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Dunavan v. Heritage House Nursing Home

OPINION FILED JANUARY 26, 1984.

JAMES DUNAVAN, PLAINTIFF-APPELLANT,

v.

HERITAGE HOUSE NURSING HOME ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Fayette County; the Hon. William D. Kelly, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order of the trial court that dismissed his second amended complaint for damages for personal injuries and from a subsequent order denying his motion for reconsideration. The basis of the court's order of dismissal was that because of mistaken identity the plaintiff had brought suit against and served the wrong party defendant. In its order the court denied the plaintiff leave to amend his complaint to change the name of the defendant on the basis of a misnomer because the statute of limitations was a bar to the action. We affirm.

There is no dispute of the facts. Plaintiff was a nursing home inspector employed by the State of Illinois. On June 15, 1976, in the course of his duties, he slipped and fell at a nursing home in Vandalia called Heritage House Nursing Home, allegedly receiving the injuries that are the subject of this suit. On June 14, 1978, plaintiff filed his complaint for personal injuries, naming as parties defendant "Heritage House Nursing Home and Bonnie Johnson, its Administrator." The complaint was filed one day before the expiration of the applicable two-year statute of limitations. Service of summons was made, as shown by the sheriff's return, upon "Bonnie Johnson," without more, and also upon Heritage House Nursing Home by serving Doris Langston, "registered agent, officer or agent." Service on both parties was made on June 20, 1978, a time after the expiration of the two-year statute of limitations.

On July 17, 1978, a motion to dismiss the complaint was filed on behalf of the named defendants on the grounds that Heritage House Nursing Home was not a legal entity and that no cause of action had been stated against Bonnie Johnson. No further action was taken until September 1, 1981, when plaintiff filed a motion for leave to file an amended complaint substituting "Langston Enterprises, Incorporated, a Foreign Corporation" in place of defendants Heritage House Nursing Home and Bonnie Johnson, its administrator. "Bonnie Johnson, its Administrator" was not included as a party defendant in the amended complaint plaintiff sought leave to file. The court heard argument on plaintiff's motion on September 1, and, on October 8, 1981, entered the following record sheet order:

"This matter having come on for hearing on plaintiff's Motion for Leave to File Amended Complaint to substitute a party defendant and objection thereto by defendant and the Court having heard arguments and considered briefs as prepared by counsel, deny [sic] plaintiff's Motion to add or substitute party defendant. Said ruling is based on the requirements of Sec. 46(4) of the Civil Practice Act of Illinois. Specifically this Court finds that plaintiff has not carried the burden of showing, as he must, that the party to be added or substituted within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him. The plaintiff has failed to show or demonstrate this to the Court. Therefore, plaintiff cannot avail himself of the benefits of this situation. Complaint dismissed.

Defendant's [sic] Motion to Dismiss granted with leave given plaintiff to file an Amended Complaint against Bonnie Johnson."

No appeal was taken by plaintiff from the order of October 8 that denied plaintiff the right to substitute Langston Enterprises, Incorporated, a foreign corporation, as a party defendant in the place of Heritage House Nursing Home, and we do not review the propriety of that order.

On November 2, 1981, plaintiff filed an amended complaint naming as the sole defendant "Bonnie Johnson, Administrator of Heritage House Nursing Home." In response to a motion, the amended complaint was dismissed, and plaintiff was granted leave to file a second amended complaint by a record sheet order of March 26, 1982.

The second amended complaint was filed on March 26, 1982, naming as the sole defendant "Bonnie Johnson, Administrator of Heritage House Nursing Home." The second amended complaint was in one count and was directed against "Bonnie Johnson, Administrator of Heritage House Nursing Home." Numbered paragraph one of the complaint alleged that on June 16, 1976, Langston Enterprises, Incorporated, owned and operated a nursing home called Heritage House Nursing Home. Numbered paragraph two alleged that Bonnie Johnson was employed by Langston Enterprises, Incorporated, as "an" administrator of Heritage House Nursing Home. The remaining nine paragraphs of the second amended complaint were given to allegations of the negligence of the defendant, and it concluded with a prayer for a judgment against "Bonnie Johnson, Administrator of Heritage House Nursing Home."

Bonnie Johnson thereupon filed a motion to dismiss the second amended complaint pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48). The motion was supported by her affidavit that attested that although she had been an employee at Heritage House Nursing Home for a number of years prior to May 1975, she had left that employment some time in April 1975 and had never thereafter returned to work for Langston Enterprises, Incorporated. The affidavit further recited that she had not been on the premises of the Heritage House Nursing Home after April 1975. These facts were not disputed by the plaintiff in any way. Following a hearing and the submission of briefs, the court dismissed the second amended complaint by the following record sheet entry of June 23, 1982, that comprises the order that is the subject of this appeal:

"The Court has considered the pleadings on file, arguments of counsel and briefs which were submitted by counsel for both parties; after considering all of the above, the Court finds that the naming of `Bonnie Johnson as Administrator * * *' in the Second Amended Complaint herein is a case of mistaken identity and not merely a misnomer which could be now corrected under Sec. 21 of the Civil Practice Act; the Court also finds that the plaintiff cannot now avail himself of the provisions of Sec. 46(4) to add or substitute a party defendant as the Statute of Limitations has expired; accordingly defendant's Motion to Dismiss is granted as to the 2nd Amended Complaint."

By an order entered on October 15, 1982, plaintiff's motion for reconsideration was denied, and this appeal followed.

It is plaintiff's contention on appeal that section 21 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 21) is addressed to misnomer in pleadings and authorizes the change of the name of the defendant in the second amended complaint from Bonnie Johnson, administrator, to Doris Langston, administrator. Plaintiff notes that service of summons was made upon both Bonnie Johnson, a past administrator of Heritage House Nursing Home, and Doris Langston, the registered agent of Langston Enterprises, Incorporated, the owner and operator of Heritage House Nursing Home. Plaintiff reasons that the designation of an individual, that is, Bonnie Johnson, in the caption of the complaint as an administrator, with no additional designation of such person as being a party individually, should have been sufficient indication of the party intended to be sued, namely, the administrator, provided service was in fact effected upon the proper party. In this case, plaintiff continues, the ...


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