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FIRST DIVISION
September 2, 2003

JUSTICE McBRIDE delivered the opinion of the court:

Plaintiff Rosalio Campos, as special administrator of the estate of his deceased brother,Camerino Campos, appeals from an order of the circuit court of Cook County granting summaryjudgment to defendant Marcelino Campos, as trustee under the testamentary trust of DanielCampos and executor of the estate of Daniel Campos, Marcelino's deceased brother.⁽¹⁾ Rosalio isnot appealing from a prior order granting summary judgment to another defendant, the son ofDaniel Campos, a beneficiary of the trust and the estate, who is also known as Daniel Campos. Without distinguishing between the two men who shared the same name, Rosalio alleged in aninitial complaint that Daniel Campos' negligence in the operation, maintenance, and control of anapartment building resulted in a fire which caused Camerino's death in 1998. The building hadbeen owned by the elder Daniel Campos until his death in 1996, but it was owned by histestamentary trustee in 1998 when the fire occurred. A summons and a copy of the initialcomplaint were served on the younger Daniel Campos, who appeared, answered the complaint,and responded to Rosalio's discovery. After the statute of limitations had expired and Rosaliowas admittedly aware that the father was deceased and the son was defending the action, Rosalioamended his pleading, again suing "Daniel Campos" and suing Marcelino in his capacity astrustee. In a second amended complaint, Rosalio for the first time added Marcelino in hiscapacity as executor. Marcelino's motion for summary judgment was granted after the circuitcourt found there was no evidence that Rosalio intended to sue the deceased father within thestatute of limitations period.

Rosalio's primary contention on appeal is that the record demonstrates his intent to suethe decedent within the limitations period and that he proceeded with reasonable diligence inseeking leave to amend his action after learning of the death through the discovery process. Rosalio argues that his second amended complaint was rendered timely by section 13-209(c) ofthe Code of Civil Procedure (735 ILCS 5/13-209(c) (West 2000)). Section 13-209(c) permits aparty who "commences an action against a deceased person whose death is unknown to theparty" to subsequently substitute the deceased person's representative as the defendant, even afterthe statute of limitations has run, if certain terms and conditions are met. 735 ILCS 5/13-209(c)(West 2000). Rosalio also contends that Marcelino is equitably estopped from disputing theapplicability of section 13-209(c). Alternatively, Rosalio contends his action is not barredbecause of section 2-616(e) of the Code of Civil Procedure, which provides that a plaintiff'scause of action is not barred against a beneficiary of a land trust if the plaintiff has timely namedthe land trust. See 735 ILCS 5/2-616(e) (West 2000).

The record discloses the following facts. On August 5, 1998, a fire occurred at a four-unit apartment building located at the intersection of East 96th Street and South ExchangeAvenue, Chicago. The building had two addresses -- two of the apartments in the building wereaccessible from an entrance at 9607 South Exchange Avenue and the other two apartments wereaccessible from an entrance at 2941 East 96th Street. Camerino, who resided in the building,suffered fatal smoke inhalation during the fire and died that same day.

On June 16, 2000, nearly two years after the fire occurred, Camerino's brother filed thisaction against Daniel Campos, seeking monetary damages. Rosalio alleged in paragraph 4 of thecomplaint that Daniel Campos owned, maintained, and controlled 9607 South Exchange Avenue. Further, defendant was negligent in failing to maintain smoke detectors in the building and instoring or allowing other persons to store flammable substances on the premises. On September26, 2000, a special process server served a summons and a copy of the complaint at the addressRosalio provided, 2949 East 96th Street, Chicago, upon a member of the household of "Daniel J.Campos," and then mailed an additional copy of the summons and complaint to "Daniel J.Campos" at the same address.

On December 15, 2000, after the circuit court vacated any technical defaults and extendedthe time to answer or otherwise plead, "Daniel Campos" appeared. On January 24, 2001, "DanielCampos" answered the complaint, denying the allegations that he owned, maintained, andcontrolled 9607 South Exchange Avenue.

