Newey v. Newey, 1-89-0148

• Citation: 215 Ill.App.3d 993,576 N.E.2d 137
• Decision Date: 14 June 1991
• Docket Number: No. 1-89-0148,1-89-0148
• Parties: , 159 Ill.Dec. 468 Arthur T. NEWEY and Deborah Newey, Plaintiffs-Appellants, v. Paul D. NEWEY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 137

576 N.E.2d 137

215 Ill.App.3d 993, 159 Ill.Dec. 468

Arthur T. NEWEY and Deborah Newey, Plaintiffs-Appellants, v. Paul D. NEWEY, Defendant-Appellee.

No. 1-89-0148.

Appellate Court of Illinois First District, Fifth Division.

June 14, 1991.

Michael Resis, Dennis A. Marks and Victor J. Piekarski of Querrey & Harrow, Ltd., Chicago, for defendant-appellee.

Francis X. Riley, Wheaton, for plaintiffs-appellants.

Justice GORDON delivered the opinion of the court:

Plaintiffs, Arthur T. Newey and his wife Deborah Newey, appeal from an order dismissing their action for damages against defendant, Paul D. Newey, on the grounds that their action was barred by the statute of limitations. (Ill.Rev.Stat.1987, ch. 110, par. 2-619(a)(5).) The plaintiffs contend that the complaint against Paul D. Newey meets the requirements of section 2-616(d) of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-616(d)) so as not to be barred by the lapse of time notwithstanding the fact that Paul D. Newey was not joined as a defendant until after the statute of limitations had run. For the reasons set forth below, we affirm.

FACTS

On February 21, 1984, the plaintiff, Arthur T. Newey, while a tenant at 1035 W. Altgeld in Chicago, fell on the front stairs of the premises, and was injured as a result of the fall. In a complaint filed March 13 On October 1, 1985, plaintiffs filed an amended complaint, naming as defendant The Paul and Viola Newey Trust, through its trustees Paul S. Newey, Davis R. Newey and Arthur T. Newey. This complaint was identical to the original complaint, except that the new defendant was alleged to be the one who negligently owned, operated, managed or controlled the premises. Paul S. Newey was served with summons on October 29, 1985. On December 2, 1985, Paul S. Newey filed an answer admitting that the Paul and Viola Newey Trust was the beneficial owner of the property held in the land trust, but denying any basis of liability to the plaintiffs. On March 5, 1986, Paul S. Newey filed answers to interrogatories in which he stated that Paul D. Newey was the person responsible for the maintenance and management of the premises at 1035 W. Altgeld. On February 11, 1987, the defendant trust, through its trustees, moved to dismiss the amended complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-615) on the grounds that as a trustee of the Paul and Viola Newey Trust, Arthur T. Newey is a necessary defendant, and Arthur T. Newey cannot be both a plaintiff and a defendant in the same action. The motion was granted on June 9, 1987. On July 7, 1987, plaintiffs moved to vacate the order of June 9, 1987, or in the alternative for leave to file a second amended complaint to add Paul D. Newey as defendant, and to delete any reference to Paul S., Davis R. and Arthur T. Newey as defendants. On October 21, 1987, pursuant to their alternative motion, plaintiffs were granted leave to file instanter a second amended complaint naming only Paul D. Newey as a defendant. The second amended complaint alleged that Paul D. Newey was the beneficiary of the Paul and Viola Newey Trust, and that he owned, operated, managed, maintained and controlled the premises where the accident occurred. Paul D. Newey was personally served with a summons on February 6, 1988. On April 15, 1988, Paul D. Newey filed a motion to dismiss under section 2-619(a)(5) of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-619(a)(5)) on the grounds that the action against him was not commenced within the two year limitation period for personal injury actions. (Ill.Rev.Stat.1987, ch. 110, par. 13-202.) The section 2-619 submissions of defendant included a copy of the trust agreement establishing the Paul and Viola Newey Trust, which provided the trustees with the power to operate, manage and control the property subject to their discretion. The agreement also provided that upon the death of the grantors, the corpus of the trust would be distributed to the sons. By order of August 23, 1988, the trial court granted defendant's motion to dismiss with prejudice, and by order of December 8, 1988, it denied the plaintiffs' motion to vacate the August 23 order, from which orders plaintiffs now appeal.

