Doe v. Doe

• Decision Date: 31 July 1996
• Docket Number: No. 1-95-1837,1-95-1837
• Parties: , 218 Ill.Dec. 328 Jane DOE, Plaintiff-Appellant, v. John DOE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1160

668 N.E.2d 1160

282 Ill.App.3d 1078, 218 Ill.Dec. 328

Jane DOE, Plaintiff-Appellant, v. John DOE, Defendant-Appellee.

No. 1-95-1837.

Appellate Court of Illinois,

First District, Sixth Division.

July 31, 1996.

Bruce S. Sperling, Mitchell H. Macknin, Sperling, Slater & Spitz, P.C., Chicago, Susan E. Loggans, Esq. & Associates, P.C., Chicago, for plaintiff-appellant.

Corboy & Demetrio, P.C., Chicago (Philip H. Corboy, Michael K. Demetrio, David A. Novoselsky, of counsel), for defendant-appellee.

Justice McNAMARA delivered the opinion of the court:

Plaintiff, Jane Doe, brought this action against defendant, John Doe, alleging that John Doe sexually molested her over a period of approximately seven years while she was a minor. Plaintiff appeals from orders of the trial court prohibiting plaintiff from disclosing her name or defendant's name in any pleadings until further order of court.

Plaintiff filed her complaint on March 3, 1995, identifying herself as Jane Doe and identifying defendant as John Doe. Plaintiff alleged in her complaint that defendant, her uncle by marriage, sexually molested her from 1987 through approximately August 1993. Plaintiff was a minor when the alleged abuse occurred. She filed her action as an adult. Plaintiff asserts that on March 3, 1995, settlement with defendant was imminent. She filed a complaint, however, because on March 9, 1995, several legislative measures affecting personal injury litigation would go into effect in Illinois. Plaintiff also asserts that she used fictitious names in the complaint at defendant's request.

On March 7, 1995, defendant presented an ex parte emergency motion requesting an order prohibiting plaintiff from disclosing defendant's name in any pleadings filed in this litigation or otherwise filing any other type of lawsuit in which defendant's true identity is disclosed. Defendant pointed to section 2-401(e) of the Code of Civil Procedure (Code) which states that "[u]pon application and for good cause shown the parties may appear under fictitious names." 735 ILCS 2-401(e) (West 1992). The motion noted that plaintiff had previously chosen not to identify defendant in her complaint, and claimed that she had since threatened to disclose his identity if he did not settle the matter. The motion further alleged that "disclosing John Doe's true name or identity would cause defendant embarrassment, humiliation and detriment to his reputation in the community and profession" and "would cause severe and permanent damage to defendant's wife and * * * children." The trial court granted the ex parte motion, prohibiting plaintiff from filing any other action disclosing defendant's true name and from amending her complaint or filing any pleadings substituting "defendant's true name in place of the John Doe designation." A copy of the order was thereafter served upon plaintiff.

On March 8, 1995, plaintiff filed an emergency motion to vacate the ex parte order. On March 10, 1995, the trial court denied the motion without prejudice. On March 28, 1995, plaintiff filed a motion asking the court to spread her name of record and to require that all pleadings bear her correct name. On April 3, 1995, plaintiff moved to vacate the trial court's order of March 10, 1995, wherein the trial court had previously denied plaintiff's motion to vacate, and moved for reconsideration of her motion to vacate the ex parte order. On April 6, 1995, the trial court vacated its order of March 10, and scheduled further argument on its order of March 7. On May 5, 1995, the trial court upheld its March 7 order and disallowed plaintiff's request to spread her name of record. Indicating that it was "hesitant to keep it this way forever," the court upheld its decision that both parties proceed with the litigation under fictitious names. On June 2, 1995, plaintiff filed her notice of interlocutory appeal.

On appeal, plaintiff contends that potential damage to defendant's reputation and alleged harm to members of his family are insufficient justifications for the trial court's order prohibiting plaintiff from disclosing her name or the identity of John Doe. Defendant initially responds that this court lacks jurisdiction over plaintiff's appeal. Additionally, relying on section 2-401(e) of the Code, defendant argues that the trial court did not abuse its discretion in ordering that the parties proceed under fictitious names. We first address defendant's jurisdictional arguments.

Supreme Court Rule 307 governs interlocutory appeals as of right. Subsection (a) of Rule 307 provides that "[a]n appeal may be taken to the Appellate Court from an interlocutory order * * * granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." 155 Ill.2d R. 307(a)(1). Subsection (b) provides:

"If an interlocutory order is entered on ex parte application, the party intending to take an appeal therefrom shall first present, on notice, a motion to the trial court to vacate the order. An appeal may be taken if the motion is denied, or if the court does not act thereon within 7 days after its presentation. The 30 days allowed for taking an appeal and filing the record begins to run from the day the motion is denied or from the last day for action thereon." 155 Ill.2d R. 307(b).

