## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Suprem e Court

Sant iago v. E.W. Bli ss Co. , 2012 IL 111792

Caption in S upreme Court: ROGASCI ANO SANTI AGO, Appellant, v. E.W. BLI SS COMPANY et al. , Appellee s.

Docke t No. 111792

Filed Aug ust 9, 2012

Held ( Note : Thi s syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er 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

. ) Where a timely tort complaint identifying plaintiff by the name for which he was g ener ally known was met wi t h a request for a prejudicia l dismiss al as a sanction for use of a fictitious name without leave of court, a certified question was answere d by articula ting the sta ndards f or such

a discretionar

y ruling and by holding that a s u bsequent amendment g iving plaintiff’s leg al name rela ted back for limit ations purposes wher e it g rew out of the same tr ansac tion.

Dec ision Under Review Appea l from the Appellate Court for the First District; hear d in that court

on appea l from the Ci rcuit Court of Cook County
, the Hon. Ronald S. Davis, Judge, pr esiding

.

J udg ment Certified que stion answere d. Appellate c ourt judg ment reve rsed in par t. Circuit court orde r vac ated.
Cause re manded with dire ctions.Counsel on

Appea l J ohn R. Gore y and Tracy A. R obb, or C urcio L aw Offi ce s , o f Chicag o, for a ppellant.

Cremer
, Spina, Shaug hnessy
, J ansen & Siege rt, L L C, of Chicag o (B rian P. Shaug hnessy
, Ge o ff

re y M. Wague spack and Kimberly A. Ross, of counsel), f

or appe llee Unique Ma chine Repair, I nc.

J ustices CHI EF J USTI CE KIL BRIDE delivered the judgme nt of t he court, with opinion.
J ustice Ka

rmeier specia lly concur red, w ith opinion.
J ust i ce Burke specia lly concur red, with opinion, joined by J ustice Fr eema n. J ustice Thomas dissented, w ith opinion, j oined by J ustice Ga

rman. J ustice Theis took no par

t in the decision.

OP INION

¶ 1 This appea l is from the appellate court’s opinion on a certified q u es t i o n p u rs u ant to Supreme Court Rule 308 (ef f. Fe b. 26, 2 0 1 0 )
, following the circ uit court’s interlocutory order deny ing defe ndants’ motion to dismiss

. The cer tified question focuse s on t wo i s s u es

. The first issue is whether the circ uit court “should” dismiss an injured plaintiff’s cause of action 1 with prejudice as a sanction for i n t en tionally filing a complaint using a fictitious name 2 without leave of the court pursuant to section 2-401(e ) of the Code of Civil Procedur e (735 I L CS 5/2-401(e) (West 2008)). The second issue is whether the circ uit co u rt “s h ould” dismiss the injured plaintiff’s cause of action with prejudice beca use the plaintiff’s amende d complaint, with the plaintiff’s cor rec t name, does not re late bac k to the initial fili ng

. ¶ 2 The appellate court answe red the first part of the certified question in t h e af fi rm ative, with qualifications, and the se cond part in the affirmative. Specific ally , the appe llate court held: (1) the circ uit court has discretion to dismiss the plaintiff’s ca u s e o f action with prejudice as a sanction, and (2) the circ uit court must dismiss the plaintiff’s cause of action with prejudice “bec ause the orig inal complaint is a nullity
, the limit ations period has expired, and the amende d complaint cannot rela te back to the initial filing.” 406 I ll. App. 3d 449, 466. ¶ 3 We answe r t h e fi rs t p art of the certified question and hold that the circ uit court ha s d i s cr et ion, as a matter of law, to dismiss a complaint with prejudice when broug h t b y a

T he c er ti fi ed q ues ti on s pec if ic al ly re fe rs to an “i nj ure d” p la int if f. 1

T he c er ti fi ed q ues ti on s pec if ic al ly st at es “i nte nti ona ll y.” 2

-2-plaintiff using a fictitious name without leave of the court and t h at dismiss al is neither

mandatory nor prec luded under those circ umstances. Howeve r, d i s m i s s al is justified only when (1) there is a clea r rec ord of willful con d u ct s h o wing deliberate and continuing disreg ard f

or the court’s authority ; and (2) a finding t hat lesser sanctions ar e inade quate to

reme dy both the harm to the j udiciary and t h e p rejudice to the oppos ing party

. We answe r the second p ar t o f t h e cer tified question in the neg ative and hold that when an injured plaintiff files a complaint using a fictitious name, without court approval, t h e o ri ginal complaint is not a nullity
, per se , and an amende d complaint corr ecting the plaintiff’s name may relate back to the initial filing pursuant to section 2-616(b) of the Code (735 I L CS 5/2- 616(b) ( West 2008)). Acc ording ly , the appellate court judgme nt is reve rsed in pa rt and the

cause is remande d to the circ uit court of Cook County for f urther pr ocee dings.

¶ 4 I . BA CKGROUND ¶ 5 On May 12, 2006, plaintiff suffe red sever e injuries while operating a punch press for his employ er, Assembled Products. On May 9, 2008, plaintiff filed a product liability complaint
ag ainst the orig inal defe ndants in the circ uit court of Cook County

. The complaint identified plaintiff as “Juan Ortiz, ” t h e n am e he was known by at his employ ment. Plaintiff was allowed to file a first ame n d ed co m plaint on November 12, 2008, naming additional defe ndants identified during discovery

. The first amende d complaint identified the plaintiff

as “Juan Ortiz.” Plaintiff also identified himself as “Juan Ortiz” in written d i s co v ery documents. ¶ 6 Def

endants deposed plaintiff on May 19, 2009. When defe ndants asked plaintiff to state his full name, plaintiff responde d that his birth name was “Roga sciano S antiag o,” but that he had a lso used the name “ J uan Ortiz .” ¶ 7 On M ay 26, 2009, and ag ain on J une 2, 2009, plaintiff sought l eave of t he court to file

a second amende d complaint to add the name “Rog ascia no Santiag o” as plai n t i ff ’s birth

name. The circ uit court allowed plaintiff to file his second amende d complaint on September 18, 2009, over defe ndants’ objections. The second amende d complaint identified plaintiff as “Rog ascia no Santiag o, f/k/a J uan Ortiz.” The circ uit c ourt also g rante d defe ndants leave to take an additional deposition of the plaintiff and conduct any additional discovery defe ndants deeme d nece ssary

. ¶ 8 Def

endants moved to dismiss the plaintiff’s cause of ac t i o n

. De fe n d an ts arg ued that plaintiff committed a fraud on the court and that th e ca u s e s hould be dismiss ed with prejudice as a sanction. Alternatively
, defe ndants arg ued that plaintiff’s orig inal complaint

was null a nd void as a matter of law beca use it wa s not f

iled in pla intiff’s rea l na me. Thus,

acc ording to defe ndants, the second amende d complaint did not rela te back and was barr ed by the statute of limitations. ¶ 9 The circ uit court d en i ed d ef endants’ motion to dismiss

. The circ uit court certified the question to the appellate court, prese nting two issues: (1) whether the circ uit court should dismiss plaintiff’s ca

use of a ction with prejudice as a sanction for filing a complaint using

a fictitious name without leave of court pursuant to section 2-401 of the Code (735 I L CS 5/2- 401 (West 2008)); and (2) whether the circ uit court should dismiss the cause of action with

-3-prejudice beca use the orig inal complaint is a nullity
, the limit ations period has expired, and the amende d complaint cannot r elate ba ck to the initial filing. ¶ 10 The a

ppellate c ourt held that, “w hen an injured pl aintiff int entionally files a c omplaint using a fictitious name, without leave of court to use the fictitious name pursuant to section 2-401 of the Code of Civil Procedur e (735 IL CS 5/2-401 (West 2008)), the circ uit court may , in its sound discretion, dismiss the complaint with prejudice as a sanction.” 406 I ll. App. 3d at 463. The appellate court further held that, “whe n an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court to use the fictitious name pursuant to section 2-401 of the Code of Civil Proce d ure (735 I L CS 5/2-401 (West 2008)), then subsequent to the ex piration of t he st atut e o f l imitations
, files an amende d complaint with the correc t plaintiff’s name, the circ u i t co u rt must dismiss the cause wit h prejudice on the motion of a defe ndant beca use the orig inal complaint is a nullity
, the limit ations period has expired, and the amende d complaint cannot rela te back to the initial filing.” 406 I ll. App. 3d
at 466. We allowed plaintiff’s petition for leave t o ap p ea l

. I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010).

