Turner v. Cosmopolitan Nat. Bank

• Decision Date: 14 March 1989
• Docket Number: No. 87-2958,87-2958
• Citation: 129 Ill.Dec. 756,180 Ill.App.3d 1022,536 N.E.2d 806
• Court: United States Appellate Court of Illinois
• Parties: , 129 Ill.Dec. 756 Richard TURNER, Plaintiff-Appellee, v. COSMOPOLITAN NATIONAL BANK, Defendant (Sam Lane & Evelyn Lane, Defendants-Appellants).

Page 806

536 N.E.2d 806

180 Ill.App.3d 1022, 129 Ill.Dec. 756

Richard TURNER, Plaintiff-Appellee, v. COSMOPOLITAN NATIONAL BANK, Defendant (Sam Lane & Evelyn Lane, Defendants-Appellants).

No. 87-2958.

Appellate Court of Illinois First District, Second Division.

March 14, 1989.

Law Offices of Sherwin Greenberg, Chicago, for defendants-appellants (Sherwin Greenberg, of counsel).

McNeela & Griffin, Ltd., Chicago, for plaintiff-appellee (James R. Dashiell, of counsel).

Justice SCARIANO delivered the opinion of the court.

A jury returned a verdict for the plaintiff in this personal injury action wherein he charged defendants with negligence in the maintenance of the door of the vestibule at the entrance of a building owned by them.

Defendants raise the following issues on appeal: (1) whether the court erred in vacating its order of summary judgment based upon its determination that the action was time barred, (2) whether the court erred in voiding a release executed by plaintiff in favor of defendants, and (3) whether the court erred in not directing a verdict in favor of defendants and against plaintiff. We affirm.

On November 10, 1974, plaintiff slipped and fell in the vestibule of a multi-unit apartment building owned by defendants. The outer door of the vestibule could not be kept shut, and would repeatedly blow open; as a result, water, ice and snow accumulated on the vestibule floor. Plaintiff slipped and fell on this accumulation, thereby fracturing his left fibula just above the ankle.

On November 10, 1976, plaintiff filed this action against Cosmopolitan National Bank as trustee. On December 21, 1976, pursuant to its motion, the bank was dismissed and plaintiff, after being granted leave, amended his complaint to add Sam and Evelyn Lane as defendants. On March 25, 1982, plaintiff voluntarily dismissed his action, and refiled it on May 21, 1982. Defendants filed their answer on October 21, 1982, without asserting therein the statute of limitations as an affirmative defense.

Thereafter, numerous pleadings and motions were filed, voluminous discovery was had, and the case was placed on the trial call for November 13, 1984. Defendants did not raise the issue of the statute of limitations until March 31, 1986, when they filed a motion for summary judgment. By that time the matter had been called for trial nine different times, but had been continued each time at the request of defense counsel. On April 10, 1986, after hearing the arguments of counsel and reviewing the documents filed in support of their respective positions, Judge Berman denied defendants' motion. Just as the case was to proceed to trial before Judge Bieschke, on January 15, 1987, defendants filed another motion for summary judgment, and the judge granted it on that same day.

Thereafter, counsel for the parties entered into settlement negotiations, pursuant to which defendants made a settlement offer of $3,500. On January 28, 1987, plaintiff's counsel discussed the offer with his client in a phone conversation, during which plaintiff was advised that outstanding costs and expenses in the approximate amount of $1,800. had been advanced on his behalf in the case and that this sum would have to be reimbursed out of the settlement, but that counsel would waive his fee. As a result of this conversation, it was plaintiff's counsel's understanding that he should attempt to negotiate the best possible settlement for his client, but that in any event he had authority to settle the case for $3,500.

