ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

JAMES MANN, an Individual, and JOSEPH J. DUFFY PROJECT

MANAGEMENT CORPORATION, a Dissolved Illinois Corporation,

Plaintiffs-Appellants, v. THOMAS PLACE, L.P., an Illinois Limited

Partnership, and THOMAS PLACE, LLC, an Illinois Limited Liability

Company, Defendants-Appellees (James N. Bergman, an Individual;

Thomas and Thomas Associates, Inc., an Illinois Corporation; Thomas

Monico, an Individual; David Smith, an Individual; Glenview Elderly

Programs North, Inc., an Illinois Corporation; Equity Growth Group

Residential, LLC, an Iowa Limited Liability Company; Paul Thomas, an

Individual, and Per Hanson, an Individual, Defendants).

 District & No. First District, Fourth Division

Docket No. 1-11-0625

Rule 23 Order filed

Rule 23 Order

withdrawn

Opinion filed

June 28, 2012

July 31, 2012

August 16, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Plaintiffs’ third-amended complaint alleging unjust enrichment and

quantum meruit in connection with a real estate development was

properly dismissed as untimely and the relation-back doctrine did not

apply where plaintiffs failed to prove the named defendants knew or

should have known they would have been named in the original

complaint but for plaintiffs’ mistake.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 05-CH-17539; the

Hon. Ronald F. Bartkowicz, Judge, presiding.
Judgment Affirmed.

Counsel on

Appeal

Canna & Canna, Ltd., of Orland Park (Thomas J. Canna and Joshua R.

Runnels, of counsel), for appellants.

DeGrand & Wolfe, P.C., of Chicago (Luke DeGrand and Tracey L.

Wolfe, of counsel), for appellees.

Panel JUSTICE STERBA delivered the judgment of the court, with opinion.

Presiding Justice Lavin and Justice Pucinski concurred in the judgment

and opinion.

OPINION

¶ 1 James Mann and the Joseph J. Duffy Project Management Corporation (collectively,

plaintiffs) appeal the circuit court’s dismissal of their two-count complaint against Thomas

Place, L.P., and Thomas Place, LLC (collectively, Thomas Place defendants). The circuit

court dismissed plaintiffs’ complaint as to the Thomas Place defendants pursuant to section

2-619(a)(5) of the Code of Civil Procedure (Code) on the grounds that it was barred by the

statute of limitations. 735 ILCS 5/2-619(a)(5) (West 2010). On appeal, plaintiffs maintain

that the court erred in its dismissal and argue that the relation-back doctrine applies to save

their claims. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 This case arises out of the development and construction of a senior living community

known as Thomas Place. In a complaint filed on October 14, 2005, former plaintiff Joseph

J. DuffyCompany (DuffyCo.) alleged that it served as a developer of Thomas Place but was

not selected as the general contractor for the facility after the necessary funding and donation

of land was secured, in violation of a joint venture agreement. The complaint named as

defendants Thomas & Thomas Associates, Inc. (Thomas & Thomas), Glenview Elderly

Programs North, Inc. (GEPN), Equity Growth Group Residential, LLC (Equity Growth),

Ryan Companies USA, Inc. (Ryan), James Bergman, Thomas Monico, David Smith, Paul

Thomas, and Per Hanson (collectively, the original defendants).

¶ 4 According to the complaint, Thomas & Thomas is a real estate development and

consulting company owned by Paul Thomas and Thomas Monico. It is the predecessor of

GEPN, which was also known as Glenview Elderly Services North, Inc. (GESN). James

Bergman and David Smith are real estate developers who are associated with the

construction development company of Equity Growth. Ryan is a construction company, and

Per Hanson is an attorney with whom Paul Thomas of Thomas & Thomas consulted

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regarding the project.

¶ 5 The initial complaint purported to state causes of action against the original defendants

for breach of a joint venture agreement, breach of fiduciary duties, intentional interference

with contract, conspiracy to intentionally interfere with contractual rights, quantum meruit,

and fraudulent inducement. Specifically, DuffyCo. alleged that in June of 1998, it agreed to

work as part of a development team with Thomas & Thomas and GEPN to develop Thomas

Place. In 2002, Joseph J. Duffy Project Management Company (PMC) and Equity Growth

also joined the development team. Although DuffyCo. assisted in creating construction and

design plans and securing funding for the project, it was not selected as the general contractor

as promised by the original defendants. Instead, Duffy Co. was offered only the right to bid

on the construction contract, which it learned was ultimately awarded to Ryan on May 14,

2005.

