APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
541 N.E.2d 1288, 186 Ill. App. 3d 1061, 133 Ill. Dec. 850 1989.IL.1062
Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.
PRESIDING JUSTICE BILANDIC delivered the opinion of the court. PINCHAM, J., concurs. JUSTICE SCARIANO, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC
Plaintiff, David Greil, appeals from the circuit court order dismissing, with prejudice, his action against defendant, LaSalle Ohio Enterprises, Inc. (LaSalle), and a subsequent order granting summary judgment in favor of defendant, Travelodge International, Inc. (International). Each appeal was filed immediately after the respective orders were entered. These appeals, Nos. 87--2372 and 87--2762, have been consolidated.
On January 22, 1983, plaintiff, David Greil, was a paying guest at a motel located at 545 North La Salle Street in Chicago, Illinois. The motel was advertised, designated and operated under the name "Travelodge in the Heart of Chicago."
Travelodge International, Inc. (International), is a California corporation duly authorized to do business in the State of Illinois. International owns the trademark "Travelodge" under which it operates a national network of motor hotels principally through the grant of a license to others to use its mark. Such a license was granted for use of the trademark "Travelodge" for the motel at 545 North La Salle Street in Chicago, Illinois.
On January 22, 1983, a robber entered plaintiff's room at the motel. In an attempt to escape, plaintiff jumped from a window in his second-story room to the sidewalk, thereby sustaining personal injuries. On January 16, 1985, approximately one week before the expiration of the statute of limitations, plaintiff filed a multicount complaint against International, the franchisor, and "Travelodge in the Heart of Chicago."
Summons and a copy of the complaint were served on "Travelodge in the Heart of Chicago" on February 4, 1985, by leaving a copy with Miss Kathleen O'Brien as agent at the motel office in Chicago. "Travelodge in the Heart of Chicago" filed a special and limited appearance and subsequently filed a motion to dismiss on the ground that it was not a legal entity and, therefore, could not be sued. An affidavit executed by Ludovico Bongiovanni revealed that LaSalle Ohio Enterprises, Inc., an Illinois corporation, was the entity that was granted the license to use the "Travelodge" trade and service marks for the operation of the motel at 545 North La Salle Street in Chicago, Illinois.
This caused plaintiff to file an amended complaint on November 20, 1985, naming LaSalle as an additional party defendant. After receipt of process, LaSalle entered its appearance and a motion to dismiss through the same law firm that appeared for co-defendant "Travelodge in the Heart of Chicago." LaSalle's section 2-619 motion to dismiss (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) asserted that the action was barred because it was served on December 4, 1985, which was more than 10 months after the expiration of the two-year statute of limitations.
After a hearing on the "Travelodge in the Heart of Chicago" motion to dismiss and a hearing on LaSalle's motion to dismiss, the trial court, on January 16, 1987, entered an order granting both motions. "Travelodge in the Heart of Chicago" was dismissed because it was not a legal entity. LaSalle was dismissed because the trial Judge decided that the misnomer rule did not apply (Ill. Rev. Stat. 1987, ch. 110, par. 2-401); that plaintiff did not come within the requirements of relation back under section 2-616 (Ill. Rev. Stat. 1987, ch. 110, par. 2-616(d)); and that, therefore, the amended complaint was barred by the statute of limitations (Ill. Rev. Stat. 1987, ch. 110, par. 13-202).
First, we will consider plaintiff's appeal from the order dismissing LaSalle. I
Plaintiff presents two questions of law regarding the motion to dismiss LaSalle. The first is whether the circumstances of this action present a case of misnomer. (Ill. Rev. Stat. 1985, ch. 110, par. 2-401.) The second is whether the relation-back theory of section 2-616(d) applies. (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(d).) Because we find that the circumstances of this action present a case of misnomer, it is not necessary to discuss the merits of relation-back.
Plaintiff contends that he sued the real party in interest, the business operating the "Travelodge in the Heart of Chicago" motel, but did so under the wrong name. Section 2--401(b) of the Illinois Code of Civil Procedure 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. 1987, ch. 110, par. 2-401(b).
