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Guiffrida v. Boothy's Palace Tavern, Inc.

Court of Appeals of Illinois, Fourth District

August 12, 2014

ANN E. GUIFFRIDA, Plaintiff-Appellant,
v.
BOOTHY'S PALACE TAVERN, INC., Defendant-Appellee

Page 37

Appeal from Circuit Court of Calhoun County. No. 13L4. Honorable Richard D. Greenlief, Judge Presiding.

SYLLABUS

In an action alleging that plaintiff was injured due to the negligent maintenance of a tavern, plaintiff's initial complaint did not sue the right party under the wrong name in a case of misnomer but, rather, sued the wrong party altogether by mistaken identity, and, therefore, when plaintiff's amended complaint naming the correct defendant was finally filed, the statute of limitations had expired, the complaint did not relate back to the timely filed initial complaint pursuant to section 2-616(d) of the Code of Civil Procedure, and the appellate court rejected plaintiff's contention that the correct defendant had constructive notice of the filing of the initial action and held that the correct defendant received actual notice of the action upon being served with the amended complaint, which occurred after the time permitted by Supreme Court Rule 103(b), and also affirmed the dismissal of the amended complaint after rejecting plaintiff's additional arguments that the savings provision of section 13-217 of the Code extended the limitations period and that defendant was estopped from asserting the limitations period as a defense.

Lanny H. Darr II (argued), of Schrempf, Blaine, Kelly & Darr, Ltd., of Alton, for appellant.

Greg Anthony Gaz (argued), of Springfield, for appellee.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion. Presiding Justice Appleton and Justice Steigmann concurred in the judgment and opinion.

OPINION

HOLDER WHITE, JUSTICE.

Page 38

[¶1] In February 2012, plaintiff, Ann E. Guiffrida, filed a complaint against The Palace, Inc., in the United States District Court for the Central District of Illinois, alleging defendant's negligent maintenance of its premises caused plaintiff to suffer injury. Later that month, plaintiff voluntarily dismissed her federal complaint and refiled in Madison County, Illinois. After discovering The Palace, Inc., was not the proper defendant, plaintiff sought leave to amend her complaint and correct the " misnomer." In August 2012, the Madison County circuit court granted plaintiff's motion for leave to correct the misnomer and ordered all further pleadings to designate Boothy's Palace Tavern, Inc., as defendant.

[¶2] Later that month, defendant entered an appearance and filed a motion to transfer venue, asserting Calhoun County, and not Madison County, was the proper venue. Defendant then filed a motion to vacate the Madison County order and a motion to dismiss plaintiff's complaint, asserting the amended complaint did not relate back to the filing of the original complaint. The Madison County circuit court granted defendant's motion to transfer venue. Once in Calhoun County, the trial court vacated the Madison County order allowing plaintiff's motion for leave to correct the misnomer and granted defendant's motion to dismiss.

[¶3] Plaintiff appeals, arguing (1) defendant's entry of appearance waived any defect

Page 39

in service of process and validated the prior orders of the court; (2) the trial court could not properly reconsider or vacate the Madison County order; (3) the court improperly granted defendant's motions to vacate and dismiss; (4) the Illinois savings statute extended the statute of limitations; and (5) defendant is estopped from asserting the statute of limitations as a defense. We affirm.

[¶4] I. BACKGROUND

[¶5] On February 7, 2012, plaintiff filed a complaint in the United States District Court for the Central District of Illinois naming The Palace, Inc., as defendant. The complaint alleged that, on April 18, 2010, plaintiff suffered an injury as a result of The Palace, Inc.'s, negligent maintenance of its premises. The complaint alleged plaintiff was injured while patronizing a business " commonly known as The Palace," which was " located at RR1 in Hamburg, Illinois."

[¶6] On February 9, 2012, the district court entered an order that questioned plaintiff's choice of venue. The court took judicial notice that Hamburg is located in Calhoun County, Illinois, in the Southern District of Illinois. The order further stated, according to the Illinois Secretary of State website, The Palace, Inc., was a registered corporation whose agent, president, and secretary were listed as Rhonda K. Cato. The website shows Cato's address was listed alternatively as Bethalto, Illinois, and Wood River, Illinois, both of which are located in the Southern District of Illinois. The order required plaintiff to show cause as to why the case should not be transferred to the Southern District of Illinois.

[¶7] On February 29, 2012, plaintiff voluntarily dismissed her complaint in federal court. On March 5, 2012, she refiled her complaint in Madison County, Illinois. The complaint again named The Palace, Inc., as defendant and now included an allegation stating, " Rhonda K. Cato, the Agent, President, and Secretary of the corporation[,] resides in Madison County, Illinois." The complaint further alleged plaintiff was injured while patronizing a business " commonly known as The Palace," which was " located at RR1 in Hamburg, Illinois." On March 26, 2012, plaintiff served The Palace, Inc., by leaving a summons and a copy of the complaint with Dennis Cato at the abode of Rhonda Cato, the registered agent of The Palace, Inc.

