2021 IL App (4th) 200385-U 

NO. 4-20-0385 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JOSHUA MURPHY, 

Plaintiff, 

v. 

JESSICA WELLS and KENNETH WELLS & SONS

LLC, 

Defendants 

(Kenneth Wells & Sons LLC, Defendant-Appellee)

(Blackburn and Green, Intervenor-Appellant). 

) 

) 

) 

) 

) 

)

)

)

) 

) 

Appeal from the 

Circuit Court of

Clark County 

No. 16L6 

Honorable 

Tracy W. Resch, 

Judge Presiding.

 JUSTICE CAVANAGH delivered the judgment of the court.

 Justices DeArmond and Harris concurred in the judgment.

 

ORDER

¶ 1 Held: The trial court did not err in entering summary judgment when there remained no 

genuine issue of material fact that defendant knew or should have known that, but 

for a mistake concerning the identity of the proper party, the action would have 

been brought against defendant so as to trigger the application of the relation-back 

doctrine. 

¶ 2 Plaintiff, Joshua Murphy, filed a personal injury lawsuit against defendant Jessica 

Wells after her vehicle collided with his motorcycle. Because Wells was at the time of the accident 

delivering lunch to her fellow employees, Murphy named her employer as a defendant as well. 

However, it was not until after the two-year statute of limitations expired that Murphy discovered 

Wells did not work for the employer named in the lawsuit. Murphy amended his complaint to 

name defendant Kenneth Wells & Sons (KWS) as Wells’s employer in the lawsuit.

FILED

March 23, 2021

Carla Bender

4th District Appellate

Court, IL

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 
- 2 - 

¶ 3 Upon KWS’s motion, the trial court granted summary judgment in KWS’s favor, 

finding KWS did not have notice of the commencement of the lawsuit until the applicable two-year 

statute of limitations had expired. Murphy’s original counsel, who had since withdrawn from 

representation, appellant Blackburn and Green, sought and was granted leave to intervene when it 

discovered Murphy did not intend to appeal the entry of summary judgment in favor of KWS.

¶ 4 Appellant appeals from the trial court’s order granting summary judgment, 

claiming a question of material fact remains as to whether KWS knew or should have known it 

would have been sued but for Murphy’s mistake. We disagree with appellant and affirm the order 

granting summary judgment. 

¶ 5 I. BACKGROUND

¶ 6 On June 21, 2014, Murphy was riding his motorcycle in Clark County when he was 

hit by a vehicle driven by defendant Jessica Wells. (Hereinafter, we will refer to defendant by her 

first name for clarity.) Jessica was on her way to deliver lunch to her fellow employees. She was 

driving her own vehicle and, as a result of the accident, received a citation for failure to yield. 

Jessica gave the lunches to the mail carrier, who delivered them to the employees. The mail carrier 

told Jessica’s boss, her brother Robert Wells (Robert), about the accident.

¶ 7 Murphy retained the services of an attorney who, on May 26, 2016, filed a timely 

personal injury complaint against Jessica. The complaint also named as defendants Forsythe 

Family Farms, Inc., Gerald Forsythe, and Forsythe Family Farms Alpacas (Forsythe defendants), 

and alleged Jessica was a “duly authorized agent” for those entities. Murphy mistakenly believed

Jessica worked for the Forsythe defendants at the time of the accident.

¶ 8 On August 11, 2016, the Forsythe defendants filed a motion to dismiss, claiming 

no liability because, at the time of the accident, Jessica was not their employee. The motion was 
- 3 - 

supported by an affidavit, wherein Jessica stated she was last employed by the Forsythe defendants 

in February 2014 and further stated, at the time of the accident, she was employed by KWS. In 

November 2016, the Forsythe defendants were dismissed from the lawsuit.

¶ 9 On May 24, 2017, Murphy filed a motion for leave to amend the complaint to 

include KWS as a defendant. He alleged Jessica had stated in her May 12, 2017, deposition (1) she 

was acting within the scope of her employment with KWS at the time of the accident, (2) she 

notified KWS, presumably Robert, of the accident immediately thereafter, and (3) she personally 

notified KWS of the lawsuit. Murphy asked the trial court for permission to add KWS “as a party

and relate back said [a]mendment to the original date of filing May 26, 2016.” The court granted 

leave and the amended complaint adding KWS was filed instanter. 

