Zito v. Gonzalez

0                                            SECOND DIVISION
                                             August 5, 1997










No. 1-97-0587

JOSEPH ZITO and ROBERT GARCIA,

          Plaintiffs-Appellees,

               v.

AGUSTIN GONZALEZ and ALEJANDRO
GONZALEZ,

          Defendants-Appellants.)
)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County.




Honorable
John G. Laurie,
Judge Presiding.
     JUSTICE TULLY delivered the opinion of the court:
     Plaintiffs, Joseph Zito and Robert Garcia, brought this action to recover
damages occasioned by the alleged negligence of defendant Alejandro Gonzalez
committed while driving the automobile of his father, defendant Agustin Gonzalez. 
The circuit court, finding a misnomer had occurred, allowed plaintiffs to amend their
complaint to add Alejandro Gonzalez as an additional defendant.  This appeal is
taken by Alejandro Gonzalez, by leave of this court under Supreme Court Rule 308
(134 Ill. 2d R. 308), from the circuit court's order allowing plaintiffs leave to file an
amended complaint naming him as a defendant.  Agustin Gonzalez is not a party to
this appeal.
     For the reasons which follow, we reverse and remand.

                            FACTUAL BACKGROUND

     On February 26, 1994, the vehicle in which plaintiffs were riding was struck
by a car driven by Alejandro Gonzalez and owned by Agustin Gonzalez. 
Consequently, under the applicable 2-year statute of limitation contained in section
13-202 of the Code of Civil Procedure, the time for filing a personal injury action
arising from this accident expired on February 26, 1996.  See 735 ILCS 5/13-202
(West 1994).
     The accident report filed by the police lists the driver as "Alex J. Gonzalez." 
The police report listed the owner of the vehicle driven by "Alex J. Gonzalez" as
"Agustin Gonzalez."  Both "Alex J. Gonzalez" and Agustin Gonzalez were each listed
as residing at 4849 South Seeley Avenue in Chicago.
     Plaintiffs retained the law firm of James Brown & Associates to represent them
in the matter.  Subsequently, plaintiffs' counsel contacted State Farm Insurance
Company (hereinafter State Farm), which insured the Gonzalez vehicle.  In all
correspondence between State Farm and plaintiffs' lawyers, there was no mention of
Alejandro Gonzalez; there was only reference to Agustin Gonzalez as the insured.  It
was for this reason, according to plaintiffs, that their lawyers thought that the name
of the driver of the Gonzalez car was Agustin Gonzalez.  It is undisputed that Agustin
Gonzalez was not the individual who was the driver of the automobile involved in the
accident with plaintiffs.
     Throughout their settlement negotiations with State Farm, no one ever
informed plaintiffs' attorneys that the name of the driver was Alejandro Gonzalez. 
After settlement negotiations proved unsuccessful, the case was referred to the law
firm of Pekin & Levin & Associates for the filing of suit.  On March 1, 1995, plaintiffs
filed their complaint with the clerk of the circuit court; it named Agustin Gonzalez 
- as the only defendant.  On April 19, 1995, service was effected at 4849 South Seeley
Avenue on Carlos Gonzalez, Agustin Gonzalez' son and Alejandro Gonzalez' brother.
     It was not until during the course of a mandatory arbitration hearing on
October 7, 1996, that plaintiffs' attorneys realized that they had sued the wrong
person.  At the arbitration hearing, Alejandro Gonzalez testified that he was the
operator of the vehicle involved in the accident with plaintiffs, not his father. 
Alejandro Gonzalez further testified that he was aware of the lawsuit shortly after
service of process at his home.
     On October 29, 1996, after the expiration of the limitation period, plaintiffs'
attorneys filed a motion to amend their complaint to "correct a misnomer" and name
Alejandro Gonzalez as a defendant.  On February 5, 1997, the circuit court granted
plaintiffs' motion to amend their complaint.  However, the circuit court also found,
pursuant to Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)), that its order granting
plaintiffs' motion to amend involved a question of law as to which there is a
substantial ground for difference of opinion and that an immediate appeal from the
order might materially advance the ultimate termination of the litigation.
     The instant appeal followed.

                        ISSUE PRESENTED FOR REVIEW

     The circuit court identified the Rule 308(a) question of law for this court to
decide as follows: Whether the trial court was correct in granting leave to the
plaintiffs to file an amended complaint, on the ground that naming Agustin Gonzalez
in the original complaint was due to misnomer and the true defendant, Alejandro
Gonzalez, resided in the same household as Agustin Gonzalez (his father) and became
aware of the lawsuit from the outset.
 
