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Zeh v. Wheeler

OPINION FILED FEBRUARY 21, 1986.

JOSEPHINE ZEH, APPELLANT,

v.

JOHN B. WHEELER ET AL., APPELLEES.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Brian B. Duff, Judge, presiding.

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Josephine Zeh, appealed from an order of the circuit court of Cook County dismissing with prejudice her amended complaint on the ground that the amendment did not relate back to the date of the filing of the original complaint and thus was barred by the statute of limitations. The appellate court affirmed the judgment of the circuit court (126 Ill. App.3d 1155) in a Rule 23 order (87 Ill.2d R. 23). We granted plaintiff's petition for leave to appeal (94 Ill.2d R. 315).

The case is before us on the pleadings. On February 17, 1979, plaintiff allegedly sustained personal injury while descending a common stairway of an apartment building in Chicago. On February 2, 1981, 15 days before the running of the limitations period, plaintiff filed a one-count complaint in the circuit court of Cook County. The original complaint alleged that defendants, John B. Wheeler, John B. Wheeler Company, Claud Hess and Agnes Hess, owned, operated, managed, and controlled an apartment building located at 4400 South Wallace in the city of Chicago; that defendants negligently maintained a stairway in common use by the tenants of said premises, and negligently permitted said stairway to be in a defective and hazardous condition; that plaintiff was caused to fall by reason of certain unnatural accumulations of water and ice on such stairway; and that as a proximate result, plaintiff, due to the negligence of defendants, sustained personal injuries.

The defendant, John B. Wheeler, filed a motion to dismiss the complaint as to him, individually, alleging that he was a trustee under a land trust and held naked legal title to the property. An affidavit filed in support of the motion alleged that the beneficial owners under the land trust were John B. Wheeler Company, as contract seller, and Claud and Agnes Hess, as contract purchasers. The court allowed the motion to dismiss and held that the beneficial owners under the trust were "Claud and Agnes Hess, 4400 South Wallace Street, Chicago, Illinois."

Defendants John B. Wheeler Company and Claud and Agnes Hess answered the complaint, admitting ownership of the premises but generally denying the remaining allegations. Interrogatories were submitted by the defendants to the plaintiff and by the plaintiff to the defendants, and answers to them were given. Following several unsuccessful attempts to take plaintiff's deposition, an order was entered that the plaintiff appear for deposition on or before January 28, 1983. The record does not reflect that the plaintiff's deposition was taken at that time. However, on February 1, 1983, an order was entered allowing plaintiff's motion to amend the complaint on its face changing the address from 4400 South Wallace to 4400 South Lowe. The discussion during oral argument of the defendant's subsequent motion to dismiss indicates that the two addresses are two blocks apart. It was also indicated during oral argument that John B. Wheeler Company managed both the property at 4400 South Wallace and the property at 4400 South Lowe. However, as to the property at 4400 South Wallace, Claud and Agnes Hess were the beneficial owners and lived at that address. They had no interest in the property at 4400 South Lowe. There is language in the transcript of the argument which indicates that the property at 4400 South Lowe was owned by a party by the name of Murphy.

On March 15, 1983, defendants John B. Wheeler Company and Claud and Agnes Hess moved to dismiss the amended complaint. The basis of the motion to dismiss was that the amendment stated a new and different cause of action which did not arise out of the same transaction or occurrence set forth in the original complaint. Therefore the amended complaint did not relate back to the date of the filing of the original complaint by virtue of the provisions of section 2-616 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-616). The amendment, it was argued, was thus barred by the statute of limitations. On July 8, 1983, the plaintiff voluntarily dismissed Claud Hess and Agnes Hess, the owners of 4400 South Wallace. On October 25, 1983, the circuit court granted defendants' motion and dismissed the amended complaint with prejudice. The appeal to the appellate court was taken from this order.

The parties agree that plaintiff's amended complaint is barred by the appropriate statute of limitations unless the amendment "relates back" to the date of the filing of the original complaint. Section 2-616 of the Code of Civil Procedure governs amendments to pleadings and the relation back of those amendments to the date of the filing of the original pleading to avoid the statute-of-limitations bar. That section provides in relevant part:

"(b) The cause of action * * * set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted * * * in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege * * * the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action * * * set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 2-616(b).)

This section thus permits the relation back of an amended pleading to avoid the impact of statutes of limitations if two requirements are met: (1) the original pleading was timely filed and (2) the original and amended pleadings indicate that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading.

The parties do not dispute that the original complaint was filed within the two-year limitation period for personal injury actions. (Ill. Rev. Stat. 1981, ch. 110, par. 13-202.) Thus, whether the amendment relates back to the original filing depends on whether the negligence cause of action asserted in the amended pleading "grew out of the same transaction or occurrence set up in the original pleading." (Ill. Rev. Stat. 1981, ch. 110, par. 2-616(b).) Plaintiff argues that the change of address from 4400 South Wallace to 4400 South Lowe is an appropriate amendment within the purview of section 2-616(b) which relates back to the date of filing of the original complaint. The defendants, on the other hand, argue that the change in address renders the incident a separate and distinct occurrence and consequently a separate and distinct cause of action.

The appellate court, in affirming the circuit court's dismissal of plaintiff's amended complaint, agreed with the defendants and concluded that plaintiff's amended complaint did not relate back to the date of the filing of the original complaint because the amendment stated a negligence cause of action which did not arise out of the same occurrence set forth in the original complaint. In reaching this conclusion, the appellate court reasoned:

"The same issue has been considered by our supreme court and its holding is dispositive of the matter before us. In Gillmore v. City of Chicago (1906), 224 Ill. 490, the court held that the location of an injury as a result of a fall is a necessary and material element in this type of negligence action and to change the location is to change the occurrence. See also Carlin v. City of Chicago (1914), 262 Ill. 564."

Plaintiff argues, however, that Gillmore and Carlin have no precedential value because they were superseded by the enactment of the 1933 Civil Practice Act. Plaintiff argues further that even if Gillmore and Carlin were not overruled, the appellate court erred in its interpretation of the principle of law articulated by this court in those cases.

We first consider plaintiff's contention that Gillmore and Carlin are not dispositive of this issue because the court was working under standards which have long since been abolished by the legislature. We do not agree. In Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222, 224-30, this court traced the historical development of the doctrine of relation back of amendments to pleadings. The doctrine first came into existence in statutory form with the passage of the 1929 amendment of section 39 of the 1907 practice act. The statute provided for a relation back if the cause of action asserted in the amended pleading grew out of the same transaction or occurrence and was ...


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