Cochran v. Perry County Road District

April 22, 1998

                               NO. 5-97-0023

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

SCOTT P. COCHRAN and TODD A. DUSCH,  )  Appeal from the   
                                     )  Circuit Court of 
     Plaintiffs-Appellants,          )  Perry County.
                                     )
v.                                   )  No. 96-L-2
                                     )
PERRY COUNTY ROAD DISTRICT NO. 1,    )  Honorable
                                     )  William A. Schuwerk, Jr.,
     Defendant-Appellee.             )  Judge, presiding.  
_________________________________________________________________

     JUSTICE GOLDENHERSH delivered the opinion of the court:
     Plaintiffs, Scott P. Cochran and Todd A. Dusch, alleged that
they were injured when their automobile abruptly stopped after the
bottom of the vehicle was struck and held by an iron beam
protruding from the floor of a bridge on a rural county road in
Perry County on January 15, 1995.  As we will more fully describe
later, plaintiffs gave notice to the governmental entity and filed
suit within the statute of limitations, and subsequent to the
running of the statute, they amended to add the proper governmental
entity.  The amended complaint was dismissed by the circuit court
of Perry County on motion, pursuant to the court's finding
concerning section 2-616(d) of the Code of Civil Procedure (the
Code) (735 ILCS 5/2-616(d) (West 1994)) that the failure to name
the proper governmental entity was not inadvertent.  Plaintiffs
appeal, arguing that the circuit court erred because the failure to
name the proper governmental entity within the statute of
limitations was inadvertent.  For the reasons stated below, we
reverse and remand for further proceedings.
                                   FACTS
     The factual context in which this section 2-616 issue arose is
essentially uncontested.  Prior to the running of the statute of
limitations, plaintiffs' counsel gave actual notice on March 3,
1995, to Don Siefert, the road commissioner for Perry County Road
District No. 1.  Approximately seven days before the statute of
limitations ran, plaintiffs filed their complaint naming the County
of Perry as defendant (January 8, 1996).  This complaint was served
on the County of Perry on January 12, 1996, also within the statute
of limitations.  On February 1, 1996, the County of Perry filed a
motion to dismiss, contending that plaintiffs had named the wrong
municipal entity responsible for the road in question.  On March 4,
1996, plaintiffs filed a motion for leave to file an amended
complaint to add a party defendant.  This motion was granted, and
defendant, Perry County Road District No. 1 (hereinafter Road
District), was served by the service of a summons on Siefert.  The
circuit court granted this motion on April 3, 1996, and Siefert was
served on April 25, 1996.  Defendant Road District filed a motion
pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West
1994)) on May 20, 1996, arguing that plaintiffs had failed to meet
the requirements of section 2-616 of the Code.  Specifically, the
motion alleged that plaintiffs' failure to join the Road District
within the statute of limitations was not inadvertent since Siefert
had been served with notice prior to the filing of the first
complaint.  The record indicates that this notice was addressed to
Don Siefert, Perry County Highway Department, while the body of the
notice contained a discussion of a possible lawsuit against Perry
County Road District No. 1.  On October 8, 1996, the circuit court
entered an order dismissing plaintiffs' amended complaint as barred
by the statute of limitations.  A motion to reconsider was filed
and denied by the court, and plaintiffs timely appealed.  
                                  ISSUES
     The essential question in this appeal is whether the actions
of plaintiffs in filing suit against the wrong defendant and
correcting that error after the statute of limitations ran was
"inadvertent" as per section 2-616 of the Code.  The applicable
statute reads as follows:
          " 2-616.  Amendments. ***
                                   * * *
          (d) A cause of action against a person not originally
     named a defendant is not barred by lapse of time under any
     statute or contract prescribing or limiting the time within
     which an action may be brought or right asserted, if all the
     following terms and conditions are met:  (1) the time
     prescribed or limited had not expired when the original action
     was commenced; (2) failure to join the person as a defendant
     was inadvertent; (3) service of summons was in fact had upon
     the person, his or her agent or partner, as the nature of the
     defendant made appropriate, even though he or she was served
     in the wrong capacity or as agent of another, or upon a
     trustee who has title to but no power of management or control
     over real property constituting a trust of which the person is
     a beneficiary; (4) the person, within the time that the action
     might have been brought or the right asserted against him or
     her, knew that the original action was pending or concerning
     him or her; and (5) it appears from the original and amended
     pleadings that the cause of action asserted in the amended
     pleading grew out of the same transaction or occurrence set up
     in the original pleading, even though the original pleading
     was defective in that it failed to allege the performance of
     some act or the existence of some fact or some other matter
     which is a necessary condition precedent to the right of
     recovery when the condition precedent has in fact been