¶ 10 In response, KWS filed a motion to dismiss, claiming the two-year statute of 

limitations barred any action for damages stemming from the June 2014 accident. Murphy 

responded, claiming the “relation-back” doctrine of section 2-616(d) of the Illinois Code of Civil 

Procedure (Code of Civil Procedure) (735 ILCS 5/2-616(d) (West 2016)) saved the timeliness of 

his amendment. In January 2018, the trial court agreed with Murphy and denied KWS’s motion to 

dismiss, finding some evidence that KWS received notice of the action and that it would not suffer 

prejudice in maintaining a defense on the merits. 

¶ 11 As of October 2017, attorneys from appellant law firm, Blackburn and Green, had 

entered an appearance on behalf of Murphy. Murphy was also represented by Elman Law Group. 

Both firms withdrew their appearances in January 2020 and filed a joint notice of attorney lien.

Murphy was thereafter represented by William R. Tapella. (We note Murphy is not a party to this 

appeal.) 
- 4 - 

¶ 12 On January 18, 2019, KWS filed a motion for summary judgment, claiming no 

issue of material fact remained in dispute. KWS claimed it was not added as a party defendant 

until after the applicable two-year statute of limitations had expired. It supported its motion with

testimony from Robert’s and Jessica’s depositions. Jessica had been deposed again on October 26, 

2018. In that deposition, she stated she had not notified KWS of the lawsuit. Robert testified he 

was not aware of the lawsuit until KWS was added as a party in June 2017, three years after the 

accident.

¶ 13 On March 6, 2019, Murphy filed a response to the motion, claiming the 

relation-back doctrine applied and thus, his addition of a new party to the lawsuit after the 

expiration of the statute of limitations was allowed. He claimed KWS had constructive notice of 

the lawsuit when it was originally filed and, as a result of that notice, it was not prejudiced by the 

late addition. 

¶ 14 On March 27, 2020, KWS filed an affidavit of Jessica, wherein she stated that since 

her depositions, she had reviewed the original summons and, based on her review, she recalled 

being served on June 24, 2016, with the summons at her home in Moline, Rock Island County, not 

at her home in West Union, Clark County. 

¶ 15 On March 30, 2020, KWS filed its second motion for summary judgment, relying 

on Jessica’s affidavit. Again, KWS argued it had no notice of the lawsuit until it was added as a 

defendant. 

¶ 16 After a hearing and taking the matter under advisement, on May 27, 2020, the trial 

court granted summary judgment in favor of KWS. Upon KWS’s request, on June 17, 2020, the 

court entered an order pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), finding 

there was no just reason to delay either the enforcement or appeal, or both, of its ruling.
- 5 - 

¶ 17 On July 29, 2020, appellant filed a motion to intervene, claiming Murphy indicated 

he was not appealing the summary judgment but intended instead to file a legal malpractice claim 

against appellant. In light of Murphy’s declaration of his intent to file a legal malpractice claim 

against appellant in lieu of an appeal, appellant alleged it would incur financial loss “by direct 

legal operation and effect of the judgment in this action.” Based on the perceived inadequate 

protection of appellant’s financial interests by Murphy, appellant requested leave to intervene. On 

August 11, 2020, the trial court granted appellant’s motion. 

¶ 18 This appeal followed. 

¶ 19 II. ANALYSIS

¶ 20 A. Summary Judgment

¶ 21 “Summary judgment is appropriate ‘if the pleadings, depositions, and admissions 

on file, together with the affidavits, if any, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law.’ ” Wingert v. Hradisky, 

2019 IL 123201, ¶ 42 (quoting 735 ILCS 5/2-1005(c) (West 2016)). “The purpose of summary 

judgment is not to try an issue of fact but to determine whether one exists.” Monson v. City of 

Danville, 2018 IL 122486, ¶ 12. “[W]here reasonable persons could draw divergent inferences 

from the undisputed material facts or where there is a dispute as to a material fact, summary 

judgment should be denied and the issue decided by the trier of fact.” (Internal quotation marks 

omitted.) Beaman v. Freesmeyer, 2019 IL 122654, ¶ 22. “In ruling on a motion for summary 

judgment, we must construe the pleadings, depositions, admissions, and affidavits strictly against 

the movant and liberally in favor of the opponent.” Id. “The purpose of summary judgment is to 

determine whether a genuine issue of material fact exists, not to try a question of fact.” Thompson 

v. Gordon, 241 Ill. 2d 428, 438 (2011). Thus, here, we must determine whether KWS has
- 6 - 

established that no question of material fact exists. On appeal, the trial court’s summary judgment 

ruling is subject to de novo review. Monson, 2018 IL 122486, ¶ 12.