¶ 11 I I . ANAL YSI S ¶ 12 T h i s ap p ea l ar o s e fr o m a certified question pursuant to Supreme Court Rule 3 0 8 following the circ uit court’s interlocutory order denying defe ndants’ mo t i o n t o dismiss plaintiff’s ca

use of a ction. Rule 308 authorizes the appe llate court to a llow a ppeal f rom an interlocutory order not otherwise appea lable when an application for leave to appea l is filed and the trial court has found that: (1) the “orde r involves a question of law as to which there is substantial g round for differ ence of opinion” and (2) “an immediate appea l from the order
may materia lly advanc e the ultimate termination of the litigation.” I ll. S. Ct. R. 308 (ef f. Fe b. 26, 2010). “To qualify for an interlocutory appea l under Supreme Court Rule 308 [citation]
, a certified question must pre s ent an issue of law that is revie wable de novo .” Solon v. Midwest Medical Re cords Ass’n , 236 I ll. 2d 433, 439 (2010). ¶ 13 The c ircuit court c ertified thefollowing question to the appellate court:

“When an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court to use the fictitious name pursuant to 735 I L CS 5/2-401, then subsequent to the expiration of the statute of limit ations, files an amende d complaint with the plaintiff’s cor

rec t name, should the court dismi ss the cause with prejudice

on the motion of a defe ndant as a sanction or beca us e the limit ations period has expired and the a mended c omplaint does not relate ba ck to the initial filing? ”

¶ 14 A. Sanctions ¶ 15 The first issue expressly prese nted in this certified question is whether a circ uit co u rt should dismiss a plaintiff’s cause of action with pre j u d i ce as a sanction when a plaintiff intentionally filed a complaint using a fictitious name without court approval p u rs u an t to section 2-401 of the Code of Civil Procedur e (735 I L CS 5/2-401 (West 2008)). I nitially
, we must comment that the certified question is inartfully cra fted. The question could be rea d as raising any of the following issues: (1) whether the trial court may dismiss with prejudice as

-4-a sanction for filing a complaint using a fictitious name without court approva l; (2) whether

dismiss al with prejudice is mandatory ; or (3) whether the trial court is prec luded from such a sanction. At the heart of ea ch of the se questions is the exis tence and scope of t he court’s authority to dismi ss a complaint with prejudice as a sanction. ¶ 16 We find Sander v. Dow Chemical Co.
, 166 I ll. 2d 48 (1995), instructive on this issue. I n Sander , this court acknow ledg ed that a trial court may , in appropria te s ituations, dismiss a complaint with prejudice

. That power derive s from both Supreme Court Rule 219(c) (I ll. S. Ct. R. 219(c) (ef

f. J uly 1, 2002)) and from the trial court’ s inhere nt authority to control i ts docket. Sander
, 166 I ll. 2d at 65. I n Sander
, we deeme d the rec og nit i o n o f t h e co urt’s inhere nt au t h o rity to be “nec essary ” to “pre vent undue delay s in the dispositi on of case s

cause d by abuses of proce dural rules, and also to empower courts to control their dockets.” Sander
, 166 I ll. 2d at 66. We further acknow ledg ed a court’s power to dismiss a complaint with pr ejudice “whe re the rec ord shows deliberate and continuing disre g ard for the court’s authority .” Sander
, 166 I ll. 2d at 67. Whil e the trial court’s power to dismiss a complaint as

a sanction was re co gnized in Sander
, this court also warned that dismiss al of a cause of action is a “dr astic” sa nction that “should only be employ ed whe re it appe ars that all other enfor ceme nt eff

orts of the court have failed to advanc e the litigation.” Sander
, 166 I ll. 2d at 67-68. ¶ 17 Whil e Sander does not addre ss the prec ise question raised by the certified question in this

case , the same principles relied upon in Sander wer e appl i ed b y t h e court in Zocaras v. Castro
, 465 F.3d 479 (11th Cir. 2006). We find Zocaras
, 465 F.3d 479, particula rly
persua sive. I n Zocaras
, the United States Court of App eals for the Eleventh Circuit articula ted a two-part analy sis for det er m i n i ng when an action may be dismiss ed as a sanction. The c ourt held that, first, there must be a “c lear rec ord of willful conduc t” on the part of the dismiss ed party

. Zocaras , 465 F.3d at 483. Sec ond, there must a lso be a finding that lesser sanctions are inadequa te. Zocaras
, 465 F.3 d at 4 8 3

. Both of these notions are consistent with this court’s pronounce ments in Sander

. ¶ 18 I n Zocaras
, the Eleventh Circuit, in determin i n g wh et h er t h er e was a clea r rec ord of willful conduct on the part of t he dis missed plaintiff, relied heavily on the fin d i n g s of fact made by the district court judge once the plaintiff’s use of a false name came to light. At the district court hearing
, the pl aintiff, who had used s ev er al d i fferent aliases, answe red some questions r eg arding the use of his r eal name and then asserted his f ifth amendment rig ht a s to additional questions. Ba sed on testimony from the hear ing, the district court found that the plaintiff’s conduct was deliberate and willful and was not a mistake. T h e court of appea ls relied on these extensive finding s, included in the appendix to its opinion, and found no err or on the part of the district judg e in dismissi ng the plaintiff’s c ause of action. ¶ 19 The c ourt of appe als noted the sec ond require ment that lesser sanctions are inadequate encompa sses two distinct area s—harm to the judicial sy stem and harm to the other pa rty ’s interests. Zocaras
, 465 F.3d at 484-85. The court of appea ls ag ree d with the district court’s finding s that both the judicial sy stem and the opposing party wer e harme d by the plaintiff’s willful conduct. ¶ 20 Zocaras is consistent with the views express ed b y t h i s court in Sander

. We theref ore

-5-answe r the cer tified question as follows. The circ uit court has discretion, as a matter of law,
to dismiss a complaint with prejudice when broug ht by a plaintiff using a fictitious name without leave of the court. Dismissal is neither mandatory nor precl u d ed under those circ umstances. Dismissal is justified only when (1) there is a clea r rec ord of willful conduct showing deliberate and continuing disreg ard for the court’s authority ; and (2) a finding that lesser sanctions are inadequate to reme dy both the harm to the judiciary and the prejudice to the opposing party

. ¶ 21 Her e, the circ uit court denied defe ndants’ m o t i o n t o d i s miss and we are without the benef it of the court’s rationale

. Acc ordin gl y , we v acate the circ uit court’s order deny ing defe ndants’ mot ion to dismiss and remand t he cause to the circuit court wi t h d i re ctions to conduct a new hearing to determine whether dismiss al of plaintiff’s cau s e of action as a sanction is appropriate under the substantive standar ds articulate d in this opi nion.

¶ 22 B. Relation-Ba ck Doc trine ¶ 23 The second part of the certified question is whether the circ uit court should dismiss the injured plaintiff’s cause of action with prejudice beca use the plaintiff’s amende d complaint, with the plaintiff’s corr ect name, does not rela te back to the initial filing. Am en d m ents to pleading s are g overne d by section 2-616 of t h e C ode (735 I L CS 5/2-616 (West 2010)). Section 2-616(a ) provides, in re levant part:

“ At any time before final judgment amendme nts may b e a l lowed on just and reasonable terms, introducing any party who ought to have been joined as plaintif f

or defe ndant, dismiss ing any party , chang ing the cause of action or defe nse or adding

new cause s of action or defe nses, and in any matter, either of form or substance
, in
any proce ss, pleading
, bill of particula rs or proce eding s, which m ay enable the plaintiff to sustain the claim for which it was intended to be broug ht or the defe ndant
to make a defe nse or assert a cross claim.” (Emphase s added.) 735 I L CS 5/2-616(a) (West 2010). ¶ 24 Section 2-616(b)
, in turn, provi d es fo r re l at i o n back of the amende d pleading to the orig inal pleading , as follows: “The cause of action *** set up in any amende d pleading shall not be 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 the time presc ri b ed or limit ed had not expired when the orig inal pleading was filed, and if it shall appea r from the orig inal and amende d pleading s that the cau s e of action asserted *** in the amende d pleading grew out of the same transaction or occurre nce set up in t h e o r i ginal pleading
, even though the orig inal pleading was defec tive in that it failed to alleg e *** the exis tence of some fac t *** an amendment to any pleading shal l be held to rela te back to the date of the filing of the orig inal pleading so amende d.” (Emphasis added.) 735 IL CS 5/ 2-616(b) (West 2010). ¶ 25 The purpose of t he relation-bac k provision of section 2-616( b) is to preser ve ca uses of action ag ainst loss due to technica l pleading rules. Boatmen’s National Bank of Bellev ille v. Di r ec t Lines, Inc.
, 167 I ll. 2d 88, 102 (1995). I n construing the relation-back provision o f

-6-section 2-616(b)
, this court has stated that the require ments of section should be liberally

construed “to allow the resolution of litigation on the merits and to avoid eleva ting questions of for m over substanc e. [Cit ation.]” Boatmen’s National Bank , 167 I ll. 2d at 102. ¶ 26 The only require ments imposed by section 2-616(b) for the rela tion-back provision to be applicable are (1) that the orig inal complaint was timely filed, and (2) that the cause of action

asserted in the amende d complaint g rew out of the same transac tion or occur renc e. 735 I L CS 5/2-616(b) (West 2010). For purposes of the certified question, there is no dispute, and it is assumed that the orig inal complaint was timely filed and that the cause of action alleg ed in the amende d complaint g rew out of the same transac tion or occur renc e. Thus, nothing in section 2-616(b) would support a determination that a complaint filed using a fictitious name is a null ity
, or t hat a subsequently filed complaint amending the na m e o f a plainti ff would
not rela te back to the date of the filing of the orig inal complaint. The fac tual rea sons for the plaintiff us ing a fictit ious name are irr eleva nt to our inquiry on the l eg al questi on certified by the trial court on the rela tion back of the amende d complaint. ¶ 27 The appellate court determined that the orig inal complaint was null and void beca use the plaintiff filed the orig inal complaint using a fictitious name. T h e ap p ellate court relied on Alton Eve ning Telegra

ph v. Doak
, 11 I ll. App. 3d 381 (1973), to support its assertion that “[i] t is well-settled that ‘[a] suit b ro u gh t i n a n ame which is not that of a natura l person, a corpor ation or of a partne rship is a mere nullity ; and, in such a case *** the whole action fails.” The appellate court conclude d that a fictitious name is not that of a natura l person. I n making its determination, the appellate court relied upon a one-pa rag raph analy sis contained in Alton Eve ning Telegraph without looking to the context of the opinion. I n Alton Eve ning Telegraph
, there wer e no fac ts befor e the court that identified the newspa per as an entity
capa ble of suing. The question of whether a fictitious name may be used for a natura l person

was not befor e that court. Nonethele ss, the appellate court conclude d, based on Alton Eve ning Telegrap h
, t h at a fictitious name is not the leg al name of a natura l person and, there fore
, any action commenced i n a fictitious name is null and void. 406 I ll. App. 3d at 464. Simpl y

stated, the holding in Alton is whollyinapplicable to this ca se. ¶ 28 To the co n t ra ry , t h i s co u rt h as re co gn i z ed that a person may be named in leg al
proce eding s by his or her g ener ally known name. See People v. Montgomery
, 271 I ll. 580 (1916) (witness named in char g ing instrument as “Pear l Wil liams” but testif i ed at trial as “Clara Wil liams”; evidenc e showed that witness was g ener ally known by the name “Pear l”). See also Lucas v. Farrington , 21 I ll. 31 (1858). ¶ 29 Ba sed on the plain lang uag e of section 2-616(b)
, we cannot say that a cause of action is
per se null a nd void if a person files a complaint using a name other than his or her “ leg al”

name. Thus, the appellate court err oneously determined that a complaint become s a nullity solely for the rea son that a plaintiff filed the complaint using a fictitious name without court approva l. ¶ 30 Acc ording ly
, we reve rse that part of the appellate court decision holding that the circ uit court must dismiss the plaintiff’s c ause w ith prejudice unde r the re lation-bac k doctrine.

