Hoving v. Davies

• Citation: 512 N.E.2d 729,111 Ill.Dec. 340,159 Ill.App.3d 106
• Decision Date: 31 July 1987
• Docket Number: No. 84-1659,84-1659
• Parties: , 111 Ill.Dec. 340 Gerald HOVING, Plaintiff-Appellant, v. Barbara J. DAVIES, Individually and d/b/a Villa Marie East; Rocco J. DeMeo, Administrator of the Estate of John A. Davies, Individually and d/b/a Villa Marie East; Joseph Felkins; James Felkins; and John A. Davies, Inc., a corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 729

512 N.E.2d 729

159 Ill.App.3d 106, 111 Ill.Dec. 340

Gerald HOVING, Plaintiff-Appellant, v. Barbara J. DAVIES, Individually and d/b/a Villa Marie East Rocco J. DeMeo, Administrator of the Estate of John A Davies, Individually and d/b/a Villa Marie East; Joseph Felkins; James Felkins; and John A. Davies, Inc., a corporation, Defendants-Appellees.

No. 84-1659.

Appellate Court of Illinois First District, Fifth Division.

July 31, 1987.

Anesi, Ozmon, Lewin & Associates, Ltd., Nat P. Ozmon and Mark D. Bogen, of counsel, Chicago, for plaintiff-appellant.

Patrick J. Moran, Bard S. Michl, of counsel, Westchester, for defendant-appellee, Barbara J. Davies.

Patrick J. Moran, Bard S. Michl, of counsel, Westchester, for defendant-appellee, John A. Davies, Inc.

Justice PINCHAM delivered the opinion of the court:

Plaintiff, Gerald Hoving, appeals from an order dismissing his dramshop action (Ill.Rev.Stat.1985, ch. 43, par. 135) against the defendant, John A. Davies, Inc. on the ground that the action was barred by the statute of limitations. (Ill.Rev.Stat.1985, ch. 110, par. 2-619(5).) The plaintiff asserts that the misnomer section 2-401 of the Civil Practice Law (Ill.Rev.Stat.1985, ch. 110, par. 2-401) is applicable and precludes a dismissal of his action. Plaintiff alternatively argues, that if section 2-401 is inapplicable to the facts in the case at bar, plaintiff has satisfied the five requirements set forth in section 2-616(d) of the Civil Practice Law (Ill.Rev.Stat.1985, ch. 110, par. 2-616(d)) for adding parties to an action after the expiration of the statute of limitations.

Plaintiff's action allegedly arose out of an incident which occurred on September 18, 1978, in which plaintiff suffered injuries as a result of an altercation with Joseph Felkins and James Felkins in the Villa Marie East, a restaurant and lounge located in Hillside, Illinois. On December 4, 1978, plaintiff sent an investigative letter to the liquor commissioner of the village of Hillside to obtain the names of the owners of the Villa Marie East property and the names of the liquor licensees for the Villa Marie East restaurant and lounge. The responding letter of the village of Hillside's liquor commissioner dated December 8, 1978 stated that the owners of the business and property were Barbara J. Davies and John Davies and that a liquor license had been issued to them. Plaintiff filed his dramshop action on August 20, 1979 against Barbara Davies and John Davies, individually and doing business as the Villa Marie East. Plaintiff obtained service on John Davies at his residence on October 15, 1979. John Davies died six months later, on April 8, 1980.

On May 12, 1980, a month after John Davies' death but seven months after he was served with summons, a default judgment was entered against both John Davies and Barbara Davies. On July 24, 1980 Barbara Davies filed a motion to vacate the judgment entered against her and to quash the service of summons. In her motion, she alleged that she was divorced in October 1979 from John Davies and that on October 15, 1979 she did not live at the address where the summons had been served on John Davies. The trial court granted Barbara Davies' motion to vacate and quash service of summons.

Subsequently, plaintiff obtained Barbara Davies' address and she was served an alias summons on December 29, 1980. Barbara Davies filed a motion to dismiss plaintiff's complaint due to plaintiff's lack of diligence in obtaining service on her. The trial court denied Barbara Davies' motion to dismiss on March 22, 1983.

