## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Mann v. Thom as Place, L.P. , 2012 IL App (1st) 110625

Appellate Court Caption J AMES MANN, an Individu al
, and J OSEPH J

. DUF FY PROJ ECT MANAGEMENT CORPORATI ON, a Dissolved I llinois Corporation, Plaintiffs-Appellants, v. THOMAS PL ACE, L .P., an I llinois L imited Partnershi p , an d THOMAS PL ACE, L L C, an I llinois L imited L iability Company
, Def

endants-A

ppellees (James N. Be rg man, an Individual; Thomas and Thomas Associates, Inc., an I llinois Corporation; T h omas Monico, an Individual; David Smit h, an Individual; Glenview Elderly Prog rams North, Inc., an I l l i n ois Corporation; Equity Growth Group Residential, L L C, an I owa L imited L iability Company ; Paul Thomas, an Individual, and Per Ha

nson, an I ndividual, Defe ndants).

District & N o. First District, F ourth Division Docke t No. 1-11-0625

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed J une 28, 2012

J uly 31, 2012 August 16, 2012

Held (Note : This sy ll abus

co n st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the R e

por te r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiffs’ third-amende d complaint alleg ing un j u s t enric hment and
q uantum meruit in connec tion with a rea l estate development wa s proper ly d i s missed as untimely and the relation-back doctrine did not apply wher e plaintiffs failed to prove the n am ed defe ndants knew or should have known they would have been named i n the orig inal complaint but for plaintiffs’ mistake

.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 05-CH-17539; the Hon. Ronald F. B artkowic z, J udg e, pre siding.J udg ment Affir med.

Counsel on Appea l Canna & Canna, L td., of Orland Park (Thomas J

. Canna and J oshua R. Runnels, of counsel) , for a ppellants.

DeGr and & Wolfe, P

. C

. , o f Chicag o (L uke DeGr and and Trac ey L

. Wolfe, of counse l), for a

ppellees.

Panel J USTI CE STERBA deliver ed the judg ment of the c ourt, with opinion. Presiding J ustice L avin and Justi ce Pucinski concur red in the j udg ment and opinion.

OP INION

¶ 1 J ames Mann and the J oseph J

. Duffy Project Manag ement Corp o ra t i o n (c o l lectively
, plaintiffs) appea l the circ uit court’s dismiss al of their two-count complaint ag ainst Thomas P l ac e, L

. P
., and Thomas Place, L L C (collec tively
, Thomas Place defe ndants). The circ uit
court dismiss ed plaintiffs’ complaint as to the Thomas Place defe ndants pursuant to section 2-619(a )(5) of the Code of Civil Procedur e (Code) on the g rounds that it wa s barr ed by the
statute of l imitations

. 735 I L CS 5/2-619 (a) (5) (West 2010). On appea l, plaintiffs maintain that the court err ed in its dismiss al and argue that the relation-back doctrine applies to save their cla ims. For the r easons that f ollow, we af

firm.

¶ 2 BA CKGROUND ¶ 3 This case arises out of t he development and construc tion of a senior livingcommunity known as Thomas Place. In a complaint filed on October 14, 2005, former plaintiff J oseph J

. Duffy Company (Duff

y Co.) alleg ed that it serve d as a develope r of Thomas Place but was not selec ted as the g ener al contra ctor for the fac ility afte r the nece ssary funding and donation of land was secur ed, in violation of a joint venture ag ree ment. The comp l ai n t n am ed as defe ndants Thomas & Thomas Associates, Inc. (Thomas & Thomas), Glenview E lderly Prog rams North, Inc. (GEPN), Equity Growth Group Residential, L L C (Equity Growth), Ry an C ompanies US A, I nc. (Ry an), J ames Ber g man, Thom as Moni co, David Smit h, P au l Thomas, and Per

Hanson (c ollectively , the orig inal defe ndants). ¶ 4 Acc ording to the co m p l ai n t , T h o m as & T h o m as is a rea l estate development a nd consulting company owned by Paul Thomas and Thomas Monico. I t is the prede ce s s or of GEPN, which was al s o known as Glenview Elderly Service s North, Inc. (GESN). J ames Be rg man and David Smit h are rea l estate develope rs wh o are associate d with the construction development company of Equity Growth. Ry an is a construction company , and Per Hanson is an attorney with whom Paul Thomas of Thomas & Thomas cons u lted

-2-reg ardingthe projec t.

