dissenting:
I respectfully dissent.
MISNOMER
The majority relies on Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, 209 N.E.2d 690, in support of its determination that this is a case of misnomer rather than mistaken identity. In that case, a default judgment was entered against defendant and the trial court subsequently denied defendant’s motions for entry of an order quashing the summons and to vacate the judgment. On appeal, defendant argued that MFA Insurance Co., a trade name under which four companies, MFA Mutual Insurance Co., Countryside Casualty Co., MFA Security Finance Co., and MFA Life Insurance Co., did business was a nonentity and that, therefore, service on an agent for these companies was not service on an agent for MFA Insurance Co. The court refused to quash the summons, holding that under all the evidence presented, service was obtained on an agent for defendant. The agent, Campbell, testified that MFA Insurance Company was an umbrella organization which “controll[ed] or governed]” Countryside Casualty Company, MFA Mutual Insurance Company and MFA Life Insurance Company. (18 Ill. App. 3d at 564.) An attorney for MFA Mutual Insurance Company testified that Campbell was an agent for the four companies doing business under the trade name of “MFA Insurance Company.” There was also testimony that defendant received and cashed checks made payable to MFA Insurance Company. Based on this evidence, the court held that Campbell was a proper agent for service for defendant.
The court also declined to vacate the judgment, stating that defendant’s argument that MFA Insurance Company was a nonentity was “without merit. Where summons is served upon a party and the circumstances are such as to indicate that he is the person intended to be sued, he is subject to the judgment even though the process and judgment do not refer to him by his correct name.” 18 Ill. App. 3d at 566.
The appellate court then granted plaintiff’s motion to amend the name of the party defendant to Countryside Casualty Co., a Missouri Corporation, d/b/a MFA Insurance Co. The court noted that the amendment was not a substantive one; that a telephone listing and the doing of business were under the name MFA Insurance Co.; that counsel for defendant appeared on behalf of MFA Insurance Co. and filed an affidavit stating that he is the attorney for that concern; that policies were issued under the heading MFA Insurance Co.; and that a request for admission of fact had been answered by an attorney for MFA Insurance Co. 18 Ill. App. 3d at 566.
Ingram does not address the issues in the case at bar because there the court held that MFA Insurance Company was an entity capable of being sued. Here, the trial court relied on Marsden v. Neisius (1955), 5 Ill. App. 2d 396, 126 N.E.2d 444, in holding that the instant case does not involve misnomer.
In Marsden, plaintiff sued to recover damages suffered as a result of being struck by a truck, naming “C. & H. Transfer Company, a Wisconsin Corporation,” as defendant. Summons was served upon Arthur Rodden as agent for the corporation, and Rodden forwarded it to Edward Neisius. An answer was filed, and as a separate defense Neisius alleged that he “engaged in a business conducted as a proprietorship under the name and style £C. & H. Transfer,’ ” that Rodden was his agent to receive process, that he did receive service through Rodden, and that there was no “C. & H. Transfer” corporation. Mars-den subsequently amended his complaint to name Edward Neisius, d/b/a C. & H. Transfer, as defendant. The trial court granted Neisius’ motion to dismiss, in which he contended that he was sued after the applicable status of limitations had run, but the appellate court reversed, stating:
“Undoubtedly, the plaintiff intended to sue a corporation ***. The plaintiff surely alleged the £C. & H. Transfer Company, a Corporation’ was involved, but it is later alleged by an answer that there is no £C. & H. Transfer Company, a Corporation’; there is a ’C. & H. Transfer,’ for Edward J. Neisius informs the plaintiff in his answer that he had notice of the suit, and that he is doing business under the style of £C. & H. Transfer.’
We believe that under these facts and circumstances Edward J. Neisius thereby implies that he is the one intended to be sued, and we believe that by filing this answer, Edward J. Neisius, suggests and concedes that there is a misnomer. [Citation.] Having filed his answer as such we believe that he is estopped from now asserting there is no misnomer. But without the answer of Edward J. Neisius in the form as filed herein, we would agree with appellee that there is a mistake in identity, of the person sued, and we would then *** hold that the cause of action did not accrue until the filing of the amended complaint *** and the suit would consequently *** be barred by the statute of limitations.” Marsden, 5 Ill. App. 2d at 400-01.
Ingram and Marsden are both second district cases; however, MFA neither discussed, distinguished nor overruled Marsden, because the two cases involved different facts and applied separate and distinct principles of law. In Marsden, plaintiff sued a nonentity but the court held that because defendant had filed an answer, he was estopped from asserting that there was no misnomer. As noted previously, and contrary to the majority’s assertion, the court in Ingram rejected defendant’s argument that the named defendant was a nonentity.
