SECOND DIVISION
February 15, 2005

JUSTICE WOLFSON delivered the opinion of the court:

The issue in this case is whether the plaintiff can pursueher claim against the owners of the building where she fell, eventhough her complaint against them was filed after the running ofthe statute of limitations.

Plaintiff Jennifer Pruitt (Pruitt) appeals the dismissal ofher premises liability action against Dobroslav and Vesna Pervan(the Pervans). The trial court dismissed the Pervans becausePruitt failed to name them as parties within two years of herinjury. Pruitt relies on section 2-616(d) of the Illinois Codeof Civil Procedure (Code) (735 ILCS 5/2-616(d) (West 2002)) forher claim that her amended complaint naming the Pervans relatedback to her original complaint. The trial court did not agree. Neither do we. We affirm.

FACTS

On September 17, 2000, Pruitt fell on a stairway and injuredherself while visiting an apartment building at 8147 South EllisAvenue (the Property) in Chicago. On January 18, 2002, she fileda one-count complaint against Wolin-Levin, Incorporated (Wolin-Levin), alleging it was negligent in managing, maintaining, andinspecting the Property, and that its negligence resulted inPruitt's injuries. Specifically, Pruitt alleged Wolin-Levinfailed to inspect the stairway and provide proper lighting.

On November 6, 2002, Wolin-Levin disclosed that it managedthe property at the time of Pruitt's accident and that thePervans owned the Property.

At a deposition on March 19, 2003, Ivo Vasilj, theProperty's manager, said his responsibilities included paying theProperty's bills and inspecting apartments when tenants vacatedthem. Vasilj said the Pervans were responsible for theProperty's maintenance, which included replacing light bulbs inthe common areas and making other repairs. Vasilj was aware ofPruitt's accident and reported it to the insurance company andthe Pervans.

On April 7, 2003, Pruitt filed a motion to amend hercomplaint and add the Pervans as defendants. The trial courtgranted the motion and defendants were served a copy of theamended complaint.

On September 8, 2003, the Pervans moved to dismiss thecomplaint, contending Pruitt's claim against them was barred bythe statute of limitations. Pruitt contended the amendedcomplaint related back to her original complaint under section 2-616(d) of the Code. At a hearing on the Pervans' motion, thefollowing discussion occurred:

"[THE COURT]: *** I don't understand whythe owners weren't sued in the first placewhen you know that somebody was simply amanager of the property.

[PRUITT'S ATTORNEY]: Wedidn't know the identityof the owners until afterthe statute ran.

***

[THE COURT]: *** You had no idea to suethe owner of the building? You just wantedto sue who you considered--you felt thatWolin was the manager of the building. Youhad no intention of suing the owner?

[PRUITT'S ATTORNEY]: Well, Judge,hindsight is 20-20. I must concede that.

***

Hindsight is 20-20. What I am saying now, Irepresent someone that did not live in thebuilding, someone that went to visit and fellthere. We see that [Wolin-Levin] is themanagement company. But it turns out fromdeposing [Vasilj], that he said that thismaintenance issues [sic] we do not do, theowners did it.

***

[THE COURT]: It seems to me that you suethe management thinking that the managementhad the responsibility for changing bulbs andother routine--

[PRUITT'S ATTORNEY]: For managing thebuilding.

[THE COURT]: And for managing thebuilding. That's who you intended to sue andthat's who you thought was liable.

[PRUITT'S ATTORNEY]: Right."

The trial court determined Pruitt's amended complaint didnot meet the "mistaken identity" requirement of 2-616(d) andgranted the Pervans' motion. The court said:

"I'm sympathetic to the plaintiff, but Idon't think that that is what [section 2-616(d)] speaks in terms of. They did havenotice, but it didn't seem to me that amistake concerning the identity, but youintended to sue Wolin-Levin and that's whoyou did sue as manager, but who you shouldhave sued were the owners ***.

***

I just don't think that the mistakeconcerning the identity of the proper party,I don't think there was a mistake. I think[counsel] intended to sue who he intended tosue."

DECISION

Plaintiff asks us to reverse the trial court's section 2-619dismissal (735 ILCS 5/2-619 (West 2002)) of her claim against thePervans.⁽¹⁾ We review section 2-619 dismissals de novo. Fergusonv. City of Chicago, No. 97218, slip op. at 3 (Ill. November 18,2004). Despite the unnecessarily strident tone of appellant'sbrief, we believe the trial court interpreted section 2-616(d) ofthe Code correctly (735 ILCS 5/2-616(d) (West 2002)).

Plaintiff admits she did not name the Pervans as defendantsuntil approximately seven months after the two-year limitationsperiod expired. The only way her claim can survive dismissal isif she meets the requirements of section 2-616(d) of the Code.

Section 2-616(d) provides:

"A cause of action against a person notoriginally named a defendant is not barred bylapse of time under any statute or contractprescribing or limiting the time within whichan action may be brought or right asserted,if all the following terms and conditions aremet: (1) the time prescribed or limited hadnot expired when the original action wascommenced; (2) the person, within the timethat the action might have been brought orthe right asserted against him or her plusthe time for service permitted under SupremeCourt Rule 103(b), received such notice ofthe commencement of the action that theperson will not be prejudiced in maintaininga defense on the merits and knew or shouldhave known that, but for a mistake concerningthe identity of the proper party, the actionwould have been brought against him or her;and (3) it appears from the original andamended pleadings that the cause of actionasserted in the amended pleading grew out ofthe same transaction or occurrence set up inthe original pleading ***. For the purposeof preserving the cause of action under thoseconditions, an amendment adding the person asa defendant relates back to the date of thefiling of the original pleading so amended." 735 ILCS 5/2-616(d) (West 2002).