¶ 5 The initial complaint purported to state cause s of action ag ainst the orig inal defe ndants for br eac h of a joint venture agree ment, brea ch of f iduciary duties, intentional interfer ence with contra ct, conspirac y to intentionally interfe re with contra ctual rights, quantum meruit , and fra udulent inducement. Specifica lly
, Duffy Co. alleg ed that in J une of 1998, it ag ree d to work as part of a development team with Thomas & Thomas and GEPN to develop Thomas Place. In 2002, J oseph J. Duffy Project Mana g ement Company (PMC) and Equity

Growth also joined the development team. Although Duffy Co. assisted in cre ating construction and desig n plans and secur ing funding for the projec t, it was not selec ted as the g ener al contra ctor

as promised by the orig inal defe ndants. Instead, Duffy Co. was offe red only the rig ht to bid

on the construction contra ct, which it lear ned wa s ultim ately

awa rded to Ry an on May 14, 2005. ¶ 6 The circ uit court dismiss ed this initial complaint without prejudice for failure to state a claim pursuant to s ec t i o n 2-615 of the Code (735 I L CS 5/2-615 (West 2010)), which prompted Duffy Co. to file a first amende d complaint joining PMC as a plaintiff and adding
counts of unjust enric hment and equitable estoppel. An o ther round of dismiss al and amendment followed, afte r which the circ uit court i s s u ed an order dismiss ing the second amende d complaint with prejudice

. Duffy Co. and PMC then appea led to this court. On Fe bruar y 29, 2008, we aff

irmed the circ uit court’s dismiss al of the complaint in its entirety with respe ct to defe ndant Ry an, and aff irmed the dismiss al of all counts except those alleg ing unjust enric hment and quantum meruit with respe ct to all other orig inal defe ndants ( Joseph J. Du f f y Co

. v. Bergman
, No. 1-07-0558 (2008) (unpublished order pursuant to Supreme Court Rule 23)). ¶ 7 When the case was once ag ain befor e the circ uit court in April 2009, Duffy Co. and PMC filed a third amende d complaint to substit ute J ames Mann, a share holder of D uffy

Co., for Duffy Co. a s plaintiff. Plaintiffs a lleg ed Mann and Duffy Co. had previously enter ed into a stock rede mption ag ree ment which provided that if Duffy Co. defaulted in pa ying c osts or attorney fee s, Mann would acquir e 100% of any litigation awa rd or settlement. In Fe bruar y 2007, Duffy Co. indicated to Mann that it had decide d to terminate its interest in the matter and had cea sed paying attorney fee s. Thus
, ac cording to plaintiffs, Mann acquir ed Duffy Co.’s interest in the litigation. ¶ 8 The third amende d complaint also ref lected compliance with our Fe b ru ar y 2008 order and struck all counts exc ep t t h o s e alleg ing unjust enric hment and quantum meruit

. The alleg ations that remained in support of those counts detailed Duffy Co.’s nong ratuitous service s provided to the development team, the development team’s relianc e on Duffy Co.’s expertise t o s ec u re financ ing for Thomas Place, and the team’s ultimate ref usal to awa

rd Duffy Co. the construction contra ct or a ny other c ompensation for its work. ¶ 9 Wit h reg ard to the owner ship of the land on which Thomas Place was t o b e b u i l t , t h e third amende d complaint alleg ed that at t he outs et of the development eff ort s i n 1 9 9 8
, the
proper ty was owned by the Villag e of Glenview. L ater , in part due to the eff orts of Duffy Co., the village donated the land to be use d to build Thomas Pl ace in 2004. The complaint was sil ent as to whom the l and was donated, but an application for tax cr ed it submitt ed to

