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09/15/94 MANNING BRISTOW v. WESTMORE BUILDERS

September 15, 1994

MANNING BRISTOW, D/B/A MANNING BRISTOW PAINTING AND DECORATING, PLAINTIFF-APPELLANT,
v.
WESTMORE BUILDERS, INC.; GREGORY DANIELS, ROSEMARY DANIELS, GREGORY BIBA, DOREEN BIBA, AND IVA M. BIBA, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. Nos. 92-CH-1153, 92-CH-1154 cons. Honorable John S. Teschner, Judge, Presiding.

As Amended. Released for Publication October 18, 1994.

Doyle, Inglis, Woodward

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

In this consolidated appeal, plaintiff, Manning Bristow d/b/a Manning Bristow Painting and Decorating, timely appeals from two orders of the circuit court of Du Page County, which dismissed with prejudice his separate complaints to foreclose mechanic's liens he had filed against defendants, Westmore Builders, Inc., Gregory and Rosemary Daniels, and Gregory, Doreen, and Iva Biba. The sole issue raised on appeal is whether plaintiff forfeited his mechanic's lien claim against defendants by failing to file his complaint to enforcethe respective liens within the time limitations prescribed in section 34 of the Mechanics Lien Act (770 ILCS 60/34 (West 1992)).

Because this case comes before the court on a section 2-619 motion to dismiss, we assume for the purpose of the motion that all well-pleaded facts are true. ( A.F.P. Enterprizes, Inc. v. Crescent Pork, Inc. (1993), 243 Ill. App. 3d 905, 912, 183 Ill. Dec. 356, 611 N.E.2d 619.) On January 19, 1992, plaintiff contracted with Westmore Builders to paint the Daniels residence. On May 10, 1992, plaintiff entered into a similar contract with Westmore to paint the Biba residence. Following completion of the work, and subsequent nonpayment, plaintiff, on June 17, 1992, filed and recorded mechanic's liens against the Daniels and Biba residences.

On October 26, 1992, the Biba defendants filed a statutory demand to commence suit to enforce the lien. (See 770 ILCS 60/34 (West 1992).) A similar demand was filed by the Daniels on November 25, 1992. Section 34 of the Mechanics Lien Act provides, in relevant part:

"§ 34 Upon written demand of the owner, lienor, or any person interested in the real estate, or their agent or attorney, served on the person claiming the lien, or his agent or attorney, requiring suit to be commenced to enforce the lien or answer to be filed in a pending suit, suit shall be commenced or answer filed 30 days thereafter, or the lien shall be forfeited." 770 ILCS 60/34 (West 1992).

On November 30, 1992, plaintiff, under the name "Manning Bristow Painting and Decorating, Inc.," filed separate actions to enforce the respective mechanic's liens against the Biba defendants (No. 92-CH-1154) and the Daniels defendants (No. 92-CH-1153). Westmore was also named as defendant in both actions.

On March 5, 1993, both sets of defendants moved to dismiss the respective actions against them on the ground that "Manning Bristow Painting and Decorating, Inc." was a nonexistent legal entity, thus rendering the suits a nullity. Subsequently, the trial court, on May 4, 1993, granted plaintiff's motion to amend its complaint instanter, which substituted the name "Manning Bristow d/b/a Manning Bristow Painting and Decorating" in place of "Manning Bristow Painting and Decorating, Inc."

Both sets of defendants again moved to dismiss the respective complaints against them on the ground that plaintiff's failure to file timely an action to enforce the respective liens precluded any further action against them. In their motions to dismiss, both sets of defendants argued that because their respective demands to file suit preceded the date plaintiff filed his amended complaint (May 4, 1993) by more than 30 days, plaintiff was precluded from bringing suit to enforce the liens. The Biba defendants maintained additionally that even if plaintiff's suit was determined to have been filed on November 30, 1992, it was nevertheless untimely because it was more than 30 days past their demand date (October 26, 1992). The Bibas attached to their motion to dismiss copies of a process server's affidavit verifying that on October 26, 1992, he served the demand upon plaintiff's wife, Charlotte Bristow, at plaintiff's usual place of abode, and that on October 28, 1992, a copy of the demand was mailed to plaintiff at his residence.

In response to the motion to dismiss, plaintiff raised two arguments: (1) that misnomer of the plaintiff could properly be corrected by amendment (see 735 ILCS 5/2-1(b) (West 1992)); and (2) that the relation-back doctrine allowed him to cure a technical pleading deficiency without disturbing the original filing date. In the trial court, plaintiff did not counter the Biba defendants' additional argument that plaintiff's suit was untimely because it was filed more than 30 days after October 26. The trial court dismissed both complaints with prejudice on the ground that neither complaint had been filed within the time limitations prescribed in the Mechanics Lien Act. Plaintiff timely appeals.

Plaintiff contends on appeal that it was merely a case of misnomer when he identified himself as a corporation instead of a sole proprietorship in the initial complaint. Under plaintiff's theory of the case, his complaint to enforce the liens against the respective defendants' properties was filed on November 30, 1992. Defendants respond that plaintiff, as named in the initial complaint, was a nonexistent legal entity, thereby rendering his original complaint a nullity; therefore the date on which plaintiff was granted leave to file his amended complaint, May 4, 1993, controls. Both sets of defendants maintain that because the amended complaints to enforce the respective liens were filed more than 30 days following their demands to initiate suit, plaintiff forfeited his liens and was precluded from filing suit to enforce them. As they did in the trial court, the Biba defendants maintain, alternatively, that even if the complaint is deemed to have been filed on November 30, plaintiff nevertheless filed suit more than 30 days following their demand (October 26) to file suit, and, therefore, plaintiff's action against them was barred.

Misnomer is a mistake in name or the provision of an incorrect name to the person in accusation or pleading. (Black's Law Dictionary 1000 (6th ed. 1990).) It means nothing more than that a party is styled in other than his or her own name. (59 Am. Jur. 2d Parties ยง 243 (1987).) The consequence of a misnomer is explained ...


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