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THIRD DIVISION
OCTOBER 31, 2001

Plaintiff, Karen Kole, appeals the order of the circuitcourt dismissing with prejudice her medical negligence complaintagainst defendants, Linda Brubaker, M.D., and UniversityUrogynecologists ("University"), pursuant to Supreme Court Rule103(b) (177 Ill. 2d R. 103(b)) for failing to exercise reasonablediligence in effectuating service of process. Plaintiffprimarily takes issue with the trial court's finding of a lack ofdiligence on her part, arguing that the record amply demonstratesthat defendants were served in a timely fashion. Plaintiffalternatively maintains that, even if the trial court'sdetermination was correct, dismissal of her claims should nothave been with prejudice and that the trial court erred in notaffording her an opportunity to refile. For the followingreasons, we affirm.

Prior to the instant action, plaintiff, an attorney whosuffers from multiple sclerosis, had been a regular patient ofDr. Brubaker and University since 1982. On January 27, 1999,plaintiff filed a two-count pro se complaint charging defendantswith negligence allegedly arising from defendants' care andtreatment of certain complications experienced by plaintiff dueto her multiple sclerosis.⁽¹⁾ Summons directed against thedefendants was placed with the sheriff at the time. After twounsuccessful attempts, the summons was returned on February 16,1999 "not served" due to an incorrectly stated address. Thereturn of service indicates the address stated on the face of thesummons was the office location of Dr. Brubaker's husband. According to the return, the serving deputy was told bydefendant's husband that Dr. Brubaker did not conduct, and hadnever conducted, her practice at that location.

The record discloses that plaintiff undertook no action inthe case from the time the original summons was returned onFebruary 16 until some unspecified date in June 1999 whenplaintiff hired attorney Corey Meyer to represent her. Notwithstanding the retainment of counsel, plaintiff's case wasdismissed for want of prosecution on July 29, 1999, due toMeyer's failure to attend a scheduled case management conference.

Meyer responded on August 13, 1999 by moving the trial courtto vacate its dismissal order and reinstate plaintiff's claims. A hearing on said motion was set for August 23, 1999. However,because Meyer misdiaried the hearing date, plaintiff's motion wasnot heard until September 27, 1999. Following a hearing, thetrial court granted plaintiff's motion and reinstated plaintiff'scause. The court additionally allowed Meyer leave to enter anappearance on plaintiff's behalf and appointed a special processserver to effectuate an alias summons on defendants.

Meyer entered his appearance and issued an alias summonsdirected to defendants on October 1, 1999. Defendants wereultimately served with process on October 24, 1999, and two dayslater, the law firm of Cassidy, Schade & Gloor, through attorneyJoseph Camarra, formally appeared on defendants' behalf.

On October 27, 1999, defendants moved to dismiss plaintiff'scomplaint pursuant to Supreme Court Rule 103(b), which allows adefendant to seek dismissal of a plaintiff's claim or claimsagainst it when the plaintiff has failed to exercise reasonablediligence to obtain service. 177 Ill. 2d R 103(b). Defendantsclaimed plaintiff's service of summons upon them (October 24,1999), almost nine months after the filing of the complaint(January 27, 1999), and more than eight months after the returnof the original summons as not served (February 16, 1999),demonstrated a lack of reasonable diligence on plaintiff's partunder Rule 103(b). Defendant's motion was supported by theaffidavit of Dr. Brubaker which avers that the doctor, at allrelevant times, was a physician licensed to practice medicine inthe State of Illinois and an employee and principle ofUniversity. For the five years preceding the filing ofdefendant's Rule 103(b) motion, Dr. Brubaker's home and businessaddresses had respectively been the same. In addition, accordingto the affidavit, plaintiff resided at all relevant timesapproximately two blocks from Dr. Brubaker's home in RiverForest, Illinois, and, further, that plaintiff's husband was aphysician on the staff of Rush-Presbyterian Medical Center (Rush)where Dr. Brubaker conducted a majority of her practice. Dr.Brubaker maintained she never attempted to avoid service byplaintiff, either individually or as a principal of University,at any time prior to October 24, 1999.⁽²⁾

In response, plaintiff maintained the facts andcircumstances of the case show she exercised reasonable diligencein effectuating service on defendants. In support of hercontention, plaintiff specifically stressed that: she was actingpro se until October 1, 1999, and, while an attorney, had noexperience in civil litigation matters; summons directed atdefendants had been placed with the sheriff when the complaintwas filed but, due to the listing of an incorrect address, wasreturned "not served"; counsel was ultimately secured in June1999 and, following counsel's "extensive investigation" of thematter, an attempt was made to issue an alias summons on August1, 1999; at that time, counsel learned the case had beendismissed for want of prosecution on July 29; counsel respondedpromptly by seeking to have the dismissal vacated, which wasultimately achieved on September 27; shortly thereafter, counselentered his appearance and, slightly less than a month later, analias summons was served on defendants.

Plaintiff notably did not submit an affidavit with herresponse or any other evidentiary materials that detailed heractivities from the time of the complaint's filing and the datedefendant's were actually served, or that explained why it tookso long for her to provide process. Plaintiff's attorneysimilarly did not file an affidavit stating what action heundertook on plaintiff's behalf or efforts he expended to servedefendants. Plaintiff simply relied on the events of the case asdepicted by the record materials.

After considering "the totality of the circumstances andevidence, and weighing all of the relevant factors," the trialcourt concluded that plaintiff had "failed to demonstrate *** duediligence in effectuating service on defendants" and, thus,granted defendant's motion to dismiss in a written decisionissued on January 24, 2000. In deciding whether dismissal shouldbe with or without prejudice, the court determined that the two-year statute of limitations applicable to medical negligenceactions (735 ILCS 5/13-212(a) (West 1998)) began to run no laterthan July 30, 1997, when plaintiff sent a letter to the Chairmenof the OB/Gyn Department at Rush which was critical of Dr.Brubaker's care and treatment. Because "service on ***defendants on October 24, 1999 was past the expiration of thelimitations period", the court ordered its dismissal to be withprejudice.

Plaintiff initially challenges the trial court's findingthat she did not act with reasonable diligence in servingdefendants. Rule 103(b) does not set forth a specific time inwhich a defendant must be served but, rather, simply requires aplaintiff to exercise reasonable diligence to provide service ina timely manner. The rule was adopted to effectuate thehistorical and constitutional mandate that justice be fairly andpromptly rendered (Womick v. Jackson County Nursing Home, 137Ill. 2d 371, 377, 561 N.E.2d 25, 27 (1990)), and, to the end ofpromoting the expeditious handling of lawsuits, the trial courtsare permitted broad discretion to dismiss a case when service isnot effected in a diligent manner. Segal v. Sacco, 136 Ill. 2d282, 285-86, 555 N.E.2d 719, 720 (1990). Rule 103(b) furtheraims to protect a defendant from unnecessary delay in the serviceof process and to prevent the plaintiff from circumventing theapplicable statute of limitations, which are designed to affordthe defendant a fair opportunity of investigation, by filing suitbefore the expiration of the limitations period but taking noaction to have the defendants served until the plaintiff is readyto proceed with the litigation. Sacco, 136 Ill. 2d at 286, 555N.E.2d at 720; Marks v. Rueben H. Donnelly, Inc., 260 Ill. App.3d 1042, 1046-47, 636 N.E.2d 825, 829 (1994); Michael, IllinoisPractice, Civil Procedure,