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No. 2--03--0531

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BYRNE delivered the opinion of the court:

Plaintiff, John Wilk, was injured after he tripped over a rope in a public area of CharlestowneMall. Plaintiff filed a complaint one day before the two-year statute of limitations was to run on hispersonal injury claim (see 735 ILCS 5/13--202 (West 2000)). The complaint named only "WilmoriteInc., d/b/a Genesee Management also d/b/a Charlestowne Mall," as defendant. Wilmorite movedto dismiss the complaint on the grounds that it did not own the mall on the date of the injury. Plaintiff obtained leave to amend the complaint and named "Charlestowne Mall, LLC., d/b/aGenesee Management, d/b/a Charlestowne Mall," as a second defendant. The trial court dismissedthe amended complaint, concluding that it did not relate back to the original complaint. Plaintiffappeals, and we reverse the dismissal pursuant to section 2--616(d) of the Code of Civil Procedure(Code) (735 ILCS 5/2--616(d) (West 2000)). We remand the cause with directions.

FACTS

On October 23, 2001, plaintiff filed a one-count complaint naming "Wilmorite Inc., d/b/aGenesee Management also d/b/a Charlestowne Mall," as defendant. The complaint alleged thatWilmorite negligently caused the personal injuries plaintiff suffered from tripping on a rope at themall on October 24, 1999. Plaintiff alleged that Wilmorite, as owner of the mall, breached its dutyto plaintiff by (1) permitting a "tripping hazard in the public space of the mall," (2) tying a rope atankle level in the mall, (3) obstructing and obscuring the view of the rope, and (4) failing to warnthe public of the hazard.

Joe Balcer, Wilmorite's registered agent, was served with the complaint at the mall onNovember 2, 2001, which was nine days after the limitations period expired. Patrick Kinnally ofMurphy, Hupp & Kinnally filed an appearance on behalf of Wilmorite. On December 19, 2001,Wilmorite moved to dismiss the complaint, arguing that it was not the owner of the mall on the dateof plaintiff's injury. Plaintiff's counsel was out of the country and did not appear for a casemanagement hearing on January 17, 2002. The trial court continued the case several times andeventually ordered plaintiff to respond to the motion to dismiss by July 22, 2002.

The trial court granted Wilmorite's motion to dismiss on July 30, 2002. However, the courtgranted plaintiff leave to amend his complaint, and on August 12, 2002, plaintiff filed a firstamended complaint naming "Charlestowne Mall, LLC., d/b/a Genesee Management, d/b/aCharlestowne Mall," as a second defendant. There is no proof of a second service in the record.

Kinnally, the attorney who had previously filed an appearance on behalf of Wilmorite, fileda second appearance on behalf of Charlestowne Mall, LLC. According to the two appearances filedby Kinnally, Wilmorite and Charlestowne Mall, LLC, share the same address in New York. However, it is unclear from the record whether Balcer, who accepted service on behalf of Wilmorite,is also an agent of Charlestowne Mall, LLC.

On August 19, 2002, defendants moved to dismiss the amended complaint under sections 2--619(a)(5) and 2--619(a)(9) of the Code (735 ILCS 5/2--615(a)(5), 2--615(a)(9) (West 2002)),contending that it did not relate back to the original filing. Plaintiff has not provided this court witha transcript, certified bystander's report, or agreed statement of facts as a record of the hearing. OnNovember 5, 2002, the trial court entered a brief written order dismissing the amended complaintwith prejudice.

Plaintiff filed a motion to reconsider, but there is some question as to whether it was timely.The record contains a notice of filing which plaintiff dated December 5, 2002, but there is noevidence of a postmark. The clerk of the circuit court stamped the notice and motion as received onDecember 9, 2002. Following extensive briefing and argument, the trial court denied the motion toreconsider on April 9, 2003. Plaintiff filed a notice of appeal less than 30 days later on May 6, 2003.