Defendant argues that there is no appealable order before this court because the trial court's order does not constitute an injunction under Rule 307(a)(1). In the alternative, defendant argues, even if the order is injunctive, plaintiff's appeal is not timely under Rule 307(b). Defendant argues that, under Rule 307(b), the allowable time period for plaintiff to appeal expired 30 days after March 10, 1995, the date in which the trial court denied plaintiff's motion to vacate the ex parte order.

We disagree with both of these contentions. To determine what constitutes an appealable injunctive order under Rule 307(a)(1), we must look to the substance of the action, not its form. In re A Minor, 127 Ill.2d 247, 130 Ill.Dec. 225, 537 N.E.2d 292 (1989); In re Estate of Ohlman, 259 Ill.App.3d 120, 197 Ill.Dec. 9, 630 N.E.2d 1133 (1994). An injunction has been defined as " 'a judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing.' " In re A Minor, 127 Ill.2d at 261, 130 Ill.Dec. at 231, 537 N.E.2d at 298, quoting Wangelin v. Goe, 50 Ill. 459, 463 (1869). Illinois courts have broadly construed the meaning of the term "injunction" in determining jurisdictional questions under Rule 307(a)(1). Minor, 127 Ill.2d at 261, 130 Ill.Dec. at 231, 537 N.E.2d at 298. Here, the trial court has expressly prohibited plaintiff from identifying herself or defendant by name in any further pleadings in this or any other litigation. Contrary to defendant's argument, this order does not constitute merely a "ministerial" or "case management" order that is not appealable. Instead, we find the trial court's order to be injunctive and, therefore, appealable under Rule 307.

Nor do we find merit in defendant's contention that plaintiff's appeal is untimely. "An interlocutory order can be reviewed, modified, or vacated at any time before final judgment." Catlett v. Novak, 116 Ill.2d 63, 68, 106 Ill.Dec. 786, 506 N.E.2d 586 (1987); Kemner v. Monsanto Co., 112 Ill.2d 223, 97 Ill.Dec. 454, 492 N.E.2d 1327 (1986). When an order is set aside, it leaves pleadings as if no order had ever been entered. First National Bank v. Lambert, 109 Ill.App.3d 177, 64 Ill.Dec. 754, 440 N.E.2d 306 (1982). It is true that on March 10, 1995, the trial court denied plaintiff's motion to vacate the ex parte order. As plaintiff correctly points out, however, the March 10 order had no effect 30 days after its entry because it was vacated on April 6, 1995. It would therefore be impossible, and illogical, to obligate plaintiff to file her notice of appeal within 30 days of that order. Such a ruling would strip the trial court of its authority to review, modify, or vacate an interlocutory order at any time before final judgment. Under the facts here, the last day of action on plaintiff's motion to vacate the ex parte order was May 5, 1995. By filing her notice of appeal on June 2, 1995, plaintiff has timely appealed.

We now turn to the merits of this appeal. The issue as we see it is whether alleged potential harm to defendant's family and his reputation constitutes "good cause" to require both parties to proceed in this litigation under fictitious names, over plaintiff's objection, pursuant to section 2-401(e). 735 ILCS 2-401(e) (West 1992). This issue is one of first impression in Illinois.

At common law, the use of fictitious names in lawsuits was prohibited. Bogseth v. Emanuel, 166 Ill.2d 507, 211 Ill.Dec. 505, 655 N.E.2d 888 (1995). Jurisdiction to sue unknown or fictitious persons must be obtained pursuant to some express statute. Bogseth, 166 Ill.2d at 514, 211 Ill.Dec. at 509, 655 N.E.2d at 892; Hailey v. Interstate Machinery Co., 121 Ill.App.3d 237, 76 Ill.Dec. 709, 459 N.E.2d 346 (1984). Those statutes that authorize the use of fictitious names must do so explicitly. Bogseth, 166 Ill.2d at 514, 211 Ill.Dec. at 509, 655 N.E.2d at 892. In Illinois, section 2-401 of the Code authorizes the use of fictitious names under certain circumstances. Section 2-401 states as follows " § 2-401. Designation of Parties--Misnomer.

(a) The party commencing an action shall be called the plaintiff. The adverse party shall be called the defendant.

* * * * * *

(c) A party shall set forth in the body of his or her pleading the names of all parties for and against whom relief is sought thereby.

* * * * * *

(e) Upon application and for good cause shown the parties may appear under fictitious names." (Emphasis added.) 735 ILCS 5/2-401 (West 1992).

Subsection (e) was added to section 2-401 in 1987 by Public Act 85-907. Pub. Act 85-907, art. II, § 1, eff. November 23, 1987. Although it has been in...