Cigan v. St. Regis House Hotel

• Decision Date: 12 June 1979
• Docket Number: No. 78-1726,78-1726
• Citation: 391 N.E.2d 197,29 Ill.Dec. 38,72 Ill.App.3d 884
• Parties: , 29 Ill.Dec. 38 Maria CIGAN, Plaintiff-Appellant, v. ST. REGIS HOUSE HOTEL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 197

391 N.E.2d 197

72 Ill.App.3d 884, 29 Ill.Dec. 38

Maria CIGAN, Plaintiff-Appellant, v. ST. REGIS HOUSE HOTEL, Defendant-Appellee.

No. 78-1726.

Appellate Court of Illinois, First District, Second Division.

June 12, 1979.

Jeffrey Gottlieb and Kenneth A. Dean, Palatine, for plaintiff-appellant.

George J. Cullen, Ltd., Chicago, for defendant-appellee, Merryman Hotel Corporation.

STAMOS, Presiding Justice:

Plaintiff, Maria Cigan, appeals from an order of the circuit court of Cook County dismissing her Motion to Amend the Process, Pleadings and Judgment as entered against the St. Regis House Hotel on October 31, 1977. This judgment originated in an award by an arbitrator for the Illinois Industrial Commission on August 10, 1973. The award was registered with the circuit court of Cook County ordering the St. Regis House Hotel to pay.$12,494.50 plus interest. Plaintiff endeavored to have the judgment below amended to include St. Regis Hotel d/b/a St. Regis House Hotel and Merryman Hotel Corporation d/b/a St. Regis House Hotel. The issue on appeal is whether the trial court erred in not finding that the original designation of St. Regis House Hotel as defendant is a misnomer for which amendment following judgment is allowed by section 21 of the Civil Practice Act. Ill.Rev.Stat.1977, ch. 110, par. 21(2).

On January 7, 1972, Maria Cigan was injured during an armed robbery at her place of employment. Subsequently a claim was filed with the Illinois Industrial Commission and a hearing ensued. It appears that notices of this hearing and of the subsequent order were sent to the St. Regis House Hotel at 516 North Clark Street, Chicago, Illinois. The arbitrator found that plaintiff was injured in the course of her employment as a waitress and that an employer-employee relationship existed between plaintiff and the St. Regis House Hotel. An award of.$12,494.50 plus interest of 6% Was made. The hearing was ex parte because no attorney appeared on behalf of the St. Regis House Hotel. No appeal was taken from the arbitrator's decision although a copy of the order was sent to the St. Regis House Hotel at the above address.

Four years later, on August 31, 1977, plaintiff filed an Application for Entry of Judgment in Accord with Final Decision of the Illinois Industrial Commission. Defendant appeared on October 27, 1977, by its attorney, Edward F. Downey, designating itself variously as the St. Regis House Hotel, St. Regis (House) Hotel, and St. Regis Hotel in a verified Reply to plaintiff's Motion to Enter the Award. Shortly thereafter, on October 31, 1977, defendant filed a Motion to Set Aside Award of Arbitrators of Illinois Industrial Commission. Following these motions, an order was entered by the circuit court of Cook County on behalf of plaintiff against defendant, St. Regis House Hotel, for the amount of the arbitrator's award,.$12,494.50 plus interest of 6%. Defendant's Motion to Set Aside was accordingly dismissed. No appeal was taken from that order.

On May 9, 1978, George J. Cullen entered a special and limited appearance as attorney acting on behalf of Merrymen Hotel Corporation. Eight days later, plaintiff made a Motion to Amend Process, Pleadings, and Judgment asking in two counts that St. Regis Hotel d/b/a St. Regis House Hotel and Merrymen Hotel Corporation d/b/a St. Regis House Hotel be added to the judgment to reflect the true name of defendants already before the court. Merryman's response addressed the merits of the arbitrator's decision concerning the findings of an employer-employee relationship and restaurant operation by St. Regis House Hotel. Defendant Merryman admitted ownership of the St. Regis Hotel and acknowledged that it was doing business as the St. Regis Hotel. Plaintiff's Motion to Amend was denied on June 18, 1978. Appeal was taken from the order of the circuit court of Cook County.

The basic question presented by this appeal is whether, more than four years after the entry of an Illinois Industrial Commission arbitrator's award, plaintiff can amend the judgment registered with the circuit court to add St. Regis Hotel and Merryman Hotel Corporation. Plaintiff contends that these defendants were the true parties in interest from the suit's inception and so to amend the judgment would be to correct a misnomer. (Ill.Rev.Stat.1977, ch. 110, par. 21.) Defendants counter that such an amendment would be an addition of new parties to the action and would result in substitution of defendants following final judgment. We find that the amendment should be allowed only as to the misnomer of St. Regis Hotel and denied as to Merryman Hotel Corporation.

Section 21 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 21) allows the correction of misnomers at any time before or after judgment. This provision does not apply to naming the wrong parties, for which section 46 provides pre-judgment relief. (Ill.Ann.Stat., ch. 110 par. 21(2), Historical and Practice Notes (Smith-Hurd Supp.1979); (See Ill.Rev.Stat.1977, ch. 110, par. 46.) Since plaintiffs are requesting this amendment in a post-judgment motion, section 46 is inapplicable and they must proceed under section 21. The key determination therefore, is whether St. Regis Hotel or Merryman Hotel Corporation should be held to the judgment entered against St. Regis House Hotel.

Defendants initially attack the judgment and findings of the arbitrator in order to establish that St. Regis and Merryman were not the true parties in interest at the Industrial Commission hearing. This collateral attack on the merits of the arbitrator's findings relative to the existence of an employer-employee relationship is improper. (See Ahlers v. Sears, Roebuck Company (1978), 73 Ill.2d 259, 22 Ill.Dec. 731, 383 N.E.2d 207; St. Louis Pressed Steel Co. v. Schorr (1922), 303 Ill. 476, 135 N.E. 766.) Once a petition is filed, procedures established in the statute governing the Illinois Industrial Commission (Ill.Rev.Stat.1977, ch. 48, pars. 138.1 Et seq.), must be exhausted. The Industrial Commission is established as the exclusive method of review under the Act, and therefore the proper method of attacking the arbitrator's findings on the merits is by means of direct appeal and exhaustion of administrative remedies. (McCormick v. McDougal-Hartmann Co. (1970), 47 Ill.2d 340, 343-44, 265 N.E.2d 610.) Contrary to defendants' argument, the real party in interest envisioned by the misnomer amendment provision refers to whether the parties were before the court, whether they had notice of the proceedings, and whether they had an opportunity to defend. See, e. g., Stevens v. Yonker (1973), 12 Ill.App.3d 233, 298 N.E.2d 395.

The first appearance entered by any of the named defendants was on October 27, 1977, by the St. Regis (House) Hotel. Edward F. Downey, in the verified Reply to Application for Entry of Judgment in Accord with Final Decision of the Illinois Industrial Commission, states that he is attorney for the St. Regis Hotel and acknowledges his representation of the St. Regis (House) Hotel. This Reply was not taken as a special appearance and contained no jurisdictional objection. From the nature of this verified pleading, there can be little doubt that the attorney for St. Regis Hotel understood that the pending court action was being brought against his client whether under the name of St. Regis House Hotel, St. Regis (House) Hotel, or St. Regis Hotel. Neither the Reply nor the Motion to Set Aside were entered as a special appearance. Defective notice is waived as a bar to enforcement...