Skip to content

Former Defendants May Be Respondents In Discovery

Litigation Law Roundup

Sharp Thinking

No. 135   Perspectives on Developments in the Law from Sharp-Hundley Law Firm, P.C.   October 2016

 

Former Defendants May Be Respondents In Discovery

Nothing prevents an amended complaint from naming as respondents in discovery persons who had been named as defendants in the original complaint, according to a 2-1 decision of a panel of the Illinois Appellate Court in Chicago.

Reversing a trial court decision in Westwood Constr. Group, Inc. v. IRUS Property, LLC, 2016 IL App (1st) 142490, the majority noted that trial court had dismissed the original complaint on its own motion.  It said the relevant statute (735 ILCS 5/2-402) and case law made “clear that section 2-402 may be employed against a former defendant, dismissed without prejudice….Section 2-402 contains no limitation as to when or in what sequence a plaintiff may designate a person or entity as a respondent in discovery.  The only limitation is that the designated persons or entities be ‘believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the case’” (quoting § 2-402). 

No Laches For Claim Sounding Solely In Law

The equitable doctrine of laches may not be invoked to bar a claim sounding wholly in law, a panel of the Illinois Appellate Court in Chicago has held. 

Ruling in General Auto Service Station, LLC v. Garret, 2016 IL App (1st)  151924, the panel said laches is “the equitable counterpart to defenses based on the statute of limitations” in actions at law.  Noting that the plaintiff’s case sounded wholly in law, the panel stated that the statute of limitations controlled and did not bar the suit. 

“Et Al.” Summonses Ruled Invalid

To result in a valid judgment, a summons to a party may not refer to that party by the “et al.” designation, a panel in the Illinois Appellate Court’s Second District has held.

In U.S. Bank N.A. v. Johnston, 2016 IL App (2d) 150128, U.S. Bank sought to foreclose its mortgage and was faced with a res judicata plea from a junior mortgagee which had foreclosed its own mortgage on the subject property previously.  In the previous action, the plaintiff had referred to multiple parties in the summons with the “et al.” reference, and neither U.S. Bank, its predecessor, nor Mortgage Electronic Registration Systems was expressly referenced on the face of the summons. 

Stating that “a summons which does not name a person on its face and notify him to appear is no summons at all, so far as the unnamed person is concerned,” the panel rejected the res judicata finding and ruled that the trial court had “lacked personal jurisdiction to enter any judgment against U.S. Bank’s predecessor in interest.”

Welcoming Joseph Rose . . .

Sharp-Hundley, P.C. is pleased to announce that Joseph Rose, former general counsel and senior legal adviser to the Illinois Department of Corrections and former assistant general counsel to the Illinois Department of Central Management Services, has joined the firm.

A Riverside, IL, native, Rose received a Bachelor of Arts Degree from DePaul University in Chicago in 1998 and his Juris Doctor Degree from Southern Illinois University School of Law in 2001.  He began his legal career with the Cook County State’s Attorney office and has also served the Illinois Department of Employment Security. 

While in law school, was assistant editor of the Southern Illinois University Law Journal and assistant editor of the Journal of Legal Medicine, on which SIU collaborates with the American College of Legal Medicine.  His article, To Tell or Not to Tell, was published at 22 J. Legal Med. 207 (2001), and he was an award winner in both trial advocacy and advanced torts. 

At Sharp-Hundley, Rose is concentrating his practice in administrative law, litigation, business counseling and real estate law.  “Joe rapidly has become an integral part of our practice,” said firm President John Hundley.  “Persons with legal problems in his areas of concentration may consult him with confidence.”

Rose may be reached at our Mt. Vernon office, 618-242-0200, Joseph@sharp-hundley.com.

. . . And Michael Olson

Sharp-Hundley, P.C. is pleased to announce that Michael Olson, 2016 graduate of the Michigan State University School of Law, has joined the firm as an associate.

A Mt. Vernon, IL, native, Olson received a Bachelor of Arts Degree with honors from the University of Illinois at Urbana-Champaign in 2013.  He then studied law at Michigan State, where he again graduated with honors.

While in law school, Olson was awarded the College of Law Trustee Scholarship and the Jurisprudence Achievement Award in Constitutional Law.  He was a clinical resident in MSU’s First Amendment Law Clinic and in its Rental Housing Clinic.  He is a member of the Alpha Lambda Delta legal honor society.

“Michael was a summer associate for the firm while in law school and did an excellent job,” said Sharp-Hundley President John Hundley.  “We look forward to his many contributions to our practice and our clients.” 

At Sharp-Hundley, Olson will concentrate his practice in civil litigation, creditors’ rights, equitable remedies and related matters.  He may be reached at our Mt. Vernon office, 618-242-0200, Michael@sharp-hundley.com.

SHARP-HUNDLEY, P.C.
1115 Harrison, P.O. Box 906, Mt. Vernon, IL 62864 • Telephone 618-242-0200 • Facsimile 618-242-1170
www.sharp-hundley.com
Business Transactions • Litigation • Financial Law • Problem Finances • Real Estate • Corporate • Commercial Disputes
• Creditors’ Rights • Arbitration & Mediation • Estate Planning • Probate • Family Law

135

Leave a Comment