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Campbell v. Feuquay

OPINION FILED FEBRUARY 3, 1986.

VERLE A. CAMPBELL, PLAINTIFF-APPELLANT,

v.

EDITH FEUQUAY, D/B/A SOUTH ROXANA MARKET, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County; the Hon. George J. Moran, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Verle A. Campbell, appeals from an order of the circuit court of Madison County dismissing with prejudice his damage action for personal injury. The basis for the circuit court's order was that plaintiff had failed to join the proper party as defendant within the two-year limitations period provided by law. On appeal, plaintiff contends that any defect in designation of the defendant constituted a mere misnomer correctable under section 2-401(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-401(b)). In the alternative, plaintiff argues that failure to name the correct defendant prior to expiration of the limitations period was "inadvertent" within the meaning of section 2-616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-616(d)) and that his cause of action is therefore not barred by lapse of time. For the reasons which follow, we reverse and remand.

The facts pertinent to this appeal are not in dispute. On December 28, 1979, plaintiff filed his complaint for damages, alleging that he was injured in a fall at South Roxana Market, a grocery store located in South Roxana on December 26, 1979. Named as defendant was South Roxana Market. Summons was issued to that defendant on January 2, 1980. The return of service, dated January 3, 1980, listed South Roxana Market as a corporation and indicated that service was obtained on "Owner Edith Furquol." "Edith Furquol" was, in fact, Edith Feuquay.

On January 24, 1980, an answer was filed on behalf of South Roxana Market in which a general denial was made to plaintiff's allegations. Simultaneously, South Roxana Market filed and served interrogatories on plaintiff. Plaintiff, in turn, propounded interrogatories and a request to produce documents directed to South Roxana Market. Extensive additional discovery was thereafter undertaken by both plaintiff and South Roxana Market. At a discovery deposition conducted by plaintiff on October 17, 1980, Edith Feuquay testified that she was the sole owner of South Roxana Market. In response to the question, "Are you incorporated here or — ?" she answered, "No." She also stated that she was employed by the market. No question was raised by motion or otherwise regarding the propriety of naming South Roxana Market as defendant in plaintiff's initial complaint. The interrogatories propounded by plaintiff were answered in the name of South Roxana Market under the signature of defendant's attorney; the discovery initiated by defendant bore the name South Roxana Market; and as late as July 8, 1982, defendant's counsel signed pleadings as "Attorneys for Defendant South Roxana Market." Apparently no recorded documents existed which revealed to plaintiff or the public the actual status of South Roxana Market. In December of 1981, the limitations period applicable to plaintiff's complaint expired.

During the course of the proceedings, plaintiff was represented by three successive sets of attorneys, the last of which entered their appearance on November 15, 1983. On February 28, 1984, plaintiff's new attorneys moved for a continuance of the trial setting, and on March 5, 1984, they filed a motion to add a party defendant, to amend the ad damnum, and to file an amended complaint naming "Edith Feuquay, d/b/a South Roxana Market" as defendant. Plaintiff's motion was granted on March 9, 1984, and plaintiff's amended complaint was filed on that date. On March 16, 1984, objections to plaintiff's motion were filed in the name of South Roxana Market, and defendant moved to set aside the court's order of March 9. Defendant's motion was denied on July 16, 1984, and on August 10, 1984, Edith Feuquay, d/b/a South Roxana Market, filed a special entry of appearance and motion to dismiss for lack of personal jurisdiction. This motion was mooted when Edith Feuquay was personally served on August 24, 1984.

On August 27, 1984, Edith Feuquay, d/b/a South Roxana Market, filed a motion to dismiss or in the alternative for judgment on the pleadings on the grounds that plaintiff's failure to add her as a party defendant prior to expiration of the limitations period was not inadvertent, as required by section 2-616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-616(d)). Defendant's motion was granted by order of the court dated September 26, 1984. On October 25, 1984, plaintiff moved for reconsideration of that order. Plaintiff's motion was argued on January 18, 1985, at which time plaintiff produced and filed a second motion to amend his complaint and an amended complaint. The court took plaintiff's motion to reconsider under advisement and granted plaintiff leave to file his second amended complaint.

On February 11, 1985, Edith Feuquay, d/b/a South Roxana Market, filed a motion to dismiss plaintiff's second amended complaint for the same reasons asserted in her previous motion, i.e., that plaintiff's failure to timely join her as a defendant was not inadvertent. On March 15, 1985, the court denied plaintiff's prior motion to reconsider and granted defendant's motion to dismiss plaintiff's second amended complaint. In its order the court found that plaintiff was not entitled to amend his complaint under section 2-616 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-616) and was not entitled to relief under section 2-401 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 2-401). Plaintiff's cause of action was deemed barred by the statute of limitations and was, accordingly, dismissed with prejudice.

On this appeal, plaintiff argues strenuously that his designation of defendant simply as South Roxana Market and not Edith Feuquay, d/b/a South Roxana Market, constituted a mere misnomer which the circuit court should have permitted him to correct pursuant to section 2-401(b). That statute provides:

"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 requires." (Ill. Rev. Stat. 1983, ch. 110, par. 2-401(b).)

The record shows, however, the principal issue as framed before the circuit court was whether plaintiff should be permitted to add Edith Feuquay, d/b/a South Roxana Market, as an additional party defendant under section 2-616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-616(d)). Our review shall therefore commence with a discussion of the applicability of this latter provision.

Section 2-616(d) specifies that a cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time in which an action may be brought or right asserted if all of the following conditions are met:

(1) The time limitation had not expired when the original action was commenced.

(2) The failure to join the person as a defendant was inadvertent.

(3) Service of summons was in fact had upon the person, his or her agent or partner, even though he or she was served in the ...


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