-3-the I llinois Housi n g Deve lopment Authority on Dec ember 15, 2003, and attache d as an

exhibi t to the complaint, identified the owne r as Thoma s Place, L .P. ¶ 10 Al m o s t o n e y ea r afte r the third amende d complaint was filed, during the course o f discovery
, plaintiffs alleg ed that they lear ned for the first time that Thomas Place, L .P., and
not GEPN, was the owner of Thomas Place. Fur ther, plaintiffs also discovere d that Thomas Place, L L C, was the manag ing g ener al partne r of Thomas Place, L .P. Plaintiffs soug ht leave
to amend the complaint to add these entities as defe ndants on May 5, 2010, but their motion

was opposed by the orig inal defe ndants on the g rounds that it was time-barr ed. Plaintiffs

succe ssfully

argued that the ope ration of the relation-back doc trine save d their cla ims, and they wer e g rante d leave to file a four th amended c omplaint on J une 9, 2010. ¶ 11 Af

t er the complaint was filed, the Thom as P lace defe ndants made a motion to dismi ss under section 2-619.1 of the Code (735 I L CS 5/2-61 9 .1 (West 2010)), arguing that: (1) plaintiffs failed to attach the s tock redemption ag ree ment proving that Mann had acquir ed Duffy Co.’s rig ht to pursue the litigation, as require d under section 2-606 of the Code (735 I L CS 5/2-606 (West 2010)); (2) plaintiffs lacke d stand i n g t o s ue the Thomas Place defe ndants; (3) the claims ag ai nst the Thom as P lace defe ndants wer e barred by the s tatute of limitations; and (4) plaintiffs failed to state a claim under which relief could be g rante d. After hear ing arguments on the motion, t he circ uit court dismiss ed plaintiffs’ complaint
ag ainst the Thom as P lace defe ndants with prejudice

. Specifica lly
, the court fo u n d t h at t he complaint was untimely and the require ments of the relation-back doctri n e w e r e n o t s a tisfied. Plaintiffs tim ely

filed this appea l.

¶ 12 ANALYSI S ¶ 13 Plaintiffs’ primary contention o n appeal is that the trial court err ed in finding that the expiration of t he st atute of lim i t at i o n s s erved as a basis to dismiss their claims ag ainst the Thomas Place d ef

en d ants pursuant to section 2-619(a )(5)

. We revie w de novo an order dismiss ing a complaint under section 2-619. Solaia Technology, LLC v. Specialty Publishing Co. , 221 I ll. 2d 558, 579 (2006). ¶ 14 Actions seeking rec ove r y on the basis of unjust enric hment or quantum meruit are subject
to the five-year statute of limit ations set forth in section 13-205 of the Code. 735 I L CS 5/13- 205 (West 2010); see Frederic kson v. Blumenthal
, 271 I ll. App. 3d 738, 742 (1995) (unjust enric hment); Rohter v. Passarella
, 246 I ll. App. 3d 860, 868 (1993) ( quantum meruit). In the instant case , plaintiffs did not name the Thomas Place defe ndants until J une 21, 2010, over five y ear s afte r their cause of action acc rued on May 14, 2005, when they wer e notified that they would not be awa

rded the construction contr act f or Thomas Place

. ¶ 15 Plaintiffs do not dispute that their claims ag ainst the Thomas Place defe ndants wer e filed outside the limit ations period, but contend t h at they wer e unjustly preve nted from timely filing an amende d complaint ag ainst the Thomas Place defe ndants due to the actions of the orig inal defe ndants. Specifica lly
, plaintiffs argue that they moved to amend their complaint

on May 5, 2010, within the limit ations period, but this motion wa s opposed by the orig inal defe ndants for the sole purpose of forc ing plaintiffs to make an untimely filing. It is sufficie nt to note that this argument was not raised befor e the circ uit court eit her in response to the

-4-orig inal defe ndants’ motion opposing the filing of an amende d complaint, or in response to

the Thomas Place defe ndants’ motion to dismiss
, and so is waived for purposes of appeal. See Johnson Press of

America, Inc. v. Northern Insurance Co. of New Y ork
, 339 I ll. App. 3d 864, 874 (2003) (quoting Softa Group, Inc. v. Scarsdale Dev elopment
, 260 I ll. App. 3d 450, 452 (1993))

