, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court;

Plaintiffs appeal from an order granting summary judgment in favor of defendant, arguing that there is an issue of material fact in the case. We affirm.

While shopping in defendant’s store on December 2, 1983, Mrs. Palumbo (plaintiff) and her friend, Mrs. Martino, entered an aisle between two tables displaying poinsettias. Plaintiff claimed that as she took a step forward with her left foot, both feet went out from under her, causing a fracture of her left hip.

In her deposition, plaintiff testified that she did not see any kind of liquid substance or debris in the aisle where she fell at any time, either before or after her fall. Mrs. Martino, the only eyewitness to plaintiff’s fall, testified in her deposition that she, too, did not see any liquid or debris on the floor either before or after the incident. Two post-occurrence witnesses, Trudy Meister and Cynthia Darzinskis, both employees of defendant, provided affidavits stating that they had examined the scene of the occurrence after the fall and found no liquid or debris on the floor. However, at the hospital plaintiff’s husband noticed that her coat, which she had been wearing when she fell, was wet.

Trudy Meister testified at her deposition that the poinsettias were not watered on a regular schedule, but as needed. One of defendant’s employees would bring a watering cart, approximately three feet by two feet large, into the aisle where the plants were located, and, using a house plant watering pipe, water the plants. The poinsettias were potted in plastic pots that had holes cut into the bottom and were wrapped with foil. There was no evidence as to when the poinsettias were last watered prior to plaintiff’s fall.

In granting summary judgment in favor of defendant, the trial judge stated that plaintiff had produced no evidence and therefore could only speculate as to the cause of her fall. She appeals from that order.

Opinion

Plaintiff claims that she has presented evidence which creates a genuine issue of material fact as to the proximate cause of her fall sufficient to defeat an award of summary judgment. She argues that she is not required to identify specifically the foreign substance or article which caused her fall, but only to produce evidence, either direct or circumstantial, which gives rise to a reasonable inference that her fall was caused in whole or in part by defendant’s negligence. Defendant contends that there is no evidence of the existence of any foreign substance which may have contributed to or caused plaintiff’s fall. It further contends that, if there had been any liquid or debris on the floor, there is no proof that it had either actual or constructive notice of its presence.

The parties agree that defendant owed plaintiff the duty of exercising ordinary care in maintaining the premises in a reasonably safe condition. (Hayes v. Bailey (1980), 80 Ill. App. 3d 1027, 400 N.E.2d 544.) Our supreme court has discussed the rules of law applying in such a situation:

“[Liability will be imposed where a business invitee is injured by slipping on a foreign substance on the premises if it was placed there by the negligence of the proprietor or his servants, or, if there is no showing how the substance got on the premises, if it appears that the proprietor or his servant knew . of its presence, or that the substance was there a sufficient length of time so that in the exercise of ordinary care its presence should have been discovered. [Citation.] Thus, where the foreign substance is on the premises due to the negligence of the proprietor or his servants, it is not necessary to establish their knowledge, actual or constructive [citation]; whereas, if the substance is on the premises through acts of third persons, the time element to establish knowledge or notice to the proprietor is a material factor.” Donoho v. O’Connell’s, Inc. (1958), 13 Ill. 2d 113, 118, 148 N.E.2d 434.

In Donoho, plaintiff slipped and fell as she was walking past a “stand-up” table in defendant restaurant. After her fall she noticed a “partly smashed grilled onion” on the floor near the stand-up table, as well as a dark smear on the floor and on her shoe that looked like grease. A bus boy had cleaned the stand-up table shortly before plaintiff’s fall. A jury returned a verdict for plaintiff, but the appellate court reversed this judgment and directed judgment notwithstanding the verdict for defendant. The supreme court reversed the appellate court, stating:

“Where *** in addition to the fact that the substance on the floor was a product sold or related to defendant’s operations, the plaintiff offers some further evidence, direct or circumstantial, however slight, such as the location of the substance or the business practices of the defendant, from which it could be inferred that it was more likely that defendant or his servants, rather than a customer, dropped the substance on the premises, courts have generally allowed the negligence issue to go to the jury, without requiring defendant’s knowledge or constructive notice. Moreover, from our review of the cases, there appears to be a diminishing reluctance by courts to accept such circumstantial evidence to establish that the foreign substance came on the floor through defendant’s negligence.” 13 Ill. 2d at 122.

Here, plaintiff maintains that she slipped on water which dripped from the poinsettias onto the floor as a result of defendant’s negligence; therefore, she need not show that defendant had actual or constructive notice of the water.

