Siebert v. Bleichman

• Decision Date: 03 August 1999
• Docket Number: No. 2-98-1274.,2-98-1274.
• Citation: 239 Ill.Dec. 859,306 Ill. App.3d 841,715 N.E.2d 304
• Parties: Carol SIEBERT et al., Plaintiffs-Appellants, v. Jack BLEICHMAN, d/b/a Family Pride Laundry and Dry Cleaning et al., Defendants-Appellees (Hallmark and Johnson et al., Defendants).
• Court: United States Appellate Court of Illinois

715 N.E.2d 304

306 Ill. App.3d 841

239 Ill.Dec. 859

Carol SIEBERT et al., Plaintiffs-Appellants, v. Jack BLEICHMAN, d/b/a Family Pride Laundry and Dry Cleaning et al., Defendants-Appellees (Hallmark and Johnson et al., Defendants).

No. 2-98-1274.

Appellate Court of Illinois, Second District.

August 3, 1999.

Brent M. Christensen, Oakbrook Terrace, for Carol Siebert, Charles Siebert.

Michael J. Charysh, Bradford A. Burton, Charysh & Schroeder, Ltd., Chicago, for Jack Bleichman, J&H Laundromat, Inc.

Justice THOMAS delivered the opinion of the court:

On March 18, 1996, plaintiff Carol Siebert allegedly slipped and fell at the Family Pride Laundromat in Bensenville. On May 20, 1997, she and her husband, Charles, filed a complaint naming Jack Bleichman, Hallmark & Johnson (the property managers), and Ester Bright (the building owner) as defendants. Plaintiffs sought damages for personal injury and loss of consortium, alleging that Jack Bleichman was the operator of the laundromat. In fact, J&H Laundromat, Inc. (J&H), operated the business.

Because plaintiffs were uncertain about who operated the laundromat, they failed to name J&H as a defendant before the expiration of the two-year statute of limitations (735 ILCS 5/13-202, 13-203 (West 1996)). The trial court (1) granted summary judgment for Jack Bleichman and (2) dismissed the complaint against J&H after concluding that plaintiffs' delay in naming J&H as a defendant was not inadvertent. On appeal, plaintiffs argue that the trial court improperly dismissed the complaint because Jack and Howard Bleichman deliberately concealed J&H's identity to avoid liability. We affirm that part of the trial court's order granting summary judgment for Jack Bleichman and reverse that part of the order dismissing the complaint against J&H.

The record contains the following facts. In its answer of June 10, 1997, Hallmark & Johnson identified Jack Bleichman as the operator of the laundromat. Jack Shapiro was the Hallmark & Johnson property manager responsible for maintaining the shopping center where the laundromat was located. During his August 21, 1998, deposition, Shapiro testified that he believed that Jack Bleichman was the operator of the laundromat because Shapiro dealt exclusively with Bleichman.

In his answer of June 27, 1997, Jack Bleichman denied that he owned the laundromat but did not disclose that he was a J&H employee. In an interrogatory answer filed on January 26, 1998, Hallmark & Johnson again identified Jack Bleichman as the laundromat operator.

On February 24, 1998, the trial court ordered that all written discovery be completed by March 17, 1998, and all depositions be completed by May 26, 1998. On March 16, 1998, two days before the limitations period ran, Jack Bleichman answered plaintiffs' interrogatories by identifying J&H as the operator of the laundromat. Jack Bleichman also revealed that Howard Bleichman had leased the building from Ester Bright.

On March 26, 1998, the trial court granted plaintiffs leave to amend their complaint to include Howard Bleichman as a defendant. On April 20, 1998, Jack and Howard Bleichman moved for summary judgment and filed an affidavit in which Jack Bleichman again identified J&H as the business operator.

During his June 25, 1998, deposition, Jack Bleichman disclosed that (1) J&H operated the laundromat, (2) no sign or display at the laundromat revealed to the public that J&H was the operator, (3) Howard Bleichman was J&H's sole shareholder, and (4) Jack and Howard Bleichman divided J&H's profits. Four days later, plaintiffs sought leave to further amend their complaint to name J&H as a defendant. The trial court granted plaintiffs' request.