Accordingly, plaintiff's counsel resumed settlement negotiations with the attorney for the defendants, Larry Wikoff. Ultimately, plaintiff's attorney advised Mr. Wikoff that his client agreed to a settlement of $3,500. On February 10, 1987, plaintiff's counsel confirmed this in a letter to his client, enclosing a release to be signed by him. On February 13, 1987, when plaintiff's attorney had not yet received the release signed by his client, he filed a motion to reconsider the court's awarding summary judgment, and scheduled it for a hearing on February 23, 1987. On February 16, 1987, plaintiff's attorney sent a letter to his client informing him that he had filed the motion to reconsider. On that same day, plaintiff's counsel received a telephone call from Reverend Smith, a friend of plaintiff, of whom plaintiff had previously informed the attorney. Reverend Smith desired information in behalf of plaintiff concerning the settlement and the background of the case, which plaintiff's counsel supplied. Reverend Smith indicated to the attorney that plaintiff expected to receive a larger portion of the settlement, but that he would relay the information to plaintiff. On February 17, 1987, plaintiff's counsel received an executed release signed by plaintiff and witnessed by Lavonne Essex. Plaintiff's attorney dated the release based upon the accompanying postmark of February 16, 1987, and on February 19, 1987, he delivered the executed release to Mr. Wikoff. Later that same day, plaintiff's attorney received a telephone call from his client, who said that he had thought he would be receiving a net amount of $2,500. if the case was settled for $3,500. Plaintiff's attorney promptly advised Mr. Wikoff of problems with the release, and they agreed to reset the hearing on the motion for reconsideration for March 9, 1987.

At the hearing on plaintiff's motion to reconsider on March 9, 1987, defendants brought the signed release to the court's attention. Judge Bieschke heard testimony from plaintiff, and pursuant to leave of court, both attorneys filed affidavits relating to the circumstances surrounding the execution and delivery of the release.

After Judge Bieschke held a hearing on March 30, 1987, regarding the issues presented by the release and by plaintiff's motion for reconsideration, he held that fundamental equities required that the release be set aside, and predicated the ruling on his opportunity to hear and observe the plaintiff first hand and on plaintiff's inability to comprehend adequately the nature of the matter before the court.

The court then dictated an opinion from the bench granting plaintiff's motion for reconsideration and instructed counsel to agree upon a trial date. Trial began on June 1, 1987, and resulted in a jury verdict and judgment in favor of the plaintiff in the sum of $25,000. Defendant's post-trial motion was filed on July 6, 1987, and denied on August 13, 1987. This appeal followed.

I.

Defendants argue that plaintiff failed to file his action within the two-year period from the date the cause of action accrued (Ill.Rev.Stat.1981, ch. 110, par. 13-202), asserting that plaintiff incurred his injury on November 10, 1974; that the original action was filed on November 10, 1976; that service of summons was had on defendant Cosmopolitan National Bank on November 15, 1976; that Cosmopolitan was dismissed on December 21, 1976; that plaintiff was given leave that same day to amend by adding Sam and Evelyn Lane; and that on March 25, 1982, plaintiff filed his amended complaint adding the Lanes.

Defendants acknowledge, and the record is clear, that they did not raise the issue of the bar of the statute of limitations by pleading it as an affirmative defense in their answer, but claim instead that they correctly raised the issue by way of a motion for summary judgment, contending that it is permissible to raise an affirmative defense for the first time in such a motion. Florsheim v. Travelers Indemnity Co. (1979), 75 Ill.App.3d 298, 30 Ill.Dec. 876, 393 N.E.2d 1223. Defendants further maintain that plaintiff's amended complaint filed on March 25, 1982, did not relate back to the date of the filing of the original suit on November 10, 1976.

Ill.Rev.Stat.1981, ch. 110, par. 2-616(d) sets forth five requirements that a plaintiff must meet in order for a successor complaint to relate back to the original filing of his or her action: (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, (4) the person knew, within the time that the action may have been brought, that the original action was pending and that it grew out of a transaction involving 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. Hoving v. Davis (1st Dist.1987), 159 Ill.App.3d 106, 111 Ill.Dec. 340, 512 N.E.2d 729.

Defendants charge that the plaintiff does not meet requirement 2-616(d)(4), contending that in order to comply with it, service upon Cosmopolitan National Bank as trustee must have been had within the limitations period. (Foster v. Leong (1st Dist.1985), 139 Ill.App.3d 492, 94 Ill.Dec. 118, 487 N.E.2d 995.) The court in Foster held that in effect, section 2-616(d)(4) poses an additional requirement in that suit must not only be filed within the limitations period, but service must be had upon the trustee within that time frame. Defendants argue that since the trustee was not served until November 15, 1976, five days after the limitations period had expired, plaintiff failed to meet the requirement of the statute, and therefore plaintiff may not avail himself of the "relation-back" theory.

Plaintiff, on the other hand, avers that his second complaint, filed in 1982, did in fact relate back to the original filing in 1976, maintaining that Ill.Rev.Stat.1981, ch. 110, par. 2-616 is not the applicable law. Rather, plaintiff contends, the pertinent provision of our Code of Civil Procedure is Ill.Rev.Stat.1981, ch. 110, par. 2-401(b), which states as follows:

"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 ...