¶ 22 B. Relation-Back Doctrine

¶ 23 The parties agree that Murphy’s claim against KWS is barred by the two-year 

statute of limitations of section 13-202 of the Code of Civil Procedure (735 ILCS 5/13-202 (West 

2016)) unless the claim relates back to the date of filing of the original timely filed complaint. 

Section 2-616(d) of the Code of Civil Procedure (735 ILCS 5/2-616(d) (West 2016)) governs the 

relation-back doctrine and provides in relevant part as follows:

 “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 original 

pleading was defective in that it failed to allege the performance of some act or the 

existence of some fact or some other matter which is a necessary condition 
- 7 - 

precedent to the right of recovery when the condition precedent has in fact been 

performed, and 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.” (Emphasis added.) 735 ILCS 5/2-616(d) 

(West 2016).

¶ 24 In 2002, the legislature amended section 2-616(d) to mirror Rule 15(c) of the 

Federal Rules of Civil Procedure (Fed. R. Civ. P. 15(c)). See Compton v. Ubilluz, 351 Ill. App. 3d 

223, 233 (2004). See also Borchers v. Franciscan Tertiary Province of Sacred Heart, Inc., 2011 

IL App (2d) 101257, ¶ 42; Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955, ¶ 28. As 

a result, the language of the amended section 2-616(d) is substantially similar to that of Rule 15(c), 

which provides that an amended pleading naming a new party will relate back to the filing date of 

the original pleading if the claims or defenses asserted in the amended pleading are the same as 

those in the original and, within the limitations period for the claim plus the time allowed for 

service of the pleading, the new party (1) “received such notice of the action that it will not be 

prejudiced in defending on the merits,” and (2) “knew or should have known that the action would 

have been brought against it, but for a mistake concerning the proper party’s identity.” Fed. R.

Civ. P. 15(c)(1)(C) (eff. Dec. 1, 2009). 

¶ 25 Due to the similarities between these provisions, Illinois courts have looked to 

federal precedent interpreting Rule 15(c)(1)(C) for guidance. See, e.g., Borchers, 2011 IL App 

(2d) 101257, ¶ 45; Maggi, 2011 IL App (1st) 091955, ¶ 28; Polites v. U.S. Bank National Ass’n, 

361 Ill. App. 3d 76, 88 (2005). A pivotal federal case on the relation-back doctrine is Krupski v. 

Costa Crociere S.p.A., 560 U.S. 538, 541 (2010), where the United States Supreme Court held that 
- 8 - 

“relation back under Rule 15(c)(1)(C) depends on what the party to be added [as a defendant] knew 

or should have known, not on the amending party’s knowledge or its timeliness in seeking to 

amend the pleading.”

¶ 26 In Krupski, the plaintiff was injured on a cruise ship. Id. There were two companies 

that were potentially responsible for operating the cruise ship: Costa Cruise and Costa Crociere. 

Id. at 542-43. Shortly before the expiration of the limitations period, the plaintiff sued Costa 

Cruise, alleging that it operated the ship. Id. at 543. During discovery and after the limitations 

period had expired, Costa Cruise informed the plaintiff it was not the proper defendant because 

Costa Crociere actually operated the vessel. Id. at 543-44. The plaintiff then dismissed Costa 

Cruise from the lawsuit and added Costa Crociere as the defendant. Id. at 544.

¶ 27 The trial court dismissed the amended complaint as untimely, refusing to relate it 

back to the original complaint and reasoning that “the word ‘mistake’ should not be construed to 

encompass a deliberate decision not to sue a party whose identity the plaintiff knew before the 

statute of limitations had run.” Id. at 545. The Eleventh Circuit affirmed, noting that the plaintiff 

knew or should have known of the existence of Costa Crociere and that the plaintiff was not 

diligent in filing her amended complaint. Id. at 546.

¶ 28 The Supreme Court reversed, reasoning that the focus should not be on what the 

plaintiff knew but rather, what the prospective defendant knew or should have known. Id. at 548. 

The Court stated “[t]he reasonableness of the mistake is not itself at issue.” Id. at 549. Instead, the 

inquiry should have been whether the defendant should have reasonably believed the plaintiff 

made a mistake in not naming him initially. Id.

¶ 29 In a case of mistaken identity, as opposed to a case involving a misnomer, a court

needs to analyze the three factors set forth in section 2-616(d) to determine whether plaintiff’s 
- 9 - 

amended complaint relates back to the date of filing of his original complaint. Maggi, 2011 IL App 

(1st) 091955, ¶ 23. Because it is apparent and undisputed that Murphy intended to name Jessica’s 

employer as a defendant and would have named KWS as such but for a mistake believing Jessica

worked for the Forsythe defendants at the time of the accident, this is a case of mistaken identity 

where the three factors must be considered. The first and third factors are not at issue. Our focus 

is on only the second factor—the timely notice requirement. 