Plaintiff also relies on Papadatos v. National Tea Co. (1974), 21 Ill. App. 3d 616, 316 N.E.2d 83, in which the plaintiff there fell in defendant’s parking lot. Ms. Papadatos testified that she did not see what she slipped on, and did not know whether it was a stone or pebble or other object, nor did she know how the object came to be in the parking lot or how long it had been there. The jury returned a verdict in favor of plaintiff, and the appellate court affirmed.

“In the instant case, although there is no direct proof as to how the object, allegedly stepped on by plaintiff, came to be on the pavement, plaintiff did testify that it was round and that it felt like a pebble or a stone. In addition, from the photographs received in evidence, it appears there were many small stones on the pavement and that there was a hole or depression in defendant’s lot which had small stones in it. Plaintiff also testified she had seen the hole on prior occasions during the year she had shopped at that store and had previously observed automobiles driving through the hole, causing stones to be thrown onto the pavement.” 21 Ill. App. 3d at 622.

Defendant contends that this case is distinguishable from Donoho and Papadatos because in those cases the plaintiffs were able to identify the defect or foreign substance which caused their falls, whereas in the present case no one saw water or anything else on the floor; thus, according to defendant, this case is similar to the situation in Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328. There, the trial court granted summary judgment in favor of defendant in a case in which plaintiff sought damages for injuries suffered when she fell as she exited defendant’s store by walking down a ramp. The appellate court affirmed, stating:

“The plaintiff stated repeatedly in her deposition that she did not know why she fell. She admitted that while she saw something that looked like grease in the area, she did not know whether it was grease, what kind it was, whether it was slippery, and most importantly, whether she had stepped on it. In other words, according to plaintiff’s own statements, she could produce no evidence (since according to her interrogatories she knew of no other -witnesses) to show that even if there was some defect in the ramp, this object or this defect caused her fall. Liability cannot be predicated upon surmise or conjecture as to the cause of the injury; proximate cause can only be established when there is a reasonable certainty that defendant’s acts caused the injury. [Citations.]
* * *
*** [I]t is not enough for a plaintiff to show that he or she fell on the defendant’s flooring. The plaintiff must go further and prove that some condition caused the fall and that this condition was caused by the defendant.” 92 Ill. App. 3d at 817, 818.

In Vance v. Lucky Stores, Inc. (1985), 134 Ill. App. 3d 166, 480 N.E.2d 167, plaintiff fell while shopping at Eagle Food Store. She testified that on the day she fell snow had fallen during the morning and there was approximately two to three inches of snow on the ground. Upon entering the store, plaintiff stomped her feet on the entrance mat to remove the snow from her boots, and, as she did so, she noticed an accumulation of water on the mat and around the left side of the mat. She fell as she began walking down an aisle. She had not noticed anything on the floor prior to her fall, but when she fell, she observed “near her an undisturbed, clear, milky-colored puddle about the size of her hand. This liquid was not smeared or tracked about with footprints.” (134 Ill. App. 3d at 167.) Plaintiff did not know how the substance got there or how long it had been there, she did not observe any substance in the general area that caused her to fall, nor did she know why she fell. A post-occurrence witness observed a “small, clear, spot of water, about the size of a quarter” in the area where plaintiff fell. (134 Ill. App. 3d at 168.) The trial court granted a directed verdict for defendant at the close of plaintiff’s case, and the appellate court affirmed, relying on Kimbrough and stating:

“In the present case, neither the plaintiff nor any witness knew what caused plaintiff to fall, nor did anyone see a substance on the floor which appeared disturbed, smeared or tracked with footprints. *** There is no evidence to show what caused plaintiff’s fall.” (134 Ill. App. 3d at 169.)

The court held that plaintiff failed to establish that Eagle Food Store’s conduct was the proximate cause of her injury, and thus had failed to make a prima facie case of negligence.

Plaintiff also failed to make a prima facie case in Truelsen v. Levin (1975), 24 Ill. App. 3d 733, 321 N.E.2d 528, where the trial court directed a verdict for defendant at the close of plaintiff’s case, and the appellate court affirmed, stating:

“In the case at bar the only evidence concerning the proximate cause of the accident are the nurse’s report which indicates that [plaintiff’s decedent] Nellie Truelsen fell on a rug and the fire department report which indicates that Nellie Truelsen fell in the kitchen. The offer of proof allegedly indicated that a rug was customarily placed under the dishwasher when it leaked, which was approximately once a week or once a month. There is no evidence, however, that the floor was wet at the time of the accident or that the rug was on the floor when the fire department arrived. Under these facts, to say that defendant’s negligence in maintaining a leaky dishwasher was the proximate cause of Mrs. Truelsen’s injury would be mere conjecture.” 24 Ill. App. 3d at 736.