¶ 6 The circuit court dismissed this initial complaint without prejudice for failure to state a

claim pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)), which

prompted DuffyCo. to file a first amended complaint joining PMC as a plaintiff and adding

counts of unjust enrichment and equitable estoppel. Another round of dismissal and

amendment followed, after which the circuit court issued an order dismissing the second

amended complaint with prejudice. Duffy Co. and PMC then appealed to this court. On

February 29, 2008, we affirmed the circuit court’s dismissal of the complaint in its entirety

with respect to defendant Ryan, and affirmed the dismissal of all counts except those alleging

unjust enrichment and quantum meruit with respect to all other original defendants (Joseph

J. Duffy Co. v. Bergman, No. 1-07-0558 (2008) (unpublished order pursuant to Supreme

Court Rule 23)).

¶ 7 When the case was once again before the circuit court in April 2009, DuffyCo. and PMC

filed a third amended complaint to substitute James Mann, a shareholder of Duffy Co., for

Duffy Co. as plaintiff. Plaintiffs alleged Mann and Duffy Co. had previously entered into a

stock redemption agreement which provided that if Duffy Co. defaulted in paying costs or

attorney fees, Mann would acquire 100% of any litigation award or settlement. In February

2007, Duffy Co. indicated to Mann that it had decided to terminate its interest in the matter

and had ceased paying attorney fees. Thus, according to plaintiffs, Mann acquired Duffy

Co.’s interest in the litigation.

¶ 8 The third amended complaint also reflected compliance with our February 2008 order

and struck all counts except those alleging unjust enrichment and quantum meruit. The

allegations that remained in support of those counts detailed Duffy Co.’s nongratuitous

services provided to the development team, the development team’s reliance on DuffyCo.’s

expertise to secure financing for Thomas Place, and the team’s ultimate refusal to award

Duffy Co. the construction contract or any other compensation for its work.

¶ 9 With regard to the ownership of the land on which Thomas Place was to be built, the

third amended complaint alleged that at the outset of the development efforts in 1998, the

property was owned by the Village of Glenview. Later, in part due to the efforts of Duffy

Co., the village donated the land to be used to build Thomas Place in 2004. The complaint

was silent as to whom the land was donated, but an application for tax credit submitted to

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the Illinois Housing Development Authority on December 15, 2003, and attached as an

exhibit to the complaint, identified the owner as Thomas Place, L.P.

¶ 10 Almost one year after the third amended complaint was filed, during the course of

discovery, plaintiffs alleged that they learned for the first time that Thomas Place, L.P., and

not GEPN, was the owner of Thomas Place. Further, plaintiffs also discovered that Thomas

Place, LLC, was the managing general partner of Thomas Place, L.P. Plaintiffs sought leave

to amend the complaint to add these entities as defendants on May 5, 2010, but their motion

was opposed by the original defendants on the grounds that it was time-barred. Plaintiffs

successfully argued that the operation of the relation-back doctrine saved their claims, and

they were granted leave to file a fourth amended complaint on June 9, 2010.

¶ 11 After the complaint was filed, the Thomas Place defendants made a motion to dismiss

under section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2010)), arguing that: (1)

plaintiffs failed to attach the stock redemption agreement proving that Mann had acquired

Duffy Co.’s right to pursue the litigation, as required under section 2-606 of the Code (735

ILCS 5/2-606 (West 2010)); (2) plaintiffs lacked standing to sue the Thomas Place

defendants; (3) the claims against the Thomas Place defendants were barred by the statute

of limitations; and (4) plaintiffs failed to state a claim under which relief could be granted.

After hearing arguments on the motion, the circuit court dismissed plaintiffs’ complaint

against the Thomas Place defendants with prejudice. Specifically, the court found that the

complaint was untimelyand the requirements of the relation-back doctrinewere not satisfied.