ANALYSIS

The trial court granted defendants' motion to dismiss under sections 2--619(a)(5) and 2--619(a)(9) of the Code. On appeal, plaintiff argues that the amended complaint relates back to theoriginal complaint, and therefore, the trial court erroneously dismissed the cause of action. Defendants apparently question our appellate jurisdiction by responding that "there are no appealableissues before this court" because plaintiff's motion to reconsider was untimely.

Under Supreme Court Rule 303(a)(1), a notice of appeal must be filed within 30 days afterthe entry of the final judgment from which the appeal is taken, or, if a timely posttrial motiondirected at the judgment is filed, within 30 days after entry of the order disposing of the last pendingposttrial motion. 134 Ill. 2d R. 303(a)(1). Under section 2--1203 of the Code, a posttrial motionmust be filed within 30 days of a final judgment. 735 ILCS 5/2--1203 (West 2002). Otherwise, thetrial court will lose jurisdiction to modify or vacate the final order that it entered after the lapse of30 days. Lajato v. AT&T, Inc., 283 Ill. App. 3d 126, 131 (1996). A motion to reconsider is aposttrial motion and therefore " 'falls within the purview of post-judgment motions which must befiled within 30 days after the challenged judgment is entered.' " Lajato, 283 Ill. App. 3d at 132,quoting Sho-Deen, Inc. v. Michel, 263 Ill. App. 3d 288, 290 (1994). The time for filing the noticeof appeal under Rule 303(a) will be extended only if a posttrial motion is timely filed under section2--1203. Lajato, 283 Ill. App. 3d at 132.

In A. S. Schulman Electric Co. v. Village of Fox Lake, 115 Ill. App. 3d 746 (1983), this courtheld that the mailing of a posttrial motion on the twenty-ninth day after entry of the final order wastimely even though the circuit court did not receive the motion until the thirty-first day after the entryof the final order. The timeliness of the filing was shown only by an affidavit in which the attorneyattested that he mailed the motion on the twenty-ninth day. Schulman, 115 Ill. App. 3d at 748.

In In re Marriage of Morse, 143 Ill. App. 3d 849 (1986), the Appellate Court, Fifth District,relied upon Schulman when considering whether the deposit of a posttrial motion in the mailconstituted filing of the motion pursuant to section 2--1203 of the Code. The respondent in Morsedeposited his posttrial motion in the mail on the thirtieth day following the judgment as attested toby a proof of service stamp. However, the envelope was not postmarked until the thirty-first day andwas not filed by the clerk of the court until the thirty-third day following the judgment. Acknowledging that a proof of service stamp is more easily tampered with than a postmark, the FifthDistrict emphasized that the trial court had found no reason to suspect that the respondent's attorneywould postdate the proof of service. Morse, 143 Ill. App. 3d at 852. The Fifth District held that aproof of service date is sufficiently analogous to an affidavit attesting to the mailing date so as torender the posttrial motion timely under Schulman. Morse, 143 Ill. App. 3d at 852.

In this case, there is no evidence of a postmark date for the posttrial motion, and the circuitcourt clerk received the motion on the thirty-fourth day following the dismissal of the amendedcomplaint. However, the notice of filing contains a certification that the motion was deposited inthe mail on the thirtieth day. Defendants do not allege that plaintiff postdated the filing, and thereis nothing in the record that suggests that he did. Therefore, in agreement with Schulman and Morse,we conclude that plaintiff timely filed his posttrial motion by depositing it in the mail within 30 daysof the dismissal. The timely filing extended the time for filing the notice of appeal under Rule303(a). See Lajato, 283 Ill. App. 3d at 132. Plaintiff's notice of appeal is timely because he filed itwithin 30 days of the denial of his posttrial motion.

