{ "id": 8498881, "name": "CARMECE PERRY, Plaintiff-Appellant, v. PUBLIC BUILDING COMMISSION OF CHICAGO, Defendant-Appellee (The City of Chicago et al., Defendants)", "name_abbreviation": "Perry v. Public Building Commission", "decision_date": "1992-07-17", "docket_number": "No. 1\u201490\u20143371", "first_page": "402", "last_page": "408", "citations": [ { "type": "official", "cite": "232 Ill. App. 3d 402" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "580 N.E.2d 899", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 48", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274798 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0048-01" ] }, { "cite": "473 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 948", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3491192 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0948-01" ] }, { "cite": "434 N.E.2d 355", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "356" }, { "page": "356" } ], "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 336", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5468935 ], "weight": 3, "pin_cites": [ { "page": "338" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0336-01" ] }, { "cite": "567 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "513" } ], "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 644", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2547153 ], "weight": 3, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0644-01" ] }, { "cite": "458 N.E.2d 131", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 571", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592732 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0571-01" ] }, { "cite": "427 N.E.2d 1319", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3081293 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0292-01" ] } ], "analysis": { "cardinality": 603, "char_count": 14005, "ocr_confidence": 0.744, "pagerank": { "raw": 1.1537131034983346e-07, "percentile": 0.5819702229743896 }, "sha256": "ee1101f96502b392da706b3768dfd51e83384c5af9f9bf65d5f3ff0412fb1a70", "simhash": "1:aa624f2a7b4f1593", "word_count": 2294 }, "last_updated": "2023-07-14T16:53:50.540896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McNULTY, P.J., and GORDON, J., concur." ], "parties": [ "CARMECE PERRY, Plaintiff-Appellant, v. PUBLIC BUILDING COMMISSION OF CHICAGO, Defendant-Appellee (The City of Chicago et al., Defendants)." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nIn this slip-and-fall case, plaintiff\u2019s original complaint (filed on the last day of the applicable statute of limitations) incorrectly designated the defendant Public Building Commission of Chicago as the \u201cCook County Public Building Commission.\u201d The trial court found that the incorrect designation was a misidentification of a party and not a misnomer under section 2 \u2014 401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 401(b)). Therefore, the trial court dismissed the Public Building Commission of Chicago pursuant to the expiration of the statute of limitations. The trial court also entered an order pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and plaintiff appealed. We considered whether the trial court erred in holding that the incorrectly designated defendant was a misidentification of a party and not a misnomer.\nWe affirm.\nOn January 26, 1988, Carmece Perry (plaintiff) slipped and fell while walking in the concourse of the Richard J. Daley Center in Chicago. On January 26, 1989, the last day of the applicable statute of limitations for claims against municipal corporations, plaintiff filed suit to recover for her injuries. The complaint named three defendants: \u201cCity of Chicago,\u201d \u201cCounty of Cook,\u201d and \u201cCook County Public Building Commission.\u201d The language in the complaint referred to the defendants as those entities which \u201cowned, operated, maintained, controlled\u201d or otherwise asserted an interest in the Daley Center. Plaintiff issued summons on these defendants addressed as follows:\nCity of Chicago County of Cook County of Cook\nWalter S. Kozubowski Stanley T. Kusper Building Commission\nCity Clerk County Clerk Stanley T. Kusper\n107 City Hall 118 N. Clark St. County Clerk\nChicago, IL 60602 Rm. 434 118 N. Clark St.\nChicago, IL 60602 Rm. 434\nChicago, IL 60602\nAll three summons were returned as served on a registered agent or authorized person.\nAlso on January 26, 1989, plaintiff completed a City of Chicago form called \u201cNotice of Claim For Personal Injuries.\u201d This form stated: \u201cPlease take notice that an action for damages on account of personal injuries will be brought against the CITY OF CHICAGO.\u201d Plaintiff added a brief statement of the facts of her claim. Plaintiff filed the form with the city clerk, the corporation counsel of Chicago, the Cook County clerk, the Cook County Board of Commissions, and the \u201cPublic Building Commission\u201d; the stamp of each office, including the stamp of the \u201cPublic Building Commission,\u201d appears on the face of the completed form indicating the date of January 26, 1989.\nDefendants Cook County and the City of Chicago both filed an appearance with the circuit court. Plaintiff filed a motion for a default judgment against the Cook County Public Building Commission. This motion was withdrawn prior to its being presented.\nCook County filed a motion for summary judgment and attached to it the affidavit of Stephen S. Crane stating that Cook County did not own or manage the Daley Center. Subsequently, plaintiff deposed Crane and learned that the actual owner of the Daley Center was not named the \u201cCook County Public Building Commission\u201d but, instead, was named the \u201cPublic Building Commission of Chicago.