The purpose of summary judgment proceedings is to determine whether a genuine issue of material facts exists (Golden v. Marshall Field & Co. (1985), 134 Ill. App. 3d 100, 479 N.E.2d 1211), and if the facts allow for more than one conclusion or inference, including one unfavorable to the moving party, the motion for summary judgment should be denied. (Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 501 N.E.2d 863.) The right of the moving party to summary judgment must be clear and free from doubt. Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.

Plaintiff claims that she slipped on water which had dripped from nearby poinsettias; however, both she and Mrs. Martino, her only witness, testified in their depositions that they did not see any water on the floor, and the only post-occurrence witnesses also stated in affidavits that there was no water on the floor. As noted previously, liability cannot be predicated “upon surmise or conjecture as to the cause of injury” (Kimbrough, 92 Ill. App. 3d at 817); moreover, if, upon all of the evidence contained in the pleadings and affidavits, nothing would be left to go to a jury, and the court would be required to direct a verdict, summary judgment is appropriate. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497.) Plaintiff only speculates that the poinsettias dripped, but all the sworn testimony in this case is that the floor was dry. There is no evidence to show what caused her fall, and therefore, summary judgment in favor of defendant was properly granted.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BILANDIC, P.J., and EGAN, J., concur.

       Judge Egan participated in the decision of this case prior to becoming a member of the sixth division.


author: PRESIDING JUSTICE BILANDIC

text:
    JOHN K. McCAFFERTY, Plaintiff-Appellee, v. THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—88—0882
    Opinion filed April 18, 1989.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellants.

      Rick Allan White, of Chicago, for appellee.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff John McCafferty filed for administrative review with the Illinois Civil Service Commission (Commission) after he was laid off from his position with the Illinois Department of Central Management Services (CMS). The Commission upheld his termination. The circuit court- reversed the Commission’s ruling and reinstated plaintiff. Defendants appeal.

Plaintiff began his service with the agency in 1972. He advanced to the position of personnel program supervisor in the Recruiting, Counselling and Examining Unit (RC&E) of the Agency Services-Cook Section. Tobein Tegard is the manager of the Agency Services-Cook Section. Plaintiff was the only employee laid off pursuant to a reorganization intended to eliminate overlapping supervisory duties within the RC&E.

Plaintiff appealed his termination to the Commission. In a letter to the executive secretary of the Commission, plaintiff stated that he had been laid off in contravention of personnel rule 302.520, which provides that layoff plans must include an explanation of the organizational unit selected and be subject to a bona fide review by the Director of CMS. He further contended that the wrong organizational unit was targeted and that the proper unit should have been the entire Agency Services-Cook Section. Plaintiff stated that once this proper unit is identified, other violations are apparent. He claims that the order of layoff was not observed as provided in section 302.530 as no consideration was given to his performance records and continuous service in comparison with other employees within his status group.

Michael E. Tristane, Director of CMS, responded to plaintiff’s challenge stating that CMS believes plaintiff’s layoff to be in accordance with the Personnel Code (Ill. Rev. Stat. 1985, ch. 127, par. 63b01 et seq.). A hearing was granted.

At the Commission hearing, CMS contended that RC&E operates as an official and separate entity within the Agency Services-Cook Section. Organizational charts supplied by CMS demonstrated RC&E’s placement within CMS’s operational structure as a subsection of the Agency Services-Cook Section. Other subsections within that section include an upstate classification unit, a downstate classification unit, an employee assistance program and, currently, the executive recruitment division.

Although there were other personnel program supervisors with less seniority than plaintiff in the other subsections of the Agency Services-Cook Section, CMS contended that their status was irrelevant as they belonged to separate organizational units. They claim that RC&E was the only unit impacted by this reorganization. Because plaintiff was the only personnel program supervisor in RC&E, the alleged unit designated for layoff, it was not necessary to compare his record with any other supervisor and, therefore, the Personnel Code was not violated.

The evidence established that Tegard, plaintiff’s immediate supervisor, was required to assume plaintiff’s duties as a result of the elimination of plaintiff’s position. Tegard testified that these additional duties would affect the amount of time she had at her disposal to effectively manage other subsections under her supervision. In addition, Tegard assumed the additional responsibility of supervising a newly created unit identified as executive recruitment.

Despite this impact on the duties of the manager of the entire Agency Services-Cook Section, the Commission found the subsection RC&E to be the only unit impacted by the reorganization. Plaintiff’s termination was upheld.