. Whil e we may deviate from this g ener al rule of waiver u n d er cer tain circ umstances, we decline to do so here
, as there are no fac ts in the rec ord below addre ssing plaintiffs’ argument that the opposition to the motion to amend was a delay ing tactic on the part of the orig inal defe ndants. See Bell v. Louisvill e & Nashville R.R. Co.
, 106 I ll. 2d 135, 142 (1985) (we m ay consider an issue not raised in the circ uit court only if the rec ord contains “a ll the fac tual materia l that is necessa ry to decide the issue”). ¶ 16 Next, plaintiffs argue that section 2-616(d)
, which provides that an amende d complaint adding a party may relate back to an earlier pleading
, operates to sa ve their claims. Section 2-616(d) rea ds:
“A cause of action ag ainst a person not orig inally named a d ef en d an t is not barr ed by lapse of time under any statute or contra ct presc ribing or limit ing the time within which

an action may be broug ht or rig ht asser ted, if all the following terms and conditions are met: (1) the time presc ribed or limit ed had not expired when the ori gi n al action was

commence d; ( 2) the per son, within the time that the action might have been broug ht or the rig ht a sserted ag ainst him or her plus the time for service permitted under Supreme Court Rule 103(b)
, rec eived such notice of the commence ment of the action that the
person will not be prejudice d in maintaining a defe nse on the merits and knew or should have known that, but for a mistake conce rning the identity of the proper party , the action would have been brough t aga i n s t him or her; and (3) it appea rs from the orig inal and amende d pleading s that the cause of action asserted in the amended pl eading g rew out of the same transac tion or occur renc e set up in the orig inal pleading
, *** even though the
person was not named orig inally as a defe ndant. For the purpose of prese rving the cause of action under those conditions, an amendment adding the person as a defe ndant relates back to the date of the filing of the orig inal pleading so amende d.” 735 I L CS 5/2-616(d) (West 2010). ¶ 17 Prior to addre ssing the parties’ arguments as t o whether the requirements of section 2- 616(d) have been s atisfied in the i nstant case , we must first deter mine whether the s ection applies at all by asking if plaintiffs would have named the Thomas Place defe ndants in their orig inal compl ai n t but for a mistake conce rning the identity of the proper party

. Polites v. U.S. Bank National Ass’n
, 361 I l l

. App. 3d 76, 82 (2005); see also Maggi v. RAS Dev elopment, Inc.
, 2011 I L App (1st) 091955, ¶ 23. The answe r to this question depends on the plaintiff’s intent, which is established by objective manifestations c o nta in e d in th e r e cord. Maggi
, 2011 I L App (1st) 091955, ¶ 24; see also Fassero v. Turigl iatto , 349 I ll. App. 3d 368, 371-72 (2004) (“[t] he most proba tive evidenc e of whom the plaintiff intended to sue is the party named in the c omplaint”). ¶ 18 In the case s u b judice
, plaintiffs argue that the initial complaint evince d their intent to

rec over from ever

y one who benef

itted from their service s during development, including the

owner of Thomas Place, who they believed was GEPN. We disag ree

. The claims of quantum meruit and unjust enrich ment in the timely filed complaints contained alleg ations only

-5-ag ainst members of the development team, who wer e identified as plaintiffs, Thomas &

Thomas, GEPN, and Equity Growth. For instance, in para gra p h 16 of the third amende d complaint, plaintiffs all ege d in part that: “Upon joining the Deve lopment Team, Equity Growth acknow ledg ed that Duffy would rec eive the construction contra ct to build Thoma s Place if the team rec eived I HDA financ ing. Acc ording ly
, the Duffy entities continued to

re n d er n o n-g ratuitous service s to the Team .” (Emphasis added.) Fur ther, para g raph 24 alleg ed in part that “The I llinois Housing Deve lopment Authority (‘I HDA’ ) i s responsible for awar ding the subsidiz ed financing which the Duffy entities assisted in secur ing for the Dev elopment Team to construct Thomas Place.” (Emphasis added.) Howeve r, acc ording to plaintiffs, despite rec eipt of the nece ssary funding
, the development team ultimately denied plaintiffs the awa

rd of the contra ct. In para g raph 39, plaintiffs conclude d that “member s of the Dev elopment Team have cause d the Du ff y entities damag es in excess of one milli on dollars ($1,000,000).” (Emphasis adde d.) ¶ 19 Nowher e in any o f t h e timely filed complaints did plaintiffs alleg e wrong doing on the part of the owner of Thomas Place. More signific antly
, the owner of Thomas Place was never identified as GEPN in any iteration of the complaint. Instead, GEPN was descr ibed in eac h complaint only as “an I llinois corpo ra t i o n which regularly does business in I llinois ” and ref err ed to as a

