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.
1 This appeal presents us with the following certified
"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?"
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
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
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