Plaintiff filed a complaint for judicial review of the Commission’s decision. The parties filed a joint motion and stipulation in the circuit court in which “[t]he parties agree[d] and stipulate^] that the evidence before the [Commission] established] that the provisions of the Personnel Code and Rules were not followed by [CMS] if the Agency Services-Cook Section [was] determined to be the organization unit of layoff.” The stipulation noted that plaintiff’s contention was that the Agency Services-Cook Section was the organizational unit of layoff. Conversely, CMS’s contention was the RC&E was the proper organizational unit of layoff.

Pursuant to the stipulation, the court entered a final order finding the Agency Services-Cook Section to be the proper organizational unit of layoff and reinstated the plaintiff. This appeal followed.

It is well settled that a decision of an administrative agency will not be reverséd unless it is contrary to the manifest weight of the evidence. (Eastman Kodak Co. v. Fair Employment Practices Comm’n (1981), 86 Ill. 2d 60, 426 N.E.2d 877.) The sole function of the reviewing court is to ascertain whether the final decision of the agency is just and reasonable in light of the evidence presented. Penrod v. Department of Corrections (1979), 72 Ill. App. 3d 649, 391 N.E.2d 59.

The Director of CMS is specifically empowered to promulgate personnel rules governing all employees appointed under the Personnel Code. (Ill. Rev. Stat. 1985, ch. 127, par. 63b108.) Layoffs from State service can only be effected if the action is taken in compliance with the applicable provisions of the Personnel Code and personnel rules in the Illinois Administrative Code. If the layoff was not in compliance, the employee shall be reinstated. Ill. Rev. Stat. 1985, ch. 127, par. 63b110(12).

Section 302.520(a) of the State government personnel code states that an operating agency may request a layoff of an employee for specifically enumerated reasons including reorganization. It further provides that the layoff shall be within organizational units justified by operations and approved prior to the layoff by the Director of the Department of Central Management Services. (80 Ill. Adm. Code 302.520(a) (1985).) Prior to a layoff, the Director must be provided with an explanation of the organizational unit selected, reflecting agency, facility, geographical, operational and other elements deemed relevant by the agency head. 80 Ill. Adm. Code 302.520(b) (1985).

The record indicates that the agency’s own witness, who purportedly conducted the review of the layoff plan, could not identify the explanation supplied by the agency for the unit selected in the layoff plan. Ultimately, he was forced to acknowledge that there was no explanation provided and that the reason he approved RC&E as the proper unit for reorganization was because his supervisor had designated it as the proper unit.

He also testified that the reason provided for the layoff itself was that it would eliminate an overlap of duties. However, when asked the nature of the duties that supposedly overlapped, he could not identify the overlap. He admitted that he could not determine whether there was a bona fide basis for the layoff because the plan did not specify the alleged overlapping duties.

The witness further testified that at the time he reviewed the plan, he was not aware of the fact that Tegard would be burdened with additional duties and that an additional unit would be created. If he had been made aware of these facts, he is not certain whether or not he would have approved the plan of reorganization.

It is clear that CMS failed to provide the required explanation as to the organizational unit selected. This was compounded when it did not further investigate the appropriateness of the unit selected for reorganization. In addition, there was no bona fide reason provided for the layoff itself. Such conduct fails to meet any reasonable standard of compliance with the Personnel Code and rules governing layoff.

We, therefore, conclude that the trial court correctly determined that the decision of the Commission upholding the termination was against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SCARIANO and EGAN, JJ., concur.

       Justice Egan participated in the decision of this case prior to his assignment to the sixth division.


author: JUSTICE BILANDIC

text:
    MARCIA FRIEDMAN, Plaintiff-Appellant, v. RANDALL J. GINGISS et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—1078
    Opinion filed April 18, 1989.

      John D. Lien and Joanne A. Sarasin, both of Antonow & Fink, of Chicago, for appellant.
    Stanley B. Block and Diane M. Kehl, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellees Randall J. Gingiss and Helene M. Gingiss.
    Thomas P. Marnell, of Tyrrell & Flynn, of Chicago, for appellee 1100 Lake Shore Drive Condominium Association.
   JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Marcia Friedman, filed a complaint for declaratory relief and permanent injunction against defendants, Randall and Helene Gingiss and the 1100 Lake Shore Drive Condominium Association. The trial court granted defendants’ motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). This appeal followed.