Plaintiffs timely filed this appeal.

¶ 12 ANALYSIS

¶ 13 Plaintiffs’ primary contention on appeal is that the trial court erred in finding that the

expiration of the statute of limitations served as a basis to dismiss their claims against the

Thomas Place defendants pursuant to section 2-619(a)(5). We review de novo an order

dismissing a complaint under section 2-619. Solaia Technology, LLCv. Specialty Publishing

Co., 221 Ill. 2d 558, 579 (2006).

¶ 14 Actions seeking recoveryon the basis of unjust enrichment or quantum meruit are subject

to the five-yearstatute of limitations set forth in section 13-205 of the Code. 735 ILCS 5/13-

205 (West 2010); see Frederickson v. Blumenthal, 271 Ill. App. 3d 738, 742 (1995) (unjust

enrichment); Rohter v. Passarella, 246 Ill. App. 3d 860, 868 (1993) (quantum meruit). In the

instant case, plaintiffs did not name the Thomas Place defendants until June 21, 2010, over

five years after their cause of action accrued on May 14, 2005, when they were notified that

they would not be awarded the construction contract for Thomas Place.

¶ 15 Plaintiffs do not dispute that their claims against the Thomas Place defendants were filed

outside the limitations period, but contend that they were unjustly prevented from timely

filing an amended complaint against the Thomas Place defendants due to the actions of the

original defendants. Specifically, plaintiffs argue that they moved to amend their complaint

on May 5, 2010, within the limitations period, but this motion was opposed by the original

defendants for the sole purpose of forcing plaintiffs to make an untimely filing. It is sufficient

to note that this argument was not raised before the circuit court either in response to the

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original defendants’ motion opposing the filing of an amended complaint, or in response to

the Thomas Place defendants’ motion to dismiss, and so is waived for purposes of appeal.

See Johnson Press of America, Inc. v. Northern Insurance Co. of New York, 339 Ill. App. 3d

864, 874 (2003) (quoting Softa Group, Inc. v. Scarsdale Development, 260 Ill. App. 3d 450,

452 (1993)). While we may deviate from this general rule of waiver under certain

circumstances, we decline to do so here, as there are no facts in the record below addressing

plaintiffs’ argument that the opposition to the motion to amend was a delaying tactic on the

part of the original defendants. See Bell v. Louisville & Nashville R.R. Co., 106 Ill. 2d 135,

142 (1985) (we may consider an issue not raised in the circuit court only if the record

contains “all the factual material that is necessary to decide the issue”).

¶ 16 Next, plaintiffs argue that section 2-616(d), which provides that an amended complaint

adding a party may relate back to an earlier pleading, operates to save their claims. Section

2-616(d) reads:

“A cause of action against a person not originally named a defendant is not barred by

lapse of time under any statute or contract prescribing or limiting the time within which

an action may be brought or right asserted, if all the following terms and conditions are

met: (1) the time prescribed or limited had not expired when the original action was

commenced; (2) the person, within the time that the action might have been brought or

the right asserted against him or her plus the time for service permitted under Supreme

Court Rule 103(b), received such notice of the commencement of the action that the

person will not be prejudiced in maintaining a defense on the merits and knew or should

have known that, but for a mistake concerning the identity of the proper party, the action

would have been brought against him or her; and (3) it appears from the original and

amended pleadings that the cause of action asserted in the amended pleading grew out

of the same transaction or occurrence set up in the original pleading, *** even though the

person was not named originally as a defendant. For the purpose of preserving the cause

of action under those conditions, an amendment adding the person as a defendant relates

back to the date of the filing of the original pleading so amended.” 735 ILCS 5/2-616(d)

(West 2010).

¶ 17 Prior to addressing the parties’ arguments as to whether the requirements of section 2-

616(d) have been satisfied in the instant case, we must first determine whether the section

applies at all by asking if plaintiffs would have named the Thomas Place defendants in their

original complaint but for a mistake concerning the identity of the proper party. Polites v.