member of

the deve lopment team. ¶ 20 Be cause there is no objective indication that plaintiffs intended t o s u e GEP N as the

owner , Polites
, relied on by plaintiffs, is distinguishable. T h ere, the plaintiff sustained injuries in a bra

nch of U .S. Bank and named U.S. Ba ncorp as a defenda

nt afte r he was led
to believe that U.S. Ba

ncorp owned the branc h. Polites
, 361 I ll. App. 3d at 84. When the plaintiff lear

ned af ter the e x piration of the statute of limit ations that U.S. Bank w as in fac t the own er , h e s oug ht to amend his complaint pursuant to section 2-616(d)

. Id. at 80. We

reve rsed the lower court’s denial of the plaintiff’s motion to amend, noting that from the

ou t s et , t h e p l aintiff’s complaint reve aled his intent to sue the owner and operator of the branc h office wher e he w as injured. Id. at 83. Specifica lly
, the complaint allege d that U.S. Ba ncorp “ ‘owne d, operated, m anag ed, mainta i ned, and controlled the premises located at 744 North Milwaukee
, Chicag o.’ ” Id. We concl u d ed t h at this languag e clea rly ref lected plaintiff’s err oneous bel i ef t h at U.S. Ba ncorp was the owner of the branc h, and thus
prese nted a c ase of

mistaken identity

. Id. at 84. ¶ 21 Her e, plainti ffs argue that they wer e si milarly led to believe that GEPN rathe r t han the Thomas Place defe ndants owned Thomas Place, based on cer tain documents in their possession, including a quitclaim deed and a Villag e of Glenview resolution, that identified GEPN as the owner

. L eaving aside the fac t that ot h er documents, such as a tax cre dit application attached to plaintiffs’ complaint, ref lected that T homas Place, L .P., owned the
proper ty , the failure of plaintiffs to objectively convey their belief that GEPN was the owner 1

Pla int if fs m ai nta in tha t the T homas Pla ce def end ant s can not ci te the ta x cr edi t app li cat ion 1
as pro of pla int if

fs knew GEPN w as not the owner , g iven that def end ant s have lon g con te nde d that the app li cat ion is ri fe wit h ina ccu ra ci es, inc lud ing it s ide nti fi cat ion of PMC as a 49% par tne r in the
pro j ect andit s na m ing of

Duf fy Co. as th e genera l c ont ra ct or. However, fo r o ur purpos es, th e f act tha t def end ant s m ay have disc re dit ed the app li cat ion in the pas t is not re le vant. Wha t is rel evant is

-6-is fata l to their claims. We do not ag ree with plaintiffs that the alleg ation that “it would be

unjust to allow Def

endants to keep the value of the service s provided by [pl aintiffs] without [pl aintiffs] rec eiving appropr iate compensation” is objective evidenc e plaintiffs intended to sue t he owner of Thomas P lace
, particula rly wher e the owner i s n ot specific ally identified in the complaint. Polites and other prec edent establishes that much more specific ity is

re quired to show intent. Polites
, 361 I ll. App. 3d at 83; see also Maggi
, 2011 I L App (1st) 091955, ¶ 33 (for purposes of analy zing claim of mistaken identity , alleg ation that entities being sued wer e those who “ ‘owne d and or wer e in char g e of’ ” the activities on the projec t site established that the plaintiff intended to sue the owner). Thus, whether or not plaintiffs

wer e laboring under a misapprehe n s ion as to the owner ship of Thomas Place does not support plaintiffs’ theory of mistake wher e the complaint made no attempt to hold the owner responsible for

plaintiffs’ injuries. ¶ 22 Under this circ umstance, we find Pruitt v. Per va n , 3 5 6 I l l

. App. 3d 32 (2005), more instructive t han Polites

. In that case , the pl ain t i ff filed a premises li ability action aga inst a manag ement company of an apar tment build i n g for neg lige nt maintenanc e of a stairwell. Pruitt
, 356 I ll. App. 3d at 33. After the expiration of the statute of limit ations, she moved to amend her complaint to add claims ag ainst the owner s of the bu i l d i n g b ec ause she had lear ned that they wer e responsible for the building’s maintenanc e. Id. at 33-34. We held that this did not constitute mistaken identity
, as the plaintiff di d not intend to sue the owner s when she filed her

orig inal complaint. Id. at 37. Instead, she alleg ed neg lige nce only in the
manag ement o f t he proper ty