\u201d Therefore, plaintiff drafted an order providing (1) \u201cCook County shall be voluntarily dismissed\u201d and (2) \u201cplaintiff is granted leave to file [an] amended complaint pursuant to [section] 2 \u2014 401 to correct misnomer.\u201d The order was signed by the trial judge and dated September 29, 1989. On that same day, plaintiff filed her amended complaint which deleted the words \u201cCook County\u201d and added the words \u201cof Chicago\u201d to all references to the Public Building Commission. Plaintiff also issued an alias summons addressed as follows:\nPublic Building Commission\nRichard J. Daley Center\n66 W. Washington St.\nRoom 705\nChicago, IL 60601 The alias summons was served on October 4, 1989, along with both the original and amended complaints.\nOn November 28, 1989, the Public Building Commission of Chicago (defendant) filed a motion to dismiss pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), contending that plaintiff was not diligent in obtaining service until over eight months after the statute of limitations expired. Two days later, defendant filed its appearance (designated as only Public Building Commission) and obtained leave to vacate any defaults against it. After plaintiff filed her response to the Rule 103(b) motion to dismiss, the parties appeared before the trial court. Then, defendant informed the court that it would file a motion to dismiss pursuant to section 2\u2014 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 619(a)(5)), contending that the plaintiff\u2019s claim against it was barred by the statute of limitations. The court granted leave to file the motion and set a briefing schedule.\nPlaintiff argued that the original complaint was timely filed and that the incorrect designation of defendant was a misnomer subject to correction pursuant to section 2 \u2014 401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 401(b)). The trial court found instead that the incorrect designation was a mistaken identification of a party. Therefore, the court granted the section 2\u2014 619(a)(5) motion to dismiss in favor of defendant. The Rule 103(b) motion to dismiss was thereby deemed moot. There is no indication in the record that plaintiff argued the relation back doctrine pursuant to section 2 \u2014 616(d) (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014 616(d)), in the trial court.\nOpinion\nSection 2 \u2014 401 of the Code of Civil Procedure provides:\n\u201c(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.\u201d (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014 401(b).)\nCourts have held that section 2 \u2014 401 is narrow and applies only where an action is brought and summons is served upon the party intended to be made defendant, thus giving actual notice of the lawsuit to the real party in interest, but the process and complaint do not refer to the person by his correct name. (Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319.) The party\u2019s intent is the ultimate dispositive factor and must be gleaned from objective manifestations. (Hatcher v. Kentner (1983), 120 Ill. App. 3d 571, 458 N.E.2d 131.) Furthermore, section 2 \u2014 401 does not embrace naming the wrong party, provision for which is made in section 2 \u2014 616. (See Ill. Ann. Stat., ch. 110, par. 2 \u2014 401, Historical & Practice Notes, at 330 (Smith-Hurd 1983).) Where section 2 \u2014 401 applies, service of summons after the expiration of the statute of limitations does not bar suit providing that the plaintiff used reasonable diligence in obtaining service upon the proper defendants; however, in cases of mistaken identity, service upon proper defendants is required before expiration of the time provided in the statute of limitations. Barbour v. Fred Berglund & Sons, Inc. (1990), 208 Ill. App. 3d 644, 567 N.E.2d 509.\nHere, plaintiff argues that three factors established that section 2 \u2014 401 applies: (1) the party named in the complaint (\u201cCook County Public Building Commission\u201d) does not exist; (2) the complaint described the defendants as the owners and managers of the Daley Center; and (3) the defendant received actual notice of plaintiffs claim. We will address each of these factors before setting forth our own analysis.\nFirst, plaintiff, relying on Clinton v. Avello (1982), 105 Ill. App. 3d 336, 434 N.E.2d 355, argues that because the \u201cCook County Public Building Commission\u201d does not exist she could not have intended to sue it as the real party in interest. In Clinton, the plaintiff argued that he merely misnamed the real party in interest even though the party named in the complaint in fact existed. The court commented: \u201cThe plaintiff\u2019s rather subjective explanation of who [sic] he intended to sue cannot prevail over a somewhat more obvious conclusion that he intended to sue the specific party who [sic] he named in his complaint and who in fact exists.\u201d (Clinton, 105 Ill. App. 3d at 338, 434 N.E.2d at 356.) Plaintiff\u2019s reliance on Clinton is misplaced. Our court has subsequently stated:\n\u201cWe do not read the *** language in Clinton as the establishment of a correlative rule *** that if there is a claim of mistaken identity, then the party mistakenly identified must exist.\u201d (Barbour, 208 Ill. App. 3d at 650, 567 N.E.2d at 513.)