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Prinova Solutions, LLC v. Process Technology Corporation Ltd.

Court of Appeals of Illinois, Second District

March 23, 2018

PRINOVA SOLUTIONS, LLC, Plaintiff-Appellee,
v.
PROCESS TECHNOLOGY CORPORATION LTD., Defendant John Witterschein, d/b/a Process Technology, LLC, Respondent in Discovery-Appellant.

          Appeal from the Circuit Court of Du Page County. No. 14-L-1114 Honorable Ronald D. Sutter, Judge, Presiding.

          JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Hutchinson concurred in the judgment and opinion.

          OPINION

          SPENCE, JUSTICE.

         ¶ 1 This appeal presents us with the following certified question:

"Can the respondent in discovery statute, 735 ILCS 5/2-402, operate in reverse, such that after a defendant has already been dismissed from the lawsuit, without prejudice, he may be converted into a respondent in discovery, and thereafter be converted to a defendant again?"

         This issue was addressed by the First District of the appellate court in Westwood Construction Group, Inc. v. IRUS Property, LLC, 2016 IL App (1st) 142490, which held that such a scenario was permissible. We agree with the reasoning in that case and therefore answer the certified question in the affirmative.

         ¶ 2 I. BACKGROUND

         ¶ 3 Plaintiff, Prinova Solutions, LLC (Prinova), filed a complaint on November 5, 2014, naming John Witterschein, d/b/a Process Technology, LLC, as the defendant. It alleged that it had purchased food blending and processing equipment from Witterschein that was defective. It alleged counts of breach of contract, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose.

         ¶ 4 On March 9, 2015, Witterschein filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). He alleged that the contract was between plaintiff and Process Technology Corporation Ltd. of Hong Kong and that neither he nor his company (Process Technology, LLC) was named in it. Witterschein also filed a motion for Illinois Supreme Court Rule 137 (eff. July 1, 2013) sanctions and a motion to stay discovery. On May 21, 2015, the trial court granted Witterschein's motion to dismiss, without prejudice. It further granted Witterschein's motion to stay discovery and denied his motion for sanctions.

         ¶ 5 Prinova filed an amended complaint on July 27, 2015, against Process Technology Corporation Ltd., which was the Hong Kong company. It further named Witterschein as a respondent in discovery pursuant to section 2-402 of the Code (735 ILCS 5/2-402 (West 2014)) and issued interrogatories and document requests to him. On June 20, 2016, Witterschein filed an amended motion to dismiss and/or for a protective order. He argued that he could not be named as a respondent in discovery, because he had previously been dismissed from the lawsuit.

         ¶ 6 Before the trial court had ruled on Witterschein's motion, the First District of the appellate court issued its decision in Westwood Construction Group, 2016 IL App (1st) 142490, which held that defendants in an original complaint who had been dismissed without prejudice could be designated as respondents in discovery in an amended complaint. One justice dissented.

         ¶ 7 Based on Westwood Construction Group, the trial court denied Witterschein's amended motion to dismiss on March 28, 2017. It stated, "[F]rankly, what [the court] felt was the law is not the law" and "the plaintiff can, in fact, name former defendants as respondents in discovery." It stated, "[the court] disagree[s], but *** there's no Second District case to the contrary."

         ¶ 8 The following month, Witterschein requested that the trial court certify the aforementioned question to allow him to file an interlocutory appeal under Illinois Supreme Court Rule 308 (eff. July 1, 2017). The trial court granted Witterschein's ...


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