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SECOND DIVISION
Date Filed: September 28, 2004

JUSTICE HALL delivered the opinion of the court:

The plaintiff, Matoi Wheaton, appeals from an order of thecircuit court granting the motion of the defendant, JesseSteward, to strike and dismiss her amended complaint and denyingher motion to strike the defendant's motion to dismiss.

On appeal, the plaintiff raises two issues: whether thecircuit court erred when it granted the defendant's motion todismiss and whether the circuit court erred when it denied theplaintiff's motion to strike the defendant's motion to dismiss.

According to the pleadings in this case, on September 30,1999, the plaintiff was involved in an automobile accident. Thedriver of the other car identified himself to the plaintiff as"Jason Steward." On September 6, 2001, the plaintiff filed acomplaint for personal injury and property damage and named JasonSteward as the defendant. Summons was issued to be served onJason Steward at 7333 South Seeley Avenue, Chicago. Two attemptsto serve Jason Steward revealed that Jason Steward was "UNKNOWN -per JACQULINE" and "JACKIE STEWARD." A Jason Steward, not thedefendant Jesse Steward, was then served with the complaint viathe Illinois Secretary of State's office. The statute oflimitations expired on September 30, 2001.

On February 5, 2002, the circuit court granted theplaintiff's motion to file an amended complaint correcting thedefendant's name from "Jason" to "Jesse." The defendant wasserved at 7320 South Seeley Avenue, Chicago, on May 16, 2002, andfiled an appearance and a jury demand.

On July 15, 2002, the defendant filed a motion to strike anddismiss the amended complaint on the basis that it was notbrought against the defendant within the applicable two-yearstatute of limitations. On August 2, 2002, the plaintiff servedwritten interrogatories to be answered by the defendant andscheduled the defendant's deposition. On September 3, 2002, thedefendant's motion to strike and dismiss was taken off call. Subsequently, the defendant's motion to strike and dismiss wasre-noticed for hearing.

In her response to the motion to strike and dismiss, theplaintiff maintained that, at the time of the accident, thedefendant identified himself to her as "Jason Steward"deliberately to mislead her and that only after the statute oflimitations had run did the defendant reveal his true identity. The response was supported by the plaintiff's affidavit averringthat the defendant had identified himself to her as "JasonSteward" at the time of the accident. The response was alsosupported by the affidavit of the plaintiff's attorney in whichhe stated that it was necessary to take the defendant'sdeposition in order to obtain evidence that the defendantmisidentified himself to the plaintiff.

On December 13, 2002, the plaintiff brought an emergencymotion to strike or delay the defendant's motion to strike anddismiss her complaint. The plaintiff argued that she had beenunable to complete discovery relevant to the defendant's motiondue to the postponements of the defendant's deposition and hisfailure to answer the written discovery.

On December 19, 2002, the defendant filed his reply to theplaintiff's response which was accompanied by his answers to theplaintiff's interrogatories. According to the defendant'sanswers, he had never been known by the name of "Jason Steward"and he did not identify himself to the plaintiff as "JasonSteward" on September 30, 1999.

On December 30, 2002, following a hearing, the circuit courtgranted the defendant's motion to strike and dismiss theplaintiff's amended complaint and denied the plaintiff's motionto strike. This appeal followed.

Initially, we observe that the defendant's motion to dismissfailed to designate the applicable section of the Code of CivilProcedure (the Code) (735 ILCS 5/1-101 et seq. (West 2000)). Meticulous practice dictates that movants clearly state thesection 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 amotion to dismiss is not a pleading practice that should beencouraged, reversal for such a deficiency is appropriate onlywhen prejudice to the nonmovant results. Cuculich, 298 Ill. App.3d at 1046.

While the order dismissing the amended complaint did notspecify the grounds the circuit court relied on in granting themotion to dismiss, the parties are in agreement that thedismissal was based on the untimeliness of the complaint. Therefore, the applicable section is section 2-619 of the Code. See 735 ILCS 5/2-619(a)(5) (West 2000) (the action was notcommenced within the time limited by law).⁽¹⁾

Our review of a dismissal pursuant to section 2-619 of theCode is de novo. People ex rel. Devine v. Time ConsumerMarketing, Inc., 336 Ill. App. 3d 74, 78, 782 N.E.2d 761 (2002).

