Barbour v. Fred Berglund & Sons, Inc.

• Citation: 153 Ill.Dec. 551,567 N.E.2d 509,208 Ill.App.3d 644
• Decision Date: 31 December 1990
• Docket Number: No. 1-89-0659,1-89-0659
• Parties: , 153 Ill.Dec. 551 John BARBOUR, Plaintiff-Appellant, v. FRED BERGLUND & SONS, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 509

567 N.E.2d 509

208 Ill.App.3d 644, 153 Ill.Dec. 551

John BARBOUR, Plaintiff-Appellant, v. FRED BERGLUND & SONS, INC., Defendant-Appellee.

No. 1-89-0659.

Appellate Court of Illinois First District, Fourth Division.

Dec. 31, 1990.

[208 Ill.App.3d 645] [153 Ill.Dec. 552] Arthur E. Engelland, Chicago, for plaintiff-appellant.

Law Offices of James J. Desveaux (Thomas P. Mangan, of counsel), Chicago, for defendant-appellee.

Presiding Justice McMORROW delivered the opinion of the court:

Plaintiff, John Barbour, filed a personal injury suit against defendant, Fred Berglund & Sons, Inc. Plaintiff's suit was dismissed on the ground that it was not filed within the time limited by law. Plaintiff appeals, contending that the trial court erred when it ruled that this case did not come within the misnomer provision of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-401(b)) (the Code) and was barred by the statute of limitations.

Plaintiff's case arose from an injury he suffered on June 21, 1985, when a beam collapsed and fell on him while he was working at a construction site in Chicago. Plaintiff's employer, Patent Scaffolding Co., was a subcontractor at the site.

On June 18, 1987, plaintiff filed a complaint naming Bergman Construction as the only defendant. The complaint alleged that Bergman Construction was the general contractor at the site on the date of plaintiff's injury. On the day his lawsuit was filed, plaintiff requested that summons be served on Bergman Construction at 3116 River Road in River Grove, Illinois. The sheriff's return stated that summons was served on an agent of Bergman Construction at the address given.

On December 2, 1987, plaintiff moved to quash summons, file an amended complaint and issue alias summons. The motion stated that the summons and complaint were served upon I. Bergman Construction and that I. Bergman Construction verified that it was not the defendant in this cause. Upon the granting of the motion, plaintiff filed an amended complaint against defendant, Fred Berglund and Sons, Inc. On December 17, 1987, summons was served upon Fred Berglund and Sons, Inc. at 8410 South Chicago Avenue in Chicago.

On March 10, 1988, defendant filed an appearance and a motion to dismiss in lieu of an answer. The motion asserted that Fred Berglund and Sons, Inc. was not named as a defendant in this case nor was summons issued until December 2, 1987; that the two-year statute of limitations for personal injury actions expired on June 21, 1987; and that, therefore, plaintiff's suit was barred because it was not timely filed.

On April 8, 1988, the trial court granted defendant's motion to dismiss with prejudice pursuant to section 2-619(a)(5) of the Code. (Ill.Rev.Stat.1987, ch. 110, par. 2-619(a)(5).) On April 14, 1988, plaintiff moved to vacate the dismissal on the ground that he had not received notice of the motion, and had no knowledge of the hearing on defendant's motion until he received a copy of the ex parte order granting it. Plaintiff requested vacatur of the order and leave to file a response to the motion to dismiss. Plaintiff's motion to vacate the April 8, 1988 dismissal was granted, and plaintiff was given time to file his response to defendant's motion to dismiss.

In his response, plaintiff asserted that his original naming of Bergman Construction as defendant was merely a misnomer, and that under section 2-401(b) of the Attached to the response was plaintiff's affidavit in which he averred the following: that at the time of his injury he was employed by Patent Scaffolding Co., a subcontractor at the site; that he did not deal directly with the general contractor and incorrectly believed the general contractor's name to be Bergman Construction; that at no time did Bergman Construction contract or sub-contract for any work on the site; that a subsequent investigation revealed that there is no such company as Bergman Construction; and that it was never his intention to bring suit against any construction contractor other than the general contractor on the job site where his injury occurred, which was Fred Berglund and Sons, Inc. Plaintiff asserted that as a result of his mistaken belief that the general contractor's name was Bergman Construction, he misnamed Fred Berglund and Sons, Inc. in his complaint, but that upon discovery of the misnomer, he immediately corrected it by having his complaint amended to name Fred Berglund and Sons, Inc. as the real party in interest and by effectuating service of summons upon Fred Berglund and Sons, Inc., in accordance with the misnomer statute.

