{ "id": 159540, "name": "RON MAURO, Plaintiff-Appellant, v. THE COUNTY OF WINNEBAGO et al., Defendants-Appellees", "name_abbreviation": "Mauro v. County of Winnebago", "decision_date": "1996-07-24", "docket_number": "No. 2\u201495\u20141330", "first_page": "156", "last_page": "161", "citations": [ { "type": "official", "cite": "282 Ill. App. 3d 156" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "212 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2598258 ], "year": 1991, "pin_cites": [ { "page": "517-18" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0505-01" ] }, { "cite": "88 Ill. App. 3d 522", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3172010 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0522-01" ] }, { "cite": "166 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198899 ], "year": 1995, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0507-01" ] }, { "cite": "281 Ill. App. 3d 189", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150225 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "193-94" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0189-01" ] }, { "cite": "159 Ill. 2d 519", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781342 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "526-27" }, { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0519-01" ] }, { "cite": "243 Ill. App. 3d 609", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5108838 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "613" }, { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0609-01" ] }, { "cite": "244 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5101182 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/1034-01" ] } ], "analysis": { "cardinality": 510, "char_count": 10048, "ocr_confidence": 0.767, "pagerank": { "raw": 8.126872106449026e-08, "percentile": 0.4683336750520976 }, "sha256": "7568c16db2d28509ae90916930307beabcfe0ce465d8829726c2f9a758fed18f", "simhash": "1:683a19fd6340695b", "word_count": 1653 }, "last_updated": "2023-07-14T22:18:31.167440+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RON MAURO, Plaintiff-Appellant, v. THE COUNTY OF WINNEBAGO et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE COLWELL\ndelivered the opinion of the court:\nPlaintiff, Ron Mauro, appeals the circuit court\u2019s order dismissing his amended complaint against defendant Winnebago County sheriff for failing to comply with the applicable statute of limitations. Plaintiff contends the court erred in ruling that the amended pleading did not relate back to the date of filing of the original complaint (see 735 ILCS 5/2 \u2014 616(d) (West 1994)). Specifically, plaintiff contends that the court erroneously held that two of the conditions of section 2 \u2014 616(d) were not met: (1) that the sheriffs agent was actually served during the limitations period, albeit in a mistaken capacity; and (2) that the sheriff had notice of the proceeding during the limitations period.\nOn September 26, 1994, plaintiff filed a complaint against defendant County of Winnebago. Plaintiff alleged that he had been injured on October 3, 1993, while a prisoner at the Winnebago County jail.\nThe county moved to dismiss the complaint, contending that it was not the proper party defendant. The county argued that by law the county sheriff was responsible for the operation of the jail and, citing the appellate court\u2019s opinion in Moy v. County of Cook, 244 Ill. App. 3d 1034 (1993), contended that the county could not be vicariously liable for the sheriff\u2019s alleged negligence in operating the jail.\nPlaintiff did not file a response to the county\u2019s motion to dismiss, but instead moved for leave to amend his complaint. The court granted both motions and, on November 3, 1994, plaintiff filed his amended complaint naming only the Winnebago County sheriff as defendant. The complaint\u2019s substantive allegations are the same as those of the original pleading. The sheriff was served on December 9, 1994.\nRepresented by the same assistant State\u2019s Attorney who had appeared on behalf of the county, the sheriff moved to dismiss the amended complaint as barred by the one-year statute of limitations. See 745 ILCS 10/8 \u2014 101 (West 1994). In response, plaintiff argued that the amended complaint related back to the filing of the original complaint, which was within the one-year limitations period. The sheriff replied that some of the conditions of section 2 \u2014 616(d) had not been met. Specifically, the sheriff maintained that he had neither been served nor received actual notice of the suit within the limitations period. The court agreed and dismissed the amended complaint. Plaintiff perfected this appeal.\nSection 2 \u2014 616(d) provides that an amended complaint naming a new or additional defendant will relate back to the filing of the original complaint if certain conditions are met. Those conditions include (1) the original complaint was filed within the limitations period; (2) the failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his agent, or partner, even though he or she was served in the wrong capacity or as the agent of another; (4) the newly named defendant, within the limitations period, knew 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 that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original complaint. 735 ILCS 5/2 \u2014 616(d) (West 1994); Zincoris v. Hobart Brothers Co., 243 Ill. App. 3d 609, 613 (1993).\nPlaintiff first contends that, contrary to the trial court\u2019s finding, he satisfied the third condition of section 2 \u2014 616(d). Plaintiff relies on section 2 \u2014 211 of the Code of Civil Procedure, which provides in relevant part:\n\"In actions against public, municipal, governmental and quasi-municipal corporations, summons may be served by leaving a copy with the chairperson of the county board or county clerk in the case of a county ***.\u201d 735 ILCS 5/2 \u2014 211 (West 1994).\nPlaintiff points out that the original summons and complaint were served on the Winnebago County clerk. Plaintiff contends that, pursuant to section 2 \u2014 211, the county clerk is the sheriff\u2019s agent for receiving process. The sheriff responds that he is not a \"public, municipal, governmental or quasi-municipal corporation\u201d and, thus, under the plain language of section 2 \u2014 211, the county clerk is not his agent.