U.S. Bank National Ass’n, 361 Ill. App. 3d 76, 82 (2005); see also Maggi v. RAS

Development, Inc., 2011 IL App (1st) 091955, ¶ 23. The answer to this question depends on

the plaintiff’s intent, which is established byobjective manifestations contained in the record.

Maggi, 2011 IL App (1st) 091955, ¶ 24; see also Fassero v. Turigliatto, 349 Ill. App. 3d 368,

371-72 (2004) (“[t]he most probative evidence of whom the plaintiff intended to sue is the

party named in the complaint”).

¶ 18 In the case sub judice, plaintiffs argue that the initial complaint evinced their intent to

recover from everyone who benefitted from their services during development, including the

owner of Thomas Place, who they believed was GEPN. We disagree. The claims of quantum

meruit and unjust enrichment in the timely filed complaints contained allegations only

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against members of the development team, who were identified as plaintiffs, Thomas &

Thomas, GEPN, and Equity Growth. For instance, in paragraph 16 of the third amended

complaint, plaintiffs alleged in part that: “Upon joining the Development Team, Equity

Growth acknowledged that Duffy would receive the construction contract to build Thomas

Place if the team received IHDA financing. Accordingly, the Duffy entities continued to

render non-gratuitous services to the Team.” (Emphasis added.) Further, paragraph 24

alleged in part that “The Illinois Housing Development Authority (‘IHDA’) is responsible

for awarding the subsidized financing which the Duffy entities assisted in securing for the

Development Team to construct Thomas Place.” (Emphasis added.) However, according to

plaintiffs, despite receipt of the necessary funding, the development team ultimately denied

plaintiffs the award of the contract. In paragraph 39, plaintiffs concluded that “members of

the Development Team have caused the Duffy entities damages in excess of one million

dollars ($1,000,000).” (Emphasis added.)

¶ 19 Nowhere in any of the timely filed complaints did plaintiffs allege wrongdoing on the

part of the owner of Thomas Place. More significantly, the owner of Thomas Place was never

identified as GEPN in any iteration of the complaint. Instead, GEPN was described in each

complaint only as “an Illinois corporation which regularly does business in Illinois” and

referred to as a member of the development team.

¶ 20 Because there is no objective indication that plaintiffs intended to sue GEPN as the

owner, Polites, relied on by plaintiffs, is distinguishable. There, the plaintiff sustained

injuries in a branch of U.S. Bank and named U.S. Bancorp as a defendant after he was led

to believe that U.S. Bancorp owned the branch. Polites, 361 Ill. App. 3d at 84. When the

plaintiff learned after the expiration of the statute of limitations that U.S. Bank was in fact

the owner, he sought to amend his complaint pursuant to section 2-616(d). Id. at 80. We

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

outset, the plaintiff’s complaint revealed his intent to sue the owner and operator of the

branch office where he was injured. Id. at 83. Specifically, the complaint alleged that U.S.

Bancorp “ ‘owned, operated, managed, maintained, and controlled the premises located at

744 North Milwaukee, Chicago.’ ” Id. We concluded that this language clearly reflected

plaintiff’s erroneous belief that U.S. Bancorp was the owner of the branch, and thus

presented a case of mistaken identity. Id. at 84.

¶ 21 Here, plaintiffs argue that they were similarly led to believe that GEPN rather than the

Thomas Place defendants owned Thomas Place, based on certain documents in their

possession, including a quitclaim deed and a Village of Glenview resolution, that identified

GEPN as the owner. Leaving aside the fact that other documents, such as a tax credit

application attached to plaintiffs’ complaint, reflected that Thomas Place, L.P., owned the

property, the failure of plaintiffs to objectively conveytheir belief that GEPN was the owner 1

Plaintiffs maintain that the Thomas Place defendants cannot cite the tax credit application 1

as proof plaintiffs knew GEPN was not the owner, given that defendants have long contended that

the application is rife with inaccuracies, including its identification of PMC as a 49% partner in the

project and its naming of Duffy Co. as the general contractor. However, for our purposes, the fact

that defendants may have discredited the application in the past is not relevant. What is relevant is

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is fatal to their claims. We do not agree with plaintiffs that the allegation that “it would be

unjust to allow Defendants to keep the value of the services provided by [plaintiffs] without