-7-¶ 31 I I I . CONCL USI ON

¶ 32 For the fore g oing rea sons, we reve rse in part the judgme nt o f t h e ap p el l at e court; we

vacate t he cir cuit court order; and we remand the cause to the circuit court with direc tions to conduct a ne w hea

ring to determine w hether dismiss al of plaintiff’ s cause of ac tion as a sanction is appropriate under the substantive standar ds articulate d in this opi nion.

¶ 33 Certified que stion answere d. ¶ 34 Appellate c ourt judg ment reve rsed in part. ¶ 35 Circuit court orde r vac ated. ¶ 36 Cause re manded with dire ctions.

¶ 37 J USTI CE KARMEI ER, specially concur ring : ¶ 38 I concur in the majority ’s opinion. I write separ at el y t o ad d re s s a number of problems with the dissent which neither the opinion nor J ustice Bur ke’s specia l concur

renc e discusses. ¶ 39 To beg in with, the dissent trea ts the conce pts of fictitious pe rson or party and fictitious

name as if they are one and the s am e. T h ey are not. Bogseth v. Emanuel
, 166 I ll. 2d 507 (1995), the centr al case in the dissent’s analy sis, is an example of a case involving a fictitious
person or party

. The “John Doe” named there as a responde nt in discovery under section 2- 402 of the Code of Civil Procedur e (735 I L CS 5/2-402 (W es t 1 9 92)) was not a living, breathing person. Plaintiffs mere ly used “John Doe” as a place holder to repr esent someone they thought might exis t and who might be proven culpable. He was a complete leg al fiction. ¶ 40 There are g ood and obvious policy rea sons for barring litigation by or ag ainst persons or entities who are fictional and do not actua lly exis t. And it is understanda ble that courts have been espec ially sensitive about this issue when dealing with corporat e en t i ties, which are purely cre ations of the law and have no authority to act except as the law permits. See, e.g. , Alton Evening Telegraph v. Doak
, 11 I ll. App. 3d 381 (1973); Marsh v. Astoria Lodge No. 1 1 2

, Indepe ndent Order of Odd Fellows
, 27 I ll. 420 (1862). But those conce rns h av e n o rele vance here

. J uan Ortiz, as the plaintiff in this case was initially desig nated, was not and is not a leg ally nonexis tent party

. He is very much an actua l person, and no one disputes that the individual known as J uan Ortiz was, in fac t, employ ed by Assembled Products and, while

so employ ed, was injured while operating a punch press. I t is only his name that was not rea l. ¶ 41 As with Bogseth
, the various authorities i n v o k ed at para g raph 71 of the dissent are all clea rly distinguishable from the case befor e us here

. Ohio Millers Mutual I nsurance Co. v

. Inter-I ns u ra n ce Exc hange of Illinois Automobile Club
, 367 I ll. 44, 54 (1937), on which Bogseth relied, involved a situation similar to the one in Bogseth : a defe ndant entity which had no leg al exis tence

. Be cause the summonses wer e serve d on that entity
, an insurance exchang e, and not the individual member s of t he ex chang e, thi s court held that the def ault judgme nts subsequently enter ed in favor of the plaintiffs and ag ainst the individual members of the exchang e could not stand. Ohio Millers Mutual Insurance C o

. d id not prese nt a situation, as this one does, wher e a natural per son was identified by the wrong name. ¶ 42 The problem in Goodkind v. Bartlett
, 153 I ll. 419 (1894), which is the source of the quote

-8-from Ohio Millers used by the dissent at para g raph 73, was also differ ent from the one befor e

us here

. The fata l defe ct in that case was that one of the defe ndants was n o t i d en t i fi ed b y

name at all, but was mere ly described as the person marrie d to another of the defe ndants. The court he ld that a

bsent a statute permitting it, “ persons, natura l or artific ial, cannot be made parties litigant by mere descriptio persona , but must be desig nated by name, both in the
proce ss and in t he judg ment.” Goodkind , 153 I ll. at 423. Significa ntly , the court then went

on to distinguish the situation wher e the party has been identified b y t h e wr o n g name, holding that “in c as e of misnomer, if the s ummons is serve d on the party intended, and he fails to a ppear , or, appea

ring
, fails to object, the judgme nt ag ainst him will be binding.” Id. ¶ 43 The o do ra ka kis v. K ogut , 194 I ll. App. 3d 586 (1990), a third case cited by the dissent, involved the validity of a default judgme nt enter ed ag ainst a bank trust acc ount, not a natura l
person. The trust acc ount was proper ly identified in the pleading s. The problem was that the

summons wa s d i re cted to a differ ent trust acc ount which did not exis t. As a result of the

err or, the corr ect party was never serve d. Rely ing on the p ri n ci p l es that “[a] suit broug ht agai n s t a l eg ally nonexis tent party is void ab initio
, and the summons serve d upon the nonexis tent party does not g ive the court jurisdiction,” the court conclude d that the judgme nt in the case was proper ly vacated. Theodorakakis
, 194 I ll. App. 3d at 589. Ag ain, that is not the situation befor e us here

. We do not have a nonexis tent party

. We have a party identified by the wrong name. More over, the re is no issue as to service of proce ss. ¶ 44 Jenk ins v. National R.R. Passenger Corp. , No. 07 C 3427, 2008 U.S. Dist. L EXI S 840 (N.D. I ll. J an. 3, 2008), another case cited by the dissent, likewise has no bearing on the leg al questions prese ntly befor e us. I n Jenk ins
, the fede ral court to which the action had been

remove d considere d whether certain counts of the plaintiff’s complaint ag ainst Amtrak wer e barr ed by a two-y ear statute of limit ations. Those counts wer e timely when the complaint was initially filed, but plaintiff took a voluntary dismiss al. By the time she ref iled her complaint, th e l i mitations period and a one-y ear extension applicable to ref iled actions had expired. Whil e the c ounts were there fore untimely
, plaintiff asserted t hat t hey should be dee med to rela te back to a complaint in discovery which she had filed befor e the limit ations period had

run out. The fede ral court reje cted that arg ument, rea soning the complaint in discovery was proce durally defe ctive and could not qualify as a cause of action ag ainst Amtrak to which the ref iled complaint could relate back within the m eanin g o f t h e g overning statute beca use i t did not identify Amtrak or any other party as a defe ndant and did not assert any leg al claims. Jenk ins
, 2008 U.S. Dist. L EXI S 840, **13-18. These issues have nothing to do with our case

. ¶ 45 This takes us to Smith v. Commissioners of Roads & Rev enue , 31 S.E.2d 648 (Ga

. 1944), the last in the series of case s cited by the dissent in support of its char acte rization of I llinois law. At issue in Smith was whether the plaintiff, denominated as “ ‘Commissi oners of Roads and Revenue of Gly nn County
, Geor g ia, the g overning authority of Gly nn County
, a political subdivision of the State of Geor g ia,’ ” was “ such an e ntityas ca n maintain a suit in court.” S mi t h v. Commissioners of Roads & Rev enue , 31 S.E.2d at 649. The Supreme C o u rt o f Geor g ia answe red that question in the neg ative. I t held that the plaintiff was not a leg al entity under Geor g ia law and there fore cou l d n o t instit ute leg al proce eding s. Acc ording ly
, the action wa s a nullityand the de murrer soug ht by the def endant should have been sustaine d. Smith v. Commissioners of Roads & Rev enue , 31 S.E.2d at 649-51.

-9-¶ 46 Ag ain, that is f ar remove d from the situation be fore us here

. The plaintiff in our case is

a natura l person, and the capa city of natura l persons to initiate litigation is unquestioned. Our probl em i s simply what happens when such a person initiates litigation under an assumed

name. I note, moreove r, that afte r Smith v. Commissioners of Roads & Rev enue was decide d,

a new civil prac tice act was adopted in Geor g ia. Apply ing the new law, the Geor g ia Supreme Court held that the misnomer of a party in the pleading s is a defe ct which may be waived if the misnamed party is in fac t the leg ally cog nizable proper party in interest. That is so even wher e the party named in a co mplaint is not a lega l entity

. The procee ding is not a null ity

. I f the party plaint i ff named in a complaint is rea sonably rec og nizable as a misnomer for a leg al entity which is the rea l party plaintiff, the misnomer may be corr ecte d by amendment. Block v. Voyage r Life Insurance Co.
, 303 S.E.2d 742, 744 (Ga

. 1983). I t is Block rathe r than the superc eded de cision in Smith v. Commissioners of Roads & Rev enue that more c losely

rese mbles the law in I llinois

. ¶ 47 There is no question that a party ’s use of a pseudony m can be problematic for the courts and for opposing parties. When a party is a natura l person who actua lly exis ts, howeve r, the

mere fac t that he or she i s suing or being sued under

something othe r than his or he r g iven

n am e is not an absolute bar to invocation of the jurisdiction of an I llinois court. To t h e contra ry , sec t i on 2-401(b) of the Code of Civil Procedur e (735 I L CS 5/2-401(b) (West 2010)) expressly provides that misnomer of a party is not a g round for dismiss al and section 2-401(e ) (735 I L CS 5/2-401(e) (West 2010)) specific ally authorizes parties to appea r under fictitious names upon applica tion and for g ood cause

