{ "id": 3363483, "name": "MATOI WHEATON, Plaintiff-Appellant, v. JESSE STEWARD, Defendant-Appellee", "name_abbreviation": "Wheaton v. Steward", "decision_date": "2004-09-28", "docket_number": "No. 1\u201403\u20140270", "first_page": "67", "last_page": "73", "citations": [ { "type": "official", "cite": "353 Ill. App. 3d 67" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "684 N.E.2d 997", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "motions to dismiss under section 2 - 619 and summary judgment motions are routinely made after discovery has been completed and the parties know the evidence" } ], "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725066 ], "year": 1997, "pin_cites": [ { "page": "74", "parenthetical": "motions to dismiss under section 2 - 619 and summary judgment motions are routinely made after discovery has been completed and the parties know the evidence" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0070-01" ] }, { "cite": "392 N.E.2d 675", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 89", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3268766 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0089-01" ] }, { "cite": "109 S. Ct. 3218", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1989, "opinion_index": 0 }, { "cite": "106 L. Ed. 2d 568", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "492 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6235328, 6236963, 6238820, 6238054, 6236617, 6238411, 6237292, 6239150, 6235918, 6239477, 6235638, 6234936, 6236250, 6237630 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/492/0907-02", "/us/492/0907-07", "/us/492/0907-12", "/us/492/0907-10", "/us/492/0907-06", "/us/492/0907-11", "/us/492/0907-08", "/us/492/0907-13", "/us/492/0907-04", "/us/492/0907-14", "/us/492/0907-03", "/us/492/0907-01", "/us/492/0907-05", "/us/492/0907-09" ] }, { "cite": "533 N.E.2d 885", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "126 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557370 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/126/0150-01" ] }, { "cite": "388 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 696", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3241820 ], "year": 1979, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0696-01" ] }, { "cite": "661 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 849", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172390 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "855-56" }, { "page": "856" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0849-01" ] }, { "cite": "683 N.E.2d 1280", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 389", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 1599299 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "78" }, { "page": "78" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0074-01" ] }, { "cite": "700 N.E.2d 202", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 1040", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073634 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "1046" }, { "page": "1046" }, { "page": "1047" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/1040-01" ] } ], "analysis": { "cardinality": 624, "char_count": 14749, "ocr_confidence": 0.702, "pagerank": { "raw": 1.2988318877733012e-07, "percentile": 0.6217327728373353 }, "sha256": "85476750112ed07a9a1458a177aeb60769347e5ff70be694a5b1f6a11fc26529", "simhash": "1:aa8a6fbf076b973c", "word_count": 2472 }, "last_updated": "2023-07-14T16:37:49.624900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MATOI WHEATON, Plaintiff-Appellant, v. JESSE STEWARD, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE HALL\ndelivered the opinion of the court:\nThe plaintiff, Matoi Wheaton, appeals from an order of the circuit court granting the motion of the defendant, Jesse Steward, to strike and dismiss her amended complaint and denying her motion to strike the defendant\u2019s motion to dismiss.\nOn appeal, the plaintiff raises two issues: whether the circuit court erred when it granted the defendant\u2019s motion to dismiss and whether the circuit court erred when it denied the plaintiffs motion to strike the defendant\u2019s motion to dismiss.\nAccording to the pleadings in this case, on September 30, 1999, the plaintiff was involved in an automobile accident. The driver of the other car identified himself to the plaintiff as \u201cJason Steward.\u201d On September 6, 2001, the plaintiff filed a complaint for personal injury and property damage and named Jason Steward as the defendant. Summons was issued to be served on Jason Steward at 7333 South Seeley Avenue, Chicago. Two attempts to serve Jason Steward revealed that Jason Steward was \u201cUNKNOWN \u2014 per JACQULINE\u201d and \u201cJACKIE STEWARD.