Yedor v. Centre Properties, Inc.

• Decision Date: 12 July 1988
• Docket Number: No. 87-3635,87-3635
• Court: United States Appellate Court of Illinois
• Parties: , 122 Ill.Dec. 916 Morrie YEDOR, Plaintiff, v. CENTRE PROPERTIES, INC., et al., Defendant-Third-Party Plaintiff-Appellee (Ace Disposal Division of Waste Management of Illinois, Inc., Third-Party Defendant-Appellant).

Page 414

527 N.E.2d 414

173 Ill.App.3d 132, 122 Ill.Dec. 916

Morrie YEDOR, Plaintiff, v. CENTRE PROPERTIES, INC., et al., Defendant-Third-Party Plaintiff-Appellee (Ace Disposal Division of Waste Management of Illinois, Inc. Third-Party Defendant-Appellant).

No. 87-3635.

Appellate Court of Illinois,

First District, Second Division.

July 12, 1988.

Robert J. Hourigan, Chicago, for third-party defendant-appellant.

Epton, Mullin & Druth, Ltd., Chicago (Eric A. Freeland, of counsel), for defendant-third-party plaintiff-appellee.

Presiding Justice HARTMAN delivered the opinion of the court:

A jury found third-party defendant Ace Disposal Division of Waste Management of Illinois, Inc. ("Ace Division") 65% liable for injuries incurred by the original plaintiff Morrie Yedor, and Centre Properties, Inc. ("Centre") liable for 35% thereof, from which Ace Division appeals. We are asked to review whether (1) the circuit court erred in denying Ace Division's motions to dismiss Centre's amended complaint as time barred; (2) Ace Division's motions for directed verdict and judgment notwithstanding the verdict should have been granted; (3) the opening statement by Centre's counsel prejudiced Ace Division's case; (4) Centre's exhibits 19 and 20 and testimony relating to them were properly admitted into evidence; and (5) the circuit court erred in its rulings regarding certain jury instructions.

Yedor allegedly slipped and fell in a puddle of oil while walking across a loading dock located at the south side of Centre's building at 180 N. La Salle St. ("La Salle Plaza") in Chicago, Illinois on April 13, 1982, causing extensive injuries. Yedor's second amended complaint, filed April 5, 1984, asserted that Centre and Teachers Realty Corporation (collectively "Centre") "owned * * * * operated, managed and controlled" La Salle Plaza and negligently failed to maintain the premises, creating an unsafe and dangerous condition, and causing Yedor's injuries. Other defendants were joined, but subsequently were dismissed.

With leave of court, Centre filed a third-party complaint for contribution against "Ace Disposal Service, Inc." on May 7, 1985, alleging that it: negligently delivered a dumpster to the loading dock so as to cause an oily substance to be on the surface of the dock; and "negligently maintained its trucks and delivery apparatus so as to allow fluids to escape from the truck's [sic] hydraulic systems while on the loading dock."

A summons issued the same day to "Ace Disposal Service, Inc." in Morton Grove, Illinois was returned "not served" on May 17, 1985, because "[third-party defendant] not at [address] given." Centre filed an amended third-party complaint on May 15, 1985, realleging the substance of its original third-party complaint against Ace Disposal Service, Inc. in count I, and, in count II, asserting the negligence of other defendants also subsequently dismissed. Centre sought contribution should it be found liable for Yedor's injuries.

An attempt was made to serve "Ace Disposal Service, Inc.," at "13707 S. Jeffery" in Chicago with alias summons issued on August 5, 1985, but on August 22, 1985, the summons was returned "not served," with a note that the company had moved. On August 7, 1985, the circuit court ordered, inter alia, the severance of Centre's third-party action, "without prejudice to third party defendants conducting discovery in any related re-filed matter."

A second alias summons issued October 2, 1985, was directed to "Ace Disposal" at "1500 North Hooker" in Chicago and service was accomplished October 10, 1985 on an agent of the company.

On October 17, 1985, the court ordered the dismissal of Yedor's action against Centre, noting the settlement of Yedor's claim between Yedor and Centre, and further ordered that the third-party action previously severed remain unaffected by the dismissal.

Third-party defendant Waste Management of Illinois, Inc. ("Waste Management") "incorrectly sued as Ace Disposal Systems, Inc.," filed a special and limited appearance on November 12, 1985. A third alias summons issued on April 24, 1986 was directed to "Waste Management of Illinois, Inc., d/b/a Ace Disposal" at 1500 N. Hooker in Chicago. Service was accomplished May 2, 1986.

Waste Management filed, on June 10, 1986, an affidavit in support of a previously filed motion to quash service of summons. Edward Kalebich, "[m]anager of the Ace Disposal Division of Waste Management of Illinois, Inc." swore that: (1) Ace Division is an unincorporated division of Waste Management; and (2) neither Ace Division nor Waste Management "have any relationship" with Ace Disposal Services, Inc., an actual Illinois corporation located in Morton Grove, Illinois.