In ruling on a motion to dismiss under section 2-619 of theCode, the court must accept all well-pled facts in the complaintas true and draw all reasonable inferences from those facts infavor of the plaintiff. Cuculich, 298 Ill. App. 3d at 1047. Onreview of an order granting dismissal pursuant to section 2-619,we must determine whether a genuine issue of material factexisted which should have precluded dismissal and, if not,whether the dismissal was proper as a matter of law. TimeConsumer Marketing, Inc., 336 Ill. App. 3d at 78.

A misnomer, where a plaintiff sues and serves the correctparty but calls that party by the wrong name, "'is not a groundfor dismissal but the name of [the] party may be corrected at anytime, before or after judgment, on motion, upon any terms andproof that the court requires.'" Rapier v. First Bank & TrustCo. of Illinois, 309 Ill. App. 3d 71, 80, 721 N.E.2d 686 (1999),quoting 735 ILCS 5/2-401(b) (West 1994). However, the misnomerrule is a narrow one and applies only where a plaintiff brings anaction and a summons is served upon a party intended to be made adefendant. Zito v. Gonzalez, 291 Ill. App. 3d 389, 392, 683N.E.2d 1280 (1997). In contrast, mistaken identity occurs whenthe wrong party is named and served. Rapier, 309 Ill. App. 3d at80. In cases of mistaken identity, section 2-616 of the Codeapplies, and service is required before the running of thestatute of limitations. Rapier, 291 Ill. App. 3d at 80; see 735ILCS 5/2-616(d) (West 2000).⁽²⁾

In her complaint, the plaintiff named Jason Steward as thedefendant and served a Jason Steward, not the defendant, via theIllinois Secretary of State. She did not name Jason Steward andthen serve Jesse Steward. In addition, after the plaintiff movedto amend her complaint to name the defendant, she sought theentry of a default judgment against Jason Steward. Since theplaintiff named and served the wrong party, this case is one ofmistaken identity, not misnomer. Therefore, the plaintiff wasrequired to show compliance with the requirements of section 2-616(d) and serve the defendant prior to the running of thestatute of limitations, which she did not do. Nonetheless, wedetermine that genuine issues of material fact exist as towhether the defendant is estopped from raising the statute oflimitations.

It is well settled that a party will not be equitablyestopped from asserting a statute of limitations defense where aplaintiff fails to show that: "'(1) defendant has made somemisrepresentation or concealment of a material fact; (2)defendant had knowledge, either actual or implied, that therepresentations were untrue at the time they were made; (3)plaintiff was unaware of the untruth of the representations bothat the time they were made and the time they were acted upon; (4)defendant either intended or expected his representations orconduct to be acted upon; (5) plaintiff did in fact rely upon oract upon the representations or conduct; and (6) plaintiff hasacted on the basis of the representations or conduct such that hewould be prejudiced if defendant is not estopped.'" 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 ofknowing the true facts within the applicable statute oflimitations. Nickels, 277 Ill. App. 3d at 856.

We find Nickels to be instructive. In Nickels, theplaintiff was involved in an accident. The other driver gave himthe names of Patricia Villareal and State Farm. The plaintifffiled suit against Ms. Villareal. Ms. Villareal filed an answerdenying that she was used or was in possession of the car at thetime of the accident. In her answers to interrogatories, Ms.Villareal identified "Chris Reid" as a person who witnessed theaccident. Ms. Villareal also indicated in her answers that shewas the owner rather than the driver of the car. In hisdeposition, the plaintiff stated that, at the time of theaccident, the other driver had given him a piece of paper withMs. Villareal's name and that of State Farm on it. Heacknowledged that the driver did not say anything as to whetherit was her name on the paper or the owner of the vehicle. Afterdeposing Ms. Villareal and Ms. Reid, the plaintiff learned thatMs. Villareal had loaned her car to Ms. Reid, who was driving itat the time of the accident. The plaintiff then amended hiscomplaint to state that Ms. Reid was driving the car but stillsought judgment only against Ms. Villareal based on an agencytheory. A year later, the plaintiff filed a second amendedcomplaint naming Ms. Reid as a defendant. Ms. Reid's motion todismiss on the basis of the statute of limitations was granted bythe circuit court.