The majority seems to suggest that because LaSalle did business under the name “Travelodge in the Heart of Chicago,” it should be prepared to defend a suit under that name. That is not the law. The majority fails to cite any conduct on the part of LaSalle which would estop it from asserting that there is no misnomer; I do not believe the fact that it was listed under “Travelodge” in the Chicago telephone directory is a basis for denying LaSalle its right to be sued in its proper name. In this regard, I note that there is no allegation that LaSalle violated the assumed name statute (Ill. Rev. Stat. 1985, ch. 96, par. 4) or the Business Corporation Act of 1983 (Ill. Rev. Stat. 1985, ch. 32, par. 4.05), or any other law. The fact that the name of the motel was “Travelodge in the Heart of Chicago,” with no “Inc.,” “Corp.,” “Ltd.,” or “Co.” at the end of its name, any of which designations is required to signify that it was a corporation (Ill. Rev. Stat. 1987, ch. 32, par. 4.05), should have alerted plaintiff that the motel was operating under an assumed name, as is quite legal and proper in Illinois. (Ill. Rev. Stat. 1987, ch. 96, par. 4.) Plaintiff could easily have checked the index of assumed names at the office of the Cook County clerk and learned that defendant’s proper name is LaSalle Ohio Corporation, d/b/a Travelodge in the Heart of Chicago. (Ill. Rev. Stat. 1987, ch. 96, par. 6.) This simple step was apparently not taken. To excuse plaintiff’s failure to investigate is to reward indolence; in addition, the court penalizes a defendant which scrupulously followed the law.
SUMMARY JUDGMENT
Although the license agreement does state that it shall be construed in accordance with California law, both plaintiff and Travelodge International argued Illinois law in the trial court and in this court, totally oblivious to the provisions of the agreement as to the applicable law. Moreover, neither party cited any of the cases relied upon by the majority; in fact, they cited no California law at all. The majority opinion places the burden on Travelodge International to bring this choice of law provision to the trial judge’s attention and, while I do not disagree that all parties have a responsibility to bring relevant facts and points of law before the court, I believe it should be pointed out that plaintiff at no time directed the court’s attention to either California law or the provision in the agreement signifying the law applicable to its provisions.
It goes without saying that the parties may frame the issues in litigation as they choose; accordingly, it is not the proper function of this court to become an advocate or to raise matters in which the parties clearly have no interest. Nor is it fair to the circuit court judge to reverse him on an issue not raised before him by any of the parties. The principle is a bit too hoary for us to be toying with it now. Therefore, I do not believe California law is applicable to this issue.
Nor do I believe .that the trial court erred in granting defendant’s motion. In his response to Travelodge International’s motion for summary judgment and in the hearing on that matter, plaintiff relied upon the following provisions in the license agreement to support his allegation that Travelodge International was responsible for the lack of security in the hotel:
“6(a). Licensee agrees to maintain its premises and accommodations in a clean, safe and orderly manner;
6(e). Licensee agrees to repair and paint the exterior and interior of building at reasonable times and to maintain the exterior and interior of buildings in a clean, orderly and sanitary condition;
6(f). Licensee agrees to permit inspection by licensor;
6(k). Licensee agrees to send its management and operation personnel to licensor’s training program;
12(a). Licensor agrees to consult with licensee;
12(e). Licensor agrees to maintain supervision;
13. Licensee agrees to refrain from alteration or construction unless licensor approves plans; and
15. Licensee agrees to hold licensor harmless and to indemnify licensor.”
The majority relies primarily on 6(a) in holding that there is a question of fact as to whether Travelodge International can be held responsible for the safety violations alleged to have been violated here.
In granting Travelodge International’s summary judgment motion, the trial court stated:
“[T]he issues relating to motions for summary judgment are framed by the pleadings. And the pleadings specifically set forth in Paragraph 4A through N, [are] matters dealing with security and criminal attacks by third parties. Specifically, the failure to warn the plaintiff relating to the risk of criminal attacks. Failure to properly provide, failing to provide locking door[s]. Prohibit the entrance by unauthorized persons onto the premises. Failure to provide safety measures. Failure to provide sufficient peepholes, or night chains, or an electronic surveillance or security staffs. Safety devices and measures in 4B. Evaluate security needs in 4C. And several sub-sections alleged in the — in more general terms. But all these sub-paragraphs which are alleged to be the breach of duty by the defendant is [sic] absolutely nowhere indicated as being substantiated by the response of the motion for summary judgment.
The law is clear as far as motions for summary judgment is [sic] concerned that the plaintiff-respondent need not prove his case at the summary judgment stage. *** [MJany other cases indicate that; but they also indicate that the responding plaintiff must at least set forth some facts that arguably indicate a cause of action. *** I don’t see one iota of fact whatsoever as set forth in the license agreement or any other documents or anything else in response to the motion that indicates arguably any facts that Travelodge International, Inc., had anything to do with these items spelled out in Paragraph 4 of the amended complaint.”