On April 30, 2001, "Daniel Campos" responded to Rosalio's interrogatories and Rosalio'srequest to produce certain documents. He stated that his full name was "Daniel Julian Campos"and that his date of birth was August 4, 1982. Additionally, in response to interrogatoriesconcerning ownership and insurance coverage as of the date of the fire, he stated, "I was not theowner of the premises." When asked whether the premises were equipped with smoke alarms, heindicated on information and belief that smoke alarms were present when his father purchasedthe building in 1989 and that additional smoke alarms may have been installed thereafter. Healso indicated that all four residential units were occupied on the date of the fire, but when askedwhether he charged for rental of any of the units, he responded, "I did not rent the residentialunits." The interrogatory answers were signed by "Daniel J. Campos."

According to Rosalio, when his attorney received the interrogatory answers, the attorneytelephoned defense counsel and learned that the elder Daniel Campos was deceased. A few dayslater, on May 7, 2001, Rosalio's attorney received a copy of the "Last Will and Testament ofDaniel Campos." The will designated Marcelino as the executor of the estate of Daniel Campos,devised the subject real estate to "my son Daniel Julian Campos unto [Marcelino] Campos, astrustee," and gave the trustee discretion to terminate the trust when the son reached 18 years ofage. The will also specified:

"In addition to any other powers that may be conferred ***by law, my trustee shall have power and authority:

* * *

J. To do all such acts, take such proceedings, and exerciseall such rights and privileges, although not hereinbeforespecifically mentioned, with relation to such property as I mayleave, as if it were the absolute owner thereof ***."

The elder Daniel Campos died on November 18, 1996, nearly two years before the fireoccurred.

On May 29, 2001, nearly three years after the fire, Rosalio was given leave to file anamended complaint "adding [an] additional party Defendant." The defendants named in theamended pleading were "Daniel Campos and Marcelino Campos, as trustee under TestamentaryTrust of Daniel Campos." Rosalio now alleged that "Marcelino Campos, under testamentarytrust of Daniel Campos for the use and benefit of Daniel Campos and Daniel Campos asbeneficiary of said trust, owned, maintained and controlled" the subject real estate when the fireoccurred.

"Daniel Campos" again denied the allegation that he had owned, maintained, andcontrolled the real property. After Rosalio obtained service of process on "Marcelino Campos astrustee," Marcelino appeared and answered, admitting ownership of the real property as a trusteefor the use and benefit of Daniel Campos. In an affirmative defense, however, Marcelinocontended that Rosalio's claims against him as a trustee, which were brought more than two yearsafter the fire and were based on the Wrongful Death Act (740 ILCS 180/2(c) (West 2000) (everysuch action shall be commenced within two years after the death), the Survival Act (755 ILCS5/27-6 (West 2000) (see 735 ILCS 5/13-202 (West 2000) (actions shall be commenced withintwo years next after the cause accrued)), and the family expense act (see 750 ILCS 65/15 (West2000)), were barred by the statute of limitations.

On June 27, 2001, Rosalio sat for a deposition and stated the following. He was born onFebruary 23, 1962, and his brother Camerino was born on May 30, 1982. Daniel Campos washis cousin, and Marcelino Campos was his father's cousin. The following exchange occurredduring the deposition:

"Q: Was Daniel ever at the building prior to the fire?

A: No.

Q: And the Daniel I'm referring to would be yourcousin, Daniel Julian Campos?

A: Junior?

Q: Yes.

A: Yes. I didn't see him there. He didn't live there.

Q: And did you know Daniel Campos, Daniel JulianCampos' father?

A: Yes.

Q: Okay. And do you remember when he passedaway?

A: About two years before, something like that.

Q: Before the fire?

A: Yes."

Further, Rosalio found out that the apartment was available for rent by phoningMarcelino. He and Camerino moved into the apartment in April of 1998, and his friend Ricardomoved in two months later. Rosalio paid the rent to Marcelino each month in cash. Marcelinowould come to the building, to collect the rent or if someone called about a problem.

