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07/12/88 Morrie Yedor, v. Centre Properties

July 12, 1988





527 N.E.2d 414, 173 Ill. App. 3d 132, 122 Ill. Dec. 916 1988.IL.1076

Appeal from the Circuit Court of Cook County; the Hon. Louis J. Giliberto, Judge, presiding.


PRESIDING JUSTICE HARTMAN delivered the opinion of the court. SCARIANO and EGAN, JJ., concur.


Yedor allegedly slipped and fell in a puddle of oil while walking across a loading dock located at the south side of Centre's building at 180 N. La Salle St. (La Salle Plaza) in Chicago, Illinois, on April 13, 1982, causing extensive injuries. Yedor's second amended complaint, filed April 5, 1984, asserted that Centre and Teachers Realty Corporation (collectively Centre) "owned . . . operated, managed and controlled" La Salle Plaza and negligently failed to maintain the premises, creating an unsafe and dangerous condition, and causing Yedor's injuries. Other defendants were joined, but subsequently were dismissed.

With leave of court, Centre filed a third-party complaint for contribution against "Ace Disposal Service, Inc." on May 7, 1985, alleging that it negligently delivered a dumpster to the loading dock so as to cause an oily substance to be on the surface of the dock, and "negligently maintained its trucks and delivery apparatus so as to allow fluids to escape from the truck's [ sic ] hydraulic systems while on the loading dock."

A summons issued the same day to "Ace Disposal Service, Inc." in Morton Grove, Illinois, was returned "not served" on May 17, 1985, because "[third-party defendant] not at [address] given." Centre filed an amended third-party complaint on May 15, 1985, realleging the substance of its original third-party complaint against Ace Disposal Service, Inc., in count I and, in count II, asserting the negligence of other defendants also subsequently dismissed. Centre sought contribution should it be found liable for Yedor's injuries.

An attempt was made to serve "Ace Disposal Service, Inc.," at "13707 S. Jeffery" in Chicago with alias summons issued on August 5, 1985, but on August 22, 1985, the summons was returned "not served," with a note that the company had moved. On August 7, 1985, the circuit court ordered, inter alia, the severance of Centre's third-party action, "without prejudice to third party defendants conducting discovery in any related re-filed matter."

A second alias summons issued October 2, 1985, was directed to "Ace Disposal" at "1500 North Hooker" in Chicago and service was accomplished October 10, 1985, on an agent of the company.

On October 17, 1985, the court ordered the dismissal of Yedor's action against Centre, noting the settlement of Yedor's claim between Yedor and Centre, and further ordered that the third-party action previously severed remain unaffected by the dismissal.

Third-party defendant Waste Management of Illinois, Inc. (Waste Management), "incorrectly sued as Ace Disposal Systems, Inc.," filed a special and limited appearance on November 12, 1985. A third alias summons issued on April 24, 1986, was directed to "Waste Management of Illinois, Inc., d/b/a Ace Disposal" at 1500 N. Hooker in Chicago. Service was accomplished May 2, 1986.

Waste Management filed, on June 10, 1986, an affidavit in support of a previously filed motion to quash service of summons. Edward Kalebich, "[manager] of the Ace Disposal Division of Waste Management of Illinois, Inc." swore that: (1) Ace Division is an unincorporated division of Waste Management; and (2) neither Ace Division nor Waste Management "have [ sic ] any relationship" with Ace Disposal Service, Inc., an actual Illinois corporation located in Morton Grove, Illinois.

On June 10, 1986, the court denied Waste Management's motion to quash service and ordered Centre's amended third-party complaint further amended on its face to reflect "Ace Disposal Service Division of Waste Management of Illinois, Inc." as third-party defendant, "in lieu of Ace Disposal Service, Inc."

Conceding that it was served with summons on October 10, 1985, Ace Division moved to dismiss Centre's amended third-party complaint, alleging that Centre's claim for contribution filed prior to dismissal of Yedor's suit named a separate and distinct corporation, not Ace Division, as third-party defendant, and that it was only after the dismissal of Yedor's cause of action that Ace Division was joined as third-party defendant, thereby barring the third-party action. Centre's response and Ace Division's reply followed. The circuit court denied the motion.

Following a trial, a jury returned a verdict in Centre's favor, apportioning 35% of the liability for Yedor's injuries to Centre and 65% of the liability to Ace Division, on which the circuit court entered judgment. By post-trial motion, supplemental motions and memoranda in support thereof, Ace Division requested that the court set aside the verdict and enter a judgment notwithstanding the verdict in favor of Ace Division, or in the alternative, grant it a new trial. The circuit court denied the post-trial motions on November 2, 1987. On November 25, 1987, Ace Division filed its notice of appeal. I

Ace Division first contends that the circuit court erred in denying its motions to dismiss Centre's amended third-party complaint because: (1) service of the third alias summons correctly designating Ace Division as a division of Waste Management and the amendment to the third-party complaint to reflect Ace Division's joinder to the suit were accomplished long after Yedor dismissed his claim against Centre on October 17, 1985; and (2) under Laue v. Leifheit (1984), 105 Ill. 2d 191, 196, 473 N.E.2d 939, a third-party action for contribution is barred unless initiated during the pendency of the underlying claim. See Ill. Rev. Stat. 1985, ch. 70, par. 305.

The term "misnomer" in law is not a euphemism for the word "mistake." Under section 2-401(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-401(b)), misnomer is recognized where plaintiff sues and serves the right party but by the wrong name, as opposed to naming the wrong party. (Thielke v. Osman Construction Corp. (1985), 129 Ill. App. 3d 948, 951, 473 N.E.2d 574; Hatcher v. Kentner (1983), 120 Ill. App. 3d 571, 573, 458 N.E.2d 131; Stevens v. Yonker (1973) 12 Ill. App. 3d 233, 234, 298 N.E.2d 395.) The pivotal determination is whether plaintiff actually serves the real party in interest with a copy of the complaint and summons, within the time limits allowed by law, so that actual notice of the complaint that has been lodged against it and notice of the need to respond has been given to that party in interest, albeit incorrectly named. Ill. Rev. Stat. 1985, ch. 110, par. 2-401(b); Janove v. Bacon (1955), 6 Ill. 2d 245, 250, 128 N.E.2d 706; Hoving v. Davies (1987), 159 Ill. App. 3d 106, 109, 512 N.E.2d 729; Thielke v. Osman Construction Corp., 129 Ill. App. 3d at 951; Hatcher v. Kentner, 120 Ill. App. 2d at ...

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