Turning to the merits of the case, we next address whether the trial court correctly dismissedthe amended complaint for failing to relate back to the original complaint. Under section 2--619(a)(5), a defendant is entitled to a dismissal if the "action was not commenced within the timelimited by law." 735 ILCS 5/2--619(a)(5) (West 2002). A defendant is also entitled to a dismissalif "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effectof or defeating the claim." 735 ILCS 5/2--619(a)(9) (West 2002). An appeal from a section 2--619dismissal is similar to an appeal following a grant of summary judgment, and both are subject to denovo review. Carroll v. Paddock, 199 Ill. 2d 16, 22 (2002). In both cases, the reviewing court mustdetermine whether the existence of a genuine issue of material fact should have precluded thedismissal or, absent such an issue of fact, whether the dismissal is proper as a matter of law. Carroll,199 Ill. 2d at 22.

Under the common law, the failure to join the proper party before the running of the statuteof limitations was fatal to the plaintiff's claim. "Indeed, an amendment to join the proper party wasregarded as the commencement of a new action or proceeding against the substituted defendantwhich does not relate back to the institution of the original action." Morton v. Madison CountyNursing Home Auxiliary, 198 Ill. 2d 183, 186 (2001).

Section 2--616(d) of the Code of Civil Procedure was designed to afford relief to the plaintiffwho, after the limitations period has expired, realizes that he has named the wrong defendant. 735ILCS 5/2--616(d) (West 2002). In such instances of mistaken identity, section 2--616(d) providesthat a statute of limitations will not bar the action as long as the plaintiff can meet all of the statutoryrequirements. An amendment adding a person as a defendant can relate back to the filing date of theoriginal pleading only when all of the statutory requirements are met. Morton, 198 Ill. 2d at 188-89. The version of section 2--616(d) that applies to this case provides as follows:

"A cause of action against a person not originally named a defendant is not barred bylapse of time under any statute or contract prescribing or limiting the time within which anaction may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was infact had upon the person, his or her agent or partner, as the nature of the defendant madeappropriate, even though he or she was served in the wrong capacity or as agent of another***; (4) the person, within the time that the action might have been brought or the rightasserted against him or her, knew that the original action was pending and that it grew outof a transaction or occurrence involving or concerning him or her; and (5) it appears fromthe original and amended pleadings that the cause of action asserted in the amended pleadinggrew out of the same transaction or occurrence set up in the original pleading, *** eventhough the person was not named originally as a defendant. For the purpose of preservingthe cause of action under those conditions, an amendment adding the person as a defendantrelates back to the date of the filing of the original pleading so amended." (Emphasis added.) 735 ILCS 5/2--616(d) (West 2002).

The fundamental rule of statutory interpretation is to give effect to the intention of thelegislature. A court first looks to the words of the statute because the language of the statute is thebest indication of the legislative intent. When the statutory language is clear, it must be given effectwithout resort to other tools of interpretation. In interpreting a statute, it is never proper for a courtto depart from the plain language by reading into a statute exceptions, limitations, or conditionswhich conflict with the clearly expressed legislative intent. County of Knox ex rel. Masterson v. TheHighlands, L.L.C., 188 Ill. 2d 546, 556 (1999).

In this case, the parties dispute whether plaintiff established subsections (3) and (4) of section2--616(d). Defendants cite Morton in arguing that Charlestowne Mall, LLC, did not actually receiveservice of summons or know of the suit for purposes of sections 2--616(d)(3) and 2--616(d)(4),respectively. We disagree.

1. Service of Summons

In Morton, a man died when he either fell or jumped from a third-story window of a nursinghome. The plaintiff, the administrator of the estate, mistakenly believed that the Madison CountyNursing Home Auxiliary (Auxiliary) was the proper defendant. Before the applicable limitationsperiod expired, the plaintiff served the Auxiliary's registered agent and filed a two-count complaintagainst the Auxiliary. The Auxiliary correctly responded that Madison County (the County) was theproper defendant. Morton, 198 Ill. 2d at 184. After the limitations period expired, the plaintiffobtained leave to amend the complaint under section 2--616(d) of the Code to add the County as adefendant. The plaintiff also served the county's registered agent, the county clerk, after thelimitations period ran. Morton, 198 Ill. 2d at 184-85.