. ¶ 48 The dissent takes issue with J ustice Bur ke’s relianc e on section 2-401 on the g rounds that section 2-401 i s i n d erog ation of the common law and should there fore be confine d to its literal terms or what those terms imply

. The common law wh i ch t h e dissent has in mind, howeve r, is the body o f l aw d ea l ing with fictitious parties

. Section 2-401 cannot be considere d in derog ation of that law beca use the statute does not deal with fictitious parties. I ts conce rn is misnomers and fi ct i t ious names

. As I have indicated, these are separ ate and distinct concepts. ¶ 49 I n any case , I believe that the situation befor e us does fall within the liter al t er m s o f section 2-401, specific ally
, the misnomer provisions of section 2-401(b) (735 I L CS 5/2-401 (West 2010)). Although the appellate court i n this case understood misnomer to ref er to a situation wher e a party was desig nated by the wrong name as a result of an err or (406 I ll. App. 3d at 464), the term misnomer “is not a euphemism for the word ‘mistake.’ ” Y edor v. Centre Properties, Inc. , 173 I ll. App. 3d 132, 137 (1988). It actually “means nothing more than that a party is styled in othe r than his or he r own na me. (59 Am. Jur. 2d Parties § 243 (1987).) ” Bristow v. W

estmore Builders, Inc.
, 266 I ll. App. 3d 257, 2 6 0 (1 9 9 4 ); see Webster’s Third New I nternational Dictionary 1444 (1976) (“the misnaming of a person in a lega l instrument or proceeding *** a use of a wrong name[;] an inc o rr ec t d esig nation or term”)

. That describes the situation befor e us here

. Plaint i ff ’s use of an assumed name ther ef o re q u al i fi es as a misnomer. As such, it may be corr ecte d at any time pursuant to section 2-401(b) and is not, standing alone, the basis for dismiss al. Hoagland v. Brown
, 71 I ll. App. 2d 240, 243 (1966); Sjostrom v. Mc Mu r ra y , 47 I ll. App. 3d 1040, 1043 (1977) (apply ing sta tutory

prede cessor

to section 2-401).

-10-¶ 50 L itigants may seek to proce ed u n d er a p s eu d o n y m fo r a varie ty of rea sons, some

innocent, some not. The appellate court in this case corr ectly rec og nized that whether and to what extent a litigant should be penalized for seeking rec overy under an assumed name require s considera

tion of a rang e of fac tors. 406 I ll. App. 3d at 460-63. Among those fac tors

are some simil ar to the ones applicable to situations involving equ i t ab l e est oppel. For eq u i t ab l e est oppel to apply
, it is not enoug h to show that there has been some misrepre sentation by

the opposing party . The doc trine will not a ct as a bar unless the party seeking to raise it can show that the misrepre sentation was materia l to the dispute at hand and
operated to that party ’s detriment. See, e.g. , Vaughn v. Speake r , 126 I ll. 2d 150, 162 (1988). ¶ 51 At this point, we do not have sufficie nt information befor e us to determine whether that threshold has been clea

red here

. Whil e using a false name for the purpose of defr auding an opponent or subverting the judicial proce ss for one’s own benef it is p l ai nly improper and
cannot be tolerate d, we simply do not y et know whether Santiag o’s decision to sue using the

same na me by which he was known a t the workplac e whe re he was injured w as motivated by such purposes, adver sely aff ecte d the fairne ss of these proce eding s, or actua lly prejudice d defe ndant in any way

. Until those issues are proper ly addre ssed and resolved, as they will be

on rema nd under today ’s opi nion, pl ai n t i ff ’s cause of action should not be dis missed with prejudice . I

there foreconcur

.

¶ 52 J USTI CE BURKE, spe cially concur ring : ¶ 53 I ag ree with and joi n in the m ajority ’s answer to the first part of t h e cer tified question. I write sepa

rate ly to addre ss the second pa

rt of the que stion. ¶ 54 The sec ond part of the certified question asks:

“When an injured pl aintiff intentionally files a complaint using a fictitious name, without leave of court to use t h e fi ctitious name pursuant to 735 I L CS 5/2-401[e]
, then subsequent to the expiration of the stat u t e of limit ations, files an amende d complaint with the plaintiff’s corr ect name, should the court dismiss the cause with prejudice on the motion of a defe ndant *** beca use the limit ations period has expired and the a mended c omplaint does not relate ba ck to the initial filing? ” The a ppellate c ourt answe red this par t of the question “y es.” Theappellate court stated:
“We find that the rela tion-back doctrine does not apply in this situation beca use the orig inal complaint was a nullity

. It is well settled that ‘[a] suit broug ht in a name which is not that of a natura l person, a co rp o ra t i o n or of a partne rship is a mere nullity ; and, in s uch a c ase *** the whole ac tion fails.’ Alton Evening T elegraph v. Doak
, 11 I ll. App. 3d 381, 382 (1973). I n this ca s e, t here is no question that ‘Juan Ortiz’ is not the leg al name of a natura l person, and there fore any action commence d on behalf of Juan Ortiz is null and void.” 406 I ll. App. 3d 449, 464.
Be cause there wer e no “ le g all y v a lid pleading s to which his second amende d complaint could rela te back” ( id

. at 465), and beca use the limit ations period had expired, the appellate court held that the sec ond amende d complaint had to be dismissed with prejudice

. Id . at 466. ¶ 55 Be fore this court, d ef en d an ts repe at the appellate court’s rea soning and, in addition to

-11-Alton Eve ning Telegraph
, cite Bogseth v. Emanuel , 166 I ll. 2d 507 (1995), Theodorakakis

v. Kogut
, 194 I ll. App. 3d 586 (1990), and Ohio Millers Mutual Insurance Co. v. In t er

Insura n ce Exc hange of the Illinois Automobile Club
, 367 I ll. 44, 54 (1937), for the proposition that, at common law, a civil complaint filed by a real person under a fictitious

name was a nullity

. I t is unclea r, howeve r, to what extent this was, in fac t, the rule in I llinois

. Although the case s cited by defe ndants do state that “ ‘a proce eding by or ag ainst a party by

a mere fictitious name will be a nullity ’ ” ( Bogseth
, 166 I ll. 2d at 514 (quoting Ohio Millers Mutual Insurance Co. , 367 I ll. at 54) ), they are all distinguishable on their fac ts. The case s defe ndants cite addre ss situations wher e a defe ndant did not exis t at all ( B o g s et h
, Ohio Millers Mutual Insurance Co. ), wher e a corpor ation whose exis tence is define d by law was involved ( Alton Eve ning Telegraph ), or wher e a summons was serve d on a nonexis tent trust

acc ount ( Theodorakis ). Def endants have not cited any I llinois case in which a court actua lly dismiss ed a complaint filed by a rea l person, using a fictitious name, on the g round that the complaint was de emed a

nullityat common law. ¶ 56 I n any event, both defe ndants’ and the appellate court’s exclusive focus on the common law is misplaced. Section 2-401(e ) o f the Code of Civil Procedur e (735 I L CS 5/2-401(e) (West 2010)) expressly permits a party to appea r under a fictitious name “[u] pon application and for g ood cause shown.” Thus, to the extent that the co m m on law in I llinois once cate g orica lly held that a complaint may not be filed by a rea l person under a fictitious name, that rule ha s been supe rce ded by statute. ¶ 57 The certified question ref ere nces section 2-401(e ), not the common law, and states that plaintiff violated section 2-401(e ) by not obtaining leave of court to proce ed under a fictitious

name at the time he filed his orig inal complaint. Th e re l ev an t question is there fore one of leg islative intent. That is, did the leg islature intend that a pla intiff’s fa ilure to comply with section 2-401(e ) would automatically rende r the complaint per se null and void, prec luding invocation of the c ircuit court’ s jurisdiction? The a nswer is “ no.” ¶ 58 Section 2-407 of the Code of Civil Procedur e states that no action may be dismiss ed for failure to include a necessa ry party without first “aff

ording rea sonable opportunity ” to add the nece ssary party

. 735 I L CS 5/2-407 (West 2010). I n addition, section 2-616 provides that
at “any time befor e final judgme nt amendments may be allowed on just and rea sonable terms *** in any matter, either of form or substance.” 735 IL CS 5/2-616 (West 2010)

. Neither of these provisions excludes complaints filed pursuant to sectio n 2

- 4 0 1 ( e )

. T h us, g iven the plain lang uag e of the Code of Civil Procedur e, it cannot be the case that filing a complaint under

a fictitious name, without simult aneously obtaining leave of court in violation of section 2- 401(e) , automatically , and in eve ry instance, r ender s the complaint null and void. ¶ 59 Fe dera l courts have rea ched the same conclusion interpre tin g s imil a r p r o v is io n s in

f e d e r a l law. F or example, in EW

v. New Y ork Blood Center , 213 F.R.D. 108 (E.D.N.Y . 2003), the defe ndant contende d that the plaintiff’s use of a pseudony m in a complai n t wi t hout first obtaining leave of court to do so meant that no action had proper ly been commence d, there by depriving the court of any jurisdiction over the cause of action and rende ring the matter void. The court, in response , looked to Fe dera l Rule of Civil Procedur e 17(a)
, which provides that

no action may be dismiss ed on the g round that i t i s not prosec uted in the name of the rea l party in interest until a rea sonable time has been allowed af ter objection for joinder or