                                  OPINION

     We must determine whether, in suing "Agustin Gonzalez," plaintiffs sued the
wrong party or whether he sued the right party under the wrong name.  If plaintiffs
sued the right party under the wrong name, then section 2-401(b) of the Code of Civil
Procedure applies and it provides:
          "(b) 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."  735 ILCS 5/2-401(b) (West 1994).
If on the other hand, plaintiffs sued the wrong party, section 2-616(d) of the Code of
Civil Procedure applies and it provides:
          "(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 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, 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).
"In other words, the misnomer provision applies only when the right defendant has
been sued by the wrong name, not when the wrong defendant has been sued."  Arendt
v. Vetta Sports, Inc., 99 F.3d 231 (7th Cir. 1996) (applying section 2-401(b) in a State
action removed to Federal court); see also Thielke v. Osman Construction Corp., 129
Ill. App. 3d 948 (1985).  "However, if it is a case of mistaken identity, the
requirements of section 2-616(d) must be met in order for the amendment to relate
back."  Borg v. Chicago Zoological Society, 256 Ill. App. 3d 931, 934 (1993).
     The misnomer rule is a narrow one and applies only where a plaintiff brings
an action and a summons is served upon a party intended to be made a defendant. 
Barbour v. Fred Berglund & Sons, Inc., 208 Ill. App. 3d 644, 648 (1990).  Thus, actual
notice of the lawsuit is given to the real party in interest, but the process and
complaint is styled in other than the party's correct name.  Perry v. Public Building
Comm'n, 232 Ill. App. 3d 402, 405 (1992).  The pivotal inquiry in dealing with an
issue of misnomer is whom did the plaintiff intend to sue.  Clinton v. Avello, 105 Ill.
App. 3d 336, 338 (1982).  However, this determination is not controlled by the
plaintiff's subjective intention of whom he intended to sue (Ashley v. Hill, 101 Ill.
App. 3d 292, 295 (1981), citing Proctor v. Wells Brothers Co., 262 Ill. 77, 80-81
(1914)), but rather by the objective manifestations of that intent as contained in the
record.  Avello, 105 Ill. App. 3d at 338; accord Schryver v. Eriksen, 255 Ill. App. 3d
418 (1993).  The most probative evidence of whom the plaintiff intended to sue is the
party named in the complaint.  If the named party in fact exists, but is not a real
party in interest, a court can conclude that the plaintiff has mistakenly sued the
wrong party.  Greil v. Travelodge International, Inc., 186 Ill. App. 3d 1061, 1064
(1989); Avello, 105 Ill. App. 3d at 338.
     The circuit court's determination whether to allow or deny leave to file an
amended complaint is within its sound discretion and will not be reversed by a
reviewing court absent an abuse of that discretion.  Loyola Academy v. S & S Roof
Maintenance, Inc., 146 Ill. 2d 263, 273 (1992); accord In re Estate of Hoover, 155 Ill. 2d 402 (1993); People ex rel. Hartigan v. E & E Hauling, Inc., 153 Ill. 2d 473 (1992);
see generally T. O'Neill & S. Brody, Taking Standards of Appellate Review Seriously:
A Proposal to Amend Rule 341, 83 Ill. B.J. 512 (1995).  
     In the case sub judice, plaintiffs named Agustin Gonzalez as the defendant in
his original complaint.  Agustin Gonzalez does in fact exist and is both the owner of
the vehicle in question and is the father of Alejandro Gonzalez.  Plaintiffs did not
merely misspell Alejandro Gonzalez' name; plaintiffs named a different person
altogether.  Because Agustin Gonzalez exists but is not the real party in interest, it
is logical to conclude that plaintiffs mistakenly sued the wrong party.  However,
plaintiffs nevertheless contend that they did not sue the wrong person because they
intended to sue the person that was the driver of the vehicle and their complaint
clearly addresses itself to the driver's conduct.  In other words, plaintiffs argue they
intended to sue the driver of the car who caused their injuries and merely misnamed
him as Agustin Gonzalez.  In rejecting the identical argument in the past, this court
held:
          "We do not believe that such general descriptive language
          in a complaint is sufficient evidence of whom the plaintiff
          intended to sue.  It merely begs the question for a plaintiff
          to contend that he intended to sue the party who caused
          his injuries.  [Citations.]  The plaintiff's rather subjective
          explanation of who[m] he intended to sue cannot prevail
          over a somewhat more obvious conclusion that he intended
          to sue the specific party who[m] he named in his complaint
          and who in fact exists."  Avello, 105 Ill. App. 3d at 338.
     Plaintiffs also submit that other factors which appear in the record are