Like defendants in this case, the County moved to dismiss, arguing that the amendment didnot relate back to the original complaint because the plaintiff failed to establish the third and fourthprongs of section 2--616(d). The County specifically contended that there was no actual service ofprocess on the County under section 2--616(d)(3) because the Auxiliary's registered agent, whomthe plaintiff served before the limitations period expired, was not also the County's agent forpurposes of service. Morton, 198 Ill. 2d at 185. Acknowledging that he did not serve the correctdefendant until after the limitations period expired, the plaintiff argued that he diligently effectedservice under Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)).

Rule 103(b) provides that "[i]f the plaintiff fails to exercise reasonable diligence to obtainservice on a defendant, the action as to that defendant may be dismissed without prejudice, with theright to refile if the statute of limitation has not run." 177 Ill. 2d R. 103(b). Rule 103(b) does notset forth a specific time in which a defendant must be served but, rather, simply requires a plaintiffto exercise reasonable diligence to provide service in a timely manner. Kole v. Brubaker, 325 Ill.App. 3d 944, 948-49 (2001). The rule was adopted to achieve the historical and constitutionalmandate that justice be fairly and promptly rendered. To promote the expeditious handling oflawsuits, a trial court enjoys broad discretion to dismiss a case when service is not effecteddiligently. Rule 103(b) further aims to protect defendants from unnecessary delay in the service ofprocess so that they are afforded a fair opportunity to investigate. Thus, Rule 103(b) seeks to preventcircumventing a primary purpose of statutes of limitation by not allowing a plaintiff to timely filesuit before the applicable limitation period expires and then intentionally take no action to serve thedefendant until the plaintiff is ready to proceed with litigation. In moving for dismissal under Rule103(b), the defendant is initially required to make a prima facie showing that the plaintiff failed toexercise reasonable diligence in effectuating service after filing suit. No absolute time frame existsthat will shift the burden and require the plaintiffs to offer an explanation for their actions. Consequently, the determination of whether the defendant has established a prima facie case basedon lack of diligence must be made on a case-by-case basis. Kole, 325 Ill. App. 3d at 949.

In rejecting the plaintiff's argument, the supreme court emphasized that Rule 103(b) andsection 2--616(d) apply to distinct pleading defects: Rule 103(b) applies to the late service on atimely named defendant, and section 2--616(d) applies to the late naming of a timely serveddefendant. Morton, 198 Ill. 2d at 191-92. The court held that "section 2--616(d) read as a wholeshows that service on the proper defendant must be accomplished before the protection of section2--616(d) is sought, that is, before the plaintiff moves to amend his complaint." (Emphasis inoriginal.) Morton, 198 Ill. 2d at 190. Therefore, the procedural posture of section 2--616(d) did notpermit the plaintiff to use the amendment, itself, to serve the proper defendant, thereby fulfillingsubsection 2--616(d)(3). Morton, 198 Ill. 2d at 190.

This case presents a slightly different service of process issue than the one decided in Morton. In Morton, the amended complaint did not relate back to the original filing under section 2--616(d)because the Auxilliary's agent, who was timely served, was not also an agent of the County forpurposes of service of process. Like in Morton, plaintiff failed to name the correct defendant orserve that defendant's agent before the limitations period expired. However, unlike in Morton,plaintiff did not attempt to serve the correct defendant with the amended complaint, itself. Instead,plaintiff argues that his original service of Balcer satisfies section 2--616(d)(3) of the Code. Defendants concede that plaintiff diligently served Balcer under Rule 103(b), but only for purposesof the original complaint against Wilmorite.

