Page 3 - John Hundley 2016

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.”

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Sharp Thinking is an occasional newsletter of Sharp-Hundley, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp Thinking
shall be construed to create an attorney-client relation where none previously has existed, nor with respect to any particular matter. The perspectives herein constitute
educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal advice on
your particular situation, contact a Sharp-Hundley lawyer at 618-242-0200 or one of the addresses provided on page 2 of this newsletter.