pertinent to the issue of intent.  Plaintiffs point to the following facts: that the police
report named the driver and the owner, who was the driver's father; that State
Farm's response to plaintiffs' attorney's notice of lien and other correspondence
referred to Agustin Gonzalez; and that both Agustin and Alejandro Gonzalez are
represented by the same lawyers, who were aware of the discrepancy from the outset
of the case.  With regard to the last two facts, plaintiffs assert that State Farm and
opposing counsel's failure to mention or clarify the mistake misled them.  In addition,
plaintiffs also place significance on the fact that Alejandro Gonzalez was aware of the
lawsuit shortly after his father was served.  We fail to see how any of these factors
are relevant.  
     In addition, plaintiffs rely heavily on Shaifer v. Folino, 272 Ill. App. 3d 709
(1995), in their argument that there was a misnomer.  There, the plaintiffs' complaint
named Domenico Folino as the defendant.  Domenico Folino was the father of
Dominic Folino, the driver of the automobile involved in the accident at issue in the
case and the real party in interest.  A divided panel of this court found this to be a
case of misnomer, despite the fact that the person named in the complaint actually
existed, because the court found that other objective evidence overcame the
presumption that the plaintiffs intended to sue the person named in the complaint. 
The Shaifer majority considered it relevant that, when the action was initiated, the
plaintiffs' lawyer sent an attorney lien letter to Dominic at his home.  The plaintiffs'
lawyer subsequently received a letter from the insurer carrier covering the vehicle
involved in the accident which listed the insured's name as Domenico.  Believing this
to be a correction in the spelling of Dominic's name, plaintiffs' attorney drafted the
complaint accordingly.  Service was received by Dominic's mother at his home, where
he lived with his parents.  The Shaifer majority found the attorney lien letter
revealed an objective intent by the plaintiffs to sue Dominic Folino and that the
plaintiffs had merely been inadvertently misled by the insurance company's letter
into believing that Domenico was the correct spelling of Dominic's name.  The court
also found it relevant that service was effected at Dominic's address of record,
notwithstanding the fact that it was also Domenico's address, and that plaintiffs took
steps to amend the complaint as soon as they became aware of their error.
     Initially, we find it of particular significance that there was a police report
informing plaintiffs of the existence of a car owner separate and apart from the
vehicle's operator, a fact completely absent in Shaifer.  Furthermore, contrary to
plaintiffs' view, we fail to see how this fact in any way helps their position.  Clearly,
the police report put plaintiffs on notice that the vehicle's driver ("Alex J. Gonzalez")
and its owner ("Agustin Gonzalez") were not the same person, but rather were two
separate individuals.  Moreover, the name "Alex" could not be easily confused for
"Agustin," a name which, aside from the fact that it begins with the letter "A," is not
even similar to "Agustin."  In fact, "Alex" is a familiar form of the Spanish given
name "Alejandro," exactly as it is a familiar form of the English equivalent of
"Alejandro," "Alexander."  Thus, plaintiffs cannot now argue they could not have
reasonably known the driver and the owner were different people.
     We find plaintiffs position that they were somehow misled by the failure of
State Farm and/or defense counsel to correct their error to be disingenuous.  It is not
at all unreasonable that correspondence from an insurance carrier would reference
only the name of the policy holder under whose name it probably maintains its
records and with whom it has signed a contract of insurance.  Furthermore, we know
of no rule that obligates an insurance company or an attorney to correct the mistakes
of persons pressing claims against their interests.  In fact, with respect to an
attorney, such action might be considered unprofessional.  Finally, in contrast to
Shaifer, plaintiffs offer no objective evidence that they initially sent out an attorney
lien letter, or any other document, that correctly referenced Alejandro Gonzalez as
the real party in interest, only to be later misled by an insurance company document
into believing that they misspelled the name of the real party in interest as the very
similar name of the policy holder.
     Finally, plaintiffs urge that Shaifer, where the majority found it particularly
significant that both the father (the car owner) and his son (the driver and real party
in interest) resided at their mutual residence both at the time of the accident and
when process of service was effected on the father, is controlling of the case sub
