Viirre v. Zayre Stores, Inc.

• Decision Date: 25 April 1991
• Docket Number: No. 2-90-0753,2-90-0753
• Citation: 212 Ill.App.3d 505,571 N.E.2d 209,156 Ill.Dec. 622
• Parties: , 156 Ill.Dec. 622 Diana M. VIIRRE, Plaintiff-Appellant, v. ZAYRE STORES, INC., n/k/a TJX Companies, Inc., et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 209

571 N.E.2d 209

212 Ill.App.3d 505, 156 Ill.Dec. 622

Diana M. VIIRRE, Plaintiff-Appellant, v. ZAYRE STORES, INC., n/k/a TJX Companies, Inc., et al Defendants-Appellees.

No. 2-90-0753.

Appellate Court of Illinois Second District.

April 25, 1991.

James J. Friedman, Waukegan, for Diana M. Viirre.

Michael K. Noonan, Sullivan, Smith, Hauser & Noonan, Ltd., Waukegan, for Zayre Stores, Inc., TJX and Leased Pet Departments.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, Diana Viirre, brought an action in negligence against defendants, Zayre Stores, Inc., n/k/a TJX Companies, Inc. (Zayre), and Leased Pet Departments, Inc. (Leased Pet), seeking recovery for injuries allegedly sustained when dog beds in the Zayre pet department fell from a shelf and struck her on the head. Plaintiff appeals from various orders of the circuit court of Lake County dismissing count II of her second amended complaint against defendant Leased Pet and granting partial summary judgment in favor of defendant Zayre on plaintiff's fourth amended complaint.

Plaintiff purports to raise the following issues on appeal: (1) whether defendant Leased Pet should be equitably estopped from raising the statute of limitations as a defense to plaintiff's second amended complaint; (2) whether plaintiff's second amended complaint adding Leased Pet as a defendant after the expiration of the statute of limitations should be deemed to relate back to the date of the filing of plaintiff's original complaint; (3) whether the trial court's November 20, 1989, order dismissing defendant Leased Pet constitutes res judicata on the issue of defendant Zayre's vicarious liability for the alleged negligence of defendant Leased Pet; and (4) whether Supreme Court Rule 273 (134 Ill.2d R. 273) and section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-619) are punitive in nature and violative of the Illinois and United States Constitutions. For reasons which will be made clear later in this opinion, defendant Zayre's failure to file an appellee's brief is immaterial. We will proceed under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

The following chronology of events is relevant to the issues on appeal. In December 1986, defendant Zayre was a general merchandise, self-service store located in Waukegan, Illinois. Defendant Leased Pet was an Illinois corporation and a wholly owned subsidiary of Brasie Enterprises, Inc. Defendant Leased Pet leases space from discount stores to sell retail pet supplies. The working relationship, obligations and responsibilities between defendants Zayre and Leased Pet are pursuant to a master license agreement.

On December 28, 1986, plaintiff, while shopping in the pet department at defendant Zayre's store in Waukegan, Illinois, was allegedly struck on the head and injured when metal dog beds fell from a shelf. On January 21, 1987, plaintiff's attorney sent an explanatory letter and a notice of attorney's lien to defendant Zayre. On January 28, 1987, plaintiff's attorney sent a similar letter and notice of attorney's lien to defendant Leased Pet. On February 13, 1987, defendant Leased Pet's insurer, American States Insurance Companies, sent a letter to plaintiff's attorney acknowledging receipt of plaintiff's claim. On February 20, 1987, defendant Zayre's insurer, Liberty Mutual Insurance Group, sent a letter to plaintiff's attorney acknowledging receipt of the attorney's lien, and indicating that they were handling the claim. On July 8, 1987, Donald Hagen of American States Insurance, on behalf of Brasie Enterprises, informed plaintiff's attorney by letter that American States had concluded its investigation into plaintiff's claim and found that, since the insured had no control over the operation of the Zayre store involved, American States would be unable to consider the claim.

On May 4, 1988, plaintiff filed a one-count complaint sounding in negligence against defendant Zayre. Defendant Zayre filed its answer to plaintiff's complaint on June 30, 1988. On November 9, 1988, plaintiff's attorney received a letter from Endispute, Inc., an independent arbitration and mediation service, notifying plaintiff that an agent for defendant Zayre requested and Endispute undertake to negotiate or mediate the settlement of plaintiff's claim. On November 14, 1988, plaintiff's attorney responded to Endispute's offer and indicated that plaintiff would be willing to cooperate and participate in any settlement process.

On November 28, 1988, defendant Zayre filed a third-party complaint against defendant Leased Pet. On February 15, 1989, attorneys for defendant Leased Pet filed their appearance. On April 6, 1989, the attorneys for defendant Leased Pet were substituted for the attorneys for defendant Zayre and thereby became the attorneys of record for both defendants.

