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Fassero v. Turigliatto

June 04, 2004

CONNIE K. FASSERO, PLAINTIFF-APPELLANT,
v.
THOMAS TURIGLIATTO, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Macoupin County. No. 03L16. Honorable Thomas P. Carmody, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

PUBLISHED

Plaintiff, Connie K. Fassero, was involved in an automobile accident and filed a personal injury suit against the person whom she thought was the driver of the vehicle but who instead was the owner of the vehicle. Defendant moved to dismiss plaintiff's complaint, contending he was not a proper party. Plaintiff later learned defendant was not the driver and requested leave to amend after the expiration of the statute of limitations. The trial court denied her motion to amend and granted defendant's motion to dismiss. We reverse and remand.

I. BACKGROUND

On April 7, 2001, plaintiff's vehicle was struck by a vehicle driven by Todd Turigliatto. Plaintiff said that at the scene, Todd identified himself as his brother, Thomas Turigliatto, the owner of the vehicle. Todd denied plaintiff's assertion and claimed she must have misunderstood. Todd said he mentioned his brother's name to plaintiff at the scene either in reference to being the owner or insured of the vehicle.

Randall Emery, a deputy sheriff for the Macoupin County sheriff's department, responded to the scene of the accident. According to Deputy Emery's accident report, the driver was Todd Turigliatto and the owner was Thomas Turigliatto. Plaintiff said she did not receive a copy of the accident report at the scene and did not recall receiving it in the mail as Deputy Emery told her she would. Todd said he received a copy of the accident report at the scene.

Thomas was served by substitute service on his mother on April 8, 2003, with a summons and the complaint. Thomas and Todd lived together with their mother. Thomas saw the summons when he arrived home from work that evening and showed it to his brother, Todd.

On May 2, 2003, plaintiff filed a motion for leave to amend her complaint claiming that (1) she intended to sue Todd; (2) Todd received timely notice of the suit pursuant to Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)); (3) Todd would not suffer prejudice in defending the action and knew, or should have known, that but for the mistake, the action would have been originally brought against him; and (4) the claim alleged in the amended pleading arose from the same facts as those alleged in the original pleading. Todd was served the same day plaintiff's motion was filed.

On May 5, 2003, Thomas filed a motion to dismiss, claiming he was not a proper party to the suit as he was not the driver of the vehicle as plaintiff alleged in her complaint. Attached to the motion was a copy of the accident report, listing Todd as the driver and Thomas as the owner of the vehicle involved.

On September 25, 2003, the trial court denied plaintiff's motion for leave to amend, finding that because plaintiff sued the wrong party, it was a case of mistaken identity governed by section 2-616(d) of the Code of Civil Procedure (735 ILCS 5/2-616(d) (West 2002)), not misnomer. The court also relied on the fact that an accident report existed and indicated the driver of the vehicle was Todd, not Thomas. This appeal followed.

II. ANALYSIS

A. Misnomer or Mistaken Identity

A central issue in this case is whether the relation-back doctrine applies. If this is a case of a misnomer, the relation-back doctrine applies, and the amended complaint naming the proper defendant is considered filed upon the filing date of the original complaint. Vaughn v. Speaker, 126 Ill. 2d 150, 158-59, 533 N.E.2d 885, 888-89 (1988). Service upon the misnamed defendant after the statute of limitations has expired does not bar the suit. Vaughn, 126 Ill. 2d at 158, 533 N.E.2d at 888. If this is a case of mistaken identity, the relation-back doctrine does not apply unless the factors set forth in section 2-616(d) are satisfied. Vaughn, 126 Ill. 2d at 159, 533 N.E.2d at 889. If the factors are not satisfied, plaintiff is required to have sued the proper defendant within the applicable statute of limitations. Vaughn, 126 Ill. 2d at 159, 533 N.E.2d at 889.

Misnomer applies in those cases where the proper party or real party in interest is sued under the wrong name. Thielke v. Osman Construction Corp., 129 Ill. App. 3d 948, 950, 473 N.E.2d 574, 576 (1985). "A misnomer occurs where the plaintiff brings an action and serves summons upon the party intended to be made the defendant, thus giving actual notice of the lawsuit to the real party in interest, but the process and complaint do not refer to the person by his correct name." Shaifer v. Folino, 272 Ill. App. 3d 709, 713, 650 N.E.2d 594, 597 (1995) (First District). The misnomer rule is a narrow one and applies only where a plaintiff brings an ...


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