Dever v. Simmons

FOURTH DIVISION
SEPTEMBER 4, 1997


1--96--2888

GLENDA L. DEVER and ) Appeal from the
DAVID DEVER, ) Circuit Court of
) Cook County
Plaintiffs-Appellants, )
)
v. )
)
LINDA SIMMONS and DAVID LUBEZNIK, )
d/b/a SKYWAY TOLL PLAZA PARTNERSHIP,)
and McDONALD'S CORPORATION, ) Honorable Paddy
) McNamara, Judge
Defendants-Appellees. ) Presiding.


JUSTICE CERDA delivered the opinion of the court:

Plaintiffs, Glenda L. Dever and David Dever, appeal from the
dismissal of their negligence complaint against defendants, Linda
Simmons and David Lubeznik, doing business as Skyway Toll Plaza
Partnership (the franchisees), and McDonald's Corporation, a
Delaware corporation. The complaint was dismissed because
defendants were joined after the statute of limitations expired.
Plaintiffs originally filed their complaint against an incorrect
defendant, McDonald's Restaurants of Illinois, Inc. Plaintiffs
argue on appeal that defendants waived the statute of
limitations, that defendants should have been estopped from
raising the statute of limitations, and that plaintiffs'
complaint should relate back to the time that their original
complaint against the incorrect defendant was filed because
plaintiffs inadvertently failed to name the correct defendants
based in part on the confusing similarity of the names of the
McDonald's entities. We affirm.

FACTS
On September 2, 1992, Glenda L. Dever fell outside the
McDonald's restaurant at 8871 S. Kingston Avenue in Chicago. On
August 29, 1994, plaintiffs filed a personal-injury complaint in
the United States District Court for the Northern District of
Illinois against McDonald's Restaurants of Illinois, Inc., based
on the accident. The summons and the complaint were served on
the registered agent for McDonald's Restaurants of Illinois,
Inc., on September 2, 1994. The two-year personal-injury statute
of limitations (735 ILCS 5/13--202 (West 1994)) elapsed on the
same date.
McDonald's Restaurants of Illinois, Inc., denied in its
answer that it owned or operated the restaurant where the
accident occurred. The attorney for McDonald's Restaurants of
Illinois, Inc., informed the attorney for plaintiffs that the
owner of the restaurant was another corporation, McDonald's
Corporation.
On October 13, 1994, after the statute of limitations had
expired, plaintiffs filed an amended complaint in federal court
naming McDonald's Corporation as defendant. On October 19, 1994,
the amended complaint was served on the registered agent for
McDonald's Corporation. The registered agent was the same as for
McDonald's Restaurants of Illinois, Inc. McDonald's
Corporation's answer admitted that it owned the restaurant but
denied that it operated the restaurant. The answer did not state
that there were franchisees who operated the restaurant. After
the answer was filed, plaintiffs' attorney telephoned McDonald's
Corporation's attorney and thereby learned that there were
franchisees.
On November 7, 1994, plaintiffs moved to compel disclosure
of the franchisees. After service of the motion, McDonald's
Corporation's attorney identified the franchisees. On December
2, 1994, plaintiffs filed a second amended complaint adding the
franchisees as defendants. On April 26, 1995, the federal court
dismissed the claims against the franchisees, apparently for lack
of diversity jurisdiction.
On May 17, 1995, pursuant to the refiling statute (735 ILCS
5/13--217 (West 1994)), plaintiffs filed a complaint in the
circuit court of Cook County against the franchisees. The
franchisees were served on May 25, 1995.
On May 24, 1995, McDonald's Corporation was dismissed from
the federal lawsuit on the basis that the franchisees were
unavailable.
On June 5, 1995, plaintiffs filed an amended state-court
complaint naming McDonald's Corporation as an additional
defendant. On July 13, 1995, all three defendants filed an
appearance in the circuit court of Cook County.
Plaintiffs' attorney prepared for trial in the state-court
case by serving interrogatories and requests for production of
documents on defendants, and by attending court hearings
concerning discovery deadlines. After this preparation by
plaintiffs, defendants filed on December 18, 1995, a motion to
dismiss the complaint pursuant to section 2--619(5) of the Code
of Civil Procedure (735 ILCS 5/2--619(5) (West 1994)), arguing
that the two-year personal-injury statute of limitations (735
ILCS 5/13--202 (West 1994)) expired on September 2, 1994.
Defendants stated in the motion that neither McDonald's
Corporation nor the franchisees had known that the original
action was pending prior to the expiration of the statute of
limitations.
Plaintiffs filed a memorandum in opposition to the motion to
dismiss that did not argue that the amended complaint related
back to the date the original action was filed. Plaintiffs did
not raise the relation-back issue until their motion to
reconsider the dismissal of their complaint, and they then did
not provide evidence of defendants' knowledge of the original
complaint.
The trial court granted the motion to dismiss. After
plaintiffs' motion to reconsider was denied, plaintiffs appealed.