When the fire occurred, Rosalio was awoken at 5 a.m. or a little bit after by a bad smelland someone "throwing something to the window." He got out of bed and saw a lot of flamesand smoke on the porch. He called for his brother Camerino, who did not answer, and for hisfriend Ricardo, who came out of the bedroom. The lights in Camerino's bedroom were on andthe bedroom door was open, and Rosalio thought Camerino had already left. He took the phoneto the living room and tried to dial 911, but he could not see the numbers through the smoke. AsRicardo was going out the door, Ricardo said "let's go" and "leave that," and Rosalio left withRicardo. Camerino was not outside, and when Rosalio tried to go back to get him, he could notbreathe because of the smoke and came back down the stairs. When the firefighters arrived,Rosalio directed them to Camerino's bedroom, but they were unable to go inside because the firewas "very strong." After the firefighters broke the windows and opened the roof, the firefighterswent inside and found Camerino in the living room.

Additionally, in response to defendants' request to admit facts, Rosalio denied that heknew the elder Daniel Campos was deceased when Rosalio rented the apartment inapproximately April 1998 and when Rosalio filed his original complaint on June 16, 2000, andhe indicated that after he filed suit he learned of the death.

On July 17, 2001, Rosalio deposed Daniel Julian Campos, who again stated that his dateof birth was August 4, 1982. He also indicated that he was 16 years old on the day of the fire. When asked when he became legal or equitable owner of the apartment building, he answered,"Since 18th, since I turned 18, 18th birthday." He stated that before he owned the building, thebuilding was held in a trust established by his father, Daniel, who had died on November 18,1996. His uncle Marcelino paid the mortgage, rented out the apartments, collected rent, andmade repairs. He also indicated that the deceased, Camerino, was his cousin, and he answeredaffirmatively to the question, "He was a far away cousin?" After his father's death, he went to theproperty by himself every Saturday morning to sweep the stairway, pick up papers and garbage,and cut the grass, because his uncle Marcelino told him to do the chores. During the wintermonths he would clean the stairs and rear porches and shovel snow. He never visited theCampos family before the fire. He had met Camerino earlier that year when Camerino camefrom Mexico, and he socialized with Camerino only once, on the evening before the fireoccurred. After his father died, he began living four or five houses away from the property, at2949 East 96th Street, with his aunt Elvira, who had become his legal guardian, and his uncleCelerino. He would see Rosalio and Camerino pass by in their van, and they would exchangegreetings. When the fire occurred, he was sleeping, but was awoken by a neighbor shouting forthe occupants to get out of building. He went outside and spoke with Rosalio. He attendedCamerino's funeral with his uncles Marcelino and Celerino.

On July 31, 2001, Rosalio answered Marcelino's affirmative defense, denying that theclaims he asserted against the trustee more than two years after the fire were untimely.

On September 12, 2001, Rosalio took Marcelino's deposition. Marcelino indicated hewas born on July 17, 1947. His brother Daniel owned the subject property until his death. Atone point, although Marcelino could not recall precisely when, his brother Daniel had resided inthe first-floor front apartment unit. At the time of his death, Marcelino's brother Daniel wasresiding on 95th Street. His brother Daniel left the real estate to Daniel's son in trust and namedMarcelino as the trustee. Marcelino's lawyer recorded documents at the recorder of deeds' office,and Marcelino had copies of documents bearing the stamp of the recorder of deeds. Marcelinoinformed the mortgage company that his brother Daniel had died, and Marcelino received a letterfrom the mortgage company agreeing to transfer the mortgage. After his brother Daniel died,Marcelino took "control over renting the apartments." Marcelino did not collect rent at theproperty until his brother Daniel died. Marcelino's "nephews" Rosalio Campos and CamerinoCampos, and Ricardo Cortez were residing in the second-floor rear unit on August 5, 1998, andCamerino was killed in the fire that occurred that day. Camerino was the son of Marcelino'scousin Gabriel Campos. After the fire, Marcelino arranged for the building to be repaired. Marcelino had agreed to carry out his brother Daniel's wishes to transfer the property to theyounger Daniel Campos when the younger man turned 18. When Marcelino sat for thedeposition, Rosalio was renting an apartment that Marcelino and Marcelino's wife owned, andMarcelino was collecting rent from Rosalio.