\nPlaintiff acknowledges that in Moy v. County of Cook, 159 Ill. 2d 519 (1994), the supreme court held that a sheriff is a county officer pursuant to article VII of the Illinois Constitution (Ill. Const. 1970, art. VII, \u00a7 4(c)). Plaintiff nonetheless contends that the sheriff is governed by the Counties Code (55 ILCS 5/1 \u2014 1001 et seq. (West 1994)). Therefore, plaintiff argues, the county clerk should be considered the agent of the sheriff for receiving service of process.\nOur first task is to construe section 2 \u2014 211. In construing a legislative enactment, the primary rule of construction is to ascertain and give effect to the true intent of the legislature. In re C.T., 281 Ill. App. 3d 189, 193-94 (1996). The best indicator of the legislature\u2019s intent is the language of the statute itself. C.T., 281 Ill. App. 3d at 194. If the language of the statute is clear, a court should give it effect and not look to extrinsic aids for construction. Bogseth v. Emanuel, 166 Ill. 2d 507, 513 (1995).\nNothing in the plain language of section 2 \u2014 211 provides that the county clerk is the agent of the sheriff for the purpose of receiving service of process. Section 2 \u2014 211 applies only to \"public, municipal, governmental and quasi-municipal corporations.\u201d 735 ILCS 5/2\u2014 211 (West 1994). In Moy, the supreme court held that the sheriff is a county officer, whose duties are controlled by the constitution and by statute. Moy, 159 Ill. 2d at 526-27. The sheriff is not subject to control by the county. Moy, 159 Ill. 2d at 526. It would be anomalous to hold that a constitutional officer who is not subject to control by the county authorities could nonetheless be notified of a suit by service on the county clerk. Nothing in the language of the statute dictates this result. If the sheriff and the county are considered distinct entities for purposes of tort liability, they must be considered separate for purposes of service of process as well. That the statutes defining the sheriff\u2019s duties and the organization of the office have been placed within the Counties Code does not alter this conclusion. Nothing in that statute provides that the sheriff is a municipal or governmental corporation, or that the county clerk is his agent.\nApparently anticipating this conclusion, plaintiff argues that \"exceptional circumstances\u201d dictate that strict application of section 2 \u2014 616(d)(3)\u2019s service requirement is not warranted. Plaintiff argues that he sued the county on the basis of \"known law\u201d about the county\u2019s vicarious liability for the sheriff\u2019s acts and promptly took action against the sheriff after learning of the Moy decision. Moreover, plaintiff contends, in an action against either the county or the sheriff the elements of the litigation would be virtually identical, and if he succeeded in his action against the sheriff, the county would be required to indemnify the sheriff for up to $500,000. See 55 ILCS 5/5 \u2014 1002 (West 1994).\nPlaintiff\u2019s argument is unpersuasive. By \"known law,\u201d plaintiff apparently refers to this court\u2019s decision in Holda v. County of Kane, 88 Ill. App. 3d 522 (1980), which the supreme court overruled in Moy. Holda held that the county could be liable on a respondeat superior theory for the sheriff\u2019s allegedly negligent operation of the county jail. Even under Holda, it was clear that the sheriff and the county were separate entities. If the county is vicariously liable, there must be another entity who is primarily liable.\nGenerally, section 2 \u2014 616 operates to save a cause of action only when plaintiff is unaware, through inadvertence, of the existence of the proper defendant until after the statute of limitations runs. Where plaintiff is aware of the defendant\u2019s identity prior to the expiration of the statute of limitations, but does not move to amend the complaint until after the statute runs, the failure to timely name the proper defendant will not be deemed inadvertent. See Zincoris v. Hobart Brothers Co., 243 Ill. App. 3d 609, 614 (1993); Viirre v. Zayre Stores, Inc., 212 Ill. App. 3d 505, 517-18 (1991).\nWe fail to see any exceptional circumstances which would serve to relax strict application of the mistaken service requirement. This case is subject to the general rule that where a plaintiff is aware of the existence of multiple potential defendants prior to the running of the statute of limitations, he may not rely on section 2 \u2014 616 to add an additional defendant, even if the original defendant is ultimately found not to be liable for some reason. In this case, plaintiff knew or should have known that the sheriff and the county were separate entities for purposes of tort liability but chose, for whatever reason, to proceed only against the county. He cannot be relieved of the consequences of this strategic decision by an unnaturally broad reading of section 2 \u2014 616(d)(3).\nBecause of our disposition of this issue, we need not consider plaintiff\u2019s additional contention that the sheriff had constructive knowledge of the lawsuit prior to the expiration of the statute of limitations. See 735 ILCS 5/2 \u2014 616(d)(4) (West 1994). We also need not consider defendants\u2019 argument that plaintiffs failure to serve the sheriff was not inadvertent. See 735 ILCS 5/2 \u2014 616(d)(2) (West 1994).\nFor the foregoing reasons, the judgment of the circuit court is affirmed.\nAffirmed.\nBOWMAN and THOMAS, JJ., concur.", "type": "majority", "author": "JUSTICE COLWELL" } ], "attorneys": [ "Charles P. Carroll, of Morrison, Carroll & McGrath, P.C., of Northbrook, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (William Don Emmert, Assistant State\u2019s Attorney, of counsel), for appellees." ], "corrections": "", "head_matter": "RON MAURO, Plaintiff-Appellant, v. THE COUNTY OF WINNEBAGO et al., Defendants-Appellees.\nSecond District\nNo. 2\u201495\u20141330\nOpinion filed July 24, 1996.\nCharles P. Carroll, of Morrison, Carroll & McGrath, P.C., of Northbrook, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (William Don Emmert, Assistant State\u2019s Attorney, of counsel), for appellees." }, "file_name": "0156-01", "first_page_order": 174, "last_page_order": 179 }