Zlatev v. Millette

• Decision Date: 03 September 2015
• Docket Number: No. 1–14–3173.,1–14–3173.
• Citation: 43 N.E.3d 153
• Parties: Stefan ZLATEV, Plaintiff–Appellee, v. Grant MILLETTE, Defendant–Appellant (James Lee, Zachary Kondratenko, Nick Gianfortune, and Tom Pravongviengkham, Defendants).
• Court: United States Appellate Court of Illinois

43 N.E.3d 153

Stefan ZLATEV, Plaintiff–Appellee

v.Grant MILLETTE, Defendant–Appellant (James Lee, Zachary Kondratenko, Nick Gianfortune, and Tom Pravongviengkham, Defendants).

No. 1–14–3173.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 3, 2015.

Julie A. Teuscher, Michael J. Cucco, and Alex E. Campos, Cassiday Schade LLP, Chicago, for appellant.

Ivaylo V. Tchernev, Law Offices of Jacobson & Tchernev Ltd., Chicago, for appellee.

OPINION

Justice ELLIS

delivered the judgment of the court, with opinion.

¶ 1 In this appeal, we must answer two certified questions from the trial court regarding the relation-back doctrine, codified in section 2–616(d) of the Code of Civil Procedure

(735 ILCS 5/2–616(d) (West 2014)). The first certified question is:

“Does an amended complaint against a new defendant filed after the expiration of the statute of limitations relate back to plaintiff's original complaint as a case of mistaken identity under [section 2–616(d)

] where the allegations against the new defendant are the same as the allegations against originally named defendants who remain parties in interest and defendants?”

¶ 2 Our answer is that, when deciding whether an amended complaint relates back to the filing date of an initial complaint under section 2–616(d)

, the relevant inquiry is whether the newly-added party knew or should have known that the plaintiff made a mistake in failing to name him or her as a defendant in the initial complaint. The plaintiff's decision to retain the original defendants in an amended complaint is irrelevant, as it sheds no light on what the defendant knew or should have known at the time the plaintiff filed the initial complaint. It only sheds light on the plaintiff's intent in amending the complaint, which is not the relevant focus.

¶ 3 The second question certified by the trial court is:

“Does plaintiff's lack of knowledge regarding the identity of a potentially culpable party constitute mistaken identity under the relation back statute in [section 2–616(d)

]?”

¶ 4 Our answer is that a plaintiff's lack of knowledge regarding a party's identity—or, for that matter, a lack of knowledge regarding a known party's involvement in the events giving rise to the cause of action—may constitute a mistake of identity under section 2–616(d)

.

¶ 5 I. BACKGROUND

¶ 6 On September 10, 2011, plaintiff Stefan Zlatev and two friends went to an apartment building at 2423 North Seminary Avenue in Chicago to visit another friend, who lived in the first-floor apartment. When they arrived, a party was being held in the second-floor apartment. The two apartments shared a common entrance from the street. James Lee, a resident of the second-floor apartment, prevented plaintiff and his two friends from entering the building. Plaintiff and Lee began to argue and, according to plaintiff, Lee pushed plaintiff's friend. A fight then ensued, spilling out of the building and into the middle of Seminary Avenue.

¶ 7 During the fight, someone struck plaintiff in the head with a brick, breaking several bones in his face. Plaintiff did not see who hit him with the brick.

¶ 8 The police prepared a report dated November 8, 2011 regarding the incident. The report said that Mariyana Lechova, a witness to the fight, saw “a male white, 22 years old, 5'7?–5'8? tall, 170 pounds, short blond hair, and red shirt” walk away from the fight with a brick in his hand. Lechova did not see this person hit plaintiff with the brick, but she saw plaintiff sitting on the curb holding his face. Lee told the police that his roommate, Zachary Kondratenko, told him that someone named “Nick Giansanti * * * might have had something to do with the incident.” Kondratenko told the police that he “hear [d] Nick Gianfortune's name mentioned but he did not remember * * * who was talking about it.”

¶ 9 On December 6, 2011, plaintiff filed his initial complaint. Lee and Kondratenko were listed as defendants, along with “John Doe # 1 [through] John Doe # 5.” John Does 1 through 4 were named as other residents of the second-floor apartment along with Lee and Kondratenko. The complaint alleged that defendant “was struck in the head with a brick by Defendant, John Doe # 5.”

¶ 10 On July 12, 2012, plaintiff filed his first amended complaint, which named Lee and Nick Gianfortune as defendants. Plaintiff alleged that Gianfortune struck him with the brick.