-12-substitut ion of the re al party in interest. The c ourt stated:
“I n light of the se provisions of t he F eder al Rules, [defendant’ s] contention that
t h e Court lacks jurisdiction over the matter, and cannot permit amendment o f t h e complaint to ref

lect the name of the real party in interest, i s obviously wrong

. Fe d. R. Civ. P. 17(a) itself specifies that the court may permit corr ection of a caption in

a matter under thes e ci rcumstances, if a plaintiff has not been named or identified

corr ectly . Thus, the fe dera l rule itself indicate s that failing to bring an action in the

name of the rea l party in interest does not immediately and automatically divest a district court of jurisdiction.” ( Emphasis in origina l.) Id . at 109.
Ot h er d ecisions have rea ched the same conclusion. See, e.g. , Doe v. Barrow County
, 2 1 9 F.R.D. 189 (N.D. Ga. 2003); A.G. v. American Credit Bureau, Inc.
, No. 3:11-CV-711, 2011 U.S. Dist. LEXI S 141573 (D. Conn. D ec. 8, 2011); J.V. v. Seminole County School Board
, No. 6:04-cv-1889- Orl-28JGG, 2005 U.S. Dist. L EXI S 46473 (M.D. Fl a. May 25, 2005); Jaufman v. Levine
, No. 1:06-CV-1295, 2007 U.S. Dist. LEXI S 72883 (N.D. N.Y. Sept. 28, 2007); see also 2 J ames Wm. Moore, Moore’ s Fe dera l Practice § 10

. 0 2 (2 )( c) (iv) (3d ed. 2005) (“the court does not lose jurisdiction mere ly beca use the plaintiff files under a ficti t i o u s n ame but fails to reque st leave to proce ed anony mously at the same time the complaint is filed”). ¶ 60 Further, the null i t y ru l e ad o p t ed by the appellate court can lead to unjust results. For example, assume that a plaintiff files a complaint as “Jane Doe” on the last day of the statute of limit ations period. S h e d oes so intentionally
, having a leg itimate privac y interest that outweig hs the public’s interest in open judicial pr ocee dings. See Doe v . Doe , 282 I ll. App. 3d 1078 (1996) (discussing what c o n s ti tu te s “g ood cause ” under section 2-401(e )). Howeve r, a motion seeking leave to file under a fic titious name is not filed until a day later, a fter the l i m i t at ions period has run. Under the appellate court’s nullity rule, which holds that an y complaint intentionally fi l ed “u n d er a false name without leave of court” is null and void (406 I ll. App. 3d at 466), the plaintiff’s ca u s e o f ac t ion would have to be dismiss ed. I t is simply unrea sonable to conclude that the Gene ral Assembly
, having authoriz ed the use of fictitious names in section 2-401(e ), intended such a result. Thus, to the extent that there was

once a common l aw rule which would have held that plaintiff’s orig inal complaint was a nullity , that rule ha s clea

rly been a brog ated by

the leg islature. 3 ¶ 61 Plaintiff in the case at bar failed to seek leave of court to use a fictitious name at the time he filed his orig inal complaint, th e reby violating section 2-401(e ). The violation of the statute is potentially sanctionable conduct, under the terms set forth by the majority in answe r to the first part of the certified question. Howeve r, t he legislature did not intend that a plainti ff’ s

Pla int if f al so con te nds tha t his use of a f i ct it iou s name was a m is nomer unde r sec ti on 2- 3 401( b) of the Code of Civil Pro ced ure (73 5 I LCS 5/2

- 401( b) (W est 2010 ))
, and bec aus e tha t sec ti on pro hib it s dis m is sal sol el y for use of m is nomer, his ori ginal complai nt can not be con si der ed a nul li ty. I e x p r ess no opi nio n on whet her pla int if f’ s use of a fi ct it iou s name in thi s cas e qua li fi ed as a

m is nomer wit hin the m ean ing of sec ti on 2- 401( b). As dis c u sse d abo ve, whol ly apa rt fr om the
que st ion of m is nomer, it is cl ear tha t the le gisla tur e did not int end tha t a pla int if f’ s fa il ure to comply wit h se ct ion 2- 401( e) woul d r end er th e c om pla int a n ull it y.

-13-failure to comply with section 2-401(e ) would automatica lly , and in eve ry instance, r ender the cause of action null and void. Acc ording ly
, I join wi t h t h e m aj o ri ty in holding that the circ uit court was not require d, as a matter of law, t o d i s miss plaintiff’s second amende d complaint beca

use there was no pleading to which the amende d complaint could rela te back. ¶ 62 For

the fore g oing r easons, I

specia lly concur

.

¶ 63 J USTI CE FREEMAN joins in this special conc urre nce.

¶ 64 J USTI CE THOMAS, dissenting: ¶ 65 Wit h respe ct to the second part of the certified question, I wo u l d fi n d t h at plaintiff Santiag o’s second amende d complaint does not relate back to the ear lier filed o ri gi n al complaint beca

use t hat earlier p l ea d i n g was a mere nullity that was without leg al effec t to avoid running of the statute of limit at ions. The majority ’s contra ry approa ch is both bad policy and at odds with settled I llinois prec edent. Because I believe that resolution of the second part of the certified question require s dismiss al of the case with prejudice
, there is no need to r eac h the first part of the ce rtified question. ¶ 66 The sec ond part of the question certified for a ppellate r eview a sks the following : “When an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court to u s e a fi ct itious name pursuant to 735 I L CS 5/2-401, then subsequent to the expiration of the statute of limit ations, files an amende d complaint with the corr ect plaintiff’s name, should the c ourt dismiss t he ca use with prejudice

on motion of a defe ndant *** beca use the limit ations period h as ex p ired and the amende d complaint does not relate bac k to the initial fili ng ? ” ¶ 67 At the outset, I believe that the majority must conce de that in I llinois it is well settled that if an orig inal complaint is considere d a n u l l i t y , it would be void ab initio

. See Bogseth v. Emanu el
, 1 6 6 I ll. 2d 507, 513 (1995). W hen any document is considere d void ab initio
, it

means that it must be trea ted “as if it never exis ted.” See In re Marriage of Newton
, 2011 I L App (1st) 090683, ¶ 39 ( contra ct was ruled void ab initio and must be treated as if it neve r exis ted); Siakpere v. City of Chicago
, 374 I ll. App. 3d 1079, 1081-82 (2007) (a court lacks jurisdiction over a complaint that is null and void ab initio and any new complaint filed outside of the limit ations period would be time barr ed); In re M.M.D.
, 344 I ll. App. 3d 345, 348 (2003) (the leg al eff

ect of enac ting an unconstitutional statute is that it is void ab initio
, as if it never exis ted from its i n ce p t i o n ); P eople v. Pozdoll
, 230 I ll. App. 3d 887, 893-94 (1992) (statute found void and as if it never exis ted); see also Bla ck’s L aw Dictionary 1172, 1709 (9th ed. 2009) (stating that “null” means “[h] aving no leg al eff ect” and “ void ab initio ”

means “[n] ull from the beg inning” ). Thus, if the orig inal complaint in this case—filed three day s befor e the statute of l imitations expired—never exis ted, t hen it logic al l y follows that there would be nothing for the subsequent complaint—filed more than a y ear afte r the statute of limitations ex pired—to re late bac k to. ¶ 68 To answe r the certified q u es t i o n , h oweve r, the lead opinion of Chief J ustice Kilbride considers it suffic i ent to simply note that the only require ments of section 2-616(b) of the

-14-Code of Civil Procedur e for trig g ering application of the rela tion-back doctrine are (1) that

the orig inal complaint wa s t i m el y filed, and (2) that the cause of action asserted in the amende d complaint g rew out of the same transac tion or occur renc e. Supra ¶ 26 (citing 735 I L CS 5/2-616(b) (West 2010)). I n a classic case of question beg g ing, the Chief J ustice then
say s that “nothing in section 2-616(b) would support a determination that a complaint filed using a fictitious name is a nullity .” Supra ¶ 26. But whether section 2-616(b) say s anything about fictitious names or null complaints is completely beside the point. I f t h e o ri gi nal complaint was a nullity nonetheless, then section 2-616(b) ’s silence about what constitutes

a null complaint could not possibly make any differ ence

. There would still be nothing for the subsequent complaint to relate back to if the orig inal complaint is deeme d to have never exis ted. The le ad opinion does not explain how it could be otherwise. ¶ 69 The lead opinion instead looks exclusively to section 2-616(b) to determine whether the complaint filed on May 9, 2008, on behalf of “Juan Ortiz” was a nullity
, but the question is clea rly not g overne d by that statute. Rather, the question of whether a complaint filed under

a fictitious n ame is a nullity is g overne d by common law principles. This is beca use any statute that would allow a suit by or on b ehalf of a fictitious person without leave of court would be in der og ation of the common law, and those statutes which authoriz e fili ng such suits must do so expli citly

. Bogseth
, 166 I ll. 2d at 514. The lead opinion does not claim that there is anything expli cit in section 2-616(b) (or any other statute) that allows the intentional filing of a complaint under a fi ct i t ious name without leave of court. Thus, beca use the

common law prohibits suits filed under a fictitious name without leave of court and considers them to be a nullity
, and beca use section 2-616(b ) d o es not provide “a clea r aff irmative indication that such suits ar e permissible,” this c ourt cannot proper ly conclude that section 2-616(b) permits suits to be broug ht under the name of a fictitious person. See Bogseth
, 166 I ll. 2d at 514. ¶ 70 The appellate court appropriately looked to the common law to resolve the issue. I t c ited Alton Eve ning Telegraph v. Doak
, 11 I ll. App. 3d 381, 382 (1973 ), for the axiom atic principle that a “suit broug ht in a name whi ch is not that of a natura l person *** is a mere nullity ; and in such a case *** the whole action fails.” The lead opin i o n p ro t es ts that this statement from Alton is not applicable to the present case b ec ause here the appellate court did not look to the “conte x t of the opinion” in Alton . See supra ¶ 27. In Alton
, the attorney for the plaintiff brought suit in the name of “Alton Evening Teleg raph,” which was not an entity capa

ble of suing. Alton essentially found that the suit was a nullity and it was too late afte r judgme n t t o bring suit under the name of the corr ect leg al entity

— Alton Eve ning Telegraph, Inc. —even w h er e t h at corr ect entity ’s name appea red in an ex hibit attache d to the complaint. Alton , 11 I ll. App. 3d at 382. ¶ 71 The lead opinion finds Alton “wholly inapplicable” beca use it did not purport to hold that any action commence d in a fictitious name without leave of court is null and void. See supra ¶ 27. What the lead opinion fails to rec og nize, howeve r, is that the point it ca n n o t find in Alton is inde ed settled I llinois law. I llinois courts have historically and uniformly held that “a proce eding by or against a party by a mere fictitious name will be a nullity .” (Empha sis added.) (Interna l quotation marks omitted.) Bogseth
, 166 I ll. 2d at 514; Ohio Millers Mutual Insurance Co. v. Inter-I

nsurance Exc hange of the Illinois Automobile Club , 367 I ll. 44, 54

-15-(1937); Goodkind v. Bartlett
, 153 I ll. 419, 423 (1984); Theodorakakis v. Kogut
, 194 I ll. App.

