What’s in a Name? How a Misnomer in a Summons Can Impact a Plaintiff’s Suit
All lawsuits have one thing in common — they begin when a plaintiff files a summons and complaint. While petitioners typically devote substantial effort toward crafting complaints that will survive a motion to dismiss, they spend arguably less time fretting over the substance of their summonses. Recently, however, in Studentowicz v. Queen’s Park Oval Asset Holding Trust, 2019 IL App (1st) 181182, the appellate court of Illinois reminded practitioners that a misnomer-related mistake in a summons can be just as detrimental to a lawsuit as an insufficiently pled complaint.
Studentowicz v. Queen’s Park Oval Asset Holding
Wojciech Studentowicz filed suit against Queens Park Oval Asset Holding Trust after he slipped and fell on property held by the trust in Midlothian, Illinois. 2019 IL App (1st) 181182 at ¶1. Studentowicz sought to recover damages to cover his medical bills, pain and suffering, loss of normal life, and permanency. 2019 IL App (1st) 181182 at ¶3.
A copy of Studentowicz’s summons, which was captioned “Studentowicz Wojciech v. Queen’s Park,” and a copy of his complaint were served on a duly authorized agent of the trust on March 24, 2015. 2019 IL App (1st) 181182 at ¶2. Following service, Studentowicz and trust staff members exchanged e-mails regarding the lawsuit and the complaint. 2019 IL App (1st) 181182 at ¶6. One trust staff member even requested an electronic copy of the complaint. Id. Despite this discourse, the record suggests that the trust did not respond to the summons or complaint due to negligence or administrative error. 2019 IL App (1st) 181182 at ¶5. On June 19, 2015, the Circuit Court of Cook County entered an order of default against “Queen’s Park Oval Asset Holding Trust” and set the matter for a prove-up hearing. 2019 IL App (1st) 181182 at ¶3. The prove-up hearing was held on May 28, 2016, when the circuit court entered judgment against the trust in the amount of $699,032. Id.
On January 4, 2018, the trust filed a petition pursuant to §2-1401 of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq., seeking to vacate both the default order and the prove-up order, alleging that “Queen’s Park” was a nonexistent entity. 2019 IL App (1st) 181182 at ¶5. See also 735 ILCS 5/2-1401. The trust alleged that the summons did not properly identify the trust and that such a defect in service rendered both judgments against it void ab initio. Id. Over the plaintiff’s arguments that the trust had actual notice of the pending lawsuit and had used the name “Queen’s Park” in other judicial proceedings, the circuit court entered and order granting defendant’s §2-1401 petition. 2019 IL App (1st) 181182 at ¶7.
On appeal, the plaintiff argued that (1) the defendant had actual notice of the underlying lawsuit, (2) the defendant was actually served, (3) the defendant was clearly the party intended to be sued, and (4) “affirmance would establish a bad precedent under which parties with full knowledge of a lawsuit could ignore a summons and vacate default judgment years after the fact.” 2019 IL App (1st) 181182 at ¶8. Relying on Theodorakakis v. Kogut, 194 Ill.App.3d 586, 551 N.E.2d 261, 262,141 Ill.Dec. 268 (1st Dist. 1990), in which the court affirmed a circuit court order vacating a default judgment because the summons was directed to trust number 44289 even though the complaint caption and body correctly identified trust number 4289, the appellate court of Illinois upheld the circuit court’s order granting the trust’s §2-1401 motion to vacate. 2019 IL App (1st) 181182 at ¶¶14, 21.
Implications for Illinois Practitioners
While the Studentowicz court was quick to point out that it was not adopting “a rule that requires summonses to name parties with utmost precision,” petitioners must be must more careful in the future when identifying defendants in their lawsuits. 2019 IL App (1st) 181182 at ¶16. In particular, a plaintiff must name a defendant in the summons with enough precision to avoid confusion. 2019 IL App (1st) 181182 at ¶15. For example, it would be prudent to take excess caution when serving a summons on an entity or businesses with either a common name, lengthy title, or colloquial abbreviation. Id. That being said, the Illinois “Misnomer Rule” provides that misnomer is not grounds for dismissal, and that “the name of any party may be corrected at any time, before or after judgment, on motion.” 735 ILCS 5/2-401(b). Keep in mind, however, that this rule applies only when the action and summons are “served upon a party intended to be made a defendant.” Zito v. Gonzalez, 291 Ill.App.3d 389, 683 N.E.2d 1280, 1283, 225 Ill.Dec. 617 (1st Dist. 1997).
Generally speaking, practitioners can avoid the issues raised in Studentowicz if they approach a summons with the same precision and carefulness they approach a complaint, taking time to thoroughly research and accurately name the parties.
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