¶ 11 Plaintiff filed a second amended complaint on October 18, 2012. This complaint retained Lee and Gianfortune as defendants and added Tom Pravongviengkham. Plaintiff alleged that Gianfortune and Pravongviengkham hit him in the head with “a heavy object.” On February 1, 2013, plaintiff filed a third amended complaint, which also alleged that Gianfortune and Pravongviengkham hit him with the heavy object.

¶ 12 On June 15, 2013, Gianfortune answered plaintiff's written interrogatories. Gianfortune said that he recalled that defendant was present at the time of the incident. Gianfortune also said that he had spoken to defendant about the lawsuit after he had been served with the complaint.

¶ 13 On February 7, 2014, plaintiff filed his fourth amended complaint. That complaint alternatively alleged that defendant, Gianfortune, or Pravongviengkham struck plaintiff with the brick.

¶ 14 Defendant moved to dismiss the fourth amended complaint pursuant to section 2–619(a)(5) of the Code of Civil Procedure

(735 ILCS 5/2–619(a)(5) (West 2014)), alleging that plaintiff failed to file his fourth amended complaint within the two-year statute of limitations applicable to his claims. See 735 ILCS 5/13–202 (West 2010) (two-year limitations period applies to actions alleging personal injury). While acknowledging that the limitations period had expired before he filed the fourth amended complaint, plaintiff argued that his fourth amended complaint related back to the filing date of his initial complaint under section 2–616(d), because he had not known about defendant's involvement until after the limitations period had run.

¶ 15 The trial court denied defendant's motion to dismiss, finding that the fourth amended complaint related back to the filing date of plaintiff's earlier complaints. (Each of the earlier complaints was filed before the limitations period expired.) After denying defendant's motion to reconsider that ruling, the trial court, at defendant's request, certified two questions for immediate appeal:

“a. Does an amended complaint against a new defendant filed after the expiration of the statute of limitations relate back to plaintiff's original complaint as a case of mistaken identity under [section 2–616(d)

] where the allegations against the new defendant are the same as the allegations against originally named defendants who remain parties in interest and defendants?

b. Does plaintiff's lack of knowledge regarding the identity of a potentially culpable party constitute mistaken identity under the relation back statute in [section 2–616(d)

]?”

¶ 16 II. ANALYSIS

¶ 17 This case is before us pursuant to Illinois Supreme Court Rule 308

(eff. Feb. 26, 2010), which permits a trial court to certify questions of law for our review. The trial court must find that there is “substantial ground for difference of opinion” as to the answer to the question and an immediate appeal must be likely to “materially advance” the termination of the litigation. Ill. S.Ct. R. 308(a) (eff. Feb. 26, 2010). When addressing certified questions under Rule 308, our review is generally limited to the questions presented to us. De Bouse v. Bayer AG, 235 Ill.2d 544, 550, 337 Ill.Dec. 186, 922 N.E.2d 309 (2009) ; Cincinnati Insurance Co. v. Chapman, 2012 IL App (1st) 111792, ¶ 21, 363 Ill.Dec. 401, 975 N.E.2d 203. We review certified questions de novo, as they are necessarily questions of law. De Bouse, 235 Ill.2d at 550, 337 Ill.Dec. 186, 922 N.E.2d 309.

¶ 18 At the outset, we note that defendant's arguments are focused on the propriety of the trial court's order denying the section 2–619

motion to dismiss. But that is not our focus in an appeal under Rule 308. Despite defendant's attempts to expand the scope of this appeal beyond the certified questions—questions that defendant himself formulated—we will limit our analysis to answering the certified questions.

¶ 19 We first address whether relation-back can apply when an amended pleading retains defendants named in an earlier complaint. We then turn to whether a lack of knowledge of a defendant's identity can qualify as a mistake under section 2–616(d)

.

¶ 20 A. Retention of Originally–Named Defendants

¶ 21 Under section 2–616(d)

, an amended complaint filed after the statute of limitations has expired relates back to the filing date of the original complaint if three requirements are met: (1) the plaintiff filed his original action within the limitations period; (2) the person against whom the amended complaint is brought, “within the time that the action might have been brought or the right asserted against him or her plus the time for service permitted under Supreme Court Rule 103(b) (Ill.S.Ct. R. 103(b) (eff. July 1, 2007)), received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense * * * and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her ”; and (3) the cause of action in the amended pleading “grew out of” the same transaction or occurrence as the original complaint. (Emphasis added.) 735 ILCS 5/2–616(d)

(West 2014).

¶ 22 In this case, the portion of the second prong of section 2–616(d)

we highlighted above is at issue. Defendant seeks clarification as to what constitutes “a mistake concerning the identity of the proper party.” Defendant argues that section 2–616(d) does not apply where, as in this case, one defendant is sued, then the plaintiff adds a second defendant after the running of the limitations period but does not dismiss the...