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05/22/96 MICHAEL J. OSTY v. M.R.V.S.

May 22, 1996

MICHAEL J. OSTY, PLAINTIFF-APPELLANT,
v.
M.R.V.S., INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable John J. Crown, Judge Presiding.

Rehearing Denied August 23, 1996. Released for Publication August 29, 1996.

The Honorable Justice Tully delivered the opinion of the court: Rizzi, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Plaintiff, Michael J. Osty, appeals from an order of the circuit court of Cook County dismissing, pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1994)), his case under the Dram Shop Act (Ill. Rev. Stat. 1991, ch. 43, par. 135 (now 235 ILCS 5/6-21 (West 1996)) against defendant, M.R.V.S., Inc. Jurisdiction is vested in this court under section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, ยง 6) and Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

On February 7, 1992, plaintiff filed his complaint in this cause in the circuit court, naming Fred Venrick, d/b/a the Rockery, and Adam Salamon as defendants. The complaint alleged that on February 9, 1991, while plaintiff was a patron of the Rockery, a licensed bar, he was assaulted by Salamon, who was intoxicated as a result of being served an excessive number of alcoholic beverages by the bar. Consequently, plaintiff was severely injured.

On February 11, 1992, Cook County deputy sheriff George Lietzow served Kathy Frank, named as agent of the Rockery, designated on the sheriff's return notice as a corporation. On March 3, 1992, Venrick, who had entered a limited appearance, filed a motion to quash the service alleging that such service was improper in that the suit was brought against an individual allegedly doing business as the Rockery and not a corporation as indicated by the sheriff's return notice. On March 11, 1992, the circuit granted the motion to quash and granted an instanter motion of plaintiff to issue an alias summons to Venrick. On May 19, 1992, special process server Walter McWilliams served Venrick by alias summons.

On June 16, 1992, Venrick filed a motion to dismiss for failure to state a cause of action, which was granted. The record is unclear as to whether this motion was granted or whether plaintiff voluntarily sought leave to file an amended complaint. In any event, on July 1, 1992, plaintiff filed his first amended complaint in which he named, inter alia, "Fred Venrick, d/b/a The Rockery" as a defendant. The first amended complaint purported to bring an action under the Dram Shop Act.

After discovery was completed, the case was submitted by the trial court to arbitration. An arbitration hearing was held during which Venrick argued that he was not a proper party to the litigation. The arbitrators found for Venrick on this point and the award was subsequently rejected by plaintiff.

On October 20, 1993, the trial court granted plaintiff's motion for substitution of parties and for leave to file a second amended complaint instanter. After a series of other motions not relevant to the disposition of this appeal, on December 22, 1993, Venrick was granted leave to respond to plaintiff's motion for substitution of parties. On January 5, 1994, Venrick filed his response to plaintiff's motion for substitution of parties. After the production of some documents and a continuance, on March 18, 1994, the circuit court granted plaintiff's motion for substitution of parties, naming M.R.V.S., Inc., as a defendant.

On April 13, 1994, M.R.V.S., Inc. filed a motion to dismiss plaintiff's second amended complaint, asserting that the statute of limitations had lapsed at the time of the original service of process. The motion argued that M.R.V.S., Inc.'s agent and corporate secretary, Venrick, was served on February 11, 1992, "two days after the period within which the action could have been brought ***." This motion was granted by the circuit court ...


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