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Mcginnis v. A.r. Abrams

OPINION FILED FEBRUARY 25, 1986.

JAMES MCGINNIS ET AL., PLAINTIFFS-APPELLANTS,

v.

A.R. ABRAMS, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Macon County; the Hon. Donald W. Morthland, Judge, presiding.

JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

This is an appeal from the dismissal of several counts of a farranging personal injury complaint.

Plaintiff, James McGinnis, was injured when he tripped over a door casing at his place of employment, a Decatur K mart. The incident in question occurred on August 23, 1982.

On July 25, 1984, plaintiff filed a four-count complaint. Counts I, II and IV were directed against parties not involved in this appeal. Count III charged defendant Richard L. Bowen AIA and Associates (Bowen), the architect of the building, with negligence. Along with the complaint plaintiff filed a "Motion for Leave to Conduct Discovery Depositions Prior to Defendants' Time to Appear." The motion alleged that plaintiff needed to conduct discovery immediately to ascertain the identity of potential defendants before the running of the statute of limitations. The motion was allowed.

On August 23, 1984, exactly two years after plaintiff's accident, an amended complaint was filed. The record reveals that leave of court was not obtained prior to this filing.

Count VI of the amended complaint named as a defendant Charles Burse, d/b/a Overhead Door Company of Decatur (Burse). Count XIV was a consortium claim brought by plaintiff's wife, Marilyn McGinnis, against Burse. Counts VIII and XVI were of a similar nature, but named Louis Sano and Felix Sano, d/b/a Sano Manufacturing and/or Sano Manufacturing Co., Inc., a corporation (this was a misspelling; these defendants will hereinafter be referred to as "Saino"). Count XI added a consortium claim against Bowen.

In September 1984, Bowen, Burse and Saino all filed motions to dismiss, although Bowen's motion was directed only to count III. None of these motions raised the statute of limitations as a ground for dismissing the complaint.

On October 5, 1984, the court granted the Burse motion to dismiss counts VI and XIV without prejudice, denied the Saino motion and cancelled the allotment for the Bowen motion.

On October 26, plaintiffs filed a second amended complaint. The complaint contained new counts III, VIII, XI and XVI, even though those counts had not been dismissed from the amended complaint.

On January 4, 1985, Saino and Burse moved to dismiss all counts directed against them. The gravamen of the motions was that the August 23 amended complaint was filed without leave of court and was therefore a nullity. Accordingly, no proper complaint was filed within the two-year limitations period. On January 16, Bowen filed a similar motion attacking count XI, Marilyn McGinnis' consortium claim. On February 28, plaintiffs filed their first motion for leave to amend, which alternatively alleged that leave was unnecessary in the first instance.

On March 4, the court dismissed counts VI, VIII, XI, XIV and XVI with prejudice based on the statute of limitations. The court further found that there was no just cause for delaying appeal.

• 1 The theory urged by defendants finds support in recent case law. In both Allen v. Archer Daniels Midland Co. (1985), 129 Ill. App.3d 783, 473 N.E.2d 137, and Petrella v. Leisky (1981), 92 Ill. App.3d 880, 417 N.E.2d 134, plaintiffs filed additional counts against new parties before the running of the statute of limitations, but without first obtaining leave of court. In each case, it was held that the unauthorized amendments were nullities, and neither satisfied nor tolled the statute of limitations.

Plaintiffs urge several reasons why Allen and Petrella should not apply. It is argued that defendants waived the statute of limitations by filing motions to dismiss which did not raise the statute as a bar to the respective counts. This position finds no support in the Code of Civil Procedure. Also, in Metropolitan Sanitary District v. Anthony Pontarelli & Sons, Inc. (1972), 7 Ill. App.3d 829, 288 N.E.2d 905, it was held that failure to raise the statute of limitations by answer or motion did not bar a motion for summary judgment based thereon. Since we believe this to have been a proper decision, then, a fortiori, a waiver argument is inapplicable here.

• 2 Plaintiffs argue that the motions to dismiss of Saino and Bowen were untimely. Supreme Court Rule 181(a) (87 Ill.2d R. 181(a)) is cited. Rule 181(a) provides that "[w]hen the summons requires appearance within 30 days * * * [t]he defendant may make his appearance by filing a motion within the 30-day period." (Emphasis added.) Plaintiffs would extrapolate this rule, which applies to pleadings accompanied by summons, to apply to amended pleadings. This is clearly untenable. The unusual posture of the instant case is reason enough to reject plaintiffs' proposal. More to the point, Rule 181(a) unquestionably applies to an original complaint. However, the procedure to be followed ...


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