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Siebert v. Bleichman

August 03, 1999

CAROL SIEBERT AND CHARLES SIEBERT, PLAINTIFFS-APPELLANTS,
v.
JACK BLEICHMAN, D/B/A FAMILY PRIDE LAUNDRY AND DRY CLEANING AND J&H LAUNDROMAT, INC., DEFENDANTS-APPELLEES (HALLMARK & JOHNSON, ESTER BRIGHT, AND HOWARD BLEICHMAN, DEFENDANTS).



Appeal from the Circuit Court of Du Page County. No. 97--L--544 Honorable Edward R. Duncan, Judge, Presiding.

The opinion of the court was delivered by: Justice Thomas

On March 18, 1996, plaintiff Carol Siebert allegedly slipped and fell at the Family Pride Laundromat in Bensenville. On May 20, 1997, she and her husband, Charles, filed a complaint naming Jack Bleichman, Hallmark & Johnson (the property managers), and Ester Bright (the building owner) as defendants. Plaintiffs sought damages for personal injury and loss of consortium, alleging that Jack Bleichman was the operator of the laundromat. In fact, J&H Laundromat, Inc. (J&H) operated the business.

Because plaintiffs were uncertain about who operated the laundromat, they failed to name J&H as a defendant before the expiration of the two-year statute of limitations (735 ILCS 5/13--202, 13--203 (West 1996)). The trial court (1) granted summary judgment for Jack Bleichman and (2) dismissed the complaint against J&H after concluding that plaintiffs' delay in naming J&H as a defendant was not inadvertent. On appeal, plaintiffs argue that the trial court improperly dismissed the complaint because Jack and Howard Bleichman deliberately concealed J&H's identity to avoid liability. We affirm that part of the trial court's order granting summary judgment for Jack Bleichman and reverse that part of the order dismissing the complaint against J&H.

The record contains the following facts. In its answer of June 10, 1997, Hallmark & Johnson identified Jack Bleichman as the operator of the laundromat. Jack Shapiro was the Hallmark & Johnson property manager responsible for maintaining the shopping center where the laundromat was located. During his August 21, 1998, deposition, Shapiro testified that he believed that Jack Bleichman was the operator of the laundromat because Shapiro dealt exclusively with Bleichman.

In his answer of June 27, 1997, Jack Bleichman denied that he owned the laundromat but did not disclose that he was a J&H employee. In an interrogatory answer filed on January 26, 1998, Hallmark & Johnson again identified Jack Bleichman as the laundromat operator.

On February 24, 1998, the trial court ordered that all written discovery be completed by March 17, 1998, and all depositions be completed by May 26, 1998. On March 16, 1998, two days before the limitations period ran, Jack Bleichman answered plaintiffs' interrogatories by identifying J&H as the operator of the laundromat. Jack Bleichman also revealed that Howard Bleichman had leased the building from Ester Bright.

On March 26, 1998, the trial court granted plaintiffs leave to amend their complaint to include Howard Bleichman as a defendant. On April 20, 1998, Jack and Howard Bleichman moved for summary judgment and filed an affidavit in which Jack Bleichman again identified J&H as the business operator.

During his June 25, 1998, deposition, Jack Bleichman disclosed that (1) J&H operated the laundromat, (2) no sign or display at the laundromat revealed to the public that J&H was the operator, (3) Howard Bleichman was J&H's sole shareholder, and (4) Jack and Howard Bleichman divided J&H's profits. Four days later, plaintiffs sought leave to further amend their complaint to name J&H as a defendant. The trial court granted plaintiffs' request.

Plaintiffs' counsel attached an affidavit to the motion for leave to add J&H as a defendant. In the affidavit, counsel stated that he promptly initiated discovery, but Jack Bleichman repeatedly delayed his deposition. Bleichman did not appear for his deposition until seven months after it was first scheduled and three months after the statute of limitations had run. Bleichman appeared one month after the trial court's deadline for the completion of depositions.

After concluding that the two-year statute of limitations barred plaintiffs' claims, the court granted summary judgment for Jack Bleichman and dismissed the second amended complaint against J&H. Plaintiffs voluntarily dismissed the complaint against Howard Bleichman. The trial court also granted summary judgment for Hallmark & Johnson and Ester Bright.

On appeal, plaintiffs fail to present an argument supporting the reversal of the trial court's order granting summary judgment for Jack Bleichman. Accordingly, we need not address the propriety of the trial court's determination because plaintiffs have waived the issue. See 177 Ill. 2d R. 341(e)(7); see also Plooy v. Paryani, 275 Ill. App. 3d 1074, 1085 (1995).

Plaintiffs contend that their delay in naming J&H as a defendant was inadvertent and that the trial Judge improperly dismissed their second amended complaint. A motion to dismiss pursuant to section 2- -619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-- 619(a)(5) (West 1998)) admits all well-pleaded facts in the complaint and all reasonable inferences drawn therefrom. Ferrer v. Kuhl, 301 Ill. App. 3d 694, 700 (1998). A trial court's dismissal under the section is subject to de novo review. Ferrer, 301 Ill. App. 3d at 700.

An amendment adding a defendant may relate back to the date of the filing of the original complaint and thus prevent the action from being time barred if the following five requirements are satisfied: "(1) the time prescribed or limited had not yet expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading ***." (Emphasis added.) 735 ILCS 5/2--616(d) (West 1998).

Defendants concede that plaintiffs have met the requirements of sections 2--616(d)(1) and (d)(3) through (d)(5). However, defendants argue that the trial court's dismissal was proper because plaintiffs' ...


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