Plaintiffs' counsel attached an affidavit to the motion for leave to add J&H as a defendant. In the affidavit, counsel stated that he promptly initiated discovery, but Jack Bleichman repeatedly delayed his deposition. Bleichman did not appear for his deposition until seven months after it was first scheduled and three months after the statute of limitations had run. Bleichman appeared one month after the trial court's deadline for the completion of depositions.

After concluding that the two-year statute of limitations barred plaintiffs' claims, the court granted summary judgment for Jack Bleichman and dismissed the second amended complaint against J&H. Plaintiffs voluntarily dismissed the complaint against Howard Bleichman. The trial court also granted summary judgment for Hallmark & Johnson and Ester Bright.

On appeal, plaintiffs fail to present an argument supporting the reversal of the trial court's order granting summary judgment for Jack Bleichman. Accordingly, we need not address the propriety of the trial court's determination because plaintiffs have waived the issue. See 177 Ill.2d R. 341(e)(7); see also Plooy v. Paryani, 275 Ill.App.3d 1074, 1085, 212 Ill.Dec. 317, 657 N.E.2d 12 (1995).

Plaintiffs contend that their delay in naming J&H as a defendant was inadvertent and that the trial judge improperly dismissed their second amended complaint. A motion to dismiss pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 1998)) admits all well-pleaded facts in the complaint and all reasonable inferences drawn therefrom. Ferrer v. Kuhl, 301 Ill.App.3d 694, 700, 235 Ill.Dec. 302, 704 N.E.2d 875 (1998). A trial court's dismissal under the section is subject to de novo review. Ferrer, 301 Ill.App.3d at 700, 235 Ill.Dec. 302, 704 N.E.2d 875.

An amendment adding a defendant may relate back to the date of the filing of the original complaint and thus prevent the action from being time barred if the following five requirements are 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."

(Emphasis added.) 735 ILCS 5/2-616(d) (West 1998).

Defendants concede that plaintiffs have met the requirements of sections 2-616(d)(1) and (d)(3) through (d)(5). However, defendants argue that the trial court's dismissal was proper because plaintiffs' delay in naming J&H as a defendant was not inadvertent.

"Inadvertence" means excusable ignorance, not excusable failure to act after the true facts are discovered. Viirre v. Zayre Stores, Inc., 212 Ill.App.3d 505, 517, 156 Ill. Dec. 622, 571 N.E.2d 209 (1991). "Ignorance," as contemplated by section 2-616(d)(2), encompasses lack of knowledge of the identity or the existence of the defendant (Plooy, 275 Ill.App.3d at 1084, 212 Ill.Dec. 317, 657 N.E.2d 12), and a plaintiff must act with reasonable diligence to add the proper parties after their identities become known. Viirre, 212 Ill.App.3d at 517, 156 Ill.Dec. 622, 571 N.E.2d 209.

Generally, the delay in naming the proper defendant is not inadvertent if the plaintiff is aware of the defendant's identity prior to the expiration of the statute of limitations, but fails to amend the complaint until after the statute has run. Bates v. Wagon Wheel Country Club, Inc., 132 Ill.App.2d 161, 164, 266 N.E.2d 343 (1971). This rule permits relation back for a plaintiff who commences an action shortly before the statute of limitations expires but does not learn of the proper defendant until well after his action would otherwise be time barred. Bates, 132 Ill.App.2d at 164, 266 N.E.2d 343 (relation back permitted where plaintiff commenced suit one month before limitations period had run but did not learn of true defendant until one year after period expired). We conclude that it would be unfair to prevent relation back where a more diligent plaintiff files suit well before the expiration of the limitations period but learns of the proper defendant at the time the period expires.

The statutes of limitations were designed to prevent delay in asserting claims and were not intended to allow a corporation to avoid liability by confusing its identity. Bates, 132 Ill.App.2d at 167, 266 N.E.2d 343. When several corporations have agents who manage a business so that the public is under the impression that they are all one and the same, the corporations should be bound by their representations and should not benefit from the confusion that emanates from their corporate complexities. Bates, 132 Ill.App.2d at 167, 266 N.E.2d 343 (agents of nine corporations managing the operation created confusion concerning identity of the proper defendant).

Here, the record indicates that the public could reasonably believe that Jack Bleichman was the laundromat operator. Jack Shapiro testified that his experience in managing the...