. Id. There fore
, her mistake was in the belief that the
manag ement compan y wa s solely responsible for her injuries, which was insufficient to invoke the protec tion of the re l at ion-bac k doctrine. Id. Simi larly
, here
, plaintiffs’ mistake

was not in failing to c orre ctly identify the owner , but in failing to sue the owner altog ether

. Be cause this is not the sort of mistake sec tion 2-616(d) was intended to protec t ( id. ), t here is nothing in the re cord to justify application of the rela

tion-back doc trine. ¶ 23 Siebert v. Bleichman
, 306 I ll. App. 3d 841 (1999), and Bates v. W agon W heel Country Club, Inc

. , 132 I ll. App. 2d 161 (1971), do not compel a diff ere nt c onclusion. As plaintiffs

conce de, these case s wer e decide d prior to the ame n d m en t of section 2-616(d)
, which allowed relation back based on a plaintiff’s “inadve rtent” failure to join the proper defe ndant. Siebert
, 306 I ll. App. 3d at 844; Bates
, 132 I ll. App. 2d at 163-64. Howeve r, the require ment of i nadver

tence has be en el i m i n at ed in the current version of t he st atute in favor of “more stringe nt require ments” for amende d complaints, intended to bring section 2-616(d) in line with the Fe dera l Rules of Civil Procedur e. Pruitt
, 356 I ll. App. 3d at 36 (citing Compton v. Ubilluz
, 351 I ll. App. 3d 223, 233-34 (2004))

. As such, it is only wher e a plaintiff has made

a mistake in identifying a defe ndant that the relati o n -b ac k s tatute is applicable
, which plaintiffs here have f

ailed to show. ¶ 24 Even assuming argu en d o t h at t h i s i s a case of mistaken identity to which section 2-

whet her pla int if

fs re li ed on the app li cat ion ’s acc ura cy in m aking the ir cl ai m s, and thi s que st ion m ust be ans wer ed in the af

fi rma ti ve, giv en tha t it was at ta che d as an exh ibi t to every versi on of the complai nt.

-7-616(d) applies, plaintiffs never theless cannot satisfy the require ment of this section that the Thomas Place defe ndants knew or should have known that s u i t woul d have been broug ht
ag ainst them but for plaintiffs’ mistake. 2 ¶ 25 On appea l, both plaintiffs and the Thomas Place defe ndants devote a substantial part of their ar g uments to answer ing the question of wha t plaintiffs did or did not know reg arding the identity of the owner s of Thomas Place. Howeve r, this focus on what plaintiffs knew is misplaced for purposes of determ i n i n g whether the knowledg e require ment of section 2- 616(d) has been satisfied. The rele vant i s s u e i s i n stead what defendants knew. Krupski v. Costa C rociere S.p.A

. , 560 U.S. ___, ___, 130 S. C t. 2485, 2493 (2010). 3 ¶ 26 In Krupski
, the Supreme Court held that relation back under Rule 15(c) (1)( C) asks “what the prospec tive defe ndant rea sonably should have understood about the plaintiff’s intent in filing the orig inal complaint ag ainst the first defe ndant.” Krupski
, 560 U.S. at ___, 130 S. Ct.
at 2496. The plaintiff’s conduct is only rele vant to th e ex tent that it makes the defe ndant

awa re of whether the plaintiff made a mistake conce rning the identity of the proper party

. Id.
at ___, 130 S. Ct. at 2496 -9 7

. W i t h t h ose principles in mind, the Court explained that
prospec tive defe ndant Costa Crocier e, the owne r of a ship on which the plaintiff sustained injury
, should have known it was the proper party wher e the plaintiff’s complaint made clea r she wa s alleg ing ne g lige nce on the part of the ship’s owner. Id. at ___, 130 S. Ct. at 2497. ¶ 27 Here, i n co n t ra s t, plaintiffs’ complaint did not alleg e unjust enric hment or quantum meruit ag ainst the owner s of Thomas Place. Neve rtheless, plaintiffs contend that beca use the Thomas Place defe ndants, as owner s of the proper ty , could arguably have been enric hed by plaintiffs’ development service s, they wer e put on notice that plaintiffs intended to hold them responsible. We disagree