[159 Ill.Dec. 470] 1985, plaintiffs brought suit for negligence against Cosmopolitan National Bank of Chicago (Cosmopolitan) as Trustee under Land Trust Agreement No. 13562. The complaint alleged that Cosmopolitan owned, operated, managed, maintained, and controlled the premises at 1035 W. Altgeld, and that Cosmopolitan was negligent in the performance of its duties. On September 6, 1985, by agreed order, Cosmopolitan was dismissed as defendant upon its disclosure of the land trust beneficiaries: Paul S. Newey, Davis R. Newey and the plaintiff Arthur T. Newey as Trustees under the Paul and Viola Newey Trust, an inter vivos trust. Paul S. and Davis R. Newey are the brothers of the plaintiff, Arthur T. Newey. Paul D. Newey, against whom this appeal is brought, is the settlor, with his now deceased wife Viola, of the Paul and Viola Newey Trust and the beneficiary of that trust. He is also the father of Paul S., Davis and Arthur Newey. At the times in issue, Paul D. Newey lived at 1034 W. Altgeld, across the street from 1035 W. Altgeld where the accident occurred.

OPINION

Neither party to this appeal contests the fact that the complaint against Paul D. Newey was filed after the statute of limitations had run. The accident occurred, and the cause of action accrued, on February 21, 1984. The applicable statute of limitations for personal injury actions is two years. (Ill.Rev.Stat.1987, ch. 110, par. 13-202.) Thus, the limitation period ran through February 21, 1986. Paul D. Newey was not joined as a defendant until October 21, 1987, and was not personally served with summons until February 6, 1988. Therefore, absent other considerations, this action is time barred. Plaintiffs, however, argue that the late joinder of Paul D. Newey should relate back to the date of the filing of the original complaint, pursuant to section 2-616(d) of the Code of Civil Procedure. (Ill.Rev.Stat.1987, ch. 110, par. 2-616(d).) Under section 2-616(d), an amendment adding a person as a defendant may relate back to the date of the filing of the original pleading and thus prevent the action from being time barred if the following five requirements are all satisfied:

"(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, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (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 pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading." (Ill.Rev.Stat.1987, ch. 110, par. 2-616(d).)

There is no dispute that the first, fourth and fifth requirements have been met. The original action was commenced on March 13, 1985, well before the limitation period expired on February 21, 1986. No one denies that the defendant, Paul D. Newey, as father of the plaintiff, knew prior to February 21, 1986, that the original action was pending and that it grew out of an occurrence concerning him, namely an accident on property which he managed. Finally, it is clear that the cause of action in the second amended pleading is the same cause of action as in the original pleading. Therefore, the issues before us are whether the plaintiffs have satisfied the second and third requirements of the statute, namely whether the failure to name Paul D. Newey as defendant was inadvertent and whether Paul D. Newey was served with process within the limitation period.

We first consider whether the failure to join defendant was "inadvertent" as required by section 2-616(d)(2). Plaintiffs contend that their failure to name Paul D. Newey as defendant until after the statute of limitations had run was inadvertent because the previously named defendants, the land trust and the inter vivos trust and its trustees, had "technical and unknown impediments" as defendants under the rules of pleading. Plaintiffs argue that the dismissal of their second amended complaint violates the spirit of section 2-616 that causes of action shall be "preserve[d] * * * against loss by reason of technical rules of pleading." (Pavlov v. Konwall (1983), 113 Ill.App.3d 576, 578, 69 Ill.Dec. 547, 549, 447 N.E.2d 982, 984.) Defendant counters that since plaintiffs knew from the outset that the inter vivos trust was the beneficiary of the land trust and that Paul D. Newey was the beneficiary of the inter vivos trust, their failure to name Paul D. Newey as defendant was not inadvertent as that term is used in the statute. We agree with defendant's contention.

" 'Inadvertence' means excusable ignorance, not excusable failure to act after the facts are discovered." (Robinson v. Chicago National Bank (1961), 32 Ill.App.2d 55, 61, 176 N.E.2d 659, 662.) It does not include failure to act appropriately where defendant's true identity is known to the plaintiff. Yedor v. Centre Properties, Inc. (1988), 173 Ill.App.3d 132, 139, 122 Ill.Dec. 916, 921, 527 N.E.2d 414, 419. Plaintiffs base their claim of inadvertence on ignorance of the "fact" that neither the land trustee nor the inter vivos trust were proper defendants. ...