¶ 30 C. This Case

¶ 31 The question before us is whether there remains any genuine or material question 

of fact about what KWS knew or should have known at the time the original complaint was filed

so as to trigger application of the relation-back doctrine. If there exists a genuine or material 

question of fact, then summary judgment in KWS’s favor was improper. 

¶ 32 In its summary judgment order, the trial court relied on two principles of law: (1) a 

principal and agent relationship and (2) constructive notice. The court found “no genuine issue of 

material fact that preclude[d] a finding that, as a matter of law, service of process on Jessica Wells 

on June 24, 2016, did not constitute service of process on [KWS].” Meaning, KWS was not notified 

of the lawsuit by virtue of service of process on Jessica as its agent. The court also determined that 

Murphy failed to present evidence that Jessica “was an employee highly enough placed within the 

corporate defendant, [KWS], to permit the conclusion that the interests of Jessica Wells are 

identical to the interests of the corporate defendant.” See Owens v. VHS Acquisition Subsidiary 

Number 3, Inc., 2017 IL App (1st) 161709, ¶ 45. In other words, the court stated, Jessica’s status 

as an employee did not rise to the level that would satisfy constructive notice to KWS upon her 

service of summons. 
- 10 - 

¶ 33 In granting summary judgment, the trial court found “as a matter of law that 

defendant, [KWS], did not have notice of the commencement of the cause of action within the 

statutory period established for commencement of the original action as required for application 

of the ‘relation-back’ doctrine[.]” Although we agree with the ultimate result, the trial court’s 

reasoning and finding do not address a critical element of the second factor. The issue on appeal 

is whether there remains a question of fact that KWS knew or should have known it would have 

been sued but for Murphy’s mistake in naming the Forsythe defendants. 

¶ 34 The record is completely devoid of any evidence to support application of the 

relation-back doctrine with regard to this critical element of the second statutory factor. Section 

2-616(d) of the Code of Civil Procedure provides in relevant part that, in order for KWS to be 

added as a party beyond the time permitting, it “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.” 735 ILCS 5/2-616(d) (West 2016).

¶ 35 In construing the pleadings, depositions, admissions, and affidavits strictly against 

KWS and liberally in favor of Murphy, as we are required to do, we discern that Jessica told Robert 

she had been sued presumably sometime after June 24, 2016, as that was the date she was served. 

In her May 12, 2017, deposition, Jessica testified she did not give Robert or anyone from KWS “a 

copy of the lawsuit” because she was not living in Clark County at the time she was sued and “the 

paper” did not “have them in it.” Robert testified he did not know about the lawsuit until 

approximately June 2017. He said prior to May 2016 when Jessica moved to Moline, no one had 

given him any notice that Jessica was being sued or “that there was a claim being made against the 

corporation relative to what happened on 21 June of 2014.” The first Robert knew about Jessica’s 

employer being sued was in June 2017 when he received “legal notice” of the lawsuit in the mail.
- 11 - 

¶ 36 On this record, there is absolutely no evidence to support the conclusion that Robert 

or KWS knew or should have known before June 2017 that Jessica’s employer, regardless of who 

was named in the lawsuit, was being sued. There was evidence in the record addressing part of the 

second factor, i.e., that KWS received “notice of the commencement of the action,” but the statute 

requires more. The statute additionally requires that KWS knew or should have known in a timely 

manner that it would have been sued but for the mistaken identity of Jessica’s employer. 

¶ 37 Thus, this court finds the second factor of section 2-616(d) is not satisfied. No 

evidence shows that KWS knew or should have known, within the statute-of-limitations period 

plus the time for service permitted under Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), 

that it would be a party to the action or that the action would have been brought against it had it 

not been for the mistaken identity of Jessica’s employer. Although we disagree with the trial 

court’s reasoning, we find summary judgment is appropriate here because there is a lack of 

sufficient evidence to prove an essential statutory factor. See Cornerstone Bank & Trust, N.A. v. 

Consolidated Grain & Barge Co., 2011 IL App (4th) 100715, ¶ 24 (“In determining whether the 

trial court reached the proper result, we need not confine ourselves to the court’s rationale but may 

instead affirm the grant of summary judgment on any basis supported by the record.”) 

¶ 38 III. CONCLUSION

¶ 39 For the foregoing reasons, we affirm the trial court’s order granting summary 

judgment. 

¶ 40 Affirmed.