3d 586, 589 (1990); see also Jenk ins v. National R.R. Passenger Corp.
, No. 07-C-3427, 2008 WL 68685 (N.D. I ll. 2008) (apply ing I llinois law, the fede ral court held that (1) suits broug ht
ag ainst fictitious parties are void ab initio
, (2) such suits deprive the court of subject matter jurisdiction, and (3) the claims involved are not shielded from the statute of limit ations bar) ; see also Smith v. C ommissioners of Roads & Rev enue , 31 S.E.2d 648 (Ga . 1944) (be cause the orig inal action by the fictitious party is a nullity
, there is no ca u s e of action pending befor e the court a n d an amendment adding the name of a rea l or ex isting party will not be permitted). ¶ 72 I find this court’s decision in Bogseth to be particula rly helpful. There
, the plaintiffs filed

a complaint for discovery
, naming as the sole defe ndant a fictitious “John Doe” in addition
to named responde nts in discovery

. The plaintiffs later converted the responde nts in discovery to de fenda nts. The converted defe ndants subsequently filed a motion to dismiss
, insisti ng that the court did not have subject matter jurisdiction over the case , and that section 2-402 of the Code (735 I L CS 5/2-402 (West 1992)), wh i ch al l o ws a plaintiff to desig nate responde nts in discovery “other than the name d defe ndants,” did not preve nt the orig inal complaint from being a nullity . This c ourt ag ree d with the defe ndants. Bogseth , 166 I ll. 2d at 513-14. ¶ 73 Specifica lly
, Bogseth held that suits broug ht ag ainst fictitious parties are void ab initio

. Bogseth
, 166 I ll. 2d at 513-14. This court cited with approva l the settled holding of Ohio Millers that “ ‘a proce eding by or against a p ar t y by a mere fictitious name will be a nullity .’ ” (Emphasis added.) Bogseth
, 166 I ll. 2d at 514 (quoting Ohio Mi l l er s , 3 6 7 I ll. at 54). The court further noted that the common law prohibits filing lawsuits ag ainst fictitious defe ndants, and a ny

statute to the contra

ry would be in der og ation of the c ommon law and would have to be strictly construed ag ainst allowing such suits. Bogseth
, 166 I ll. 2d at 514. This c ourt conclude d that beca use there was no aff

irmative indication in section 2-402 that such suits are perm i s s i b le, it could not find that section 2-402 permits suits to be broug ht
ag ainst fictitious persons. Bogseth , 166 I ll. 2d at 514. 4 ¶ 74 I would find Bogseth controlling

. The specia l concur renc e of J ustice Bur

ke sug g ests that the lead opinion should find Bogseth distinguishable, arg uing that the common law rule that

a complaint may not be filed under a fictitious name has been superc eded by section 2-401(e ) in this case

. See supra ¶ 55 (B urke, J
., specia lly concur ring
, joined by Fr eema n, J .). I n partial d er o gat ion of the common law, section 2-401(e ) provides that parties may appea r under fictitious names “[u] pon application and for g ood cause shown.” 735 I L CS 5/2-401(e) (West 2008). Section 2-401(e ) is silent, howeve r, as to what eff ect failure to seek leave of court to file under a fictitious name (and to show g ood cause ) will have on plaintiff’s cause of action. ¶ 75 The problem with J ustice B u r k e ’ s an aly sis is that it ignor es the fundame ntal principle that “a court cannot construe a statute in derog ation of the common law bey ond what the words of the statut e ex press[ ] or bey ond what is nece ssarily implied from what is expressed.” Adams v. Northern Illinois Gas Co.
, 211 I ll. 2d 32, 69 (2004); see also Heider v. Knautz
, 396

Bogs et h went on t o ho ld tha t i ts dec is ion sho uld be giv en p ros pec ti ve appl ic at ion

. 4

-16-I ll. App. 3d 553, 561 (2009). I n construing a statute in derog ation of the common law, a court

will not presume a modification that g oes further than the modification that the statute specifie s or clearly implies. Adams
, 211 I ll. 2 d at 6 9

. Thus, I llinois courts have l imited all

manner of statutes in derog ation of the common law to their express lang uag e, in order to eff ect the least—rather than the most—alteration in the common law. Adams
, 211 I ll. 2d at 69 (collec ting c ases)

. ¶ 76 T h u s , it is clea r that section 2-401(e ) must be interpre ted to eff ect o n l y a l i m i t ed modificat i o n t o t h e common law rule that complaints filed under a fictitious name are a nullity

. What that means in this case is that section 2-401(e ) limit s the common law rule only to the extent that a complaint filed under a fictitious name is done “[u]pon application and for g ood cause shown.” There is no question here that the complaint filed under the fictitious

name of “Juan Ortiz” was done without application and without g ood cause shown—as the question certified for this court assumes t hat Santiag o filed the c omplaint without l eave of court unde r a fictitious name. Thus, the c ommon law rule finding complaints broug ht by a fictitious party

to be null and void is directly applicable to this case. ¶ 77 J ustice Bur

ke claims that fede ral courts have rea che d t h e s am e co n clus ion as her “ in interpre ting simil ar provisions in fede ral law.” See supra ¶ 59 (B urke, J
., specia lly

co ncurring, joined by Fr eema n, J .). The fede ral case s cited by J ustice Bur ke are ea s i l y distinguishable, howeve r, as they exclusively involved discussions of the fed eral rules of civil proce dure and did not addre ss the validity of the I llinois common law rule or any simil ar state or fede ral common law rule. For example, in EW v. New Y ork Blood Center
, 213 F.R.D. 108, 109-10 (E.D.N.Y

. 2003), and Doe v. Barrow County
, 219 F.R.D. 189 (N.D. Ga. 2003), the defe ndants’ jurisdictional arg uments relied solely on Fe dera l Rule 10(a)
, which g ener ally require s every party to be named in the complaint. Nothing in Fe dera l Rule 10(a) addre ssed when a court mig ht lack jurisdiction or when a complaint might be r ender ed null. There is obviously a world o f d i ff er ence betwee n a state common law rule that direc tly holds that complaints broug ht by or ag ainst fictitious parties are null, and Fe d er al Rule 10(a)
, which simply provides that “the complaint must name all the parties.” See Fe d. R. Civ. P. 10(a)

. Given that none of the cases cited by the s pecia l concur renc e addressed any arg ument that those courts lacked j u risdiction based on a common law rule deeming as null a complaint filed by or on behalf of a fictitious party , they are not helpful in resolving the question befor e

us. ¶ 78 Additionally
, J ustice Bur ke’s ref ere nce to sections 2-407 and 2-616 of our own state code is misplaced. Bo t h s t at u tory sections deal with nonjoinder of nece ssary parties. Neither section specific ally or impliedly addre sses the impact that filing a complaint solely under a fictitious name without leave of court has on the case

. Nor does either section even impliedly alter the common law rule ag ainst the use of fictitious na mes, and thus nothing there in can be re ad to expressly

abrog ate the c ommon law rule. ¶ 79 Moreove r, it cannot se riously be maintained that the holding in Bogseth should be limited

so as to apply only to complaints that are broug ht ag ainst fictitious defendants

. There would be no princ ipled rea son for such a limit ation. ¶ 80 Wit h respe ct to J ustice Kar meier’ s claim in his specia l concur renc e that the common law

-17-rule a pplies only

to fictitious parties and not fictitious names, I note that the ca se law doe s not make any distinction betwee n fictitious parties and fictitious names. J ustice Karmeier
appea rs to be the first t o m ak e t his distinction. I f anything, J ustice Karmeier has it b ac k wards. The black letter common law that I rely upon states very clea rly that “ ‘a
p ro ce ed i n g by or ag ainst a party by a mere fictitious name will be a nullity .’ ” (Emphas i s added.) Bogseth
, 166 I ll. 2 d at 5 14 (quoting Ohio Millers
, 367 I ll. at 54, citing Marsh v. Astoria Lodge No. 112, Indepe ndent Order of Odd Fellows
, 27 I ll. 421 (1862))

. The rule as stated presumes that there is an actua l party , but also that that party is attempting to proce ed under a fictitious name. ¶ 81 Thus, J ustice Kar meier is incorre ct in his belief that t h e co m m o n l aw ru l e i s o nly applicable when persons or entities purported to be parties “do not actua lly exis t.” See supra ¶ 40 (Ka rmeier
, J
., specia lly conc u rr i n g ). To be sure, Bogseth also quite clea rly states t hat “suits broug ht ag ainst fictitious parties are void.” Bogseth
, 166 I ll. 2d at 513. But tha t j u st happene d to be the particula r situation the court was addre ssing in Bogseth
, as the plaintiff there named a fictitious “John Doe” as a responde nt in discovery

