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May 5, 1995



Presiding Justice McNAMARA delivered the opinion of the court: Egan, J., concurs. Rakowski, J., dissents.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

Plaintiffs, Marylynn Shaifer and Rafael Estrada, appeal from an order of the circuit court of Cook County denying their motion to amend their complaint to correct the name of the defendant pursuant to the misnomer provision of the Code of Civil Procedure (Code) (735 ILCS 5/2-401(b) (West 1992)), and from the court's subsequent order denying their motion for reconsideration of its prior order.

The relevant facts are as follows. On August 10, 1989, plaintiffs were allegedly injured in an automobile accident involving another vehicle driven by Dominic Folino. The police accident report correctly listed Dominic as the driver. Plaintiffs filed this personal injury action on January 2, 1991, naming Domenico Folino as the sole defendant. Domenico is the father of Dominic and the registered owner of the car Dominic was driving at the time of the accident. Domenico and Dominic resided together at the same address.

In their complaint, plaintiffs alleged in paragraph 2 that:

"The defendant, DOMENICO FOLINO, at said time and place, owned a certain vehicle which he was then operating in a westerly direction on 31st Street at or near the aforesaid intersection." (Emphasis added.)

In his answer, Domenico responded to paragraph 2 as follows:

"The defendant, DOMENICO FOLINO, admits ownership but denies each and every allegation contained in paragraph 2 of plaintiffs' complaint at law."

In paragraph 4 of their complaint, plaintiffs alleged that "the defendant committed one or more of the following acts of omission or commission," and proceeded to delineate various allegations of negligence in the operation of the vehicle at the time of the accident.

On January 16, 1991, plaintiffs attempted service on the named defendant at his residence located at 3055 South Emerald in Chicago, but were unsuccessful in doing so. Several subsequent attempts at service were made on Domenico at that address, to no avail. On June 6, 1991, plaintiff filed a motion seeking to appoint a special process server. Plaintiffs' motion was granted, and service at the home of Dominic and Domenico was effected on June 17, 1991. At his deposition, Bill Petropoulos, the special process server, testified that he left a copy of plaintiffs' complaint and an alias summons with a woman who identified herself as "Mother Rosa." Petropoulos described Rosa as a white female approximately 55 years of age; the record is undisputed that she was Dominic's mother. Petropoulos also mailed a copy of the complaint and summons to the South Emerald address. On August 2, 1991, Domenico filed his appearance and answer. Thereafter, the parties engaged in written discovery and conducted various depositions, including those of Dominic and Domenico. Domenico was produced for his deposition on February 27, 1992. It was then that plaintiffs first discovered that the name of the person referred to as the defendant in their complaint was not the name of the intended defendant, namely, Dominic, the operator of the car at the time of the accident. Domenico testified at his deposition that he lived at 3055 South Emerald with his wife Rose and son Dominic. He stated that he was the registered owner of the car involved in the accident but was not the driver. He learned of the accident from another son some time after it occurred.

A few weeks after Domenico's deposition, plaintiffs filed a motion to amend their complaint pursuant to section 2-401(b) of the Code, contending that the named defendant was a misnomer and that an amendment was necessary to correct it. The trial court denied plaintiffs' motion on the ground that they were attempting to add a new party after the running of the statute of limitations, rather than attempting to merely correct a misnomer. The trial court also rejected plaintiffs' contention that this case could be treated as one of misidentification rather than misnomer, such that the relation-back provisions of section 2-616(d) of the Code (735 ILCS 5/2-616(d) (West 1992)) would apply.

Plaintiffs filed a motion to reconsider the court's ruling, and the trial court heard the matter on August 16, 1993. Prior to the hearing, however, the depositions of Dominic and Petropoulos were taken. Petropoulos testified that he went to 3055 South Emerald, rang the doorbell to the Folino home, and a woman, who did not speak English well, answered. The woman asked Petropoulos who he was and what the papers he had were for, and he told her they were in regard to a car accident. In response to this, the woman stated they were "for her son." Petropoulos recorded in his records that the papers were received by "Mother Rosa," whom he described as a white female, age 55. Petropoulos testified that, if Rosa had told him the papers were for her husband Domenico, he would have recorded "wife" instead of "mother" Rosa.

Dominic testified that on the date of the accident, he was living with his parents, Domenico and Rose, at 3055 South Emerald. Dominic stated that his birth name was Sebastiano Domenico Folino, but that he had his first name legally changed to Dominic in 1983. His middle name remained unchanged, so that his full name became Dominic Domenico Folino. Dominico stated that he never went by the name Domenico and that his license reflected the name Dominic Folino.

Dominic admitted his involvement in the accident. He stated that immediately following the accident, he drove the car to the dealership where his brother was employed and left it there for repair. When he arrived home that evening, he did not tell his parents about the accident. He told them about it some time later, after his brother had already done so. He stated the car belonged to him but was registered in his father's name because the insurance was less expensive that way. Dominic had been involved in a previous auto accident in 1985 or 1986. He testified that he saw a copy of a complaint at his home but assumed it was in regard to the prior accident and thus paid no attention to it. At some point, he was informed by his parents that the complaint was for him; they told him "the people [were] suing." He told them he would "let the insurance company handle it." His father contacted the insurance company and sent them a copy of what Rosa had received from Petropoulos. Dominic later spoke with someone at the insurance company and gave his account of the accident.

At the hearing on the motion to reconsider, Laura Naleway, an attorney from the firm which initially represented plaintiffs, appeared to explain why Domenico, rather than Dominic, was listed as the defendant in this action. Naleway acknowledged that the police report listed Dominic Folino as the driver of the vehicle. She indicated, however, that her office had initially sent a standard attorney lien letter to Dominic Folino at his home and received a response from the insurance company stating that their insured's name was Domenico. She further indicated that her office had no knowledge of a separate person named Domenico and that they had intended merely to sue the ...

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