     performed, and even though the person was not named originally
     as a defendant.  For the purpose of preserving the cause of
     action under those conditions, an amendment adding the person
     as a defendant relates back to the date of the filing of the
     original pleading so amended."  735 ILCS 5/2-616(d) (West
     1994).
Plaintiffs argue that the actions here were inadvertent.  They
claim that as soon as it was brought to plaintiffs' attention that
the wrong entity had been sued, by the motion to dismiss filed
February 1, 1996, by Perry County, plaintiffs acted in a timely
manner to correct the situation and add the proper party defendant.
Plaintiffs rely on Campbell v. Feuquay, 140 Ill. App. 3d 584, 488 N.E.2d 1111 (1986), as controlling authority from this appellate
court district, and they emphasize the conclusion of Campbell that
the legislative intent for section 2-616(d) is that it be liberally
construed to achieve the ends of justice.  Defendant argues that
clearly the one-year statute of limitations had run prior to it
being joined and that due to the notice given by plaintiffs prior
to the running of the statute, plaintiffs must be charged with
actual knowledge of the correct entity to be sued but failed to
file suit against that entity.  Defendant cites Zincoris v. Hobart
Brothers Co., 243 Ill. App. 3d 609, 611 N.E.2d 1327 (1993), as to
the effect of actual knowledge, and defendant claims that there was
no actual knowledge in Campbell.  We conclude that Campbell more
appropriately applies to the factual situation in the instant case
and also more appropriately furthers the legislative intent for
section 2-616.  
     In Zincoris, plaintiff was injured in August of 1988 while 
using a welding device.  He brought suit initially in November of
that year against Hobart Ohio, the manufacturer of the welding
tool, and Hobart Illinois, its distributor.  In December of 1988,
counsel for Hobart North sent a letter to the plaintiff's counsel
indicating that Hobart North was not properly named in the suit and
was not an agent for any defendant named in the suit, although it
had been served with a summons.  In October of 1990, the plaintiff
was granted leave to file an amended complaint that named Hobart
North as an additional defendant, and plaintiff asserted that it
was the entity which rented the welding device to the plaintiff's
employer.  Hobart North was served in November of 1990, and in
December of that year Hobart North filed a section 2-619 motion,
contending that it should be dismissed since the suit against it
was not brought within the statute of limitations.  Plaintiff
responded that he met the conditions of section 2-616, and
plaintiff attached a copy of the December 1988 letter.  The circuit
court dismissed Hobart North from the suit.
     The appellate court defined "inadvertence" under section 2-616
as excusable ignorance, as opposed to excusable failure to act
after the facts are discovered, and therefore, the court would not
include within its provisions a failure to act appropriately after
a plaintiff knows the true identity of the actual defendant in the
case.  It held that because the plaintiff was aware of the
existence and identity of a defendant within the statute of
limitations but did not join that defendant until after the statute
of limitations had run, the conduct could not be characterized as
inadvertent, and the court affirmed the circuit court's dismissal.
     In Campbell, the plaintiff filed a complaint alleging injuries
sustained in a fall at South Roxana Market on December 26, 1979. 
A summons was issued to that defendant.  The return in January of
1980 listed the market as a corporation and indicated service on
the owner.  Also in January, an answer was filed on behalf of South
Roxana Market that contained a general denial of the plaintiff's
allegations.  Discovery commenced between the parties, and in
October of 1980, at a discovery deposition, Edith Feuquay testified
that she was the sole owner of the market and that the market was
not incorporated.  The defendant, South Roxana Market, at no time
raised, by motion or otherwise, anything regarding its being named
as the defendant in the initial complaint.  The statute of
limitations ran in December of 1981.  Three sets of attorneys
represented the plaintiff in the course of that litigation, the
last counsel filing a motion in March of 1984 to add a defendant
and amending its complaint naming "Edith Feuquay d/b/a South Roxana
Market" as that defendant.  The new defendant filed a motion to
dismiss on the grounds that the statute had run and that the
failure to add her as a party prior to the running of the statute
was not inadvertent as required by section 2-616.  The circuit
court granted that motion.  The defendant argued on appeal, similar
to defendant in this case, that the failure to join Feuquay could
not be termed inadvertent because the plaintiff had actual
knowledge, prior to the expiration of the statute of limitations,
that Edith Feuquay doing business as South Roxana Market was the
proper party defendant but did not exercise reasonable diligence in
adding her.  This court noted the broad definition of
"inadvertent"--"not turning the mind to a matter:  heedless,
negligent, inattentive," quoting Evans v. Graber, Inc., 115 Ill.
App. 3d 532, 450 N.E.2d 482 (1983)--and noted that a party must
take steps to add the appropriate parties defendant within a
reasonable time after notice of their existence has been given or
such knowledge is received.  The court distinguished two
authorities cited by the defendant, Robinson v. Chicago National
Bank, 32 Ill. App. 2d 55, 176 N.E.2d 659 (1961), and Fields v. 6125
Indiana Avenue Apartments, Inc., 47 Ill. App. 2d 55, 196 N.E.2d 485