. Of upmost importance
, howeve r, i s that nothing in Bogseth or Ohio Millers can beinterpre ted to limit the broader principle that a party cannot bring a suit bya mer e fic titious name or sue a person or entity by a fictitious name without leave of court. “ ‘It re q u i res, indeed, but the mention of it, to show that to allow leg al proce eding s ag ainst parties by mere descr iptions or fictitious names would be simply absurd and g rossly illogica l.’ ” (Emphasis added.) Ohio Millers
, 367 I ll. at 54 (quoting Goodkind v. B artlett , 153 I ll. 419 (1894)). ¶ 82 Both Marsh and Goodkind are helpful in explaining why J ustice Ka

rmeier is making a distinction wi t h o u t a differ ence

. Marsh involved a corpor ate plaintiff that did not have authority to sue, except under the exact sty le desig nated by the statute that made the incorporation. Thus, there was a “re al” plaintiff in that case who was not allowed to proce ed beca use of the common law doctrine that bars a plaintiff from proce eding under a fictitious

name. See Ohio Millers
, 367 I ll. at 54 (citing Marsh for the proposition that a proce eding by a party by a fictiti ous name will be a nullity ). S imilarly
, in the present case , Santiag o is an actua l person, but he did not have the authority to sue under the fictitious name of J uan Ortiz, wher e that name cannot beconsidere d a validly assumed alias. ¶ 83 I n Goodkind , the plaintiff attempted to sue a re al per son or party when he attempted to

name the wife of J ohn N. Hummer, whose actua l name happene d to be Rache l B. Hummer. The plaintiff’s summons named as defe ndants “John M. Hummer and

___ Hu m m er , his wife.” J ustice Kar meier is corr ect that Goodkind invoked the principle that “per sons, natura l

o r ar t i fi cial, cannot be made parties litigant by mere descriptio persona , but must be desig nated by

name.” Goodkind , 153 I ll. at 423. But he f ails to acknowle dg e that the c ourt in its holding also invoked t he princ iple that “a pr ocee ding by or ag ainst a party by a mere fictitious name will be a nullity .” (Emphasis added.) See Goodkind
, 153 I ll. at 423; see also Ohio Millers
, 367 I ll. at 54 (explaining the holding in Goodkind ). J ustice Karmeier is corr ect that the defe ct in Goodkind was that Rache l Hummer, as “one of t h e d ef endants was not identified by name at all.” See supra ¶ 42 (Ka rmeier
, J
., specia lly concur ring ). But it is also just as clea

r that the result would have been the same had the plaintiff in that case attempted to name Rac hel Hummer by using a fictitious name instead of not na ming a person at all.

-18-¶ 84 Nor are there “any g ood or obvious p o l i cy re as o n s ” t o distinguish betwee n fictional

names and fictional persons as J ustice Karmeier sug g ests. Se e s u p ra ¶ 4 0 (Ka

rmeier
, J
., specia lly concur

ring ). But there a

re, how ever , strong policy rea sons to consider as void ab initio complaints that are broug ht by plaintiffs using fictitious or false names for themselves without leave of court. I n contra st to Bogseth wher e the only problem with the complaint was that the plaintiffs could not name a nonfictitious defe ndant at the outset of litigation, an attorney bring ing suit should alway s know the identity of his client befor e bring ing suit. See Alton
, 11 I ll. App. 3d at 382. Additionally
, d el i b er ately bring ing suit under a false or fictitious name without leave of court constitutes a fra ud upon the court in my opinion. See Hazel-Atlas Glass Co. v. Hartford-Empire Co.
, 322 U.S. 238, 245-46 (1944), overruled on other grounds by Standard Oil Co. v. United States
, 429 U. S

. 1 7 (1976). I t “ce rtainly qualifies as flag rant contempt for th e j u d i cial proce ss and amounts to behavior that
transce nds the i ntere sts of t he parties in the underly ing a ction.” Dotson v. Bravo , 321 F.3d 663, 668 (7th Cir. 2003). This is no doubt why it is such a rar e occur renc e in the case law for a litiga nt to deliberate ly

file a c omplaint using a f ictitious name without leave of c ourt. ¶ 85 I n Dotson
, the Seventh Circu i t C o u rt o f Appeals was confr onted with just such a ra re

occur renc e. There, a man whose r eal name was DeMa rco Sheppard filed a civil rig hts suit under the false name of “ Sh a u n te D o ts o n

. ” D u rin g d iscovery proce eding s, defe ndants learned of Sheppard’ s true identity

. They also learned that he had cre ated a differ ent birthday for his Dotson persona

. Despite the fac t t h at S h eppard eventua lly disclosed his true identity and birth date, the Court of Appea ls found that the “instant case repr esents prec isely the situation wher e one party ’s conduct so violates the judicial proce ss that imposit ion of a harsh penalty [of dismiss al of the suit with prejudice ] is appropriate not only to reprimand the offe nder, but also to d et er future parties from trampling on the i nteg rity of t he court.” Dotson
, 321 F.3d at 668. ¶ 86 I t is true that Dotson did not involve the I llinois common law rule deeming complaints broug ht under a fictitious name to be a nullity and void ab initio

. Rather, the court rested its decision upon “the court’s inhere nt authority to rec tify abuses to the judicial proce ss” and
upon fede ral court rules that addre ss sanctions for discovery violations. Dotson
, 321 F.3d at 666-67. But Dotson supports my larg er point that the I llinois common law rule deeming such complaints void ab i n i t i o is supported by strong policy rea sons and that there is nothing

rema rkable about the end r esult of dismissal with prejudice in such c ases. ¶ 87 The lead opinion of Chief J ustice Kilbride seems to claim that “Ju an Or t i z ” was not a fictitious name when it g oes down the road of citing the g ener al proposition that a person can b ri n g a leg al proce eding in his “g ener ally known name.” See supra ¶ 28. The 800-poundg orilla-in-the- room problem with the lead opinion’s analy sis is that the certified question did
not ask us to rule on the assumpt ion that the original complain t was brought in Santiag o’s “g ener ally known name,” but rathe r t he question aske d us to assume that he “intentionally file[d] a complaint using a fictitious name, without leave of court to use a fictitious name.” ¶ 88 Santiag o makes the same sort of faulty arg ument as the lead opinion; he arg ues that “Juan Ortiz” was a “validly assumed” ali as , u nder which he was entitled to bring suit. This
arg ument, of course , suffe rs from the same defe ct as the lead opinion’s a rg ument. I t be g ins with an assumption that i s co m p l etely contra ry to the premise imposed by the certified

-19-question, which asks us to ass u m e t h at “Juan Ortiz” is a fictitious name, not a validly

assumed alias. ¶ 89 But there are even g rave r problems with t h e l ea d o p i n i o n ’s and Santiag o’s ana ly ses. Citi ng Bla ck’s L aw Dic tionary , Santiag o conce des that there is a clea r distinction between a fic titious name a nd a validly assumed alias. Santiag o asserts that one ca n validly assume

an alias, as long as the purpose is not to sub v er t j u s t i ce or perpe trate a fraud. I n contra st, Santiag o acknow ledg es, a “fic titious name” is not g iven t he same favor able tre atment as a

mere alias. See Bogseth
, 166 I ll. 2d at 514. A fictitious name is de fined as “[a] counte rfe it, alias, feig ned, or prete nded name taken by a person, differing in some essential particula r from his true name *** with the implication that it is meant to dece ive or mi s l ead .” (Emphasis adde d.) B lack’ s L aw Dic tionary 624 (6th ed. 1990). ¶ 90 I would find that the circ uit c ourt’s choice of the word “fic titious ” is w ell supported by the evidenc e in the rec ord, including Santiag o’s own deposition testimony in this case g iven in May of 2009. The evidenc e showed that during the course of the litigation, Santiag o filed his answer s to three se ts of interrog atories, which reque sted among other things, his name. Santiag o answe red “Juan Ortiz” and “Juan J ose Ortiz.” The interrog atories also asked for his medical history
, and S an t i ago only rela ted information for “Juan Ortiz.” He also failed to identify Roga sciano Santiag o as his true name or even as another name that he had used. I t

was not until more than a y ear afte r the initial complaint was filed that he divulge d his true

name during hi s deposition testimony

. That testimony showed that he enter ed the United States illega lly in 1993 and came to Chicag o. He worke d at his first two jobs using his true

name. He testified, howeve r, that at some point, he beg an using the fictitious name of “Juan Ortiz” for a

number of y ear s “to have a job without using my name.” Although Santiago’ s birth date is May 24, 1967, he used a false birth date of Fe bruary 17, 1966, whene ver he used the fictitious n am e o f “Juan Ortiz” on job applications. Santiag o further testified that he “fixed” his leg al status by becoming a resident alien sometime befor e his de position in this

case

. He also had obtained a state-issued identification car d in the name of “Juan Ortiz,” but has since thr own it out, and has bee n issued a new car d under his true name. ¶ 91 I

have no qua

rre l with the principle that one has a rig ht to adopt an alias as long as it is validly assumed and its purpose is not to dece i ve, or as Santiag o puts it, “as long as its
purpose is no t t o subvert justice or perpe trate a fraud.” But there is enoug h undisputed evidenc e in the rec ord to determine that it was exactly his purpose in u s i n g t h e al i as to subvert justi ce and perpe trate a fraud. At any rate , the certified question assumes that the

name was a fictitious one, and we cannot assume differ ently

. I n other words, we are limit ed to considering the spec ific fa ctual situation prese nted by the ce rtified question, that is, to a situation wher e a plaintiff intentionally files a complaint un d er a fictitious name without leave of court. ¶ 92 Be g inning on the rig ht road, the lead opinion c orre ctly states that “[t] he fac tual rea sons for [S antiag o] using a fictitious name are irrele vant t o our inquiry on the leg al question

certified by the trial court.” Supra ¶ 26. But then the lead opinion veer s off over a g uard rail and addr esses a

differ ent l eg al questi on from the one certified by the t rial court. I nstead of addre ssing the question certified by the trial court of whether an amende d complaint rela tes back to a complaint intentionally filed under a fictitious name without leave of court, the lead