judice.  This is because Alejandro Gonzalez, like the driver in Shaifer, was aware of
the lawsuit shortly after his father was served at their mutual residence.  Alejandro
Gonzalez, on the other hand points to Clinton v. Avello, 105 Ill. App. 3d 336 (1982),
and Stevens v. Yonker, 12 Ill. App. 3d 233 (1973), as being controlling of our decision. 
Both of these cases were also the basis for the Shaifer dissent. Shaifer, 272 Ill. App.
3d at 709 (Rakowski, J., dissenting).
     In Avello, the plaintiff was involved in a vehicular accident with another car
driven by Bernard J. Avello.  Before the statute of limitations expired, the plaintiff
filed suit against Bernard V. Avello, who was the father of Bernard J. Avello and the
owner of the car that Bernard J. Avello was driving at the time of the accident. 
Service was effected on Bernard V. Avello and was returned as having been served
on "Bernard Avello."  Bernard J. Avello and Bernard V. Avello did not live at the
same residence.  At his deposition, which took place over a year after service of
process was effected, Bernard V. Avello revealed for the first time that he was not the
driver of the vehicle.  Bernard V. Avello subsequently was granted summary
judgment in his favor.  In affirming the circuit court's judgement, the Avello court
found that the actual intent of the plaintiff was to sue Bernard V. Avello as
manifested by the fact that Bernard V. Avello was named as defendant in the
complaint; that he did exist in fact; that he was the owner of the car described in the
complaint; that the summons was placed for service on Bernard V. Avello and he was
served at his residence; and that Bernard J. Avello was not served.
     In Yonker, the plaintiff was involved in a car accident with another car driven
by Bruce Yonker.  The plaintiff filed suit before the statute of limitations expired
against William Yonker, who was the father of Bruce Yonker and the owner of the
car that Bruce Yonker was driving at the time of the accident.  The return of
summons stated that it was served by leaving a copy with "Mrs. W. Yonker (wife)." 
William Yonker filed an appearance and answer which admitted ownership of the
vehicle, but denied other allegations.  Discovery revealed the driver and real party
in interest was Bruce Yonker, who resided with his father in the same house.  The
limitation period had lapsed and the plaintiff attempted to amend the complaint
claiming "William" was a misnomer.  The circuit court refused to allow amendment
and granted summary judgment in favor of Bruce Yonker.  In affirming the circuit
court, the Yonker court found "the fact that the owner and driver of the vehicle ***
had the same last name, were father and son, and resided in the same household"
was irrelevant.  Yonker, 12 Ill. App. 3d at 234.  Rather, the Yonker court held that
the proper focus was on who was named in the complaint and received the summons.
     The Shaifer court attempted to draw a distinction between that case and Avello
and Yonker.  The Shaifer majority decided that the significant distinction between
its case and Avello was that the father (the car owner) and son (the car driver) in
Avello did not reside in the same household.  Yonker was distinguished on the basis
that service was effected on the wife of the vehicle owner.  We respectfully disagree
with the Shaifer court's belief that these minor factual differences are of such import
that they warranted that court's marked departure from prior case law and the
language of Yonker in particular.  Rather, we believe that the proper focus of a
misnomer inquiry remains "whether the proper party was named and served but by
an incorrect name.  The fact that both parties resided in the same household only
helps explain how the mistaken identity occurred."  Shaifer, 272 Ill. App. 3d 709
(Rakowski, J., dissenting); Avello, 105 Ill. App. 3d 336; Yonker, 12 Ill. App. 3d 233. 
Consequently, we decline to apply Shaifer to the instant case and, therefore, we place
no significance upon the fact that Agustin and Alejandro Gonzales lived in the same
household and that Alejandro Gonzales had notice of the lawsuit against his father. 
Accordingly, we find the circuit court abused its discretion in permitting plaintiffs to
amend their case under section 2-401(b) of the Code of Civil Procedure.  We further
conclude, after applying sections 13-202 and 2-616(d) of the Code of Civil Procedure
(735 ILCS 5/13-202, 2-616(d) (West 1994)) that plaintiffs are barred from prosecuting
an action against Alejandro Gonzalez arising out of the automobile collision that
occurred on February 26, 1994.
     In light of the foregoing, the order granting plaintiffs leave to amend their
complaint is reversed and this cause is remanded to the circuit court for further
proceedings not inconsistent with the views contained herein.
     Reversed and remanded.
     McNULTY, P.J., and RAKOWSKI, J., concur.