\u201d A Jason Steward, not the defendant Jesse Steward, was then served with the complaint via the Illinois Secretary of State\u2019s office. The statute of limitations expired on September 30, 2001.\nOn February 5, 2002, the circuit court granted the plaintiff\u2019s motion to file an amended complaint correcting the defendant\u2019s name from \u201cJason\u201d to \u201cJesse.\u201d The defendant was served at 7320 South Seeley Avenue, Chicago, on May 16, 2002, and filed an appearance and a jury demand.\nOn July 15, 2002, the defendant filed a motion to strike and dismiss the amended complaint on the basis that it was not brought against the defendant within the applicable two-year statute of limitations. On August 2, 2002, the plaintiff served written interrogatories to be answered by the defendant and scheduled the defendant\u2019s deposition. On September 3, 2002, the defendant\u2019s motion to strike and dismiss was taken off call. Subsequently, the defendant\u2019s motion to strike and dismiss was re-noticed for hearing.\nIn her response to the motion to strike and dismiss, the plaintiff maintained that, at the time of the accident, the defendant identified himself to her as \u201cJason Steward\u201d deliberately to mislead her and that only after the statute of limitations had run did the defendant reveal his true identity. The response was supported by the plaintiff s affidavit averring that the defendant had identified himself to her as \u201cJason Steward\u201d at the time of the accident. The response was also supported by the affidavit of the plaintiffs attorney in which he stated that it was necessary to take the defendant\u2019s deposition in order to obtain evidence that the defendant misidentified himself to the plaintiff.\nOn December 13, 2002, the plaintiff brought an emergency motion to strike or delay the defendant\u2019s motion to strike and dismiss her complaint. The plaintiff argued that she had been unable to complete discovery relevant to the defendant\u2019s motion due to the postponements of the defendant\u2019s deposition and his failure to answer the written discovery.\nOn December 19, 2002, the defendant filed his reply to the plaintiff\u2019s response which was accompanied by his answers to the plaintiffs interrogatories. According to the defendant\u2019s answers, he had never been known by the name of \u201cJason Steward\u201d and he did not identify himself to the plaintiff as \u201cJason Steward\u201d on September 30, 1999.\nOn December 30, 2002, following a hearing, the circuit court granted the defendant\u2019s motion to strike and dismiss the plaintiffs amended complaint and denied the plaintiffs motion to strike. This appeal followed.\nANALYSIS\nInitially, we observe that the defendant\u2019s motion to dismiss failed to designate the applicable section of the Code of Civil Procedure (the Code) (735 ILCS 5/1 \u2014 101 et seq. (West 2000)). Meticulous practice dictates that movants clearly state the section of the Code under which a motion to dismiss is brought. Storm & Associates, Ltd. v. Cuculich, 298 Ill. App. 3d 1040, 1046, 700 N.E.2d 202 (1998). While failure to properly label a motion to dismiss is not a pleading practice that should be encouraged, reversal for such a deficiency is appropriate only when prejudice to the nonmovant results. Cuculich, 298 Ill. App. 3d at 1046.\nWhile the order dismissing the amended complaint did not specify the grounds the circuit court relied on in granting the motion to dismiss, the parties are in agreement that the dismissal was based on the untimeliness of the complaint. Therefore, the applicable section is section 2 \u2014 619 of the Code. See 735 ILCS 5/2 \u2014 619(a)(5) (West 2000) (the action was not commenced within the time limited by law).\nI. Standard of Review\nOur review of a dismissal pursuant to section 2 \u2014 619 of the Code is de novo. People ex rel. Devine v. Time Consumer Marketing, Inc., 336 Ill. App. 3d 74, 78, 782 N.E.2d 761 (2002).\nII. Discussion\nIn ruling on a motion to dismiss under section 2 \u2014 619 of the Code, the court must accept all well-pled facts in the complaint as true and draw all reasonable inferences from those facts in favor of the plaintiff. Cuculich, 298 Ill. App. 3d at 1047. On review of an order granting dismissal pursuant to section 2 \u2014 619, we must determine whether a genuine issue of material fact existed which should have precluded dismissal and, if not, whether the dismissal was proper as a matter of law. Time Consumer Marketing, Inc., 336 Ill. App. 3d at 78.\nA misnomer, where a plaintiff sues and serves the correct party but calls that party by the wrong name, \u201c \u2018is not a ground for dismissal but the name of [the] party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.