On June 10, 1986, the court denied Waste Management's motion to quash service and ordered Centre's amended third-party complaint further amended on its face to reflect "Ace Disposal Service Division of Waste Management of Illinois, Inc." as third-party defendant, "in lieu of Ace Disposal Service, Inc."

Conceding that it was served with summons on October 10, 1985, Ace Division moved to dismiss Centre's amended third-party complaint, alleging that Centre's claim for contribution filed prior to dismissal of Yedor's suit named a separate and distinct corporation, not Ace Division, as third-party defendant, and that it was only after the dismissal of Yedor's cause of action that Ace Division was joined as third-party defendant, thereby barring the third-party action. Centre's response and Ace Division's reply followed. The circuit court denied the motion.

Following a trial, a jury returned a verdict in Centre's favor, apportioning 35% of the liability for Yedor's injuries to Centre and 65% of the liability to Ace Division, on which the circuit court entered judgment. By post-trial motion, supplemental motions and memoranda in support thereof, Ace Division requested that the court set aside the verdict and enter a judgment notwithstanding the verdict in favor of Ace Division, or in the alternative, grant it a new trial. The circuit court denied the post-trial motions on November 2, 1987. On November 25, 1987, Ace Division filed its notice of appeal.

I.

Ace Division first contends that the circuit court erred in denying its motions to dismiss Centre's amended third-party complaint because: (1) service of the third alias summons correctly designating Ace Division as a division of Waste Management and the amendment to the third-party complaint to reflect Ace Division's joinder to the suit were accomplished long after Yedor dismissed his claim against Centre on October 17, 1985; and (2) under Laue v. Leifheit (1984), 105 Ill.2d 191, 196, 85 Ill.Dec. 340, 473 N.E.2d 939, a third-party action for contribution is barred unless initiated during the pendency of the underlying claim. See Ill.Rev.Stat.1985, ch. 70, par. 305.

The term "misnomer" in law is not a euphemism for the word "mistake." Under section 2-401(b) of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-401(b)), misnomer is recognized where plaintiff sues and serves the right party but by the wrong name, as opposed to naming the wrong party. (Thielke v. Osman Construction Corp. (1985), 129 Ill.App.3d 948, 951, 85 Ill.Dec. 206, 473 N.E.2d 574; Hatcher v. Kentner (1983), 120 Ill.App.3d 571, 573, 75 Ill.Dec. 963, 458 N.E.2d 131; Stevens v. Yonker (1973), 12 Ill.App.3d 233, 234, 298 N.E.2d 395.) The pivotal determination is whether plaintiff actually serves the real party in interest with a copy of the complaint and summons, within the time limits allowed by law, so that actual notice of the complaint that has been lodged against it and notice of the need to respond has been given to that party in interest, albeit incorrectly named. Ill.Rev.Stat.1985, ch. 110, par. 2-401(b); Janove v. Bacon (1955), 6 Ill.2d 245, 250, 128 N.E.2d 706; Hoving v. Davies (1987), 159 Ill.App.3d 106, 109, 111 Ill.Dec. 340, 512 N.E.2d 729; Thielke v. Osman Construction Corp., 129 Ill.App.3d at 951, 85 Ill.Dec. 206, 473 N.E.2d 574; Hatcher v. Kentner, 120 Ill.App.3d at 575, 75 Ill.Dec. 963, 458 N.E.2d 131; Leonard v. City of Streator (1983) 113 Ill.App.3d 404, 408, 69 Ill.Dec. 272, 447 N.E.2d 489; Clinton v. Avello (1982), 105 Ill.App.3d 336, 338, 61 Ill.Dec. 202, 434 N.E.2d 355; Ashley v. Hill (1981), 101 Ill.App.3d 292, 294, 56 Ill.Dec. 773, 427 N.E.2d 1319; Borkoski v. Tumilty (1977), 52 Ill.App.3d 839, 842, 10 Ill.Dec. 650, 368 N.E.2d 136.

Here, an agent of the real party in interest, Ace Disposal Division of Waste Management of Illinois, Inc., was actually served with summons and with a copy of Centre's amended third-party complaint on October 10, 1985, one week before Yedor's lawsuit against Centre was dismissed by the circuit court on October 17, 1985, upon settlement. Therefore, the real party in interest had actual notice that it was being called upon to respond to alleged negligence in having deposited oil on Centre's loading dock at La Salle Plaza during the course of waste removal services rendered by it to the building. Although service was made upon a party improperly named, it was indeed the real party in interest. The third-party complaint was subsequently corrected by court order after a third alias summons was served upon the now properly named defendant on May 2, 1986. Under this evidence, the circuit court correctly denied Ace Division's motion to quash service.

Were we to have concluded that section 2-401(b), the misnomer statute, did not apply, the June 10, 1986 amendment to Centre's amended third-party complaint related back to the filing of the original third-party complaint on May 7, 1985, pursuant to section 2-616(d) of the Code of Civil Procedure. (Ill.Rev.Stat.1985, ch. 110, par. 2-616(d).) That section specifies that a cause of action against a party not originally named a defendant is not barred by a lapse of time under any statute or contract prescribing or limiting the time in which...