[plaintiffs] receiving appropriate compensation” is objective evidence plaintiffs intended to

sue the owner of Thomas Place, particularly where the owner is not specifically identified

in the complaint. Polites and other precedent establishes that much more specificity is

required to show intent. Polites, 361 Ill. App. 3d at 83; see also Maggi, 2011 IL App (1st)

091955, ¶ 33 (for purposes of analyzing claim of mistaken identity, allegation that entities

being sued were those who “ ‘owned and or were in charge of’ ” the activities on the project

site established that the plaintiff intended to sue the owner). Thus, whether or not plaintiffs

were laboring under a misapprehension as to the ownership of Thomas Place does not

support plaintiffs’ theory of mistake where the complaint made no attempt to hold the owner

responsible for plaintiffs’ injuries.

¶ 22 Under this circumstance, we find Pruitt v. Pervan, 356 Ill. App. 3d 32 (2005), more

instructive than Polites. In that case, the plaintiff filed a premises liability action against a

management company of an apartment building for negligent maintenance of a stairwell.

Pruitt, 356 Ill. App. 3d at 33. After the expiration of the statute of limitations, she moved to

amend her complaint to add claims against the owners of the building because she had

learned that they were responsible for the building’s maintenance. Id. at 33-34. We held that

this did not constitute mistaken identity, as the plaintiff did not intend to sue the owners

when she filed her original complaint. Id. at 37. Instead, she alleged negligence only in the

management of the property. Id. Therefore, her mistake was in the belief that the

management company was solely responsible for her injuries, which was insufficient to

invoke the protection of the relation-back doctrine. Id. Similarly, here, plaintiffs’ mistake

was not in failing to correctly identify the owner, but in failing to sue the owner altogether.

Because this is not the sort of mistake section 2-616(d) was intended to protect (id.), there

is nothing in the record to justify application of the relation-back doctrine.

¶ 23 Siebert v. Bleichman, 306 Ill. App. 3d 841 (1999), and Bates v. Wagon Wheel Country

Club, Inc., 132 Ill. App. 2d 161 (1971), do not compel a different conclusion. As plaintiffs

concede, these cases were decided prior to the amendment of section 2-616(d), which

allowed relation back based on a plaintiff’s “inadvertent” failure to join the proper defendant.

Siebert, 306 Ill. App. 3d at 844; Bates, 132 Ill. App. 2d at 163-64. However, the requirement

of inadvertence has been eliminated in the current version of the statute in favor of “more

stringent requirements” for amended complaints, intended to bring section 2-616(d) in line

with the Federal Rules of Civil Procedure. Pruitt, 356 Ill. App. 3d at 36 (citing Compton v.

Ubilluz, 351 Ill. App. 3d 223, 233-34 (2004)). As such, it is only where a plaintiff has made

a mistake in identifying a defendant that the relation-back statute is applicable, which

plaintiffs here have failed to show.

¶ 24 Even assuming arguendo that this is a case of mistaken identity to which section 2-

whether plaintiffsrelied on the application’s accuracy in making their claims, and this question must

be answered in the affirmative, given that it was attached as an exhibit to every version of the

complaint.

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616(d) applies, plaintiffs nevertheless cannot satisfy the requirement of this section that the

Thomas Place defendants knew or should have known that suit would have been brought

against them but for plaintiffs’ mistake.2

¶ 25 On appeal, both plaintiffs and the Thomas Place defendants devote a substantial part of

their arguments to answering the question of what plaintiffs did or did not know regarding

the identity of the owners of Thomas Place. However, this focus on what plaintiffs knew is

misplaced for purposes of determining whether the knowledge requirement of section 2-

616(d) has been satisfied. The relevant issue is instead what defendants knew. Krupski v.