On October 2, 2001, Daniel filed a motion for summary judgment, which was based onthe amended complaint, Daniel's answer, the will, and the deposition transcripts of Daniel,Marcelino and Rosalio. Daniel argued that he was only 16 years old when the fire occurred andhad not owned, occupied, possessed or controlled the subject property and, therefore, had notowed any actionable duty to Camerino. Generally, a trustee having legal title to real estate,together with the right of possession, is regarded as the owner of the property and is subject to allthe liabilities of ownership. Wahl v. Schmidt, 307 Ill. 331, 336, 138 N.E. 604, 606 (1923). Further, injuries due to the negligent maintenance of real property give rise to a right of recoveryagainst the party in control and possession of the premises. Conway v. Epstein, 49 Ill. App. 2d290, 294, 200 N.E.2d 16, 18 (1964). Daniel concluded that in the absence of any actionable duty,he was entitled to judgment on Rosalio's negligence claims.

Rosalio responded that summary judgment should be denied because Daniel was eitherthe owner of the property or the owner of a beneficial or equitable interest in the property and,therefore, subject to liability. Rosalio also argued there were questions of fact as to whetherDaniel exerted a principal-agent relationship over the trustee.

On December 5, 2001, the circuit court granted Daniel's motion for summary judgment,finding that (1) although Daniel held beneficial title to the subject property, the evidence showedthat Daniel did not maintain or control the property, and there was no evidence showing that hemade any decisions or had any knowledge with regard to smoke detectors or the storage offlammable substances at the property, and (2) there were no allegations or evidence with regardto an agency relationship between Daniel and his uncle Marcelino.

On February 1, 2002, the remaining defendant, Marcelino, moved for summary judgment,arguing that a two-year statute of limitations barred Rosalio's claims.

On March 1, 2002, Rosalio was given leave to file a second amended complaint and fileda second amended complaint which for the first time named Marcelino in his capacity as"Independent Executor of the Estate of Daniel Campos, deceased."

On March 19, 2002, Rosalio responded to the motion for summary judgment, concedingthat Marcelino was not named as a defendant within two years of the fire, but arguing that theallegations were timely brought in light of sections 13-209(c) and 2-616(e) of the Code of CivilProcedure (735 ILCS 5/2-13-209(c), 2-616(e) (West 2000)).

Thereafter, the circuit court granted Marcelino's motion for summary judgment,specifically finding that Rosalio never intended to sue Daniel Campos, the father, before thestatute of limitations had run. Rosalio filed a motion for reconsideration, which includedevidentiary material not previously offered to the court. The circuit court denied reconsideration. This timely appeal followed. Rosalio appeals only from the April 24, 2002, order grantingsummary judgment to Marcelino.

Our first consideration is Rosalio's contention that section 13-209(c) is applicable here. Section 13-209(c) provides that "[i]f a party commences an action against a deceased personwhose death is unknown to the party before the expiration of the time limited for thecommencement thereof, and the cause of action survives, and is not otherwise barred, the actionmay be commenced against the deceased person's personal representative," upon meeting variousterms and conditions. 735 ILCS 5/13-209(c) (West 2000). Those terms and conditions includethat "[a]fter learning of the death, the party proceeds with reasonable diligence to move the courtfor leave to file an amended complaint, substituting the personal representative as defendant." 735 ILCS 5/13-209(c)(1) (West 2000). Additionally, "In no event can a party commence anaction under [section 13-209(c)] unless *** an amended complaint is filed within 2 years of thetime limited for the commencement of the original action." 735 ILCS 5/13-209(c)(4) (West2000). Thus, section 13-209(c) will apply if the defendant named in Rosalio's timely originalcomplaint was the deceased. However, if Rosalio did not commence his action against thedeceased, then section 13-209(c) will not apply. Rosalio contends the record clearly evidenceshis intent to sue the deceased prior to the expiration of the statute of limitations or at leastdemonstrates a material question of fact as to whom Rosalio intended to sue, precludingsummary judgment for Marcelino. Marcelino responds that section 13-209(c) does not applybecause there is no evidence that Rosalio intended to sue the deceased.