. Given that a document attache d to plaintiffs’ complaint expli citly identified Thomas Place, L .P., as the owner , the Thomas Place defe ndants could rea sonably have conclude d that plaintiffs knew of their owner ship of the proper ty but did not intend to bring claims ag ainst them. As such, plaintiffs have failed to prove that the T h o m as Place defe ndants knew or should have known that they would have been named in the complaint but for plaintiffs’ mistake; there fore
, the relation-back doctrine d o es n o t save plaintiffs’ untimely claims. ¶ 28 Final l y , we turn to plaintiffs’ argument that the decision of the circ uit court to allow plaintiffs to amend their complaint to add the Thomas Place defe ndants fore closed its ability
to subsequently g rant the motion to d i s m i ss those same defe ndants. Plaintiffs explain that when the circ uit court g rante d them leave to add the Thomas Place defe ndants, it expli citly

T he T homas Pla ce def

end ant s do not dis put e tha t the fi rs t and th ir d re qui re m ent s for 2

re la ti on b ack–th e t imely fil ing of the ori ginal complai nt and an amended complai nt tha t s et s f ort h

a c aus e of ac ti on growi ng out o f t he s ame occu rr enc e a s t he o ri ginal complai nt– ar e met.

Krup ski is per sua si ve aut hor it y giv en tha t it int er pre t s F e der al Rule of Civil Pro ced ure 3 15( c) (1) (C)
, af

te r whic h sec ti on 2- 616( d) is pat te rne d. Id. at ___, 130 S. Ct. at 2492

- 93; see Borc her s

v. Fran cisca n Ter ti ary Prov inc e of the Sac red Hear t, Inc

. , 2011 I L App (2d ) 1012 57, ¶ 45 (f ede ra l

cas es int erpre ti ng Rule 1 5 ( c) (1) (C) ar e per sua si ve aut hor it y wit h re gard to ana lyzing sec ti on 2- 616( d) cl ai m s)

.
-8-found the elements of the relation-back doctrine wer e satisfied. There fore
, plaintiffs argue,

the law of the case doctrine prohibited the court from later finding
, in ruling on a motion to dismiss
, th at plaintiffs’ claims ag ainst the Thomas Place defe ndants did not in fac t relate back. ¶ 29 The Thomas Place defe ndants aptly respond that the law of the case doctrine, which bars relitig ation of issues that wer e previously decide d in the same case ( Krautsack v. Anderson
, 223 I ll. 2d 541, 552 (2006))
, is a pplicable only to f

inal judgme nts (

People e x rel. Madigan v. Illi n o i s Commerce Comm’n
, 407 I ll. App. 3d 207, 222 (2010))

. A final judgme nt is one which terminates the litigation or disposes of the ri gh ts of the parties on the merits. In re Marriag e o

f Gu t ma n , 232 I ll. 2d 145, 151 (2008) (quoting R.W

. Dunteman Co. v. C/G Enterprises, Inc.
, 181 I ll. 2d 153, 15 9 (1998))

. Her e, beca use the court’s decision to g rant plai n t i ff s’ motion to amend did not terminate the litigation, it was an interlocutory order which could be vaca

ted at any time prior to final judgme nt. See Helping Other s Mai ntain Environmental Standards v. Bos
, 406 I ll. App. 3d 669, 698 (2010) (tria l court has inher ent power to modify or vaca

te interlocutory order s until entry of a final judgme nt). Acc ording ly
, nothin g operated to bar the court from reve rsing its prior deter mination and finding that plaintiffs had not satisfied the e lements of the r elation-ba ck doctr ine. ¶ 30 Be cause we aff irm the circ uit court’s dismiss al of the complaint on timeliness grounds,

we need not consider whether other bases, such as lack of standing or failure to state a claim, also support dismissal of the claims ag ainst the Thomas Place defe ndants.

¶ 31 CONCLUSI ON ¶ 32 For the reasons stated, we aff irm the circuit co u rt ’s o rder dismiss ing plaintiffs’ claims
ag ainst the Thomas Place defe ndants.

¶ 33 Affir

med.

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