It is well settled that whether a case involves misnomer depends upon whom plaintiff intended to sue (Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319, appeal denied (1982), 91 Ill. 2d 551), and whether the real party in interest is sued (Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 447 N.E.2d 489). A determinative factor in deciding whether misnomer applies is whether the party sued actually exists. Thielke v. Osman Construction Corp. (1985), 129 Ill. App. 3d 948, 951, 773 N.E.2d 574 ("It seems clear that plaintiff did not have a mistaken belief as to the identity of defendant. This Conclusion is enforced by the fact that there is no corporation in existence named Osmond"); Clinton v. Avello (1982), 105 Ill. App. 3d 336, 338, 434 N.E.2d 355, appeal denied (1982), 91 Ill. 2d 568 ("The most probative evidence of who a plaintiff intended to sue is the party named by the plaintiff in the complaint. If such a party in fact exists, but is not the real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party").
In Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, 309 N.E.2d 690, appeal denied (1974), 56 Ill. 2d 587, the court rejected defendant's argument that a judgment against it was void because suit was brought in a name that was merely a trade name for a group of insurance companies. Plaintiff sued "MFA Insurance Company" and served a purported agent of MFA. The true name of the company, however, was Countryside Casualty Company, a Missouri corporation. "MFA Insurance Company" was nothing more than a name, a nonentity. In correcting the misnomer and allowing plaintiff to amend the name of the defendant, the court stated:
"n view of the admissions of record which indicate a telephone listing and the doing of business under the name of MFA Insurance Company, we find that plaintiff's reliance on the name in designating the defendant was reasonable. Further, the amendment required is not a substantive matter but a formal one and in conformity with the record. [Citations.] We note also that counsel for defendant has appeared on behalf of 'MFA Insurance Company' throughout, has filed an affidavit stating he is the attorney for the defendant, MFA Insurance Company. . . . Accordingly, we have decided to correct the misnomer . . .." 18 Ill. App. 3d at 566.
The identical situation presents itself in the instant case. Plaintiff sued "Travelodge in the Heart of Chicago" and served its purported agent. However, the true name was LaSalle Ohio Enterprises, Inc., an Illinois corporation (LaSalle). Although under the wrong name, plaintiff actually served an agent of LaSalle; Miss Kathleen O'Brien. O'Brien's duties at the motel include opening the mail and also working behind the desk. Legal documents were forwarded by O'Brien to Ludovico Bongiovanni, the president of LaSalle.
The franchise/license agreement between International and LaSalle was executed on behalf of LaSalle by Ludovico Bongiovanni, President. The agreement authorized LaSalle to use the trademark "Travelodge" for the operation of a motor hotel at 545 North La Salle Street, Chicago, Illinois. That motel is listed in the Chicago telephone directory as "Travelodge in the Heart of Chicago." LaSalle and "Travelodge in the Heart of Chicago" share the same legal counsel. Thus, all of the vital signs that made a case for misnomer in Ingram are also present in this case.
"Names are nothing. The gist of the matter is, were the parties in interest actually served." (Pond v. Ennis (1873), 69 Ill. 341, 344.) We therefore conclude that this defendant was aware that "Travelodge in the Heart of Chicago" and LaSalle were one and the same. As in Ingram, "we have decided to correct the misnomer."
The authorities relied upon by the trial court and defendant are not persuasive. In Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 447 N.E.2d 489, dramshop plaintiffs sued an individual under the belief that the individual was the owner and operator of a tavern. In fact, the real owner and operator was a corporation. There were two separate entities: an individual and a corporation. Plaintiffs did not misname the right party, but named the wrong party. Thus, there was no misnomer.
Similar facts exist in Marsden v. Neisius (1955), 5 Ill. App. 2d 396, 126 N.E.2d 44. In that case, plaintiff brought an action naming a corporation as defendant. The real defendant was an individual. Thus, again there are two separate entities: an individual and a corporation. As in Leonard, the plaintiff did not misname the right party, but named the wrong party. It was a mistake and not a misnomer.
In the case at bar there was only one entity; not two separate entities. Plaintiff intended to sue the company operating as "Travelodge in the Heart of Chicago." Plaintiff served the registered agent of LaSalle when the true name of the corporation was discovered. This was done despite the fact that O'Brien could have been served as an agent of the corporation. (See A-Z Equipment Co. v. Moody (1980), 88 Ill. App. 3d 187, 410 N.E.2d 438.) Plaintiff served the proper physical party because the agent served for ...