There are very few Illinois opinions discussing this sectionof the Code since its amendment became effective in 2002. Theprevious version of the statute listed five requirements a partyhad to meet before an amended complaint would relate back to anearlier pleading. Three of those requirements, including thatthe "failure to join the person as a defendant was inadvertent,"do not appear in the amended statute. 735 ILCS 5/2-616(d) (West2002); 735 ILCS 5/2-616(d) (West 2000). Instead, section 2-616(d) now requires that would-be defendants "knew or should haveknown that, but for a mistake concerning the identity of theproper party, the action would have been brought against him orher." (Emphasis added.) 735 ILCS 5/2-616(d)(2) (West 2002).

By amending this section, the legislature intended to imposemore stringent requirements for amended complaints--like thoseembodied in the Federal Rules of Civil Procedure. Compton v.Ubilluz, 351 Ill. App. 3d 223, 233-34, 811 N.E.2d 1225 (2004). Before examining the requirements of section 2-616(d), the courtmust assess whether the section applies at all. That is, is thisa case of mistaken identity? See Fassero v. Turigliatto, 349Ill. App. 3d 368, 370-74, 811 N.E.2d 252 (2004); see also Manneyv. Monroe, 151 F. Supp. 2d 976, 998 (2001) (no identity mistakeunder Rule 15(c)(2) of the Federal Rules of Procedure where theplaintiff's failure to initially name the defendant until afterthe limitations period expired was due to his ignorance of thedefendant's involvement in the alleged wrong).

In Fassero, 349 Ill. App. 3d at 370-74, the court conductedthis preliminary analysis before determining whether theplaintiff met section 2-616(d)'s requirements. There, theplaintiff was injured in a car accident. Todd Turigliatto wasdriving the other vehicle involved in the accident. Todd'sbrother, Thomas Turigliatto, owned the vehicle. The plaintiffsaid the driver identified himself as Thomas at the scene of theaccident, so she filed a complaint naming Thomas as thedefendant. When plaintiff discovered Todd was the driver, andnot Thomas, she moved to amend her complaint and name Todd as thedefendant instead. Fassero, 349 Ill. App. 3d at 369-70.

The court examined the plaintiff's intent in bringing thesuit to determine if the case involved mistaken identity. Fassero, 349 Ill. App. 3d at 371. The plaintiff's intent wasgleaned from the record, especially by looking at whom theplaintiff named as a defendant in the complaint. The plaintiff'scomplaint addressed the conduct of the driver of the vehicle--"[n]owhere in the complaint [did Plaintiff] allege the owner ofthe vehicle violated his duty of care to her." Fassero, 349 Ill.App. 3d at 372. Based on the complaint, the court found theplaintiff mistakenly believed the driver's name was Thomasinstead of Todd--a classic mistaken identity situation. Fassero,349 Ill App. 3d at 372.

We believe Fassero is distinguishable and in thatdistinction lies our rationale for affirming the trial judge. There, the plaintiff intended to sue the driver of the vehiclethat collided with hers. She mistakenly believed the driver'sfirst name was Thomas, instead of Todd. She never intended tosue Thomas, the owner of the vehicle.

Here, the pleadings and Pruitt's attorney's comments revealPruitt's intent was to sue the Property's managers--Wolin-Levin. The complaint alleged negligence in the management of theProperty. Pruitt correctly identified Wolin-Levin as theProperty's management company. Wolin-Levin remains a defendantin this case.

Conversely, Pruitt did not intend to sue the owners when shefiled her original complaint. Pruitt apparently did not believethe Pervans had breached any duty as the owners of the Property. She must have assumed Wolin-Levin was solely responsible formaintaining the Property's stairways. We know this assumptiondid not change until six months after the limitations periodexpired. That is when Pruitt deposed Vasilj and learned thePervans were responsible for the Property's maintenance. Onemonth later Pruitt added the Pervans as defendants in her amendedcomplaint.

Pruitt's initial failure to name the Pervans as defendantswas not a mistake under section 2-616(d). There was no "mistakeconcerning the identity of the proper party." See 735 ILCS 5/2-616(d)(2) (West 2003). She simply lacked information of thePervans' involvement in maintaining the Property. As stated inPruitt's brief on appeal:

"In [Pruitt's] original complaint,[Pruitt] assumed the management company alonemaintained the building as such wasresponsible for the negligent acts oromissions. However, upon taking thedeposition of the property manager, Vasilj,an employee of Wolin-Levin, he testified thatthe stairway maintenance duties were done bythe owners as such, the owners are theobjects of the negligent acts alleged in thecomplaint concerning the stairway."

The record conclusively shows Pruitt made no mistake aboutthe identity of the owners. Her mistake was the assumption thatonly the management company was liable for her injury. She doesnot contend misrepresentations were made or facts concealed. SeeNickels v. Reid, 277 Ill. App. 3d 849, 661 N.E.2d 442 (1996). Nor does she say there are any facts in the record that wouldsupport assertion of equitable estoppel principles. See Wheatonv. Steward, 353 Ill. App. 3d 67, 817 N.E.2d 1029 (2004). She isleft without a claim against the Pervans. Section 2-616(d) doesnot save it.

CONCLUSION

Because section 2-616(d) of the Code does not apply in thiscase, we affirm the judgment of the trial court.

Affirmed.

HALL, and GARCIA, JJ., concur.

1. Plaintiff's claim against the other defendant, Wolin-Levin, Incorporated was not dismissed.