Costa Crociere S.p.A., 560 U.S. ___, ___, 130 S. Ct. 2485, 2493 (2010).3

¶ 26 In Krupski, the Supreme Court held that relation back under Rule 15(c)(1)(C) asks “what

the prospective defendant reasonably should have understood about the plaintiff’s intent in

filing the original complaint against the first defendant.” Krupski, 560 U.S. at ___, 130 S. Ct.

at 2496. The plaintiff’s conduct is only relevant to the extent that it makes the defendant

aware of whether the plaintiff made a mistake concerning the identity of the proper party. Id.

at ___, 130 S. Ct. at 2496-97. With those principles in mind, the Court explained that

prospective defendant Costa Crociere, the owner of a ship on which the plaintiff sustained

injury, should have known it was the proper party where the plaintiff’s complaint made clear

she was alleging negligence on the part of the ship’s owner. Id. at ___, 130 S. Ct. at 2497.

¶ 27 Here, in contrast, plaintiffs’ complaint did not allege unjust enrichment or quantum

meruit against the owners of Thomas Place. Nevertheless, plaintiffs contend that because the

Thomas Place defendants, as owners of the property, could arguably have been enriched by

plaintiffs’ development services, theywere put on notice that plaintiffs intended to hold them

responsible. We disagree. Given that a document attached to plaintiffs’ complaint explicitly

identified Thomas Place, L.P., as the owner, the Thomas Place defendants could reasonably

have concluded that plaintiffs knew of their ownership of the property but did not intend to

bring claims against them. As such, plaintiffs have failed to prove that the Thomas Place

defendants knew or should have known that they would have been named in the complaint

but for plaintiffs’ mistake; therefore, the relation-back doctrine does not save plaintiffs’

untimely claims.

¶ 28 Finally, we turn to plaintiffs’ argument that the decision of the circuit court to allow

plaintiffs to amend their complaint to add the Thomas Place defendants foreclosed its ability

to subsequently grant the motion to dismiss those same defendants. Plaintiffs explain that

when the circuit court granted them leave to add the Thomas Place defendants, it explicitly

The Thomas Place defendants do not dispute that the first and third requirements for 2

relation back–the timely filing of the original complaint and an amended complaint that sets forth

a cause of action growing out of the same occurrence as the original complaint–are met.

Krupski is persuasive authority given that it interprets Federal Rule of Civil Procedure 3

15(c)(1)(C), after which section 2-616(d) is patterned. Id. at ___, 130 S. Ct. at 2492-93;see Borchers

v. Franciscan Tertiary Province of the Sacred Heart, Inc., 2011 IL App (2d) 101257, ¶ 45 (federal

cases interpreting Rule 15(c)(1)(C) are persuasive authority with regard to analyzing section 2-

616(d) claims).

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found the elements of the relation-back doctrine were satisfied. Therefore, plaintiffs argue,

the law of the case doctrine prohibited the court from later finding, in ruling on a motion to

dismiss, that plaintiffs’ claims against the Thomas Place defendants did not in fact relate

back.

¶ 29 The Thomas Place defendants aptly respond that the law of the case doctrine, which bars

relitigation of issues that were previously decided in the same case (Krautsack v. Anderson,

223 Ill. 2d 541, 552 (2006)), is applicable only to final judgments (People ex rel. Madigan

v. Illinois Commerce Comm’n, 407 Ill. App. 3d 207, 222 (2010)). A final judgment is one

which terminates the litigation or disposes of the rights of the parties on the merits. In re

Marriage of Gutman, 232 Ill. 2d 145, 151 (2008) (quoting R.W. Dunteman Co. v. C/G

Enterprises, Inc., 181 Ill. 2d 153, 159 (1998)). Here, because the court’s decision to grant

plaintiffs’ motion to amend did not terminate the litigation, it was an interlocutory order

which could be vacated at any time prior to final judgment. See Helping Others Maintain

Environmental Standards v. Bos, 406 Ill. App. 3d 669, 698 (2010) (trial court has inherent

power to modify or vacate interlocutory orders until entry of a final judgment). Accordingly,

nothing operated to bar the court from reversing its prior determination and finding that

plaintiffs had not satisfied the elements of the relation-back doctrine.

¶ 30 Because we affirm the circuit court’s dismissal 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 against the Thomas Place defendants.

¶ 31 CONCLUSION

¶ 32 For the reasons stated, we affirm the circuit court’s order dismissing plaintiffs’ claims

against the Thomas Place defendants.

¶ 33 Affirmed.

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