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Wheaton v. Steward9/28/2004
89); 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 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's deposition. According to the affidavit of the plaintiff's attorney's secretary, the defendant's deposition was continued 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 still had not responded to the plaintiff's interrogatories, and his deposition still had not been taken. The plaintiff's 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's 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.
In 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 2-619 and summary judgment motions are routinely made after discovery has been completed and the parties know the evidence).
The 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 identify to the plaintiff at the time of the accident and whether the plaintiff reasonably relied on that misrepresentation when she filed her lawsuit.
Genuine 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's motion to dismiss. Deciding this case as we do, we need not address the remaining issue raised by the plaintiff.
The judgment of the circuit court is reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
WOLFSON and GARCIA, JJ., concur.
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