DISCUSSION
The standard of review for involuntary dismissal under
section 2--619 is de novo. Harinek v. City of Chicago, 283 Ill.
App. 3d 491, 493, 670 N.E.2d 869 (1996).

I. Waiver Plaintiffs first argue
that defendants waived the statute of limitations by failing to
plead it in their answer.
The statute of limitations is an affirmative defense that
must be pleaded and proved by a defendant. Goldman v. Walco Tool
& Engineering Co., 243 Ill. App. 3d 981, 989, 614 N.E.2d 42
(1993). Section 2--613(d) of the Code of Civil Procedure
requires that facts constituting any affirmative defense be
plainly set forth in the answer. 735 ILCS 5/2--613(d) (West
1994). Section 2--613 is designed to prevent unfair surprise at
trial. Holladay v. Boyd, 285 Ill. App. 3d 1006, 1011, 675 N.E.2d 262 (1996).
The Code of Civil Procedure also permits a defendant to raise the
statute of limitations in a section 2--619 motion to dismiss (735
ILCS 5/2--619(a)(5) (West 1994)). The Code thus provides a
defendant with the alternative method of the motion to dismiss to
raise the statute of limitations. Motions to dismiss under
section 2--619 and summary judgment motions are routinely made
after discovery has been completed and the parties know what the
evidence is. There is no requirement in the statute that an
affirmative defense must be raised in an answer before a party
may move to dismiss a complaint under section 2--619 or move for
summary judgment. 735 ILCS 5/2--619(a)(5)(West 1994).
We hold that, even though defendants neither raised the
statute of limitations in their answer nor amended their answer
to raise it, defendants were permitted to raise the statute of
limitations in a section 2--619 motion to dismiss.
Plaintiffs argue defendants waived the statute of
limitations defense by delay in filing their motion to dismiss.
Waiver is the purposeful relinquishment of a known right, and it
can arise either expressly or by conduct inconsistent with an
intent to enforce that right. Bailey v. Petroff, 170 Ill. App.
3d 791, 798-79, 525 N.E.2d 278 (1988). Depending on the
circumstances, a trial court can permit a late assertion of the
statute of limitations. See Behr v. Club Med, Inc., 190 Ill.
App. 3d 396, 407, 546 N.E.2d 751 (1989) (when the statute of
limitations was first raised in an amended answer three years
after the amended complaint, the court considered that the trial
had not yet begun, that the defense did not require further
investigation by either party, and that a finding that the
statute of limitations had elapsed would eliminate the necessity
of a trial).
Behr, 190 Ill. App. 3d at 407, also pointed out:
"The failure to plead an affirmative defense, such as a
statute of limitations, does not constitute waiver. Rather,
a trial court may, in its sound discretion, allow a
defendant to file an amended answer raising affirmative
matter anytime prior to the entry of a final judgment."
Further, a motion to dismiss is distinct from an answer.
Filing a motion to dismiss does not preclude later filing an
answer, and filing an answer does not preclude later filing a
section 2--619 motion to dismiss. Outlaw v. O'Leary, 161 Ill.
App. 3d 218, 220, 515 N.E.2d 208 (1987); Stewart v. County of
Cook, 192 Ill. App. 3d 848, 858, 549 N.E.2d 674 (1989). We find
that filing an affirmative defense in an answer raising the
statute-of-limitations expiration is not a prerequisite for a
motion to dismiss under section 2--619. But a long delay in
raising the statute of limitations can be the basis for finding
waiver. E.g., Turner v. Cosmopolitan National Bank, 180 Ill.
App. 3d 1022, 1028-29, 536 N.E.2d 806 (1989) (statute of
limitations raised in summary judgment motion 3« years later).
The two-year statute of limitations for plaintiffs' personal
injury claim elapsed in September 1994. The state-court
complaint did not name the franchisees until May 1995 and did not
name McDonald's Corporation until June 1995. We find that
defendants did not waive the right to dismiss based on the
statute of limitations because the delay in making the motion
after the proper defendants were joined was not very long. In
addition, the prejudice to plaintiffs was not great because the
case was not ready for trial when defendants filed the motion to
dismiss.