\u2019 \u201d Rapier v. First Bank & Trust Co. of Illinois, 309 Ill. App. 3d 71, 80, 721 N.E.2d 686 (1999), quoting 735 ILCS 5/2 \u2014 401(b) (West 1994). However, 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. Zito v. Gonzalez, 291 Ill. App. 3d 389, 392, 683 N.E.2d 1280 (1997). In contrast, mistaken identity occurs when the wrong party is named and served. Rapier, 309 Ill. App. 3d at 80. In cases of mistaken identity, section 2 \u2014 616 of the Code applies, and service is required before the running of the statute of limitations. Rapier, 291 Ill. App. 3d at 80; see 735 ILCS 5/2 \u2014 616(d) (West 2000).\nIn her complaint, the plaintiff named Jason Steward as the defendant and served a Jason Steward, not the defendant, via the II-linois Secretary of State. She did not name Jason Steward and then serve Jesse Steward. In addition, after the plaintiff moved to amend her complaint to name the defendant, she sought the entry of a default judgment against Jason Steward. Since the plaintiff named and served the wrong party, this case is one of mistaken identity, not misnomer. Therefore, the plaintiff was required to show compliance with the requirements of section 2 \u2014 616(d) and serve the defendant prior to the running of the statute of limitations, which she did not do. Nonetheless, we determine that genuine issues of material fact exist as to whether the defendant is estopped from raising the statute of limitations.\nIt is well settled that a party will not be equitably estopped from asserting a statute of limitations defense where a plaintiff fails to show that: \u201c \u2018(1) defendant has made some misrepresentation or concealment of a material fact; (2) defendant had knowledge, either actual or implied, that the representations were untrue at the time they were made; (3) plaintiff was unaware of the untruth of the representations both at the time made and the time they were acted upon; (4) defendant either intended or expected his representations or conduct to be acted upon; (5) plaintiff did in fact rely upon or act upon the representations or conduct; and (6) plaintiff has acted on the basis of the representations or conduct such that he would be prejudiced if defendant is not estopped.\u2019 \u201d Nickels v. Reid, 277 Ill. App. 3d 849, 855-56, 661 N.E.2d 442 (1996), quoting Strom International, Ltd. v. Spar Warehouse & Distributors, Inc., 69 Ill. App. 3d 696, 703, 388 N.E.2d 108 (1979). A plaintiff must have had no knowledge or means of knowing the true facts within the applicable statute of limitations. Nickels, 277 Ill. App. 3d at 856.\nWe find Nickels to be instructive. In Nickels, the plaintiff was involved in an accident. The other driver gave him the names of Patricia Villareal and State Farm. The plaintiff filed suit against Ms. Vil-lareal. Ms. Villareal filed an answer denying that she used or was in possession of the car at the time of the accident. In her answers to interrogatories, Ms. Villareal identified \u201cChris Reid\u201d as a person who witnessed the accident. Ms. Villareal also indicated in her answers that she was the owner rather than the driver of the car. In his deposition, the plaintiff stated that, at the time of the accident, the other driver had given him a piece of paper with Ms. Villareal\u2019s name and that of State Farm on it. He acknowledged that the driver did not say anything as to whether it was her name on the paper or that of the owner of the vehicle. After deposing Ms. Villareal and Ms. Reid, the plaintiff learned that Ms. Villareal had loaned her car to Ms. Reid, who was driving it at the time of the accident. The plaintiff then amended his complaint to state that Ms. Reid was driving the car but still sought judgment only against Ms. Villareal based on an agency theory. A year later, the plaintiff filed a second amended complaint naming Ms. Reid as a defendant. Ms. Reid\u2019s motion to dismiss on the basis of the statute of limitations was granted by the circuit court.\nIn affirming the circuit court, the reviewing court rejected the plaintiff s argument that there was a genuine issue of material fact as to whether the defendant was estopped from raising the statute of limitations. Regardless of any misrepresentations by Ms. Reid, Ms. Villareal\u2019s answer denying that she was the driver of the car was sufficient to put the plaintiff on notice prior to the running of the statute of limitations that an inquiry into the true identity of the driver was necessary. Moreover, after the expiration of the statute of limitations, when the plaintiff conclusively knew that Ms. Reid was the driver of the car, he still did not name her as a defendant.