1100 North Lake Shore Drive is a residential condominium building in Chicago, Illinois. One- and two-story apartment units are located on floors 3 through 40. Each floor contains three units: an A and a C unit, which are two-story units, and a B unit, which is a one-story unit. The odd-numbered floors contain the first level of the A and C units and an entire B unit. The even-numbered floors contain the second level of the A and C units and an entire B unit. The primary entrances to the two-story units are located on the odd-numbered floors, with another door on the even-numbered floor above. As originally designed, this second story did not have any exterior hardware and, therefore, this door could only be used for egress.

Plaintiff owns unit 20B, a one-story apartment on the 20th floor. She shares the 20th floor with the second level of units 19A and 19C. While units 19A and 19C have their primary entrance on the 19th floor, they also have doors on the 20th floor. Defendants Randall and Helene Gingiss own unit 19A. The owner of unit 19C is not a party to this litigation.

The complaint alleges that plaintiff purchased unit 20B because it did not share the 20th floor hallway with any other unit’s primary entrance and because under the association rules and regulations, she had the option to decorate the hallway. Plaintiff exercised this option.

The complaint further alleges that since Randall and Helene Gingiss moved into unit 19A, they have improperly used their door located on the 20th floor as a regular means of ingress and egress. It alleges that Randall and Helene Gingiss also installed a key-activated lock on the exterior of the door, thus facilitating ingress by way of the 20th-floor door.

Plaintiff claims that the use of the 20th-floor door by Randall and Helene Gingiss interferes with her right to the exclusive and peaceful enjoyment of the 20th-floor hallway and the peaceful use of her unit. Plaintiff asked the court to declare a negative easement for the benefit of her unit, 20B, which would restrict the owners of unit 19A (and 19C, which is similarly situated) from using their 20th-floor door except as an emergency exit.

The trial court dismissed the complaint for failure to state facts sufficient to warrant the imposition of a negative easement.

In order to withstand a motion to dismiss, a complaint must set forth a legally recognized claim as the basis for recovery and must properly plead facts. (Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 458 N.E.2d 1120.) A motion to dismiss admits for purposes of review all well-pleaded facts. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.) Exhibits attached to the complaint are considered part of the complaint. (Bond v. Dunmire (1984), 129 Ill. App. 3d 796, 473 N.E.2d 78.) If there is a conflict between the allegations of the complaint and the exhibits, the exhibits control. (Salisbury v. Chapman Realty (1984), 124 Ill. App. 3d 1057, 465 N.E.2d 127.) A complaint must be dismissed with prejudice if it is determined that no facts exist which would entitle plaintiff to the relief requested. White Fence Farm, Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234, 424 N.E.2d 1370.

A negative easement precludes the owner of the land subject to the easement from doing an act which, but for the easement, the owner would be entitled to do. (Chapman v. Sheridan-Wyoming Coal Co. (1950), 338 U.S. 621, 94 L. Ed. 393, 70 S. Ct. 392.) Easements can only be created by grant, implication or prescription. (Evanik v. Janus (1983), 120 Ill. App. 3d 475, 484, 458 N.E.2d 962.) To acquire an easement by grant, although no particular words are necessary, they must clearly show an intention by the grantor to confer an easement. (Chicago Title & Trust Co. v. Wabash-Randolph Corp. (1943), 384 Ill. 78, 85, 51 N.E.2d 132.) The terms of the grant must be definite, certain and unequivocal. (Aebischer v. Zobrist (1977), 56 Ill. App. 3d 151, 155, 371 N.E.2d 1003.) In the instant case, plaintiff contends that the language of the condominium documents grant a negative easement against unit 19A. We disagree.

The condominium declaration and the rules and regulations of the condominium association are attached to the complaint. Therefore, they are considered part of the complaint and will control over conflicting allegations in the pleadings. The condominium declaration expressly states:

“Each Unit Owner shall be entitled to the percentage of ownership in the Common elements allocated to the respective Unit ***. Said ownership interest in the Common Elements shall be an undivided interest, and the Common elements shall be owned by the Unit Owners as tenants in common ***.
Each Unit Owner shall have the right to use the Common Elements *** in common with all other Unit Owners, as may be required for the purposes of access, ingress to, egress from, use, occupancy and enjoyment of the respective Unit owned by such Unit Owner.”

The declaration further defines common elements as:

“all portions of the Property *** including without limitation *** hallways, stairways, entrances and exits, lobby.” (Emphasis added.)

There is no other language in the documents characterizing the particular hallway at issue as anything but a common element. The declaration also provides:

“Each Unit Owner of a Unit which is the sole Unit located entirely on any single floor of the Building shall have the right to decorate the common hallway on such floor, subject to the rules and regulations of the Association.” (Emphasis added.)