[153 Ill.Dec. 553] Code, the case should not have been dismissed. He argued that misnomer is not a basis for dismissal, and that the error may be corrected at any time by amendment of the complaint and upon proof that summons was served on the party in interest who at all times was intended to be made the defendant, thereby giving that party actual notice of the lawsuit. Plaintiff maintained that it was his intention when he filed his original complaint to name Fred Berglund and Sons, Inc., the general contractor at the site of his injury, as the defendant in this action, but that defendant was misnamed as Bergman Construction. He further asserted that Fred Berglund and Sons, Inc. was the real party in interest, and that according to section 4-102(b) defendant was served with process and therefore had actual notice of the suit.

On June 14, defendant filed a motion to vacate the order of April 20 and reinstate the dismissal order of April 8. In support of its motion, defendant argued that plaintiff had failed to file his response to the motion to vacate by the date prescribed in the order. Defendant also filed a reply to plaintiff's response to the motion to dismiss. In its reply, defendant argued that the misnomer statute was not applicable because this was not a case of misnomer but, rather, a case of mistaken identity. Defendant noted that plaintiff named Bergman Construction in his original complaint and that service of summons was effectuated at the address plaintiff listed for Bergman Construction. Defendant maintained that plaintiff did not misname the correct party but, instead, named the wrong party in his complaint. Defendant argued that because it was not until after the expiration of the statute of limitations that plaintiff named and served summons upon Fred Berglund and Sons, Inc., the April 8 order dismissing the action should be reinstated.

Following a hearing on July 29, 1988, the trial court granted defendant's motion and dismissed the action with prejudice. On August 29, plaintiff filed a motion to reconsider, arguing again that this was a case of misnomer. He attached to his motion the affidavit of David Barbour, which essentially reiterated the averments in plaintiff's earlier-filed affidavit. On January 27, 1989, the trial court denied plaintiff's motion for reconsideration, and this appeal followed.

OPINION

Section 2-401(b) of the Code provides:

"Misnomer of a party is not a ground for dismissal but the name of party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires."

The rule that misnomer is not a ground for dismissal is a narrow one, and applies only where an action is brought and summons is served upon a party intended to be made a defendant. In a misnomer case, actual notice of the lawsuit is given to the real party in interest, but the complaint and process do not refer to the person by his correct name. (Ashley v. Hill (1981), 101 Ill.App.3d 292, 56 Ill.Dec. 773, 427 N.E.2d 1319; see also Tyler v. J.C. Penney Co. (1986), 145 Ill.App.3d 967, 99 Ill.Dec. 748, 496 N.E.2d 323.) Courts of this State have consistently distinguished the misnomer rule from rules applicable to a mistake in identity. The misnomer statute applies only to correctly joined and served, but misnamed, parties. Mistaken identity occurs when the wrong person was joined and served. The intent of the plaintiff is a pivotal inquiry in the determination of whether a particular case involves misnomer or mistaken identity. However, the plaintiff's subjective intent as to whom he intended to sue is not controlling where the record contains objective manifestations indicating an intent to sue another. See also Hoving v. Davies (1987), 159 Ill.App.3d 106, 111 Ill.Dec. 340, 512 N.E.2d 729; Leonard v. City of Streator (1983), 113 Ill.App.3d 404, 69 Ill.Dec. 272, 447 N.E.2d 489; Clinton v. Avello (1982), 105 Ill.App.3d 336, 61 Ill.Dec. 202, 434 N.E.2d 355.

The test in deciding whether the misnomer statute applies is whether the party sued is the real party in interest. (Borkoski v. Tumilty (1977), 52 Ill.App.3d 839, 10 Ill.Dec. 650, 368 N.E.2d 136.) If section 2-401(b) applies, service of summons after the expiration of the statute of limitations does not bar the suit, provided that the plaintiff used reasonable diligence in obtaining service upon the proper defendant. However, in cases of mistaken identity, service upon the proper defendant is required before the expiration of the time provided in the statute of limitations. See also Thielke v. Osman Construction Corp. (1985), 129 Ill.App.3d 948, 85 Ill.Dec. 206, 473 N.E.2d 574.

Plaintiff contends that this was a case of misnomer and that section 2-401(b) authorized the amendment of his complaint to name, and cause process to be served upon, Fred Berglund and Sons, Inc., even though the statute of limitations had expired by the time the misnomer was discovered. It is his position that the pivotal inquiry in this case, as in other misnomer cases, is whom he intended to sue. He argues that it had always been his intention to sue the general contractor on the job site at the time of his injuries, but that he was unaware of the general contractor's name and misnamed it as Bergman Construction.

Plaintiff concedes that if he intended to sue Bergman Construction, as...