Summary judgment is properly granted where the pleadings, depositions, and affidavitson file show that no genuine issue of material fact exists and that the moving party is entitled tojudgment as a matter of law. Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d 606,613-14, 663 N.E.2d 1, 6-7 (1995). In ruling on a motion for summary judgment, the circuitcourt must construe the pleadings, depositions, and affidavits on file in a light most favorable tothe nonmoving party. Soderlund Brothers, 278 Ill. App. 3d at 614, 663 N.E.2d at 7. If fair-minded persons could draw different inferences from the undisputed facts, summary judgmentshould not be granted. Soderlund Brothers, 278 Ill. App. 3d at 614, 663 N.E.2d at 7. Appellatereview of an order granting summary judgment is de novo. Soderlund Brothers, 278 Ill. App. 3dat 614, 663 N.E.2d at 7. After our de novo review, we conclude that Rosalio never commencedsuit against the deceased but instead commenced an action against the decedent's son.

The record shows that Rosalio sent the process server to the home of the younger DanielCampos, 2949 East 96th Street, Chicago. According to the younger Daniel Campos' depositiontestimony, he only began living at 2949 East 96th Street after his father died in 1996, when theyounger man was 14 years old. The younger Daniel Campos moved in with his aunt Elvira anduncle Celerino, to their apartment at 2949 East 96th Street, and his aunt Elvira became his legalguardian. Additionally, there is no indication that the elder Daniel Campos ever resided at 2949East 96th Street. According to Marcelino's deposition testimony, the elder Daniel Campos wasresiding on 95th Street when he died in 1996 and, for a time, he had resided in the buildingwhere the fire would eventually occur in 1998. As noted above, the building had an entrance at9607 South Exchange Avenue, the address specified in the Rosalio's suit, and a separate entranceat 2941 East 96th Street. According to the younger Daniel Campos, his uncle Celerino'sapartment at 2949 East 96th Street was four or five houses away from the building where the fireoccurred. Thus, when Rosalio sent the process server to 2949 East 96th Street to serve "DanielCampos," Rosalio was attempting to and did serve the younger Daniel Campos.

Additionally, Rosalio showed no intent to sue the elder Daniel Campos until aftersummary judgment was granted in favor of the younger Daniel Campos, despite the facts that theyounger Daniel Campos' relative youth and interrogatory answers made it clear that he did notown, maintain, or control the subject property when the fire occurred, and that questions aboutthe elder man's death and the subsequent ownership, maintenance, and control of the buildingwere obvious during the discovery phase which preceded the motion for summary judgment.

After the younger Daniel Campos was served at the apartment he shared with his aunt anduncle, he appeared and answered, denying the material allegation that he "owned, maintained andcontrolled" the building where the fire occurred. In response to Rosalio's subsequentinterrogatories, which he signed "Daniel J. Campos," the defendant disclosed that his full namewas "Daniel Julian Campos." He also disclosed that his date of birth was August 4, 1982 --indicating that the person defending Rosalio's suit was 16 years when the fire occurred on August5, 1998, 17 years old when the complaint was filed on June 16, 2000, 18 years old when servicewas perfected on September 27, 2000, and 20 years old when the answer was filed on January 24,2001. He also indicated that his father had purchased the building in 1989, and he deniedowning the building or renting out any of the apartments in the building. In response to Rosalio'sfurther inquiry, he also disclosed the date of his father's death and provided Rosalio with a copyof his father's will, which further disclosed that father and son shared the same name, anotherrelative had a similar name, and that Marcelino was the executor of the father's estate and trusteeof the subject property after the father's death in 1996.

Even though all these facts were conveyed to Rosalio, he did not respond with anyindication that he had intended to sue the elder Daniel Campos. He did not seek leave tosubstitute the executor of the father's estate as the lone defendant to the negligence action,pursuant to section 13-209(c) of the Code of Civil Procedure (735 ILCS 5/13-209(c) West2000)). Instead, Rosalio used the additional facts to continue his pursuit of the son. He obtainedleave to add a party, not to substitute a party, and then he named "Daniel Campos," and theadditional party, "Marcelino Campos, as trustee under Testamentary Trust of Daniel Campos," asdefendants.

