Sanchez v. Access Associates

Decision Date16 February 1989
Docket NumberNo. 88-0188,88-0188
Citation535 N.E.2d 27,179 Ill.App.3d 961,128 Ill.Dec. 813
Parties, 128 Ill.Dec. 813 Jose SANCHEZ, Plaintiff-Appellant, v. ACCESS ASSOCIATES, A Limited Partnership; Pablo Angeles and Carlito V. Soriaga, Individually and d/b/a Access Associates, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Eileen Kavanagh, Chicago (J. Dillon Hoey, P.C., of counsel), for plaintiff-appellant.

Orner & Wasserman, Ltd., Chicago (Esther Joy Schwartz, Helen Wong Mehok, of counsel), for defendants-appellees.

Justice LINN delivered the opinion of the court:

Plaintiff, Jose Sanchez, brought an action in the circuit court of Cook County against defendants Access Associates, a limited partnership; Pablo Angeles and Carlito Soriaga, as individuals and as partners of Access Associates; and other unknown general partners of Access Associates. Plaintiff is a tenant in an apartment building that is held in trust for the benefit of defendants. Plaintiff sought damages for injuries that he sustained in falling down a flight of stairs in the building.

The trial court dismissed plaintiff's amended complaint ruling that the Statute of Limitations barred the action. Plaintiff appeals, contending that the trial court erred in dismissing the complaint.

We affirm the order of the trial court.

Background

The trial court dismissed the complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure. (Ill.Rev.Stat.1985, ch. 110, par. 2-619(a)(5).) A 2-619 motion to dismiss admits all well-pled facts contained in the complaint. Loughman Cabinet Co. v. C. Iber & Sons (1977), 46 Ill.App.3d 873, 876, 5 Ill.Dec. 240, 243, 361 N.E.2d 379, 382. In his original complaint, plaintiff named as defendants the Devon Bank, as Trustee under Trust Number 4074, and the unknown beneficiaries of the trust. Plaintiff alleged that he was a tenant in an apartment building, which the unknown beneficiaries were empowered to control and manage. On November 21, 1983, he fell down a stairway in a common area of the building. He further alleged, essentially, that the beneficiaries owed him a duty to maintain the stairway in a safe condition, they breached their duty by allowing the stairs to become unsafe, and that his injuries were the proximate result of their negligence.

Plaintiff filed his original complaint on November 20, 1985, almost exactly two years after being injured. However, the bank trustee was served with process on November 26th, several days after the two-year statute of limitations expired. (See Ill.Rev.Stat.1985, ch. 110, par. 13-202.) At that time only the bank was served with process, as plaintiff did not know the identity of the trust beneficiaries.

The bank moved to dismiss itself from the action. The bank contended that, on the date of the injury, its sole responsibility regarding the building was to hold legal title to the property, subject to the beneficiaries' direction to convey. The bank did not exercise any of the incidents of ownership, management or control. Additionally, the bank revealed the identity of the trust beneficiaries: Access Associates, a limited partnership; and the partners, Angeles and Soriaga. The trial court granted the bank's motion to dismiss it from the action. The court granted plaintiff leave to file an amended complaint naming the beneficiaries as defendants.

On March 14, 1986, plaintiff filed his amended complaint. The named defendants were all served with process by April 5, 1986.

Defendants subsequently moved the trial court to dismiss the action. (Ill.Rev.Stat.1985, ch. 110, par. 2-619(a)(5).) Noting that plaintiff filed his amended complaint more than two years after the expiration of the Statute of Limitations, defendants argued that the action was time-barred. Additionally, defendants noted that they had no actual knowledge of the injury.

On December 3, 1987, the trial court granted defendants' motion to dismiss. Plaintiff appeals.

Opinion
I

The parties agree on several preliminary matters. Absent other considerations, this lawsuit is time-barred. The action arose on November 21, 1983. Plaintiff filed his amended complaint, naming the present defendants, on March 14, 1986, long after the expiration of the limitations period. However, section 2-616(d) of the Code of Civil Procedure allows a plaintiff to add a defendant to the action after the statute of limitations has run; the amendment relates back to the date of the filing of the original complaint. Ill.Rev.Stat.1985, ch. 110, par. 2-616(d).

The parties also agree that section 2-616(d), standing alone, cannot save the amended complaint. The provision grants the relation-back relief only if five conditions are met. Section 2-616(d) provides in pertinent part:

"(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 or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person was inadvertent; (3) service of summons was in fact had 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, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. 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." (Emphasis added.) Ill.Rev.Stat.1985, ch. 110, par. 2-616(d).

This court has held that the mere filing of the original complaint against a land trustee does not give a land trust beneficiary knowledge of the lawsuit within the limitations period. Rather, service of process must be had upon the trustee within the limitations period, or the beneficiary must have otherwise gained the requisite knowledge within the limitations period. Foster v. Leong (1985), 139 Ill.App.3d 492, 494-95, 94 Ill.Dec. 118, 119-20, 487 N.E.2d 995, 996-97, relying on Fournier v. 3113 West Jefferson Partnership (1981), 100 Ill.App.3d 820, 823, 56 Ill.Dec. 328, 331, 427 N.E.2d 408, 411.

The original complaint in the case at bar was filed against the bank alone, and only a few days prior to the expiration of the limitations period. The bank was not served with process until after the limitations period expired. Further, defendants swore in their affidavits that they had not otherwise gained any knowledge of the lawsuit until they were served with process, well after the limitations period expired. Since plaintiff failed to meet the fourth requirement of section 2-616(d), he cannot avail himself of its relation-back relief. Consequently, absent other considerations, his amended complaint is time-barred.

II

The sole issue on appeal is whether an amendment to section 2-616 applies to the case at bar. The trial court dismissed the amended complaint on December 3, 1987. However, the General Assembly had amended section 2-616 effective November 23rd. (1987 Ill. Laws 3802, 3830-31.) The legislature added a subsection (e), which provides as follows:

"(e) A cause of action against a beneficiary of a land trust 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 or right asserted, if all the following terms and conditions are met: (1) the cause of action arises from the ownership, use or possession of real estate, record title whereto is held by a land trustee; (2) the time prescribed or limited had not expired when the original action was commenced; (3) the land trustee of record is named as a defendant; and (4) the plaintiff proceeds with reasonable diligence subsequent to the commencement of the action to serve process upon the land trustee, to determine the identity of the beneficiary, and to amend the complaint to name the beneficiary as a defendant." Ill.Rev.Stat.1987, ch. 110, par. ...

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