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Jared D. Litwiller v. Skar Enterprises

October 6, 2011

JARED D. LITWILLER,
PLAINTIFF-APPELLANT,
v.
SKAR ENTERPRISES, INC., D/B/A NV ULTRA
LOUNGE; HARRY FULLER; AND PHILIP MARTINO, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of McLean County No. 09L208 Honorable Michael G. Prall, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

JUSTICE McCULLOUGH delivered the judgment of the court, with opinion.

Justices Appleton and Cook concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Jared D. Litwiller, brought an action against defendants, Skar Enterprises, Inc., d/b/a NV Ultra Lounge (Skar); Harry Fuller; and Philip Martino, raising assault and battery claims against Martino and a claim under the Dramshop Act (235 ILCS 5/6-21(a) (West 2008)) against Skar and Fuller. He appeals the trial court's order, granting Fuller's motion to be dismissed from the case and denying plaintiff's motion to amend his complaint and substitute Beaufort Street Renewal, LLC (Beaufort), as a defendant. On appeal, plaintiff argues the court erred by finding the relation-back provisions of section 2-616(d) of the Code of Civil Procedure (Code) (735 ILCS 5/2-616(d) (West 2008)) were inapplicable due to the expiration of the one-year limitations period in the Dramshop Act. We reverse and remand.

¶ 2 On December 23, 2009, plaintiff filed his complaint against defendants. He alleged on February 11, 2009, he was threatened, physically attacked, and injured by Martino at a tavern owned by Skar and located on property owned by Fuller. Plaintiff maintained, at the time of the attack, Martino was intoxicated from drinking "alcoholic/intoxicating beverages" that were served to him at Skar's tavern. On January 19, 2010, Fuller was served with a summons and a copy of plaintiff's complaint.

¶ 3 On March 30, 2010, Fuller filed a motion to dismiss the complaint. He argued he was not a proper defendant in the matter and no liability could be had against him under the Dramshop Act because he was neither the liquor licensee nor the owner of the premises at issue. Fuller alleged, on the date of the occurrence at issue, Skar was the liquor licensee and Beaufort was the owner of the premises. He requested plaintiff's claim against him be dismissed.

¶ 4 On April 12, 2010, plaintiff filed a motion for leave to amend his complaint and apply the relation-back doctrine. He asserted his original complaint was filed within the one-year limitations period in the Dramshop Act. Plaintiff agreed he incorrectly named Fuller as the owner of the premises on which the tavern was located and acknowledged that Beaufort was the correct owner and proper defendant. However, he asserted that "according to incorporation documents filed with the Illinois Secretary of State, *** Fuller appear[ed] to be a member, if not the only member, of Beaufort." Plaintiff sought to amend his complaint to correct the "misnomer" and substitute Beaufort for Fuller. He also requested that his amended complaint relate back to the original date of filing pursuant to section 2-616(d) of the Code (735 ILCS 2-616(d) (West 2008)).

¶ 5 The same date, plaintiff filed a response to Fuller's motion to dismiss. Therein, he agreed that Fuller was not the owner of the premises at issue but asserted Fuller was the sole member of Beaufort. He attached a printout from the Illinois Secretary of State's website, listing only Fuller as a member of Beaufort. Additionally, plaintiff attached an Internet newspaper article that identified Fuller as the owner of the premises upon which Skar's tavern was located.

¶ 6 On September 29, 2010, the trial court entered its order. The court granted Fuller's motion to dismiss and denied plaintiff's motion to amend the complaint to add Beaufort and relate it back to the original filing date. It stated as follows:

"The court finds that [Fuller] is correct and that the one year special, jurisdictional statute of limitations [in the Dramshop Act] is a condition precedent to the filing of a dram shop [sic] action. The dram shop [sic] statute is unlike the general statute of limitation provision which is an affirmative defense to be raised by the defendant."

Later, the court entered an order pursuant to Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006), finding no just reason for delaying either enforcement or appeal of its September 2010 order.

¶ 7 This appeal followed.

ΒΆ 8 On appeal, plaintiff argues the trial court erred by finding he could not amend his complaint to name Beaufort as a defendant and have it relate back to the date of his original, timely filed complaint. He maintains the limitations period in the Dramshop Act does not ...


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