The rules and regulations make the option to decorate subject to approval of the Condominium Board and require that the decoration “shall not impair access to the common hallway.”

Plaintiff contends that she acquired a negative easement in favor of her unit when she decorated the 20th-floor hallway. If plaintiff’s theory is correct, unit 19A (and unit 19C, which is similarly situated) would be subservient to her easement. The same benefit would have to be extended to the owner of each one-story unit on an even-numbered floor. Likewise, the same detriment would be imposed on the owner of each two-story unit throughout the building.

In order to establish the dominance of her unit and the subservience of unit 19A (and unit 19C), plaintiff must allege sufficient facts to invoke the equitable principle of a negative easement. The terms of the grant of the negative easement must be definite, certain and unequivocal. (Chicago Title & Trust Co. v. Wabash-Randolph Corp. (1943), 384 Ill. 78, 85, 51 N.E.2d 132.) The allegations of plaintiff’s complaint do not meet that burden. On the contrary, it establishes that hallways are common elements owned as tenants in common by the unit owners, to be used by each unit owner “in common with all other Unit Owners, as may be required for the purposes of access, ingress to, egress from, use, occupancy and enjoyment of the respective Unit owned by such Unit Owner.”

The exercise of an option to decorate a hallway does not rise to the level of a “definite, certain and unequivocal” fact which constitutes a “grant, implication or prescription” that creates an easement.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SCARIANO and EGAN, JJ., concur.

       Justice Egan participated in the decision of this case prior to his assignment to the sixth division.


text:
    GLADYS EASA, Plaintiff-Appellant, v. GROUP III PROMOTIONS, INC., Defendant (Karen Doerr, Defendant-Appellee).
    First District (2nd Division)
    No. 1—88—1399
    Opinion filed April 18, 1989.

      John J. Dwyer, Jr., of Robert W. Karr & Associates, Ltd., of Chicago, for appellant.
    Maria G. Enriquez and Sandra Young, both of Purcell & Wardrope, Chartered, of Chicago, for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff appeals the dismissal of her complaint with prejudice, arguing that the trial court erred in considering her activities prior to the running of the statute of limitations in ruling on defendant’s Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) motion to dismiss.

Plaintiff alleges that she suffered injuries as a result of an automobile accident occurring on March 2, 1985. On July 31, 1985, she filed suit. On March 2, 1987, the statute of limitations on plaintiff’s cause of action ran. On July 31, 1987, her action was dismissed for want of prosecution; nevertheless, for some obscure reason, as the trial judge commented at the hearing on the motion to dismiss, an order permitting plaintiff to nonsuit her action was entered on August 10, 1987, and she refiled the action on August 11, 1987, pursuant to section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217). A motion to vacate the order of July 31, 1987, which had dismissed the case for want of prosecution, was not filed until August 24, 1987, and the order granting that motion was entered October 21, 1987. (These orders are not included in the record on appeal; however, the trial judge recited the procedural history of the case in his decision on defendant’s Rule 103(b) motion, and a transcript of that hearing is included in the record. Additionally, although plaintiff did not raise the matter before this court, a review of that transcript indicates that she changed attorneys at the time she took a nonsuit and refiled her action, but her new attorneys had made no “endeavor to find out why no service was had by the prior counsel.”)

Group III Promotions, Inc. (Group III), was served on August 17, 1987. Return of service on Karen Doerr (defendant herein), dated August 18, 1987, revealed that she had a Tennessee address. An alias summons for service of process was issued on September 4, 1987, and defendant was served on September 15, 1987. On April 5, 1988, the trial court granted defendant’s motion to dismiss pursuant to Rule 103(b) (107 Ill. 2d R. 103(b)), stating:

“If a plaintiff’s failure to exercise reasonable diligence in effectuating service of process occurs prior to the passage of the applicable statute of limitations, Rule 103(b) provides that the court may dismiss the action without prejudice. Under such circumstances the court has no authority to dismiss the action with prejudice. [Citation.]
If, however, a plaintiff’s failure to diligently serve process continues on past the passage of the applicable statute of limitations, then the rule mandates that the dismissal be granted with prejudice.
There is no doubt that the plaintiff acted diligently in serving the movants some 34 days after refiling, but then so also was the plaintiff in O’Connell v. St. Francis Hospital diligent in the refiled action when service was effectuated nine days after refiling.
The fact still remains that the original action herein was dismissed for want of prosecution some two years after filing and some five months after the statute of limitations had run without service ever having even been attempted on the movant.
It is clear that the plaintiff lacked any diligence in attempting service in the original action and that the failure continued past the passage of the applicable statute of limitations. As a consequence, by its very language, Rule 103(b) mandates that the plaintiff’s action against this movant be dismissed and dismissed with prejudice. That’s the order.”

