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09/04/97 GLENDA L. DEVER AND DAVID DEVER v. LINDA

September 4, 1997

GLENDA L. DEVER AND DAVID DEVER, PLAINTIFFS-APPELLANTS,
v.
LINDA SIMMONS AND DAVID LUBEZNIK, D/B/A SKYWAY TOLL PLAZA PARTNERSHIP, AND MCDONALD'S CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Paddy McNamara, Judge Presiding.

Released for Publication October 9, 1997.

The Honorable Justice Cerda delivered the opinion of the court. Wolfson, P.j., and McNAMARA, J., concur.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court:

Plaintiffs, Glenda L. Dever and David Dever, appeal from the dismissal of their negligence complaint against defendants, Linda Simmons and David Lubeznik, doing business as Skyway Toll Plaza Partnership (the franchisees), and McDonald's Corporation, a Delaware corporation. The complaint was dismissed because defendants were joined after the statute of limitations expired. Plaintiffs originally filed their complaint against an incorrect defendant, McDonald's Restaurants of Illinois, Inc. Plaintiffs argue on appeal that defendants waived the statute of limitations, that defendants should have been estopped from raising the statute of limitations, and that plaintiffs' complaint should relate back to the time that their original complaint against the incorrect defendant was filed because plaintiffs inadvertently failed to name the correct defendants based in part on the confusing similarity of the names of the McDonald's entities. We affirm.

FACTS

On September 2, 1992, Glenda L. Dever fell outside the McDonald's restaurant at 8871 S. Kingston Avenue in Chicago. On August 29, 1994, plaintiffs filed a personal-injury complaint in the United States District Court for the Northern District of Illinois against McDonald's Restaurants of Illinois, Inc., based on the accident. The summons and the complaint were served on the registered agent for McDonald's Restaurants of Illinois, Inc., on September 2, 1994. The two-year personal-injury statute of limitations (735 ILCS 5/13--202 (West 1994)) elapsed on the same date.

McDonald's Restaurants of Illinois, Inc., denied in its answer that it owned or operated the restaurant where the accident occurred. The attorney for McDonald's Restaurants of Illinois, Inc., informed the attorney for plaintiffs that the owner of the restaurant was another corporation, McDonald's Corporation.

On October 13, 1994, after the statute of limitations had expired, plaintiffs filed an amended complaint in federal court naming McDonald's Corporation as defendant. On October 19, 1994, the amended complaint was served on the registered agent for McDonald's Corporation. The registered agent was the same as for McDonald's Restaurants of Illinois, Inc. McDonald's Corporation's answer admitted that it owned the restaurant but denied that it operated the restaurant. The answer did not state that there were franchisees who operated the restaurant. After the answer was filed, plaintiffs' attorney telephoned McDonald's Corporation's attorney and thereby learned that there were franchisees.

On November 7, 1994, plaintiffs moved to compel disclosure of the franchisees. After service of the motion, McDonald's Corporation's attorney identified the franchisees. On December 2, 1994, plaintiffs filed a second amended complaint adding the franchisees as defendants. On April 26, 1995, the federal court dismissed the claims against the franchisees, apparently for lack of diversity jurisdiction.

On May 17, 1995, pursuant to the refiling statute (735 ILCS 5/13--217 (West 1994)), plaintiffs filed a complaint in the circuit court of Cook County against the franchisees. The franchisees were served on May 25, 1995.

On May 24, 1995, McDonald's Corporation was dismissed from the federal lawsuit on the basis that the franchisees were unavailable.

On June 5, 1995, plaintiffs filed an amended state-court complaint naming McDonald's Corporation as an additional defendant. On July 13, 1995, all three defendants filed an appearance in the circuit court of Cook County.

Plaintiffs' attorney prepared for trial in the state-court case by serving interrogatories and requests for production of documents on defendants, and by attending court hearings concerning discovery deadlines. After this preparation by plaintiffs, defendants filed on December 18, 1995, a motion to dismiss the complaint pursuant to section 2--619(5) of the Code of Civil Procedure (735 ILCS 5/2--619(5) (West 1994)), arguing that the two-year personal-injury statute of limitations (735 ILCS 5/13--202 (West 1994)) expired on September 2, 1994. Defendants stated in the motion that neither McDonald's Corporation nor the franchisees had known that the original action was pending prior to the expiration of the statute of limitations.

Plaintiffs filed a memorandum in opposition to the motion to dismiss that did not argue that the amended complaint related back to the date the original action was filed. Plaintiffs did not raise the relation-back issue until their motion to reconsider the dismissal of their complaint, and they then did not provide evidence of defendants' knowledge of the original complaint.

The trial court granted the motion to dismiss. After plaintiffs' motion to reconsider was ...


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