-20-opinion addre sses the differ ent question of whether an amende d complaint rela tes back to

a complaint filed unde r a generally k nown name . See supra ¶ 28. ¶ 93 As if that wer e not bad enoug h, the lead opinion then relies on completely inapposite ca se law to support its point. The end result is that it cre ates an odd new rule that allows litigants who file suits under wholly dece ptive and fictitious names to be treated the same as a person who, for example, is named Wil liam Smit h and innocently files suit as Bill Smit h. The lead opinion cites People v. Montgomery
, 271 I ll. 580 (1916), and Lucas v. Farrington
, 21 I ll. 31 (1858), for the proposition that this court has rec og nized that a person may be named in leg al
proce eding s by his or her g ener ally known name. Neither case , howeve r, has the least bit of application to the ca se bef ore us. ¶ 94 Montgomery was a criminal case wher e the d ef en d an t wa s char g ed with the sale of

coca ine hy drochloride without the written presc rip t ion of a reg istered phy sician. The information char g ed that the illega l sale was made to “P earl Wil liams.” At trial, the State called “Clara Wil liams” as a witness. She identified herse lf as C. Wil liams and testified that she purcha sed the bottle of coca ine from the defe ndant. Other witnesses wer e also called to testify
, and in speaking of the first witness, alway s ref err ed to her as “Pearl.” The defe ndant
arg ued befor e this court that the evidenc e was insufficient to sustain the g uilty verdic t under the circ u m s t ance s. This court rejecte d that arg ument, rema rking that the j ury was just ified in concluding from the evidenc e that the witness “Clara Wil liams” was g ener ally known by the name of

“Pear l Wi lliams.” Montgomery , 271 I ll. at 582. ¶ 95 I t is rea dily appar ent that Montgomery had absolutely nothing to do with wh et h er a litigant may bring a suit in their g ener ally known name. Rather, the question was whether the confusion over the identity of the witness cre ated a rea sonable doubt of the defe ndant’s g uilt. ¶ 96 Farrington
, a ca s e d ec i d ed two y ear s befor e the Pony Ex press ga lloped out on its first
run, involved a plaintiff who broug ht suit in the name of “S. S. F arrington.” The defe ndant complained that the plaintiff was called and known by the name of “Samuel S. Fa rring ton.” The plainti ff replied t hat he was “as well known by the name of S

. S. Fa rringto n as by the

name of Samuel S. Fa

rring ton.” The court reje cted the defe ndant’s “plea of misnomer” and found that t h e plaintiff could proce ed under such circ umstances “eve n if the Christian or g iven name is made up of initials only .” Farrington
, 21 I ll. at 32-33. Farrington was decide d long befor e the law on misnomer or bring ing suits under fictitious names was fully develope d in I llinois

. ¶ 97 Th e s i t u ation befor e us is immensely differ ent from the situations in Montgomery and Farrington wher e someone sues or is complaining as a witness in a name that differ s slightly from their leg al name, but y et is a name they are co m m o n l y k n own by and is not for the
purpose of promoting a false identity

. Unlike the situations in those two case s, “Juan Ortiz” is not sim ply

a nickna me of Rog ascia no Santiag o. I nstead it is a fa lsely assumed identity

. ¶ 98 Santiag o assumed his alias to avoid dete ct ion and to illega lly g ain employ ment in the United States. He even went so fa r as to have a separ ate identification car d for J uan Ortiz with a differ ent birth date. Santiag o used both his false name and his true name in a number

o f d if f ere nt jobs, cre ating completely separ ate work, medical and financ ial histories. The le a d opinion disag ree s with the appellate court’s assessment that “ther e is no question that ‘Juan

-21-Ortiz’ is not the leg al name o f a natura l person, and there fore any action commence d on

beha l f o f J u an Ortiz is null and void.” See supra ¶ 27; 406 I ll. App. 3d at 464. But under these circ umstances, I completely ag ree with the appellate court that J uan Ortiz was not the leg al name of a natura l person. I n fac t, “Juan Ortiz” was not the valid name of a person at all as fa r as this ca se is conce rned. ¶ 99 The lead opinion woef ully misapprehe n d s t h e ap p el l at e co u rt ’s h o l d i n g when it char acte rizes it as claiming that a complaint is a nullity whene ver a person “files a complaint using a name other than his or her ‘leg al’ na me.” See supra ¶ 29. But this is most c erta inly
not what the appellate court held. I nstead, the appellate court held that a plaintiff “who intentionally conce als his identityby filing suit under a false name,” using a false ide ntity
, cannot rely on the rela tion-back doctrine. (Emphasis in orig inal.) See 406 I ll. App. 3d at 464- 66. The appel l at e co u rt’s hol ding would seem to be sound public policy and is seamlessly in line with I llinois prec edent. The appellate court was also car eful to note t hat i ts holding
was not mea nt to be rea d as broa dly as the lea d opinion sugg ests: “We note that our holding on this point is limit ed to the specific fac tual situation
prese nted by the cer

tified question, that is, to a situation in whi ch a p l aintiff intentionally files a complaint under a false name without leave of court. Our holding does not addre ss any other situations ***. We there fore express no opinion on those issues.” 406 I ll. App. 3d at 466. ¶ 100 As a final matter, I believe that this co u rt m u s t consi der the misnomer statute, which provides in rele vant p art that “[m] isnomer of a party is not a g round for dismiss al but the

name of any party may be corr ecte d at any time.” 735 I L CS 5/2-401 (West 2008). The statute also implies the conver se—that is, if the misnaming of a party is not considere d a misnomer, it may be grounds fo r d ismiss al and the name may not be able to be correc ted at any time. Santiag o’s main arg ument (and his only arg ument other than that he used a validly assumed alias) is that the use of

“Juan Ortiz” was a mer e misnomer that could becorr ecte d. ¶ 101 I would find Santiag o’s arg u m en t t o b e wi t h o u t m er it. Misnomer is “[a] mistake in naming a person *** in a leg al instrument.” (Emphasis added.) Bla ck’s L aw Dictionary 1090 (9th ed. 2009). I ndeed, our appellate court has repe atedly rec og nized that “ [m ]i snomer is a mistake in name or the provision of an incorre ct name to the person in accusation or pleading .” S ee, e.g. , Todd W

. Musburger, L td. v. Meier
, 394 I ll. App

. 3 d 7 8 1
, 806 (2009); Illinois Institute of Technology Resea r ch Institute v. Industrial Comm’n
, 314 I ll. App. 3d 149, 156 (2000). Ordinar ily
, a misnomer can be corr ecte d throug h a mot i o n t o am en d. Misnomer, howeve r, must be distinguished from mistaken identity

. Illinois Insti tute of Technology
, 314 I ll. App. 3d at 156. I f mistaken identity occur s, amendment must meet the require ments of the rela tion-back provision of section 2-616 of the Code. Estate of Henry v. Folk , 285 I ll. App. 3d 262, 264 (1996). ¶ 102 To beg in with, the prese nt case is the “re latively unusual” situation wher e a plaintiff has improperly

identified himself. See Illinois Instit ute of Technology
, 314 I ll. App. 3d at 156. What makes this case completely unique to I llinois law, howeve r, is that Santiag o intentionally adopted a false identity and named himself using that identity rathe r t h an h i s true identity

. Furthermore
, the deliberately adopted false identity was a fictitious name, not

-22-a validly assumed alias as discussed above. A varie ty of fac t patterns have been decide d by

the appellate court whe re p l ai n tiffs have simply missty led or misidentified themselves by mistake, bu t n o n e o f those case s are fac tually simil ar to the prese nt case

. For example, in Musburger
, 394 I ll. App. 3d at 805, the plaintiff missty led itself as “The L aw Of fice s of Todd W. Musburg er, L td.,” rathe r than “Todd W

. M u sburg er, Ltd.” I n Illinois Institute of Technology
, the widow of a dece ased worke r in a worke rs’ compensation case named herse lf as the c orre ct party , but in the wrong capa city

. See Illinois Institute of Tec hnology , 314 I ll. App. 3d at 157. I n Bristow v. W estmore Builders, Inc.
, 266 I ll. App. 3d 257, 259-60 (1994), the plaintiff missty led himself in his initial complaint as a corpor ation—“Manning Bristow Painting and Dec orating
, I nc.”—r ather than as a sole p ro p rietorship—“Ma nning Bristow d/b/a Manning Bristow Painting and Dec orating .” I n C a l ve rt Distill ers C o. v. Vesolowski
, 14 I ll. App. 3d 634, 636 (1973), the plaintiff sty led its name as “House of Seag ram, I nc.,” but the actua l plaintiff was “Joseph E. Seag ram and Sons, I nc.,” the company into which the House of Seag ram, I nc., had merg ed. Her e, in stark contra st to the above- discussed case s, S an tiag o adopted the false identity of J uan Ortiz and filed suit under that identity

. T h u s , I would find that this case is not a misnomer, but instead falls more under a mistaken-identity classification (whe re the wrong party is named and wh i ch usually occur s when a plaintiff

sues the wrong party ). See Fitzpatri ck v. Pitcairn
, 371 I ll. 203, 208 (1939)

. T he only differ ence in this case is that there was no mistake—Santiag o deliberately misidentified himself and substitut ed an alternate identity for his true identity

. Santiag o’s conduct was thus doubly eg reg ious for purposes of a misnomer analy sis, as he sued under a false identity and there was no mistake a

bout it. ¶ 103 Her e, the certified question acc epts that Santiag o intentionally filed the complaint in the
wrong name, which nece ssarily means that he did not make a mistake. I ag ree with the appellate court’s conclusion below that the misnomer doctrine is not int ended f or use by a plaintiff who intentionally conce als his identity by filing suit under a false n am e, and Santiag o has not direc ted us to any authority t o t he contra ry

. See 406 I ll. App. 3d at 465. Moreove r, he cannot use the doctrine to validate what is otherwise a null pleading under the circ umstances he re. ¶ 104 For all of the rea sons set forth above, I would find that the appellate court proper ly found that Santiag o’s cause o f ac tion should be dismiss ed with prejudice on the g round that the limit ations period had expired and that the rela tion-back doctrine did not save the suit under the circ umstances. Ac cording ly , I respe ctfully

dissent.

¶ 105 J USTI CE GARMAN joins in thi s dissent.

-23-