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Morton v. Madison County Nursing Home Auxiliary

November 21, 2001

RICHARD MORTON, AS INDEPENDENT ADM'R FOR THE ESTATE OF WILLIAM R. MORTON, APPELLANT,
v.
MADISON COUNTY NURSING HOME AUXILIARY ET AL.
(THE COUNTY OF MADISON, APPELLEE).



The opinion of the court was delivered by: Justice Thomas

Docket No. 90796-Agenda 31-September 2001

UNPUBLISHED

The issue in this case is whether the plaintiff's amended complaint adding a new defendant relates back to his original complaint under section 2-616(d) of the Code of Civil Procedure (735 ILCS 5/2-616(d) (West 2000)).

BACKGROUND

William Morton was a resident of the Madison County Nursing Home. In 1998, William perished when he either fell or jumped from a third-story window of the nursing home. Later that year, the administrator of William's estate, Richard Morton, timely filed a two-count complaint pursuant to the Wrongful Death Act (740 ILCS 180/0.01 (West 2000)) and the Survival Act (755 ILCS 5/27-6 (West 2000)) against the Madison County Nursing Home Auxiliary (Auxiliary), and served its registered agent, the director of the nursing home (hereinafter, the first service). The Auxiliary filed an answer raising the affirmative defense that it has no title, interest, authority, or control over the nursing home. Instead, the Auxiliary contended, Morton should have named Madison County as the defendant and served its agent, the county clerk, because the nursing home was subject to the authority and control of the County.

After the statute of limitations had expired, Morton moved to amend his complaint under section 2-616(d) of the Code of Civil Procedure (735 ILCS 5/2-616(d) (West 2000)) to add the County as a defendant. Pursuant to that section, Morton averred that: (1) the original complaint had been filed within the limitations period for a wrongful-death action; (2) the failure to join Madison County as a defendant was inadvertent; (3) the summons was originally served on the director of the nursing home as an agent of Madison County; (4) Madison County was aware of the pending action from its inception; and (5) the cause of action asserted against the County in the amended complaint grew out of the same occurrence set forth in the original complaint.

The trial court allowed Morton's amendment, and Morton served the amended complaint on the County's registered agent, the county clerk (hereinafter, the second service). In response, Madison County filed a motion to dismiss, arguing that Morton's amended complaint did not relate back to his original complaint because it failed to comply with section 2-616(d). Specifically, the County argued that the nursing home director, whom Morton had initially served, was not the proper agent of the County for purposes of service. Therefore, Morton failed to satisfy the third prong of section 2-616(d) which requires actual service on the proper defendant. See 735 ILCS 5/2-616(d)(3) (West 2000). Morton responded that even if his first service did not satisfy the third prong, his second service-that on the county clerk after the limitations period had expired-did satisfy the third prong.

The trial court granted the County's motion to dismiss, and Morton appealed. The appellate court affirmed, holding first that Morton's service on the nursing home director was not proper under section 2-211 of the Code of Civil Procedure because the proper agent for service on a county is the chairperson of the county board or the county clerk. Section 2-211 provides that, "summons may be served by leaving a copy with the chairperson of the county board or county clerk in the case of a county ***." 735 ILCS 5/2-211 (West 2000). The court concluded that, because the director was not an "agent" of the County for purposes of service, Morton's first service did not satisfy the third prong of section 2-616(d). The appellate court also held that Morton could not rely on his second service to satisfy section 2-616(d) because the third prong of section 2-616(d) requires that service occur within the limitations period. Morton's second service did not occur until after the limitations period; therefore, the court held that it did not satisfy the third prong. The appellate court thus concluded that, under section 2-616(d), Morton's amended complaint adding the County as a defendant did not relate back to his original complaint. 317 Ill. App. 3d 561.

We granted Morton's petition for leave to appeal pursuant to Supreme Court Rule 315(a) (177 Ill. 2d R. 315(a)), and now affirm the appellate court.

ANALYSIS

Under the common law, the failure to join the proper party before the running of the statute of limitations was fatal to the plaintiff's claim. Fitzpatrick v. Pitcairn, 371 Ill. 203 (1939); C. Drechsler, Annotation, Change in Party After Statute of Limitations Has Run, 8 A.L.R.2d §§72, 76 (1942). Indeed, an amendment to join the proper party was regarded as the commencement of a new action or proceeding against the substituted defendant which does not relate back to the institution of the original action. See 8 A.L.R.2d §72.

For example, in Fitzpatrick, the plaintiff filed a wrongful-death action against the Wabash Railway Company and served summons on the railway's agent. Fitzpatrick, 371 Ill. at 205. Unbeknownst to the plaintiff, the railway was in receivership at the time of the accident, and the railway's agent was also the agent of the receivers. Fitzpatrick, 371 Ill. at 205. By the time the plaintiff discovered his mistake, the one-year limitations period for bringing a wrongful-death action had run. Fitzpatrick, 371 Ill. at 205. Nevertheless, the plaintiff joined the receivers as defendants and served them with process. Fitzpatrick, 371 Ill. at 205. The receivers moved to dismiss on the ground that the limitations period had expired, and the trial court granted the motion. Fitzpatrick, 371 Ill. at 205. On appeal, this court held that the plaintiff's claim against the receivers was barred, despite the fact that the agent served was the agent of both the receivers and the railway. Fitzpatrick, 371 Ill. at 205, 208. This court wrote that the "railway company was the party intended to be sued. There was no misnomer but a case of mistaken identity of the party liable." Fitzpatrick, 371 Ill. at 208.

In 1954, and in response to Fitzpatrick, our legislature enacted section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1957, ch. 110, par. 46(4)), now section 2-616(d) of the Code of Civil Procedure (735 ILCS 5/2-616(d) (West 2000)). See Ill. Ann. Stat., ch. 110, par. 46(4), Joint Committee Comments-1955, at 49 (Smith-Hurd 1956). Section 2-616(d) of the Code of Civil Procedure was designed to afford relief to the plaintiff who, after the limitations period has expired, realizes that he has named the wrong defendant. 735 ILCS 5/2-616(d) (West 2000). In such instances of mistaken identity, section 2-616(d) provides that a statute of limitations will not bar the action as long as the plaintiff can meet all five of the statutory requirements. Section 2-616(d) provides:

"A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not 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 ***; (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, *** even though the ...


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