[¶8] On April 18, 2012, the two-year limitations period for plaintiff's cause of action expired. See 735 ILCS 5/13-202 (West 2012).

[¶9] On May 9, 2012, plaintiff filed a motion for entry of default judgment, stating defendant failed to answer the complaint or otherwise appear within 30 days. On May 15, 2012, plaintiff's attorney sent a letter to Doug Wilcox, the claims manager of defendant's insurer, Specialty Risk of America, enclosing a copy of the motion. According to defendant's attorney, in response to this letter and motion, the insurance company informed plaintiff's attorney she had not filed suit against or served one of its insureds.

[¶10] On May 31, 2012, Gary Booth, the registered agent for Boothy's Palace Tavern, Inc., in Hamburg, Calhoun County, Illinois, was personally served with summons and a copy of the complaint. The affidavit of service of process indicates Gary Booth was not served as an officer or registered agent of a corporate entity.

[¶11] Before the hearing on plaintiff's motion for entry of default judgment, on June 21, 2012, defendant's attorney, Greg Gaz, spoke with plaintiff's attorney, Lanny Darr, on the telephone. After their conversation, Gaz memorialized the conversation

Page 40

in a letter dated June 26, 2012, which he sent to Darr.

[¶12] The letter states Gaz called Darr in response to (1) Darr's May 15, 2012, letter to Wilcox, which included the motion for entry of default judgment; and (2) plaintiff's " attempted service of a summons on Gary Booth on May 31, 2012[,] in connection with Madison County [c]ivil [c]ase No. 2012-L-280." Gaz advised Darr that Specialty Risk of America does not insure The Palace, Inc., and Gary Booth has no connection with that entity. Gaz's letter enclosed two printouts from the Secretary of State's website, which showed that Boothy's Palace Tavern, Inc., and The Palace, Inc., are two wholly distinct entities having no connection to one another. Gaz advised Darr that Booth was the agent and president of Boothy's Palace Tavern, Inc., and not The Palace, Inc. Further, Gaz advised Darr the establishment run by Boothy's Palace Tavern, Inc., was located in Calhoun County, and not Madison County. The letter's final paragraph states as follows:

" As no insured of Specialty Risk of America is named in your Madison County 2012-L-280 Complaint, I cannot and will not be entering my appearance. Should you bring an action against Boothy's Palace Tavern, Inc., file same in the correct county, and properly serve said corporation, I of course will enter my appearance."

[¶13] On July 26, 2012, plaintiff filed a motion for leave to correct a misnomer in her complaint pursuant to section 2-401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-401 (West 2012)). In support of her motion, plaintiff stated, " Counsel for the entity named as The Palace, [Inc.,] has indicated that the proper designation is Boothy's Palace Tavern, Inc., located at R.R. 1, Hamburg, Illinois." The motion further stated no appearance had been entered on behalf of defendant, " as [defendant's] counsel has stated that it is waiting until there is [ sic ] proper designations in the pleadings." Plaintiff's motion sought leave to correct the " misnomer" and attached a copy of a proposed first amended complaint, which properly named defendant. Plaintiff did not attach the June 2012 letter from defendant's attorney to her motion.

[¶14] On August 1, 2012, following an ex parte hearing, the Madison County circuit court allowed plaintiff's motion for leave to correct a misnomer. On August 3, 2012, the court entered a written order to memorialize its findings with regard to plaintiff's motion. The court found defendant had actual notice of the proceedings but had not yet appeared. Additionally, the court found defendant had been served but was " simply called by the wrong name." The court then ordered all subsequent pleadings to designate defendant as " Boothy's Palace Tavern, Inc." The court also ordered defendant to appear or plead within 30 days or suffer entry of a default judgment. Plaintiff mailed a copy of the order granting her motion for leave to correct a misnomer to defendant's insurer 11 days later.

[¶15] On August 23, 2012, defendant entered its appearance in this matter. That same day, defendant filed a motion to transfer venue pursuant to section 2-106 of the Code (735 ILCS 5/2-106 (West 2012)). In its motion, defendant asserted venue was proper in Calhoun County, and not Madison County, as defendant had no connection to Madison County.

[¶16] On August 30, 2012, defendant filed a " Motion To Reconsider and/or Vacate Order." (We will refer to this motion as defendant's motion to vacate.) Defendant's motion noted its motion to transfer venue was still pending and requested ...


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