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08/26/94 JOHN JANSEN v. AMERITEL

August 26, 1994

JOHN JANSEN, INDIVIDUALLY AND AS ASSIGNEE OF COINTEL CORPORATION, FORMERLY AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
AMERITEL, INC. AND MERVYN DUKATT, INDIVIDUALLY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Willard J. Lassers, Judge Presiding.

Released for Publication October 14, 1994.

Egan, Rakowski, Giannis

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

The plaintiff, John Jansen, appeals from an order dismissing his amended complaint on the ground that the complaint was barred by the statute of limitations.

The plaintiff filed a complaint on April 11, 1990, naming "Cointel Corporation" as the plaintiff. In paragraph 2 of the complaint which was captioned, "Parties," the complaint alleged that "pursuant to the resolution duly passed by directors of then existing Cointel Corporation, all right, title and interest to this action has been assigned to John H. Jansen." The two-count complaint alleged that the defendants, Ameritel, Inc., and Mervyn Dukatt, had tortiously interfered with contracts Cointel had with approximately 200 persons. The complaint was signed in the name of "Cointel Corporation, by John H. Jansen as successor" by its then attorney, Brian Schultz. Attached to the complaint was an affidavit of Jansen in which he alleged he "was the president of Cointel Corporation and am now the duly authorized successor and assignee of all rights, title and claims of Cointel Corporation."

The defendants filed an answer and an affirmative defense which alleged that the plaintiff's causes of action were barred by a two-year statute of limitations. The plaintiff's reply denied that the action was barred by a two-year statute of limitations. The parties participated in discovery; and the defendants filed a motion for a bill of particulars. On July 3, 1991, the plaintiff's attorney, Brian Schultz, was granted leave to withdraw and the plaintiff was ordered to file an appearance within 21 days. No appearance was filed within 21 days, and the defendants moved to dismiss the complaint on the ground that the plaintiff failed to file an appearance and that a corporation may not proceed pro se. The motion to dismiss was granted on October 4, 1991.

On November 4, 1991, Jansen, through new counsel, filed a motion to vacate the dismissal on the ground that the action was brought on behalf of Cointel and Jansen individually. The defendants responded to the motion to vacate and denied that there were any allegations in the complaint indicating that the action was brought by "John Jansen, individually and as successor in interest" or thatJansen was a party plaintiff. On January 15, 1992, Jansen's motion to vacate the dismissal was denied, and he was given leave to file an amended complaint. The first amended complaint, filed on February 11, 1992, named as plaintiff, "John Jansen, individually and as successor in interest to Cointel Corporation, an Illinois corporation."

The defendants moved to dismiss, pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-619), on the following grounds: (1) that the complaint failed to allege when Jansen became assignee or successor in interest to Cointel or what interest he acquired; (2) that Cointel was dissolved on July 1, 1984, and any action must have been brought within five years according to the corporate survival statute (Ill. Rev. Stat. 1991, ch. 32, par. 12.80); and that the plaintiff's allegations, which sounded in slander or personal injury, were time-barred under a two-year statute of limitations. The defendants attached to their motion a copy of the "Certificate of Dissolution of Domestic Corporation," which stated that Cointel was dissolved on January 2, 1986, for failure to file an annual report and failure to pay an annual franchise tax.

Jansen filed a response, and the defendants filed a reply. In the reply the defendants attached a copy of two orders relating to the judicial dissolution of Cointel. The October 8, 1985, order judicially dissolved Cointel due to a deadlock of shareholders and ordered Jansen to account for "all assets and funds of Cointel which were received, spent, used, appropriated, or otherwise employed for the entire life of said corporation." The April 7, 1986, order granted U.S. Phone Company for its attorney fees the proceeds of the assets sale, which totalled $1,257. The order does not state what items were included in the accounting or what assets were sold.

On November 4, 1992, Jansen filed an affidavit alleging that on April 30, 1985, Cointel was in good standing; that he was a director and shareholder on that date; and that pursuant to a resolution, Cointel assigned to him "all claims, demands, and causes of action * * * which Cointel has or may have had" against the defendants. He also attached a copy of the assignment which stated in part:

"For value received, the undersigned stockholders and directors of Cointel * * * give their approval and sell, assign and transfer to John H. Jansen and his successors, assigns and personal representatives, any and all claims, demands, causes of action of any kind whatsoever which Cointel Corporation has or may have against Mervyn Dukatt, individually and/or as an officer, director, or stockholder of Ameritel, Incorporated, and Ameritel, Incorporated, arising from their tortious interference with Cointel Corporation's contracts."

The trial Judge dismissed the complaint on the ground that the first amended complaint was not filed within the statute of limitations controlling causes of action for tortious interference with a contract, which the Judge held, contrary to the defendants' argument, was five years.

We will first consider the plaintiff's invocation of the law of pleading, described as the law of "relation-back." Section 2-616(a) of the Code of Civil Procedure provides that prior to final judgment, an amendment may be allowed to introduce "any party who ought to have been joined as plaintiff or defendant." (Ill. Rev. Stat. 1991, ch. 110, par. 2-616(a).) Section 2-616(b) also provides that a cause of action set up in an amended pleading shall not be barred by the statute of limitations, "if the time prescribed or limited had not expired when the original pleading was filed" and if the 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. ch. 110, par. 2-616(b). It is the position of the plaintiff that his first amended complaint meets the requirements of section 2-616(a),(b). The only argument made by the defendants dealing with the ...


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