In the body of the amended pleading, filed one month after Daniel Campos filedinterrogatory answers indicating that he was born in 1982, Rosalio alleged that in 1998,"Marcelino Campos, under testamentary trust of Daniel Campos for the use and benefit of DanielCampos and Daniel Campos as beneficiary of said trust owned, maintained and controlled thepremises at 9607 S. Exchange, Chicago, Illinois, being [an] *** apartment building *** rentedfor profit." Rosalio further alleged that these individuals breached a duty owed to Camerino to"exercise ordinary care and caution in the maintenance and control of said premises."

In a deposition that was taken approximately one month later, Rosalio acknowledged thatthe elder Daniel Campos was deceased. He also referred to Daniel Campos as his "cousin," andMarcelino Campos as his "father's cousin," giving an additional indication that he intended to suethe younger Daniel Campos. When Rosalio subsequently deposed Daniel Campos andMarcelino Campos, he questioned them about the ownership, maintenance, and control of theproperty. Both men indicated that the elder Daniel Campos was deceased. They also indicatedthat the property had passed into a trust after his death and had subsequently been transferred tothe younger Daniel Campos when the younger man reached adulthood. They also indicated thatwhile the property was in the testamentary trust, Marcelino had paid the mortgage, maintainedthe property, rented out the apartments, and repaired the building after the fire. Even thoughdetails of the property's ownership, maintenance, and control were central to the discoveryprocess, Rosalio never gave any indication during the discovery phase that he had intended to suethe elder Daniel Campos.

In fact, when the younger Daniel Campos moved for summary judgment on the basis ofthe amended complaint, his answer, the will, and the deposition testimony given by Rosalio,Marcelino, and himself, Rosalio responded that summary judgment should be denied becauseDaniel Campos owned the property, or at least owned a beneficial or equitable interest in theproperty which subjected him to liability for Camerino's death. Rosalio made specific referencesto the will, the trusteeship created by the will, and Rosalio's deposition testimony, and he referredto the defendant as "Daniel," "Daniel J.," and "Daniel Julian." Rosalio further argued that therewas a fact question as to whether Marcelino had served "as agent of Daniel Julian" in theoperation, management, and control of the property. In short, Rosalio opposed the motion forsummary judgment on the basis of the younger Daniel Campos' liability. He did not argue thatsummary judgment should be denied because Rosalio had intended to sue the elder, deceasedDaniel Campos. Further, after the circuit court granted summary judgment against Rosalio in anorder which included language making the court's finding immediately appealable pursuant toSupreme Court Rule 304(a) (155 Ill. 2d. R. 304(a)), Rosalio sought neither reconsideration noran appeal on the basis of his intent to sue the deceased father.

It was not until Marcelino filed a motion arguing that the amended complaint was barredby the statute of limitations that Rosalio first sought leave to file a second amended complaint inorder to name Marcelino in his additional capacity as executor of the estate of the elder DanielCampos. At this stage of proceedings, February 21, 2002, Rosalio's action had been pending foralmost two years.

Accordingly, we find there was no question of fact that Rosalio was aware of theownership issues with regard to the property and never, prior to the filing of the second amendedcomplaint, showed any intention to sue the deceased father. Because Rosalio never commencedan action against the deceased within the statute of limitations, section 13-209(c) does not apply,and, therefore, the second amended complaint was untimely.

Citing Geddes v. Mill Creek Country Club, Inc., 196 Ill 2d 302, 751 N.E.2d 1150 (2001),Rosalio also argues that the doctrine of equitable estoppel should prevent Marcelino fromcontesting the application of section 13-209(c).

In Geddes, based on the doctrine of equitable estoppel, landowners were not permitted toassert claims for intentional trespass and intentional private nuisance based on errant golf ballshitting their property after the landowners knowingly had agreed to have a real estate developerplace a golf course fairway adjacent to their property, instead of a bicycle path or a residence. Geddes, 196 Ill. 2d 302, 751 N.E.2d 1150.