Plaintiff appeals from this order. Group III had also filed a Rule 103(b) motion, but did not pursue it before the trial court and is not involved in this appeal.

Opinion

Supreme Court Rule 103(b) provides as follows:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” (107 Ill. 2d R. 103(b).)

Plaintiff argues that the trial court misconstrued this statute to require dismissal with prejudice when “a lack of reasonable diligence to obtain service continues after the statute of limitations runs.” She contends that the correct interpretation of Rule 103(b) requires dismissal with prejudice only when such a lack of reasonable diligence occurs after the statute of limitations runs. She also contends that had she filed her complaint shortly prior to the running of the statute of limitations and served defendant within five months, the same time defendant in this action was served, she would have a viable claim. Thus, plaintiff maintains, she is being penalized for filing early.

Plaintiff dismissed her original complaint pursuant to section 13— 217, which provides in pertinent part as follows:

“[In actions] where the time for commencing an action is limited, if *** the action is voluntarily dismissed by the plaintiff *** the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, *** after the action is voluntarily dismissed.” (Ill. Rev. Stat. 1987, ch. 110, par. 13-217.)

Our supreme court addressed the interrelationship between Rule 103(b) and section 13 — 217 in a number of cases, including O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d .1322, Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586, and Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932.

In O’Connell, plaintiff’s claimed injury occurred on June 29, 1981, and he filed suit on June 29, 1983, which was the last day for filing under the applicable statute of limitations. The first summons issued eight months later, and all defendants were served by the end of March 1984. Defendants filed Rule 103(b) motions to dismiss with prejudice and, in response, plaintiff filed a motion for voluntary dismissal. Without hearing argument or ruling on defendants’ Rule 103(b) motions, the trial court granted plaintiff’s motion and dismissed the complaint. Plaintiff refiled on August 1, 1984, and the trial court denied defendants’ refiled Rule 103(b) motions to dismiss with prejudice. The supreme court reversed this denial, stating:

“Nothing is more critical to the judicial function than the administration of justice without delay. ***
Due diligence in serving process is essential to this purpose, for it is the sole legally sufficient means of alerting defendants to the pendency of a civil suit. In addition, service with due diligence, by promptly placing defendant on notice of a pending action, shortens the time needed to investigate, prepare and litigate the issues raised, thereby allowing the court to proceed expeditiously to a just resolution of the matter before it.
* * *
We hold * * * that where a plaintiff relies on sections 2 — 1009 [Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009 (which allows plaintiff, at any time before trial or hearing begins, upon notice, to dismiss his or her action as to any defendant, without prejudice)] and 13 — 217 in response to a pending Rule 103(b) motion, the Rule 103(b) motion must be heard on its merits prior to a ruling on plaintiff’s motion to dismiss under section 2 — 1009. We further hold that, in ruling on the pending Rule 103(b) motions, the trial court may consider the circumstances surrounding plaintiff’s service of process on his original as well as his refiled complaint.” 112 Ill. 2d at 282, 283.

In Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586, plaintiff sought damages for personal injuries suffered in an auto accident occurring on December 31, 1979. On December 30, 1981, one day before the applicable statute of limitations ran, he filed suit against the ICG and Novak, its employee; Novak was served with process nearly a year later, on December 21, 1982, but the ICG was never served. Novak filed a Rule 103(b) motion to dismiss, but on April 6, 1983, the trial court granted plaintiff’s section 2 — 1009 motion for voluntary dismissal, filed in response to Novak’s motion. Nine months later, on January 10, 1984, plaintiff refiled his complaint, pursuant to section 13 — 217. The ICG was served three days later and Novak was served four days later. The trial court granted the ICG’s Rule 103(b) motion to dismiss with prejudice, ruling that section 13 — 217 is unconstitutional because it violated the ICG’s due process rights to rely on the statute of limitations, and plaintiff appealed. (Novak was not involved in the appeal.) The supreme court vacated that part of the trial court’s order which held section 13 — 217 unconstitutional, stating:

“O’Connell made clear that a plaintiff’s right to voluntarily dismiss and refile his complaint under sections 2 — 1009 and 13 — 217 are subject to the reasonable-diligence standards of Rule 103(b). *** While the plaintiff in O’Connell had voluntarily dismissed his case after his diligence was challenged by one of the defendants, the ICG did not have the opportunity to challenge Catlett’s diligence because it had not been served with process. The record here indicates that the plaintiff made no effort to serve the ICG on the first complaint. As in O’Connell, however, plaintiff’s exercise of his rights to dismiss and refile demonstrates how the two sections may be coordinated so as to protract unduly and unfairly the service of process on a defendant and defeat Rule 103(b)’s effort to insure the prompt administration of justice. *** In light of and consistent with the intent of the decision in O’Connell, we remand this cause to the trial court for a hearing under Rule 103(b) on the question of reasonable diligence of the plaintiff in serving process. At that hearing, the trial court ‘may consider the circumstances surrounding plaintiff’s service of process on his original as well as his refiled complaint.’ O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283.” Catlett, 116 Ill. 2d at 70-71.

In Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932, plaintiff brought suit for injuries allegedly suffered as a result of surgery performed between July 23 and July 26, 1980. She filed her complaint on July 22, 1982, one day before the applicable statute of limitations ran. The suit remained pending for two years, during which time plaintiff made no attempt to serve any of the defendants. Her action was dismissed for want of prosecution on July 23, 1984. She refiled on July 23, 1985, pursuant to section 13 — 217, and all of the defendants were served by the end of October 1985. The trial court denied defendants’ motion to dismiss under Rule 103(b), ruling that the appropriate time by which to measure plaintiff’s diligence commenced with refiling of the lawsuit. The appellate court reversed and the supreme court affirmed the appellate court, stating:

“Our Rule 103(b) provides that if the failure to exercise reasonable diligence to obtain service occurs after the expiration of the application [sic] statute of limitations, the dismissal shall be with prejudice. The wording of Rule 103(b) requires that the exercise of diligence in obtaining service of process after the expiration of the statute of limitations be considered whether that lack of diligence occurred in the first suit or after it had been dismissed and refiled.” (Emphasis in original.) 122 Ill. 2d at 49.

Plaintiff argues that O’Connell, Catlett and Muskat do not require that her complaint be dismissed with prejudice, because in each of those cases the original complaint was filed shortly before the statute of limitations ran, and thus consideration of “[the] circumstances surrounding service of process in the first action necessarily entails scrutiny of reasonable diligence occurring after the [s]tatute of [[limitations ha[d] run.” She maintains that the supreme court’s reasoning in these cases would have been different had suit been on file for an extended period of time prior to the running of the statute of limitations, as it was in the case at bar.

Defendant responds that she had no opportunity to challenge plaintiff’s diligence in the original action because she was not served; therefore, the trial judge properly considered the period between the original filing and when she was served and found that plaintiff failed to exercise reasonable diligence. Summons issued in this case more than 24 months after plaintiff filed her original complaint, and six months after the statute of limitations had run. Defendant contends that plaintiff has violated the purpose of Rule 103(b), which is to “safeguard against the undermining and circumvention of statutes of limitation” (Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 287, 492 N.E.2d 1), and that O’Connell, Catlett and Muskat mandate that plaintiff’s complaint be dismissed with prejudice.

The trial court’s decision on a Rule 103(b) motion will not be disturbed on appeal absent a showing of abuse of discretion. (Gatto, 142 Ill. App. 3d at 288.) Plaintiff has failed to make such a showing. As the supreme court stated in O’Connell, due diligence in serving process is essential to the administration of justice. (O’Connell, 112 Ill. 2d at 282.) Under Rule 103(b), plaintiff has the burden of showing that she has exercised reasonable diligence to obtain service, and there is no indication in the record that plaintiff made any attempt to serve defendant in the original suit. The fact that she filed shortly after the accident which is the subject of this suit does not excuse her lack of compliance with that rule. As our supreme court has noted, service of process “is the sole legally sufficient means of alerting defendants to the pendency of a civil suit.” (O’Connell, 112 Ill. 2d at 282.) Additionally, service with due diligence provides defendants with an opportunity to “investigate, prepare and litigate the issues raised.” (O’Connell, 112 Ill. 2d at 282.) In the instant case, plaintiff’s prompt filing did not inure to the benefit of defendant, because she was not put on notice that a suit was pending and that she should begin preparing her defense. Although counsel for plaintiff made a representation to the trial court in the hearing of the Rule 103(b) motion that “both defendants knew of the pendency of this cause of action shortly after the original filing, as is evidenced by a response from Firemen’s Fund to answer the complaint,” the record is barren of any support for this argument, and we note especially that it is not raised in this court. In sum, contrary to plaintiff’s argument, she is not being penalized for filing early, but for failing to exercise reasonable diligence in effectuating service on defendant.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BILANDIC, P.J., and EGAN, J., concur.

       Judge Egan participated in the decision of this case prior to becoming a member of the sixth division.