(1964), on the basis that in each of those cases the defendants had
formally identified the appropriate party defendant in pleadings
filed before the statute of limitations had run.  We note that in
the instant case, such identification was made after the statute
ran.  In the Campbell case, the court noted that while a defendant
has no specific duty to indicate the appropriate party defendant,
it is common practice to do so.  This court held that the
plaintiff's failure to add Edith Feuquay doing business as South
Roxana Market was inadvertent pursuant to section 2-616, noting as
follows:
     "To be sure, plaintiff and the first two sets of attorneys
     engaged to represent him may have been able to ascertain the
     true status of South Roxana Market through more intensive
     investigation before [the] running of the statute of
     limitations.  If they were negligent, however, we believe that
     it was the type of negligence encompassed by the definition of
     inadvertence set forth above.  [Citation.]  ***
          Section 2-616 of the Code of Civil Procedure [citation]
     is to be liberally construed to the end that cases be decided
     on their merits and not by procedural technicalities. 
     (Anderson v. Rick's Restaurant & Cocktail Lounge (1977), 45
     Ill. App. 3d 992, 996, 360 N.E.2d 465, 468.)  The decision as
     to whether amendments to the pleadings should be allowed rests
     with the sound discretion of the trial judge, but the test to
     be applied in determining whether that discretion has been
     abused is to ask whether the trial court's decision furthers
     the ends of justice.  (Morris v. City of Chicago (1985), 130
     Ill. App. 3d 740, 745, 474 N.E.2d 1274, 1278; Murphy v.
     Roppolo-Prendergast Builders, Inc. (1983), 117 Ill. App. 3d
     415, 418-19, 453 N.E.2d 846, 849.)"  Campbell, 140 Ill. App.
     3d at 589-90, 488 N.E.2d  at 1115.
     We conclude that Campbell more appropriately applies to this
case and more appropriately expresses the legislative intent of
section 2-616.  Campbell broadly defines inadvertence, explains
that the touchstone in a court's consideration of this question
should be achieving the ends of justice, and requires that a
plaintiff's action upon notification of an error in suing the wrong
party must be reasonably expeditious after that error is brought to
its attention.  In the instant case, there was statutory notice
given to the appropriate party, Perry County Road District No. 1,
but said notice also indicated plaintiffs' belief that Siefert was
part of the Perry County Highway Department.  The knowledge that
the wrong party defendant had actually been sued came in
defendant's motion filed February 1, 1996.  Plaintiffs' remedial
actions, filing a motion for leave to file an amended complaint to
add the appropriate defendant, came on March 4, 1996.  Such actions
were reasonably expeditious.  We also note no prejudice to
defendant Road District.  The Road District was served with actual
notice of the transaction underlying this lawsuit and therefore is
not in a position to argue that it was taken totally unaware.  As
mandated by Campbell, we consider the ends of justice.  We conclude
that justice would be served in the instant case by allowing this
action to go forward with the proper party defendant involved,
given the expeditious actions of plaintiffs and notice of the
underlying transaction on the part of defendant.  
     Defendant relies on two other authorities that we find
distinguishable.  In Webb v. Ambulance Service Corp., 262 Ill. App.
3d 1039, 635 N.E.2d 643 (1994), the appellate court noted that the
motion to amend to bring in the appropriate party defendant was
made approximately 13 months after knowledge was obtained.  In
Tatara v. Peterson Diving Service, 283 Ill. App. 3d 1031, 670 N.E.2d 789 (1996), a Structural Work Act action, the plaintiff was
informed in August and September of 1987 that the wrong party
defendant was sued.  After various other pleadings and amendments,
the proper party defendant was named in October of 1989.  
     We conclude, for the reasons stated above, that plaintiffs'
failure to name the appropriate party defendant in this cause was
inadvertent according to the terms and intent of section 2-616 in
light of its interpretation by this court in Campbell.
     For the foregoing reasons, the judgment of dismissal by the
circuit court of Perry County is reversed, and the cause is
remanded for further proceedings.

     Reversed and remanded.

     MAAG, J., concurs.

     JUSTICE CHAPMAN, dissenting:
     I dissent.
     As the majority points out, plaintiffs' counsel gave actual
notice to the proper defendant, Perry County Road District No. 1,
before the statute of limitation ran.  There was no question over
an assumed name, or of corporate versus individual status, or of
answers to interrogatories filed in the name of the wrong
defendant.  All of the above were mentioned by the court in
Campbell v. Feuquay, 140 Ill. App. 3d 584, 488 N.E.2d 1111 (1986),
and any or all of them may have played a part in convincing two
members of the Campbell court that filing that claim against the
wrong defendant met the inadvertence requirement of section 2-
616(d).
     None of the above is present in this case.  Instead, there is
absolutely no question that plaintiff knew both the name and the
location of the proper defendant before the statute of limitation
ran.  Under these circumstances, I cannot agree that plaintiff's
failure to join the proper defendant was inadvertent.  See Webb v.
Ambulance Service Corp., 262 Ill. App. 3d 1039, 635 N.E.2d 643
(1994); Evans v. Graber, 115 Ill. App. 3d 532, 450 N.E.2d 482
(1983) (and cases cited therein).
     Therefore, I respectfully dissent.