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Wheaton v. Steward9/28/2004
UNPUBLISHED
The 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's motion to dismiss.
On appeal, the plaintiff raises two issues: whether the circuit court erred when it granted the defendant's motion to dismiss and whether the circuit court erred when it denied the plaintiff'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. The driver of the other car identified himself to the plaintiff as "Jason Steward." 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 "UNKNOWN - per JACQULINE" and "JACKIE STEWARD." A Jason Steward, not the defendant Jesse Steward, was then served with the complaint via the Illinois Secretary of State's office. The statute of limitations expired on September 30, 2001.
On February 5, 2002, the circuit court granted the plaintiff's motion to file an amended complaint correcting the defendant's name from "Jason" to "Jesse." The defendant was served at 7320 South Seeley Avenue, Chicago , on May 16, 2002, and filed an appearance and a jury demand.
On 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's deposition. On September 3, 2002, the defendant's motion to strike and dismiss was taken off call. Subsequently, the defendant's motion to strike and dismiss was re-noticed for hearing.
In 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 "Jason Steward" 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 "Jason Steward" at the time of the accident. The response was also supported by the affidavit of the plaintiff's attorney in which he stated that it was necessary to take the defendant's deposition in order to obtain evidence that the defendant misidentified himself to the plaintiff.
On December 13, 2002, the plaintiff brought an emergency motion to strike or delay the defendant's motion to strike and dismiss her complaint. The plaintiff argued that she had been unable to complete discovery relevant to the defendant's motion due to the postponements of the defendant's deposition and his failure to answer the written discovery.
On December 19, 2002, the defendant filed his reply to the plaintiff's response which was accompanied by his answers to the plaintiff's interrogatories. According to the defendant's answers, he had never been known by the name of "Jason Steward" and he did not identify himself to the plaintiff as "Jason Steward" on September 30, 1999.
On December 30, 2002, following a hearing, the circuit court granted the defendant's motion to strike and dismiss the plaintiff's amended complaint and denied the plaintiff's motion to strike. This appeal followed.
ANALYSIS
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