Civil Litigation FlashPoints June 2013

Court Recognizes People (Occasionally) Evade Service; Rules Statements in Returns of Service Do Not Necessarily Equate to Actual Knowledge About Matters Asserted Therein

The Illinois Appellate Court recently issued an opinion answering a certified question regarding the effects of statements made by a process server in a return of service. As a result of the court’s holding in Walker v. Ware, 2013 IL App (1st) 122364, a plaintiff’s personal injury lawsuit will continue against the personal representative of a deceased defendant.

On June 23, 2008, Frieda Walker was allegedly injured on a flight of stairs located at property allegedly owned by Anne Taplin. 2013 IL App (1st) 122364 at ¶3. Mrs. Taplin died on April 9, 2009. 2013 IL App (1st) 122364 at ¶4. Several months later, however, Ms. Walker filed a lawsuit against Mrs. Taplin, and a summons was issued with the Cook County Sheriff to serve Mrs. Taplin with process. 2013 IL App (1st) 122364 at ¶5.

On June 11, 2009, the plaintiff’s summons was returned with a notation that Mrs. Taplin was “deceased” and, therefore, not served. Id. The June 11, 2009, return of service indicated that the information was “per daughter.” Id. Later, on August 11, 2009, the plaintiff issued an alias summons to Mrs. Taplin. 2013 IL App (1st) 122364 at ¶6. However, that summons was similarly returned as “not served” on August 20, 2009. Id. Similar to the earlier return of service, the August 20, 2009, return stated that Mrs. Taplin was “deceased” according to Mrs. Taplin’s grandson. Id.

On June 23, 2010, the two-year statute of limitations governing the plaintiff’s claim against Mrs. Taplin expired. 2013 IL App (1st) 122364 at ¶19. See also 735 ILCS 5/13-202. After that date, however, the plaintiff continued to attempt to serve Mrs. Taplin. As part of that effort, the plaintiff issued another alias summons, hired a special process server, and sought leave (unsuccessfully) to serve Mrs. Taplin by special order of the court. See 2013 IL App (1st) 122364 at ¶¶7 – 9. Eventually, after learning about Mrs. Taplin’s death through an online search, the plaintiff sought leave to spread the record of Mrs. Taplin’s death and to amend her complaint to name Dennis Ware, Mrs. Taplin’s spouse and representative, as defendant. 2013 IL App (1st) 122364 at ¶10. Mr. Ware was successfully served with process but proceeded to file a motion to dismiss the plaintiff’s complaint as being time-barred by §13-209(b) of the Code of Civil Procedure, 735 ILCS 5/13-209.

Section 13-209 of the Code of Civil Procedure explains how the relevant limitations period governing a claim is affected when a party dies before the statute of limitations expires. Section 13-209(b) applies if a person “against whom an action may be brought dies before the expiration of the time limited for the commencement thereof” and allows such actions (unless barred for other reasons) to be “commenced against [the decedent’s] personal representative after the expiration of the time limited for the commencement of the action, and within six months after the person’s death.” 735 ILCS 5/13-209(b). Meanwhile, §13-209(c) applies if a party “commences an action against a deceased person whose death is unknown to the party before the expiration of the time limited for the commencement thereof” [emphasis added] and allows such actions to be commenced against the deceased’s personal representative if (1) the party diligently seeks to substitute the personal representative for the decedent after learning of the death, (2) the party diligently seeks to serve the personal representative, and (3) the amended complaint is filed within two years of the time limited for the commencement of the original action. 735 ILCS 5/13-209(c). Meanwhile, another provision operates in limited circumstances to limit the liability of an estate that is served with process more than six months after the issuance of letters of office. Id.

In his motion to dismiss, Mr. Ware argued that the plaintiff’s complaint was barred by §13-209(b) because the plaintiff learned through the sheriff’s returns of service that Mrs. Taplin died prior to the expiration of the relevant statute of limitations but nonetheless failed to properly seek to amend her complaint within six months of Mrs. Taplin’s death. 2013 IL App (1st) 122364 at ¶10. In response, the plaintiff argued that the amendment of her complaint was timely pursuant to §13-209(c) because she did not learn of Mrs. Taplin’s death until conducting an online search on February 15, 2011 — despite receiving two sheriff’s returns of service prior to the expiration of the relevant statute of limitations stating that Mrs. Taplin had died. Id. The trial court agreed with the plaintiff, denied Mr. Ware’s motion, and ruled that §13-209(c) properly governed the plaintiff’s actions because no evidence established that she knew about the death prior to the expiration of the relevant limitations period. 2013 IL App (1st) 122364 at ¶¶11 – 13. But the trial court also granted Mr. Ware’s motion for a Rule 308(a) finding and interlocutory appeal of the decision. Id.

The narrow issue before the court on the interlocutory appeal was “whether a sheriff’s return of service provides knowledge of the contents therein.” 2013 IL App (1st) 122364 at ¶21. At the outset of its ruling, the court noted that a return of service has a presumption of validity when it states that service was made by personal service. Id. However, the court also stated that such returns are not presumptively valid when they reflect that service was made in any fashion other than personal service (e.g., by abode service) and, in fact, do not even serve as admissible evidence when service is challenged. Id. (Instead, actual testimony from the server is required to defend against a challenge.) Id.

Based on these guideposts, the court concluded that the “returns of service [stating Mrs. Taplin was deceased did] not have presumptions of validity and they [could] only provide prima facie evidence as to matters within the personal knowledge of the sheriff that executed the summons.” 2013 IL App (1st) 122364 at ¶22. Applied to the case, the court’s ruling meant that the sheriff’s statements in the returns of the service established only that two individuals alleging they were Mrs. Taplin’s daughter and grandson alleged to the sheriff that Mrs. Taplin had died — not that Mrs. Taplin had, in fact, died. Id. Because knowledge of Mrs. Taplin’s death was not imputed to the plaintiff prior to the expiration of the relevant statute of limitations based on the statements in the returns of service, the court ruled that the plaintiff had not needed to amend her complaint in accordance with §13-209(b) and, instead, was obligated to comply with §13-209(c). 2013 IL App (1st) 122364 at ¶¶24 – 25. Given that holding, the trial court’s determination that the plaintiff had complied with §13-209(c) by amending her complaint within two weeks of learning about the plaintiff’s death through an online search was upheld.

The court’s ruling serves as an important lesson to any party to a lawsuit involving a challenge to service. The ruling highlights that there are limitations on the knowledge that will be imputed to a party based on statements made in a return of service. It also illustrates that, under the right circumstances, these limitations can carry important consequences for litigants.