In affirming the circuit court, the reviewing court rejectedthe plaintiff's argument that there was a genuine issue ofmaterial fact as to whether the defendant was estopped fromraising the statute of limitations. Regardless of anymisrepresentations by Ms. Reid, Ms. Villareal's answer denyingthat she was the driver of the car was sufficient to put theplaintiff on notice prior to the running of the statute oflimitations that an inquiry into the true identify of the driverwas necessary. Moreover, after the expiration of the statute oflimitations, when the plaintiff conclusively knew that Ms. Reidwas the driver of the car, he still did not name her as adefendant.

The Nickels court distinguished two earlier cases in whichcourts had determined genuine issues of material fact on theissue of estoppel existed. In both cases, the plaintiffs failedto name the proper defendants prior to the expiration of thestatute of limitations, and the defendants had not filed answersto the complaints denying the allegations of wrongdoing prior tothe expiration of the limitations period. Finally, theplaintiffs in those cases acted promptly in attempting to namethe 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. 2d568, 109 S. Ct. 3218 (1989); Shockley v. Ryder Truck Rental,Inc., 74 Ill. App. 3d 89, 392 N.E.2d 675 (1979).

The defendant was served on May 16, 2002. An order wasentered on June 14, 2002, requiring all discovery to be completedby December 20, 2002, and assigning the case for mandatoryarbitration. On July 15, 2002, the defendant filed hisappearance, a jury demand and his motion to dismiss. On August2, 2002, the plaintiff propounded written interrogatories and anotice to produce to the defendant and a notice for thedefendant's deposition. According to the affidavit of theplaintiff's attorney's secretary, the defendant's deposition wascontinued three times at the request of the defendant's attorney,the last date being November 20, 2002.

At the time the defendant's motion to dismiss had been re-noticed, the defendant had not answered the complaint and stillhad not responded to the plaintiff's interrogatories, and hisdeposition still had not been taken. The plaintiff's response tothe motion to dismiss included her affidavit that, at the time ofthe accident, the defendant identified himself to her as JasonSteward and gave her his address. The defendant's reply includedhis answers to the interrogatories according to which he neverused the name Jason Steward and denied identifying himself to theplaintiff as Jason Steward.

In contrast to Nickels, there were no pleadings filed by thedefendant before the running of the statute of limitations toalert the plaintiff that the person she named in the complaintwas not the other driver involved in the accident with her. Thedefendant did not file an answer to the complaint denying that hewas the driver of the other car. The defendant also avoidedgiving his deposition, although it had been scheduled severaltimes prior to the hearing on the motion to dismiss and continuedat the request of the defendant. See Dever v. Simmons, 292 Ill.App. 3d 70, 74, 684 N.E.2d 997 (1997) (motions to dismiss undersection 2-619 and summary judgment motions are routinely madeafter discovery has been completed and the parties know theevidence).

The plaintiff alleged in her affidavit that the defendantidentified himself to her as Jason Steward; the defendant deniedthat fact. Therefore, questions of fact exist as to whether thedefendant misrepresented his identify to the plaintiff at thetime of the accident and whether the plaintiff reasonably reliedon that misrepresentation when she filed her lawsuit.

Genuine issues of material fact preclude dismissal. TimeConsumer Marketing, Inc., 336 Ill. App. 3d at 78. Therefore, thecircuit court erred when it granted the defendant's motion todismiss. Deciding this case as we do, we need not address theremaining issue raised by the plaintiff.

The judgment of the circuit court is reversed, and the causeis remanded for further proceedings.

Reversed and remanded.

WOLFSON and GARCIA, JJ., concur.