On June 22, 1983, Barbara filed a motion for summary judgment in which she alleged that on the date of the incident, September 18, 1978, she was not the owner, operator or manager of the Villa Marie East. In her deposition, taken July 6, 1983, Barbara stated that John A. Davies, Inc. was incorporated in August 1974 for the purpose of owning and operating the Villa Marie East. John A. Davies, Inc. had two corporate officers, John A. Davies, president and his wife Barbara J. Davies, secretary/treasurer. Following the death of John Davies on April 8, 1980, Barbara Davies assumed the presidency and her daughter, Judy Hejnar, became the secretary/treasurer of John A. Davies, Inc.

On September 8, 1983, the court granted Barbara's motion for summary judgment and on that same day granted plaintiff leave to amend the complaint to add John A. Davies, Inc. as a defendant. On September 26, 1983, summons was served on Barbara J. Davies, as the registered agent of John A. Davies, Inc.

Defendant John A. Davies, Inc. then filed a motion to dismiss in which it asserted that plaintiff's action was barred by the statute of limitations. The trial court granted defendant's dismissal motion. Plaintiff appeals.

On appeal, plaintiff contends that his action should not be dismissed because defendant's name was properly corrected as a misnomer. Alternatively, plaintiff contends that he satisfied the five requirements set forth in section 2-616(d) for the addition of a defendant to an action after the statute of limitations has run.

Section 2-401(b) of the Civil Practice Law provides:

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

The determination of whether misnomer or mistaken identity is involved may depend on the intent of plaintiff, but the subjective intention of who plaintiff intended to sue does not control when confronted with objective manifestations which indicate plaintiff intended to sue another. (Leonard v. City of Streator (1983), 113 Ill.App.3d 404, 408, 69 Ill.Dec. 272, 447 N.E.2d 489.) It is well-settled in Illinois that facts such as these present in the case at bar present a case of mistaken identity and not one of misnomer. From the original designation in the complaint, we conclude that the intent of the plaintiff was to bring an action against Barbara Davies and John Davies, in their individual capacity and doing business as the Villa Marie East. Naming Barbara Davies and John Davies in their individual capacity and doing business as the Villa Marie East was a clear and objective manifestation of the plaintiff's intent to sue those parties. However, the real party in interest was not Barbara Davies or John Davies, but rather John A. Davies, Inc., a corporation, who owned and operated the Villa Marie East. The plaintiff was mistaken in his belief as to who owned and operated the lounge.

The plaintiff's intent was to file suit against Barbara Davies and John Davies, as individuals and plaintiff did, albeit, incorrectly, believing that they were the owners of the Villa Marie East. Plaintiff did not merely misname the right party, but named the wrong party. (Leonard v. City of Streator (1983), 113 Ill.App.3d 404, 409, 69 Ill.Dec. 272, 447 N.E.2d 489.) Thus plaintiff's contention is without merit.

We now turn to plaintiff's contention that he met the requirements to amend under section 2-616(d) which permits the addition of parties to a complaint after the statute of limitations has run. Defendant alleges that this issue was not raised in the trial court therefore waived and plaintiff should not be allowed to argue it on appeal. We disagree. The trial court's order in allowing plaintiff to add John A. Davies, Inc. as a defendant, tacitly rejects defendant's contention. See Anderson v. Rick's Restaurant & Lounge (1977), 45 Ill.App.3d 992, 995, 4 Ill.Dec. 529, 360 N.E.2d 465.

Section 2-616(d) in pertinent part provides:

"(d) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought * * *, if all of the following * * * conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate even though he or she was served in the wrong capacity or as agent of another, * * *; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleading that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, * * *. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended." (Ill.Rev.Stat.1985, ch. 110, par. 2-616(d).)

Plaintiff contends that all of the requirements of section 2-616(d) were met. However, if any one requirement of this section is not satisfied, then plaintiff cannot avail himself of the relation back doctrine in the section. (Jackson v. Navik (1974), 17 Ill.App.3d 672, 674, 308 N.E.2d 143.) Plaintiff argues that both of the Davies were served with complaint and summons which imported upon them actual knowledge of the pendency of the lawsuit. However, plaintiff failed to address the issue of when the parties gained knowledge of the pending lawsuit. It has been determined that where the summons clearly indicates that the party intended to be sued was doing business under a given name at a given location, the service on an agent or officer of the business, not as an agent or officer but individually, is sufficient to satisfy the requirement. (Suste v. Sterr (1985), 135 Ill.App.3d 652, 655, 90 Ill.Dec. 477, 482 N.E.2d 184.) In order to come within the scope of section 2-616(d)(4), the added party must have acquired the...