\nIn Barbour, the plaintiff designated defendant under a variety of names, none of which constituted a legal entity. The court still found that plaintiff did not misname the right party but instead named the wrong party. Similarly, although the plaintiff here designated a nonexisting defendant, this is not sufficient evidence that she merely misnamed the real party in interest.\nSecond, the language in the complaint describing the defendants as the owners and managers of the Daley Center does not establish plaintiffs intent to sue the real party in interest. The plaintiff in Clinton, who was suing to recover for injuries sustained in a car accident, made the same argument. The plaintiff contended that he could not have named the wrong party because the complaint stated he intended to sue the person who was in the use, possession, operation, and control of the vehicle. The court responded:\n\u201cWe do not believe that such general descriptive language in a complaint is sufficient evidence of who [sic] 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.\u201d (Clinton, 105 Ill. App. 3d at 338, 434 N.E.2d at 356.)\nSimilarly, we find that plaintiff\u2019s argument here merely begs the question of whom she intended to sue.\nThird, we do not believe that defendant received actual notice as argued by plaintiff. The two possibilities for notice here were the alias summons and the City of Chicago form \u201cNotice of Claim For Personal Injuries.\u201d However, the alias summons was served on defendant after the statute of limitations had expired which, as stated above, is proper only if section 2 \u2014 401 was otherwise satisfied. As we shall see, we do not believe that section 2 \u2014 401 was otherwise satisfied. Furthermore, although the City of Chicago form was filed with defendant on the last day of the statute of limitations, it stated that a claim would be made only against the City of Chicago. Therefore, the form did not constitute notice to defendant.\nContrary to plaintiff\u2019s arguments, we believe that the following objective manifestations in the complaint and process establish that plaintiff misidentified the real party in interest. Although the \u201cCook County Public Building Commission\u201d does not exist, \u201cCook County\u201d does exist. Furthermore, there are numerous commissions associated with Cook County; there are also numerous commissions associated with the City of Chicago. With this in mind, we believe that plaintiff misidentified defendant as an entity associated with Cook County instead of properly identifying defendant as an entity associated with the City of Chicago.\nIn support thereof, we note that plaintiff clearly addressed the initial summons for this defendant to Cook County; plaintiff added the name of Stanley T. Kusper, the clerk of Cook County, to receive the summons. The case law also supports our analysis. In several cases the courts have concluded that the plaintiffs misidentified the real party in interest where they addressed the summons to an incorrect but existing person. (E.g., Barbour, 208 Ill. App. 3d 644, 567 N.E.2d 509; Ashley, 101 Ill. App. 3d 292, 427 N.E.2d 1319.) In other cases the courts have concluded that the plaintiffs merely-misnamed the real party in interest where they correctly addressed the summons. (E.g., Thielke v. Osman Construction Corp. (1985), 129 Ill. App. 3d 948, 473 N.E.2d 574; Ellis v. Borisek (1991), 220 Ill. App. 3d 48, 580 N.E.2d 899; Hatcher v. Kentner (1983), 120 Ill. App. 3d 571, 458 N.E.2d 131.) Again, the address on the summons here shows that plaintiff misidentified the real party in interest.\nWe are cognizant that the trial judge signed an order providing that plaintiff could amend her complaint \u201cpursuant to [section] 2\u2014 401 to correct misnomer.\u201d We point out that plaintiff drafted the order after the statute of limitations had expired and is therefore not directly relevant to whom defendant intended to sue when she filed her original complaint. The trial court, on its part, entered the order without the benefit of hearing arguments on the issue. At any rate, the order in no way restricts this court\u2019s review of the issue on appeal.\nFinally, the fact that defendant filed papers in the trial court misnaming itself the \u201cPublic Building Commission\u201d does not affect or overcome our conclusion that plaintiff mistakenly identified the real party in interest at the time she filed her original complaint.\nIn sum, plaintiff here did not misname the right party but instead named the wrong party. Therefore, the trial court correctly dismissed defendant pursuant to an expiration of the statute of limitations. It follows that it is not necessary for us to address defendant\u2019s Rule 103(b) motion to dismiss. Also, because plaintiff did not raise section 2 \u2014 616(d) in the trial court, plaintiff has waived the right to argue it on appeal.\nAffirmed.\nMcNULTY, P.J., and GORDON, J., concur.", "type": "majority", "author": "JUSTICE LORENZ" } ], "attorneys": [ "Tyrrell, Etchingham & Associates, of Chicago (Thomas J. Tyrrell and Jeffrey D. Javors, of counsel), for appellant.", "Barry M. Lewis & Associates, of Chicago (Kurt Olsen, of counsel), for appellee." ], "corrections": "", "head_matter": "CARMECE PERRY, Plaintiff-Appellant, v. PUBLIC BUILDING COMMISSION OF CHICAGO, Defendant-Appellee (The City of Chicago et al., Defendants).\nFirst District (5th Division)\nNo. 1\u201490\u20143371\nOpinion filed July 17, 1992.\nRehearing denied August 26, 1992.\nTyrrell, Etchingham & Associates, of Chicago (Thomas J. Tyrrell and Jeffrey D. Javors, of counsel), for appellant.\nBarry M. Lewis & Associates, of Chicago (Kurt Olsen, of counsel), for appellee." }, "file_name": "0402-01", "first_page_order": 422, "last_page_order": 428 }