II. Estoppel
Plaintiffs next argue that defendants were estopped from
asserting the statute of limitations.
A defendant is estopped from asserting a statute of
limitations if the plaintiff's failure to act within the
statutory period results from reasonable reliance on the
defendant's conduct or representations. Witherell v. Weimer, 118 Ill. 2d 321, 330, 515 N.E.2d 68 (1987). An intent to mislead,
deceive, or delay is not necessary. Witherell, 118 Ill. 2d at
330.
Plaintiffs argue that there was confusion about the
McDonald's identities that was engendered by the two
corporations' deliberate use of similar business names, but
plaintiffs have not demonstrated how the similarity of the names
caused them to file suit against the wrong defendant. Plaintiffs
have shown that they did very little prior to filing the lawsuit
to determine who owned the restaurant, and it is unknown what
caused plaintiffs to sue the incorrect defendant. According to
plaintiffs' chronology of relevant events filed in the circuit
court, plaintiffs' attorney called the insurance adjuster in the
late fall of 1992. Plaintiffs then did not contact McDonald's or
an insurance adjuster again until August of 1994. The lawsuit
was filed August 29, 1994, four days before the statute of
limitations expired.
This indicates, according to the record, that for almost two
years plaintiffs made no further effort to obtain relevant
information concerning the owner or operator of the restaurant
from anyone associated with McDonald's Corporation. Plaintiffs
note that the two corporations share headquarters, a president, a
registered agent, an insurance adjuster, and an attorney, but the
record does not indicate plaintiffs even knew that the two
corporations existed before they filed suit. Cf. Bates v. Wagon
Wheel Country Club, Inc., 132 Ill. App. 2d 161, 166, 266 N.E.2d 343 (1971) (plaintiff had difficulty in determining who the
proper defendant was because of defendants' use of nine
corporations to run a business where six had similar names).
In the Bates case, the name Wagon Wheel Lodge Hotel was
displayed on the premises. Also operating on the same premises
were Wagon Wheel Enterprises, Inc., Wagon Wheel Country Club,
Inc., and Henry Wilson doing business as Wagon Wheel Stables. In
the case sub judice, the name of McDonald's was displayed, and
there is only one owner of the premises--McDonald's Corporation.
The franchisees are Linda Simmons and David Lubeznik, doing
business as Skyway Toll Plaza Partnership. We do not find the
confusion as was found in Bates. In this case, McDonald's
Corporation would not be easily confused with Simmons or
Lubeznik, the only persons in possession of the premises.
Assuming arguendo that plaintiffs knew only about McDonald's
Restaurants of Illinois, Inc., and mistakenly assumed that it was
the owner and operator of the restaurant, plaintiffs did not show
conduct of defendants upon which plaintiffs could reasonably
rely. Defendants never furnished the name of McDonald's
Restaurants of Illinois, Inc., to plaintiffs.
Plaintiffs argue that they relied on the restaurant's
insurance adjusters referring, prior to the federal suit being
filed, only to "McDonald's" as being the insured. Defendants
correctly argue that "McDonald's" should have been understandable
to plaintiffs' attorney as being a shorthand way of referring to
the full name of "McDonald's Corporation," and plaintiffs could
not reasonably rely on those statements.
In contrast, in Shockley v. Ryder Truck Rental, Inc., 74
Ill. App. 3d 89, 94-95, 392 N.E.2d 675 (1979), an issue of fact
was raised as to whether plaintiffs were misled into suing the
lessor of the leased truck that struck plaintiffs' car where
defendant's insurance adjuster represented in writing that he was
negotiating the claims of plaintiffs on behalf of the incorrectly