\nThe Nickels court distinguished two earlier cases in which courts had determined genuine issues of material fact on the issue of estoppel existed. In both cases, the plaintiffs failed to name the proper defendants prior to the expiration of the statute of limitations, and the defendants had not filed answers to the complaints denying the allegations of wrongdoing prior to the expiration of the limitations period. Finally, the plaintiffs in those cases acted promptly in attempting to name the proper defendants. See Vaughn v. Speaker, 126 Ill. 2d 150, 533 N.E.2d 885 (1988), cert, denied, 492 U.S. 907, 106 L. Ed. 2d 568, 109 S. Ct. 3218 (1989); Shockley v. Ryder Truck Rental, Inc., 74 Ill. App. 3d 89, 392 N.E.2d 675 (1979).\nThe defendant was served on May 16, 2002. An order was entered on June 14, 2002, requiring all discovery to be completed by December 20, 2002, and assigning the case for mandatory arbitration. On July 15, 2002, the defendant filed his appearance, a jury demand and his motion to dismiss. On August 2, 2002, the plaintiff propounded written interrogatories and a notice to produce to the defendant and a notice for the defendant\u2019s deposition. According to the affidavit of the plaintiff\u2019s attorney\u2019s secretary, the defendant\u2019s deposition was continued three times at the request of the defendant\u2019s attorney, the last date being November 20, 2002.\nAt the time the defendant\u2019s motion to dismiss had been re-noticed, the defendant had not answered the complaint and still had not responded to the plaintiffs interrogatories, and his deposition still had not been taken. The plaintiff\u2019s response to the motion to dismiss included her affidavit that, at the time of the accident, the defendant identified himself to her as Jason Steward and gave her his address. The defendant\u2019s reply included his answers to the interrogatories according to which he never used the name Jason Steward and denied identifying himself to the plaintiff as Jason Steward.\nIn contrast to Nickels, there were no pleadings filed by the defendant before the running of the statute of limitations to alert the plaintiff that the person she named in the complaint was not the other driver involved in the accident with her. The defendant did not file an answer to the complaint denying that he was the driver of the other car. The defendant also avoided giving his deposition, although it had been scheduled several times prior to the hearing on the motion to dismiss and continued at the request of the defendant. See Dever v. Simmons, 292 Ill. App. 3d 70, 74, 684 N.E.2d 997 (1997) (motions to dismiss under section 2 \u2014 619 and summary judgment motions are routinely made after discovery has been completed and the parties know the evidence).\nThe plaintiff alleged in her affidavit that the defendant identified himself to her as Jason Steward; the defendant denied that fact. Therefore, questions of fact exist as to whether the defendant misrepresented his identity to the plaintiff at the time of the accident and whether the plaintiff reasonably relied on that misrepresentation when she filed her lawsuit.\nGenuine issues of material fact preclude dismissal. Time Consumer Marketing, Inc., 336 Ill. App. 3d at 78. Therefore, the circuit court erred when it granted the defendant\u2019s motion to dismiss. Deciding this case as we do, we need not address the remaining issue raised by the plaintiff.\nThe judgment of the circuit court is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nWOLFSON and GARCIA, JJ., concur.\nThe record on appeal does contain a copy of the motion to dismiss, file-stamped July 15, 2002, with \u201c619 \u2014 9\u201d handwritten on it.\nUnder section 2 \u2014 616(d), the time also includes the time for service permitted by Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)). 735 ILCS 5/2 \u2014 616(d) (West 2000). However, that period is not applicable in this case.", "type": "majority", "author": "JUSTICE HALL" } ], "attorneys": [ "Andrew Fink, of Benjamin & Shapiro, Ltd., of Chicago, for appellant.", "David L. Coghlan and Diane M. Fitzpatrick, both of Law Offices of O\u2019Donnell, Murtaugh & Coghlan, of Chicago, for appellee." ], "corrections": "", "head_matter": "MATOI WHEATON, Plaintiff-Appellant, v. JESSE STEWARD, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 1\u201403\u20140270\nOpinion filed September 28, 2004.\nRehearing denied November 1, 2004.\nAndrew Fink, of Benjamin & Shapiro, Ltd., of Chicago, for appellant.\nDavid L. Coghlan and Diane M. Fitzpatrick, both of Law Offices of O\u2019Donnell, Murtaugh & Coghlan, of Chicago, for appellee." }, "file_name": "0067-01", "first_page_order": 83, "last_page_order": 89 }