Hoving v. Davies

512 N.E.2d 729, 159 Ill. App. 3d 106, 111 Ill. Dec. 340, 1987 Ill. App. LEXIS 2945
CourtAppellate Court of Illinois
DecidedJuly 31, 1987
Docket84-1659
StatusPublished
Cited by10 cases

This text of 512 N.E.2d 729 (Hoving v. Davies) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoving v. Davies, 512 N.E.2d 729, 159 Ill. App. 3d 106, 111 Ill. Dec. 340, 1987 Ill. App. LEXIS 2945 (Ill. Ct. App. 1987).

Opinion

JUSTICE PINCHAM

delivered the opinion of the court:

Plaintiff, Gerald Hoving, appeals from an order dismissing his dramshop action (Ill. Rev. Stat. 1985, ch. 43, par. 135) against the defendant, John A. Davies, Inc., on the ground that the action was barred by the statute of limitations. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619(5).) The plaintiff asserts that the misnomer section 2 — 401 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 401) is applicable and precludes a dismissal of his action. Plaintiff alternatively argues that if section 2 — 401 is inapplicable to the facts in the case at bar, plaintiff has satisfied the five requirements set forth in section 2 — 616(d) of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(d)) for adding parties to an action after the expiration of the statute of limitations.

Plaintiffs action allegedly arose out of an incident which occurred on September 18, 1978, in which plaintiff suffered injuries as a result of an altercation with Joseph Felkins and James Felkins in the Villa Marie East, a restaurant and lounge located in Hillside, Illinois. On December 4, 1978, plaintiff sent an investigative letter to the liquor commissioner of the village of Hillside to obtain the names of the owners of the Villa Marie East property and the names of the liquor licensees for the Villa Marie East restaurant and lounge. The responding letter of the village of Hillside’s liquor commissioner dated December 8, 1978, stated that the owners of the business and property were Barbara J. Davies and John Davies and that a liquor license had been issued to them. Plaintiff filed his dramshop action on August 20, 1979, against Barbara Davies and John Davies, individually and doing business as the Villa Marie East. Plaintiff obtained service on John Davies at his residence on October 15, 1979. John Davies died six months later, on April 8,1980.

On May 12, 1980, a month after John Davies’ death but seven months after he was served with summons, a default judgment was entered against both John Davies and Barbara Dawes. On July 24, 1980, Barbara Davies filed a motion to vacate the judgment entered against her and to quash the service of summons. In her motion, she alleged that she was divorced in October 1979 from John Davies and that on October 15, 1979, she did not live at the address where the summons had been served on John Davies. The trial court granted Barbara Davies’ motion to vacate and quash service of summons.

Subsequently, plaintiff obtained Barbara Davies’ address and she was served an alias summons on December 29, 1980. Barbara Davies filed a motion to dismiss plaintiff’s complaint due to plaintiff's lack of diligence in obtaining service on her. The trial court denied Barbara Davies’ motion to dismiss on March 22, 1983.

On June 22, 1983, Barbara filed a motion for summary judgment in which she alleged that on the date of the incident, September 18, 1978, she was not the owner, operator or manager of the Villa Marie East. In her deposition, taken July 6, 1983, Barbara stated that John A. Dawes, Inc., was incorporated in August 1974 for the purpose of owning and operating the Villa Marie East. John A. Davies, Inc., had two corporate officers, John A. Davies, president, and his wife Barbara J. Davies, secretary/treasurer. Following the death of John Davies on April 8, 1980, Barbara Davies assumed the presidency and her daughter, Judy Hejnar, became the secretary/treasurer of John A. Davies, Inc.

On September 8, 1983, the court granted Barbara’s motion for summary judgment and on that same day granted plaintiff leave to amend the complaint to add John A. Davies, Inc., as a defendant. On September 26, 1983, summons was served on Barbara J. Davies as the registered agent of John A. Davies, Inc.

Defendant John A. Davies, Inc., then filed a motion to dismiss in which it asserted that plaintiff’s action was barred by the statute of limitations. The trial court granted defendant’s dismissal motion. Plaintiff appeals.

On appeal, plaintiff contends that his action should not be dismissed because defendant’s name was properly corrected as a misnomer. Alternatively, plaintiff contends that he satisfied the five requirements set forth in section 2 — 616(d) for the addition of a defendant to an action after the statute of limitations has run.

Section 2 — 401(b) of the Civil Practice Law provides:

“Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 401(b).)

The determination of whether misnomer or mistaken identity is involved may depend on the intent of plaintiff, but the subjective intention of whom plaintiff intended to sue does not control when confronted with objective manifestations which indicate plaintiff intended to sue another. (Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 408, 447 N.E.2d 489.) It is well settled in Illinois that facts such as these present in the case at bar present a case of mistaken identity and not one of misnomer. From the original designation in the complaint, we conclude that the intent of the plaintiff was to bring an action against Barbara Davies and John Davies, in their individual capacities and doing business as the Villa Marie East. Naming Barbara Davies and John Davies in their individual capacities and doing business as the Villa Marie East was a clear and objective manifestation of the plaintiff’s intent to sue those parties. However, the real party in interest was not Barbara Davies or John Davies, but rather John A. Davies, Inc., a corporation which owned and operated the Villa Marie East. The plaintiff was mistaken in his belief as to who owned and operated the lounge.

The plaintiff’s intent was to file suit against Barbara Davies and John Davies, as individuals, and plaintiff did, albeit incorrectly, believing that they were the owners of the Villa Marie East. Plaintiff did not merely misname the right party, but named the wrong party. (Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 409, 447 N.E.2d 489.) Thus plaintiff’s contention is without merit.

We now turn to plaintiff’s contention that he met the requirements to amend under section 2 — 616(d), which permits the addition of parties to a complaint after the statute of limitations has run. Defendant alleges that this issue was not raised in the trial court and is therefore waived and plaintiff should not be allowed to argue it on appeal. We disagree. The trial court’s order in allowing plaintiff to add John A. Davies, Inc., as a defendant, tacitly rejects defendant’s contention. See Anderson v. Rick’s Restaurant & Cocktail Lounge (1977), 45 Ill. App. 3d 992, 995, 360 N.E.2d 465.

Section 2 — 616(d) in pertinent part provides:

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Bluebook (online)
512 N.E.2d 729, 159 Ill. App. 3d 106, 111 Ill. Dec. 340, 1987 Ill. App. LEXIS 2945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoving-v-davies-illappct-1987.