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01/25/89 Julia Gibson, v. Russann

January 25, 1989





534 N.E.2d 449, 179 Ill. App. 3d 208, 128 Ill. Dec. 267 1989.IL.68

Appeal from the Circuit Court of Cook County; the Hon. Dean J. Sodaro, Judge, presiding.


PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and WHITE, JJ., concur.


On January 29, 1984, plaintiff, Julia Gibson, filed suit against the original defendant, International House of Pancakes, Inc. , for personal injuries sustained when plaintiff fell in an International House of Pancakes Restaurant in Chicago on January 20, 1983. On June 17, 1986, the trial court entered summary judgment for IHOP and allowed plaintiff to file an amended complaint naming IHOP's franchisee, Russann, Ltd. (Russann), as defendant. Plaintiff filed that complaint on June 23, 1986, and served summons upon Russann on June 27. Plaintiff appeals the trial court's dismissal of her amended complaint, which was dismissed on the ground that Russann had not been served with summons within the applicable limitations period of two years. Ill. Rev. Stat. 1983, ch. 110, par. 13-202.

On appeal, plaintiff contends that section 2-616(d) of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-616(d)) allows the relation back of the amended complaint against Russann to the filing date of the original complaint against IHOP. Specifically, plaintiff asserts that service of summons upon IHOP's registered agent satisfied the requirement of section 2-616(d)(3) for relation back that "service of summons was in fact had upon the person, his . . . agent or partner, as the nature of the defendant made appropriate, even though he . . . was served in the wrong capacity or as agent of another." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 110, par. 2-616(d)(3).

Focusing on the italicized language, plaintiff asserts that the nature of IHOP and Russann, their relationship and plaintiff's knowledge about them, justify relation back of the amended complaint. Plaintiff asserts that to be given effect, the italicized language must be construed as relaxing the literal requirement in section 2 -- 616(d)(3) of an agency relationship between the party originally served with summons and the party later sought to be substituted as a defendant.

We disagree with plaintiff's construction of section 2 -- 616(d)(3) for several reasons. Initially, we find the cases which plaintiff cites as supporting that construction inapposite to this case.

In Hix v. Amato (1977), 50 Ill. App. 3d 761, 365 N.E.2d 1148, Hix, seeking recovery for personal injuries under the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 94 et seq.) and common law negligence, sued Amato, the liquor licensee of the dramshop in which he was injured. Eventually, Amato sought summary judgment on the negligence count on the ground that he was not in possession or control of the dramshop when Hix was injured therein. The trial court granted Amato a summary judgment. It also denied Hix leave to file an amended complaint against Galloway, who admitted the existence of an oral lease with Amato and also admitted operating the dramshop under Amato's liquor license. In so doing, the trial court concluded that the requirement of service of summons upon the party, his agent or partner of now section 2-616(d)(3) had not been met. Disagreeing, the appellate court concluded that service upon Amato satisfied now section 2-616(d)(3).

Contrary to plaintiff's assertion, Hix is not on point. In so arguing, plaintiff ignores the basis of the appellate court's Conclusion therein. It was in light of the illegality under the Dramshop Act of the arrangement between Amato and Galloway and the legislative mandate of a liberal construction of the Act which caused the court to conclude that "it would be proper to consider Amato as the agent of Galloway for the purpose of service of process in matters relating to the [dramshop] of which Amato was the sole licensee." (Hix, 50 Ill. App. 3d at 765.) Plaintiff does not cite any illegality here similar to the illegality of the arrangement in Hix. Hix is thus of no avail to her.

In Bisset v. Joseph A. Schudt & Associates (1985), 133 Ill. App. 3d 356, 478 N.E.2d 911, the plaintiff sued the civil engineer for the Village of Lemont. At the time the plaintiff's cause of action accrued, the defendant was a partnership operated by Schudt and Ranney. Thereafter, but before plaintiff filed suit, Schudt and Ranney incorporated. The plaintiff filed the action against the corporation and then amended it to substitute the partnership. The appellate court held that the trial court properly allowed the amendment under section 2 -- 616(d).

Plaintiff incorrectly asserts that the plaintiff in Bisset was allowed to amend his complaint under section 2 -- 616(d) to bring in the corporation that was the successor in interest to the partnership originally joined as defendant. More importantly, plaintiff ignores the fact that the partnership and corporation in Bisset were operated by the same individuals. While the appellate court did not expressly so state, we believe it was that fact which motivated it to uphold the amendment of the complaint. Otherwise, we see no reason to hold the actions of an original defendant against a subsequently joined defendant as the court did when it stated:

"[But] for the actions of the defendant, amendment might have been had before the statute [of limitations] had run. . . . Defendant answered the complaint and interrogatories as a corporation. In doing so, it admitted that it was the entity that contracted with the village. Plaintiff discovered the intervening incorporation, after the statutory period had run, in a deposition of George Ranney. Plaintiff soon thereafter amended the complaint. We ...

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