In this case, the parties agree that the late service on Balcer, Wilmorite's agent, was diligentunder Rule 103(b). Defendants offer no persuasive argument as to why the service on Balcer canbe considered diligent as to Wilmorite but not as to Charlestowne Mall, LLC. Furthermore, publicpolicy favors allowing the amended complaint to relate back in this case. See Siebert v. Bleichman,306 Ill. App. 3d 841, 846 (1999) ("courts liberally construe section 2--616(d) so that cases aredecided on their merits rather than on procedural technicalities"). Moreover, "[w]hen severalcorporations have agents who manage a business so that the public is under the impression that theyare all one and the same, the corporations *** should not benefit from the confusion that emanatesfrom their corporate complexities." Siebert, 306 Ill. App. 3d at 845. Therefore, we conclude that,if Balcer was an agent of Charlestowne Mall, LLC, his actual service before plaintiff's invocationof section 2--616(d) satisfies the service requirement of section 2--616(d)(3) of the Code. Becauseour analysis turns on Balcer's agency status, we remand the cause for the trial court to determinewhether Balcer is an agent of Charlestowne Mall, LLC, for purposes of service of process.

Defendants cite the very broad holding set forth in the brief conclusion Morton: "serviceunder section 2--616(d)(3) must be accomplished within the statute of limitations. Because [theplaintiff] served the County outside of the limitations period, his amended complaint adding theCounty as a new defendant does not relate back to his original complaint." Morton, 198 Ill. 2d at194. In Morton, the plaintiff's attempt to fulfill section 2--616(d)(3) by serving the correct defendantwith the amended complaint was found to be not diligent under Rule 103(b). This case isdistinguishable because plaintiff's service of Balcer was diligent under Rule 103(b). We agree withplaintiff that, if Wimorite and Charlestowne Mall, LLC, shared the same agent on the date Wilmoritewas served, this diligent service fulfills the requirement of section 2--616(d)(3).

2. Charlestowne Mall LLC's Knowledge of the Original Action

Defendants do not dispute that Charlestowne Mall learned that the original action waspending and that it grew out of a transaction or occurrence concerning the mall. However, they arguethat the amended complaint does not relate back because Charlestowne Mall, LLC, did not acquirethis knowledge before the limitations period expired. Contrary to defendants' assertion, the plainlanguage of section 2--616(d)(4) does not require that the correct defendant learn of the suit beforethe statute of limitations expires. Instead, section 2--616(d)(4) identifies the relevant period as "thetime that the action might have been brought." 735 ILCS 5/2--616(d)(4) (West 2000).

Plaintiff served Balcer with the original complaint against "Wilmorite Inc., d/b/a GeneseeManagement also d/b/a Charlestowne Mall," nine days after the limitations period expired. Defendants concede that plaintiff effected service of Wilmorite diligently under Rule 103(b). Thisdiligent service was therefore within "the time that the action might have been brought." 735 ILCS 5/2--616(d)(4) (West 2000). Therefore, we conclude that plaintiff satisfied the requirement ofsection 2--616(d)(4) if he can establish on remand that Balcer is the agent of Charlestowne Mall,LLC.

CONCLUSION

On remand, we direct the trial court to determine whether Balcer was the agent ofCharlestowne Mall, LLC, on November 2, 2001, for purposes of service of process. Upon answeringthis factual question, the court should conduct further proceedings consistent with this opinion.

We note that the legislature amended section 2--616(d) by substituting subsections (2)through (4) with the following single condition: "(2) the person, within the time that the action mighthave been brought or the right asserted against him or her plus the time for service permitted underSupreme Court Rule 103(b), received such notice of the commencement of the action that the personwill not be prejudiced in maintaining a defense on the merits and knew or should have known that,but for a mistake concerning the identity of the proper party, the action would have been broughtagainst him or her." (Emphasis added.) 735 ILCS 5/2--616(d)(2) (West 2002). The amendmentdoes not apply to this case because the original complaint was not filed (1) after January 1, 2002, or(2) before January 1, 2002, where the limitation period had not yet expired before that date. See 735ILCS 5/2--616(f) (West 2002).

For the preceding reasons, the judgment of the circuit court of Kane County is reversed, andthe cause is remanded with directions.

Reversed and remanded with directions.

HUTCHINSON and GILLERAN JOHNSON, JJ., concur.