sued lessor, Ryder Truck Rental, Inc., but who did not disclose
the existence of the lessee. The insurance adjuster also
inquired in writing about settlement at a previously agreed
amount.
It was plaintiffs' responsibility to investigate who owned
and operated the restaurant. Plaintiffs also could not rely upon
the failure of the insurance adjusters to send documents to their
attorney that possibly would have identified the full name of the
insured corporation.
Plaintiffs also argue that defendants' insurance adjuster
did not notify them before the statute of limitations elapsed
that the restaurant was operated by franchisees. It has been
held in another case involving a fall at a McDonald's restaurant
that a general denial in the answer that McDonald's did not own
or control the restaurant was not fraudulent concealment that
tolled the statute of limitations but was mere silence as to the
owners' identities. Thomson v. McDonald's, Inc., 180 Ill. App.
3d 984, 986-87, 536 N.E.2d 760 (1989). If a defendant's denial
of ownership in an answer is not fraudulent concealment, then
neither could defendants' insurance adjuster's failure to state
before the expiration of the statute of limitations that
franchisees operated the restaurant be an omission upon which
plaintiffs could reasonably rely. Furthermore, plaintiffs'
failure to act within the statute of limitations could not have
been the result of defendants' attorney's failure to notify
plaintiffs that the restaurant was operated by franchisees
because communication with defendants' attorney occurred after
the statute of limitations elapsed.
Plaintiffs also argue that the franchisees violated a
Chicago law requiring the display of a business license in a
conspicuous area of the restaurant (Chicago Municipal Code 4-4-
210 (1990)). Plaintiffs have not shown that they reasonably
relied on this violation at the time that they brought their
complaint. Furthermore, it was certainly a possibility that a
McDonald's restaurant was operated as a franchise, and plaintiffs
do not argue that they could not find any public record that
stated who operated the restaurant. There is no allegation, or
anything in the record, that shows that the franchisees failed to
file an appropriate certificate with the City of Chicago for
doing business. Cf. Campbell v. Feuquay, 140 Ill. App. 3d 584,
589-90, 488 N.E.2d 1111 (1986) (owner failed to file a
certificate for doing business under an assumed name); Bechtel v.
Robinson, 886 F.2d 644, 650 (3d Cir. 1989) (failure to post a
business license in a public area of an office and the disclosure
in the public records only that the original, incorrect defendant
was the owner of the restaurant misled plaintiffs into thinking
that the original defendant was the owner where another person
had purchased the restaurant).
Plaintiffs must take the responsibility for their apparent
failure to thoroughly investigate the ownership of the
restaurant's premises and business. In the case of Illinois
Central Gulf R.R. Co. v. Department of Local Government Affairs,
169 Ill. App. 3d 683, 523 N.E.2d 1048 (1988), petitioners argued
that the court placed an undue burden on them to search public
records for pending cases. The court held that the existence of
the two cases could have been determined by simply checking the
pertinent records of the clerk of the circuit court of Cook
County. Illinois Central, 169 Ill. App. 3d at 690. The title to
real property and the names of holders of business licenses can
be readily ascertained by searching the public records of Cook
County and the City of Chicago. We do not believe it is an undue
burden on plaintiffs to search the public records before filing a
lawsuit. See Thomson, 180 Ill. App. 3d at 987. Defendants were
not estopped from raising the statute of limitations in their
motion to dismiss.