The party claiming equitable estoppel has the burden of proving it by clear andconvincing evidence. Geddes, 196 Ill. 2d at 314, 751 N.E.2d at 1157.

"To establish equitable estoppel, the party claimingestoppel must demonstrate that: (1) the other personmisrepresented or concealed material facts; (2) the other personknew at the time he or she made the representations that they wereuntrue; (3) the party claiming estoppel did not know that therepresentations were untrue when they were made and when theywere acted upon; (4) the other person intended or reasonablyexpected that the party claiming estoppel would act upon therepresentations; (5) the party claiming estoppel reasonably reliedupon the representations in good faith to his or her detriment; and(6) the party claiming estoppel would be prejudiced by his or herreliance on the representations if the other person is permitted todeny the truth thereof." Geddes, 196 Ill. 2d at 313-14, 751 N.E.2dat 1157.

In support of his equitable estoppel argument, Rosalio cites to actions purportedly takenby State Farm Insurance Company, Daniel Campos, Marcelino, and the defense attorney whorepresented both Daniel Campos and Marcelino. Some of these actions are reflected indocuments which were only attached to Rosalio's motion for reconsideration. We cannotconsider these documents, because the scope of appellate review of a summary judgment motionis limited to the record as it existed when the circuit court ruled. McCullough v. Gallagher &Speck, 254 Ill. App. 3d 941, 947, 627 N.E.2d 202, 207 (1993). Furthermore, a trial judge is notrequired to consider documents attached to a plaintiff's motion for reconsideration of a summaryjudgment ruling where the plaintiff failed to file the documents in response to the defendant'smotion for summary judgment. McCullough, 254 Ill. App. 3d at 947, 627 N.E.2d at 207. A trialcourt should not permit a litigant to stand mute, lose a motion, and then gather evidentiarymaterial to show that the court erred in its ruling. Gardner v. Navistar InternationalTransportation Corp., 213 Ill. App. 3d 242, 248, 571 N.E.2d 1107, 1111 (1991). Accordingly,we will not consider Rosalio's late-tendered documents.

Furthermore, Rosalio fails to explain how the conduct of State Farm Insurance, DanielCampos, and an attorney could ever trigger the application of equitable estoppel doctrine againstMarcelino. In fact, Rosalio does not attempt to apply the facts of this case to any of the sixelements of equitable estoppel stated in the case he is relying upon, he fails to cite to specificpages of the record in support of his theory, and he has raised the theory for the first time onappeal. Any of these three failures alone would be sufficient basis for determining that the theoryof equitable estoppel is waived. See Elder v. Bryant, 324 Ill. App. 3d 526, 529-30, 533, 755N.E.2d 515, 519, 521-22 (2001) (appellant's brief must contain his contentions and the reasonstherefor, accompanied by citation to authorities and pages of the record, or the arguments arewaived; matters raised for the first time on appeal are waived). Accordingly, we find thatRosalio has waived the contention that the doctrine of equitable estoppel should preventMarcelino from contesting the application of section 13-209(c).

Rosalio also argues that the misnomer statute applies because Rosalio intended to and didsue the correct party but by the wrong name, when he named Marcelino in his capacity as trusteebut not as executor in the first amended complaint. Rosalio subsequently named Marcelino in hiscapacities as trustee and executor in the second amended complaint. In a misnomer case, actualnotice of the lawsuit is given to the real party in interest, but the complaint and process do notrefer to that person by his correct name. Borg v. Chicago Zoological Society, 256 Ill. App. 3d931, 934, 638 N.E.2d 306, 308 (1993). The misnomer statute permits the plaintiff to correct thename of a party at any time, before or after judgment (see 735 ILCS 5/2-401(b) (West 2000)),and thus prevents a minor technicality from depriving the plaintiff of the right to have his caseresolved on the merits (Borg, 256 Ill App. 3d at 937, 628 N.E.2d at 310).