The question of the responsibility of the owner of a franchise trademark for the torts of its franchisee was discussed in Coty v. U.S. Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 272 N.E.2d 1371. In that case, an employee of a Yankee Doodle Dandy restaurant, the franchisee, sued the franchisor on a theory of negligence and willful and wanton misconduct, as well as the manufacturer of the machine she had been using when injured. Under the franchise agreement “numerous restrictions were imposed upon the franchisee relating to the general nature of the operation of the restaurant, [with the principal goal of] protecting the Yankee Doodle trademark and the good will associated with it.” (58 Ill. App. 3d at 239.) The franchisee agreed that its managers would be trained by the franchisor, its employees would wear distinctive uniforms, and it would comply with the franchisor’s rules on minimum hours and days of service and on contributions and participation in advertising programs. The franchisee was also required to comply with all Federal, State and local laws. The franchisor did not retain any day-to-day control, and it could not hire or fire anyone, stop work immediately or give orders to the franchisee’s employees. The franchisor was required to give a 10-day written notice demanding cure of any breach of the franchise agreement by the franchisee, and could terminate the agreement if such cure was not forthcoming. (58 Ill. App. 3d at 240.) The appellate court affirmed a directed verdict for the franchisor, holding that the “general right to rescind the contract or ‘call off work’ is insufficient *** to subject the franchisor to liability under either agency or employer-independent contractor theories.” 58 Ill. App. 3d at 242.
In so deciding the court relied on Murphy v. Holiday Inns, Inc. (1975), 216 Va. 490, 219 S.E.2d 874. In that case, plaintiff had slipped and fallen at a Holiday Inn owned by the Betsy-Len Corporation, a franchisee. She sued the franchisor on the theory that it owned and operated the motel and that its agents and employees were negligent. The appellate court affirmed the trial court’s granting of summary judgment in favor of the franchisor, finding that there was no principal-agent or master-servant relationship under the franchise agreement. That agreement provided that the franchisee contribute to advertising campaigns and that its managers be trained by the franchisor, and that the franchisee operate its motel under the “system” which included the trademark, color schemes, furnishings, advertising services and methods of operation. (Coty, 58 Ill. App. 3d at 240.) The court stated:
“ ‘Having carefully considered all of the regulatory provisions in the agreement, we are of the opinion that they gave defendant no “control or right to control the methods or details of doing the work,” *** and, therefore, agree with the trial court that no principal-agent or master-servant relationship was created. *** The regulatory provisions did not give defendant control over the day-to-day operation of Betsy-Len’s motel. While defendant was empowered to regulate the architectural style of the buildings and the type and style of furnishings and equipment, defendant was given no power to control daily maintenance of the premises. Defendant was given no power to control Betsy-Len’s current business expenditures, fix customer rates, or demand a share of the profits. Defendant was given no power to hire or fire Betsy-Len’s employees, determine employee wages or working conditions, set standards for employee skills or productivity, supervise employee work routine, or discipline employees for nonfeasance or misfeasance. All such powers and other management controls and responsibilities customarily exercised by an owner and operator of an on-going business were retained by Betsy-Len.’ ” Coty, 58 Ill. App. 3d at 241, quoting Murphy v. Holiday Inns, Inc. (1975), 216 Va. at 495, 219 S.E.2d at 877-78.
In Yassin v. Certified Grocers of Illinois, Inc. (1987), 150 Ill. App. 3d 1052, 502 N.E.2d 315, plaintiff, a three-year-old child, was injured when she placed her left hand in an operating commercial meat tenderizer. She sued Mizyed-Yassin Corporation, the owner of the grocery store where the accident took place, Certified, a cooperative with which the grocery store was affiliated, the company that manufactured the tenderizer and an independent testing laboratory. The appellate court upheld the circuit court’s directing of a finding for Certified, citing Coty and stating:
“[I]n the present case, Certified had, at most, a franchise relationship with Mizyed-Yassin Corporation, and its franchise agreement dealt only with methods of payment and procedures for delivery of goods the franchisee ordered from it — not safety. Certified’s only remedy for a violation of its rules was to withdraw permission to use its name and terminate the agreement. Plaintiff’s father and her uncle both testified that they exercised day-to-day control over the grocery store and that they alone had the power to hire and fire employees. There was no agent-principal relationship and no evidence that Certified had the authority to compel or prevent Mizyed-Yassin or its employees from operating the tenderizer in a manner that resulted in plaintiff’s injury. We conclude that Certified cannot be held liable in this case under a principal-agent theory.” 150 Ill. App. 3d at 1069.
The franchise agreement in the instant case is similar to those in Coty, Murphy and Yassin. Travelodge International did not have daily control over the upkeep of the premises and was not responsible for safety measures, or lack thereof, at “Travelodge in the Heart of Chicago.” Travelodge International’s only remedy for a violation of its agreement with LaSalle was to terminate the franchise agreement, and “[tjhis general right to rescind the contract *** is insufficient *** to subject the franchisor to liability under either agency or employer-independent contractor theories.” (Coty v. U.S. Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 242, 373 N.E.2d 1371; Yassin, 150 Ill. App. 3d at 1068.) Therefore, Travelodge International cannot be held liable for LaSalle’s alleged safety violations, and the trial court properly granted summary judgment in its favor.