On June 26, 1989, defendant Zayre filed a motion for summary judgment, arguing that defendant Zayre's employees did not maintain, control or work in the area under lease to defendant Leased Pet. On July 10, 1989, plaintiff filed her first amended complaint adding Leased Pet as a defendant. On September 6, 1989, plaintiff filed her second amended complaint, pleading separate counts, both sounding in negligence, against defendants Zayre and Leased Pet. On September 18, 1989, defendant Zayre filed its answer to count I of the second amended complaint, and defendant Leased Pet filed a motion to dismiss count II of the second amended complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-619). Defendant Leased Pet based its motion on the fact that it was added as a defendant after the expiration of the applicable two-year statute of limitations. On October 2, 1989, plaintiff filed cross-motions to defendant Zayre's motion for summary judgment and defendant Leased Pet's motion to dismiss. On November 20, 1989, the trial court granted defendant Leased Pet's section 2-619 motion to dismiss and denied both plaintiff's and defendant Zayre's motions for summary judgment.

On January 18, 1990, plaintiff filed her third amended complaint against defendant Zayre, its agents, servants, employees, partners and others, including Leased Pet. On January 30, 1990, plaintiff filed her fourth amended complaint, which was later amended on its face to read "Zayre, its agents, servants, employees, partners and including Leased Pet, Inc." On March 1, 1990, defendant Zayre filed a motion for summary judgment, arguing that, pursuant to Supreme Court Rule 273 (134 Ill.2d R. 273), the involuntary dismissal of defendant Leased Pet constituted an adjudication upon the merits of plaintiff's claim against defendant Leased Pet and that therefore the count against defendant Zayre must fail since the alleged negligence of defendant Zayre was predicated upon the actions of defendant Leased Pet. On April 5, 1990, the trial court ruled that the court's order of November 20, 1989, dismissing defendant Leased Pet was a dismissal with prejudice. In addition, the court granted defendant Zayre a partial summary judgment, holding that all claims against defendant Zayre predicated upon the acts or omissions of former defendant Leased Pet or its employees were barred.

On June 4, 1990, plaintiff filed her fifth amended complaint alleging that her injuries were caused by the negligence of defendant Zayre, its agents, servants, employees, partners and joint venturers. On July 5, 1990, the trial court, pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)), ruled that its orders of November 20, 1989, and April 5, 1990, were final and enforceable orders and that there was no just cause or reason for delaying their enforcement or appeal. Pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308), the trial court also certified two questions for review regarding piercing the corporate veil of former defendant Leased Pet.

On July 10, 1990, plaintiff filed her notice of appeal pursuant to Supreme Court Rules 304(a) and 308 (134 Ill.2d Rules 304(a), 308). However, plaintiff failed to file the requisite Rule 308 petition in a timely fashion. Therefore, this court on August 14, 1990, denied plaintiff's belated Rule 308 application for leave to appeal. On November 16, 1990, defendant Zayre filed a motion to strike portions of plaintiff's brief pursuant to Supreme Court Rule 375(a) (134 Ill.2d R. 375(a)). This court, on November 27, 1990, ordered that this motion be taken along with the other issues presented on appeal.

We first address defendant Leased Pet's motion to strike portions of plaintiff's brief. On July 5, 1990, the trial court, pursuant to Supreme Court Rule 304(a), ordered that:

"(1). The Court Orders of November 20, 1989 and April 5, 1990 are final Orders since they dispose of one of the Defendants, Leased Pet Depts., Inc. and any claims based on the acts or omissions of Leased Pet Depts., Inc. These Orders and rulings of November 20, 1989 and April 5, 1990 are final and enforceable Orders and there is no just cause or reason for delaying their enforcement or appeal."

Also on July 5, 1990, the trial court, pursuant to Supreme Court Rule 308, certified two issues for appeal. The questions certified were:

"A. ISSUE: Is The Corporation Whose Veil Is Sought To Be Pierced And/Or Its Dominating And Controlling Corporation Or Individual Necessary Parties Where The Purpose Of Piercing The Corporate Veil Is To Prove The Vicarious Liability Of A Party-Defendant.

B. ISSUE: Will The Remedy Of Piercing The Corporate Veil Be Allowed To Prove That The Dominating And Controlling Corporation Or Individual Of The Pierced Corporation Were The Agents, Servants, Partners Or [sic] Of The Remaining Defendant (i.e. Zayre) Thereby Establishing The Vicarious Liability Of The Defendant."

In its motion, defendant Leased Pet argues that, while the dismissal of def...