"The rule that misnomer is not a ground for dismissal is a narrow one, and applies onlywhere an action is brought and summons is served upon a party intended to be made adefendant." Barbour v. Fred Berglund & Sons, Inc., 208 Ill. App. 3d 644, 648, 567 N.E.2d 509,511 (1990). In other words, the misnomer statute applies only to correctly joined and served, butmisnamed, parties. Barbour, 208 Ill. App. 3d at 648, 567 N.E.2d at 512. For example, in Borg,256 Ill. App. 3d at 933-34, 638 N.E.2d at 308, the erroneous naming of "Chicago ZoologicalPark, Inc. a/k/a Brookfield Zoo," instead of "Chicago Zoological Society, a not for profitCorporation," was a misnomer which the plaintiff could correct at any time.

In contrast, "mistaken identity" occurs when the wrong person was joined and served. Barbour, 208 Ill. App. 3d at 648, 567 N.E.2d at 512. For example, in Hoving v. Davies, 159 Ill.App. 3d 106, 512 N.E.2d 729 (1987), an injured patron was mistaken about the identity of theowner and operator of the lounge where he was injured and named "Barbara Davies and JohnDavies, individually and doing business as the Villa Marie East," instead of the real party ininterest, "John A. Davies, a corporation," which owned and operated the Villa Marie East.

In cases of mistaken identity, the misnomer statute has no application. See Barbour, 208Ill. App. 3d 644, 567 N.E.2d 509. In cases of mistaken identity, the plaintiff must correct hiserror by naming and serving the proper defendant within the applicable statute of limitations. See Barbour, 208 Ill. App. 3d 644, 567 N.E.2d 509. Accordingly, in Hoving, the misnomerstatute was inapplicable. Hoving, 159 Ill. App. 3d at 109 (patron "did not merely misname theright party, but named the wrong party).

Even though Rosalio has waived the misnomer theory for failing to raise it in the trialcourt (Elder, 324 Ill. App. 3d at 529), the misnomer statute (735 ILCS 5/2-401(b) West 2000))does not apply here. This is a case of mistaken identity, because Rosalio named and servedDaniel Campos, the son. Rosalio was mistaken in his belief as to who owned the property whenthe fire occurred. Rosalio did not merely misname the right party, he named and served thewrong party. Hoving, 159 Ill. App. 3d at 109.

Rosalio's suggestion that he misnamed Marcelino in his capacity as trustee fails becauseRosalio named and served Marcelino only after the statute of limitations had run. Originally,Rosalio mistakenly identified the owner of the property as Daniel Campos, the son, notMarcelino. Only after the statute of limitations had expired did he name Marcelino. BecauseRosalio named and served the wrong person originally, he needed to correct the error within theapplicable statute of limitations. See Barbour, 208 Ill. App. 3d 644, 567 N.E.2d 509. Rosalionever did this, so his argument fails.

Finally, Rosalio argues this case "presents a unique set of facts for which section 2-616(e)should apply." Section 2-616(e) of the Code of Civil Procedure provides that a plaintiff's causeof action is not barred against a beneficiary of a land trust if the plaintiff has timely named theland trust. 735 ILCS 5/616(e) (West 2000). Section 2-616(e) was intended to remedy theinjustice which could result from the inability of a plaintiff injured on land held in a land trust toidentify the beneficiary prior to running of the statute of limitations. Klebe v. Patel, 247 Ill. App.3d 474, 478, 616 N.E.2d 1018, 1020 (1993). According to the statute, a plaintiff may file anamended complaint naming the beneficiary as a defendant which will relate back to the originalcomplaint. Klebe, 247 Ill. App. 3d at 477, 616 N.E.2d at 1020. Marcelino was not a beneficiaryof a land trust. Consequently, we find that section 2-616(e) does not apply to the facts of thiscase.

We are not persuaded by any of Rosalio's arguments in regard to the circuit court's ruling,and we conclude that Marcelino's motion for summary judgment was properly granted. Theorder of the circuit court therefore is affirmed.

Affirmed.

BURKE and GARCIA, JJ., concurring.

1. Rosalio's notice of appeal identified Marcelino Campos in his capacity as trustee only;however, the second amended complaint on file at the time that summary judgment was enteredalso designated Marcelino Campos in his capacity as estate executor.