III. Relation Back
Plaintiffs next argue that their claims against all
defendants related back to the original federal complaint under
section 2--616(d) of the Code of Civil Procedure (735 ILCS 5/2--
615(d) (West 1994)).
Section 2--616(d) provides that a cause of action against a
person not originally named a defendant is not barred by lapse of
time under any statute limiting the time within which an action
may be brought and that the cause of action relates back to the
date of the filing of the original pleading if all the following
requirements 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 *** even though he or she was served in the wrong
capacity or as agent of another ***; (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 and that it grew out of a transaction or occurrence
involving 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." 735 ILCS 5/2--
616(d) (West 1994). The relation-back rule is to be liberally
construed so that controversies can be determined according to
the substantive rights of the parties.
Plaintiffs argue that defendants' assertion in the motion to
dismiss that defendants lacked knowledge of the pending federal
lawsuit was not supported by an affidavit, which is required when
the grounds for dismissal do not appear on the face of the
pleading attacked. 735 ILCS 5/2--619(a)(5) (West 1994). The
grounds of plaintiffs' failure to join the correct defendants
within the statute of limitations did appear from the complaint.
The date of injury to plaintiff Glenda Dever and the date that
the complaint was filed against defendants appear in the original
pleading filed in the federal action against the same defendants
in this lawsuit. Therefore, defendants did not have to support
their motion to dismiss with affidavits.
Defendants did not need to prove that an element of the
relation-back doctrine was absent. It was plaintiffs who had to
demonstrate in opposition to defendants' motion to dismiss that
their cause of action related back under section 2--616(d). See
735 ILCS 5/2--619(c) (West 1994) (if, upon the hearing of the
motion to dismiss, the opposite party presents affidavits or
other proof establishing facts obviating the grounds of defect,
the court may deny the motion); see also Cundiff v. Unsicker, 118
Ill. App. 3d 268, 454 N.E.2d 1089 (1983).
Plaintiffs also argue that the failure to join defendants
was inadvertent because McDonald's Restaurants of Illinois, Inc.,
McDonald's Corporation, and the franchisees were closely related.
Inadvertence within the meaning of section 2--616(d)(2)
means excusable ignorance. Zincoris v. Hobart Brothers Co., 243
Ill. App. 3d 609, 614, 611 N.E.2d 1327 (1993). Complex
organization structure, if it causes confusion in ascertaining
the correct defendant, can be a basis for finding inadvertence.
Household Commercial Financial Services, Inc. v. Trump, 863 F. Supp. 735, 743 (N.D. Ill. 1994). The mere fact that businesses
set up different entities to conduct their affairs, however, does
not justify a finding of inadvertence unless the profusion of
such entities causes confusion in identifying the proper
defendants. Plooy v. Paryani, 275 Ill. App. 3d 1074, 1084-85,
657 N.E.2d 12 (1995).
Because plaintiffs did not support their relation-back
argument in the trial court in the supporting affidavit of
plaintiffs' attorney, it is unknown to what extent plaintiffs'
investigation of the ownership and operation of the restaurant
was completed before they filed suit. It is also unknown whether
plaintiffs knew of the existence of both corporations but
mistakenly selected McDonald's Restaurants of Illinois, Inc., to
sue. Here there could be no confusion, as in Bates, where at
least four entities were operating on the same premises all using
Wagon Wheel as their name. The McDonald's restaurant at 8871
South Kingston had only one owner and one franchisee on the
premises. No other entities were operating on the premises.
From the record, it does not appear that any insurance
adjuster or McDonald's employee furnished the name "McDonald's
Restaurants of Illinois, Inc.," to plaintiffs. These persons
gave the name "McDonald's" to plaintiffs. Defendants by their
names and conduct did not mislead plaintiffs. Plaintiffs
mistakenly selected the party to sue. Cf. Latshaw v. Humphreys
Leather Goods Co., 5 Ill. App. 3d 98, 100, 283 N.E.2d 71 (1972)
(plaintiff did title search to confirm that the owner of a
building was the corporation that was posted on signs).
Plaintiffs have not shown that they were actually confused by the
existence of the two McDonald's entities and that they were
excusably ignorant of the fact that McDonald's Corporation was
the correct defendant. Plaintiffs have not proven inadvertence.
We also find that the amended complaint against the
franchisees Simmons and Lubeznik cannot relate back to the
original complaint because plaintiffs did not serve the agent or
partner of the franchisees as required by section 2--616(d)(3).
See Thomson, 180 Ill. App. 3d at 987-88 (an amended complaint
against a franchisee did not relate back to the complaint against
the franchisor McDonald's Corporation because McDonald's
Corporation was not the agent of the franchisee).
The judgment of the trial court is affirmed.
Affirmed.
WOLFSON, P.J., and McNAMARA, J., concur.