In rе ESTATE OF NANCY KLEINE (Richard Calkins, as Administrator of the Estate of Nancy Kleine, Plaintiff-Appellee, v. Alden Park Strathmoor, Inc., and Alden Park Strathmoor, LLC, Defendants-Appellants).
No. 2-15-0063
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
April 28, 2015
2015 IL App (2d) 150063
JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion.
Appeal from the Circuit Court of Winnebago County. No. 14-L-79. Honorable J. Edward Prochaska, Judge, Presiding.
¶ 1 Defendants, Alden Park Strathmoor, Inc., and Alden Park Strathmoor, LLC, petitioned for leave to appeal under
I. BACKGROUND
¶ 2 ¶ 3 Nancy Kleine passed away on March 26, 2012, prior to the filing of this action. Her probate estate (the Estate) was opened September 28, 2012, and an order appointing Calkins as
¶ 4 Jim Kleine initiated this action on March 18, 2014, filing a three-count complaint that alleged violations of the
¶ 5 Jim filed a first amended complaint on June 9, 2014, after he and defendants entered an agreed order to dismiss count I (Nursing Home Care Act violation) without prejudice. The amended сomplaint did not add Calkins as a plaintiff.
¶ 6 On July 17, 2014, defendants filed a motion to dismiss pursuant to
¶ 7 On August 8, 2014, Calkins, now as plaintiff, filed a second amended complaint, as speciаl administrator of the Estate.1 On August 18, defendants moved to dismiss the second
¶ 8 On October 30, 2014, defendants filed a motion to reconsider or, in the alternative, for leave to file an interlocutory appeal pursuant to
“Whether the relation bаck doctrine applies when a wrongful death and survival action is timely filed by an improperly appointed special administrator, who was appointed pursuant to the Act despite the fact that letters of office had already issued, pursuant to the Probate Act, to another person who did not bring the action nor substitute in as plaintiff within the statute of limitations?”
¶ 9 We granted defendants’ petition for leave to appeal.
II. ANALYSIS
¶ 10 ¶ 11 Our review of a certified question on permissive interlocutory appeal is governed by
¶ 12 Here, the trial court found that its order involved a question of law for which substantial grounds for difference of opinion exist and that resolution of the issue would materially advance the ultimate termination of the litigation. However, plaintiff argues that the certified question meets neither of these two requirements for a Rule 308 appeal.
¶ 13 First, we address the material-advancement-of-the-litigation prong. Plaintiff argues that the certified question is deficient in that it does not mention what amendment the court found to have related back, nor does it mention that it was undisputed that the amendment arose out of the same transaction or occurrence. Plaintiff continues that, because the question is improper and incomplete, its answer cannot materially advance the litigation. We disagree that the question is improper or incomplete. First, it is clear that the impetus for the appeal is whether the second amended complaint relates back to the original complaint. Second, we decide questions of law on Rule 308 appeals, not whether the law was correctly applied to the specific facts. See Walker, 383 Ill. App. 3d at 133. We may not address whether the amended complaint arose out of the same transaction or occurrence as the original. That is a fact question, which the trial court properly did not attempt to certify. Rather, we may answer only the certified question of law,
¶ 14 Next, we address the substantial-grounds-for-difference-of-opinion prong. Plaintiff argues that no substantial ground exists, but he acknowledges that, as defendants assert, the certified question has not been directly addressed by us or our supreme court. Defendants begin their argument with the premise that the appointment of a special administrator under the Act, such as Jim‘s appointment here, is void where no prior letters of revocation issued for the duly appointed administrator, here, plaintiff. See, e.g., Relf v. Shatayeva, 2013 IL 114925, ¶ 52 (“[I]n the context of the Wrongful Death Act [citation], courts have concluded that appointment of a special administrator after a petitioner for issuance of letters of office has been filed is void.“). Thus, defendants continue, any relation back of the amended complaint would be to a void filing. They argue that the certified question presents an issue distinguishable from that in cases where the identities of the plaintiffs did not change but only their capacities. In circumstances such as those here, only the administrator of an estate has the authority to bring an action on behalf of the estate. See, e.g., Kubian v. Alexian Brothers Medical Center, 272 Ill. App. 3d 246, 252 (1995). Defendants ask: “If the properly appointed administrator under the Probate Act is the only person who can bring a cause of action on behalf of an estate and such administrator does not file any claim within the limitations period, how can the actions of someone without power to sue on behalf of the estate act to preserve the cause of action?” (Emphasis in original.) Accordingly,
¶ 15 Turning to the certified question itself, defendants argue that the relation-back doctrine does not apply where only one person owns a cause of action and that person does not file a complaint within the limitations period. Defendants rely on three cases for support.
¶ 16 First, defendants cite In re Estate of Mankowski, 2014 IL App (2d) 140154. There, a widow filed suit against her late husband‘s caregivers. Id. ¶ 1. The plaintiff filed her complaint against the defendants in March 2011, but in September 2013 she filed a motion seeking leave to file a petition for her appointment as special administrator of the estate and for that appointment to relate back to the original filing. Id. ¶¶ 4-5. The defendants moved to dismiss the case on the basis that, because the original complaint was improperly filed and void, the trial court never had subject matter jurisdiction over the claims and thus the appointment could not relate back to the original complaint. Id. ¶ 6. The trial court denied the defendants’ motion to dismiss and appointed the plaintiff as special administrator in order to continue prosecuting the action. Id. ¶ 7.
¶ 17 On appeal, we held that “[a]lthоugh plaintiff in her individual capacity could not maintain a wrongful death suit [citation omitted], it was not subject to dismissal; the trial court‘s appointment of plaintiff as special administrator ‘cured’ this procedural defect.” Id. ¶ 47. We continued that, because the plaintiff was “an identifiable, real person, and not a fictional entity,” the trial court could appoint her as special administrator of the estate, the suit was not a nullity, and subject matter jurisdiction existed. Therefore, the trial court was right to deny the defendants’ motion to dismiss; the appointment of the plaintiff cured the only defect in the original, timely complaint, and she was not required to file an amended complaint after her
¶ 18 Defendants argue that, because we held that the plaintiff was the only person who could bring the cause of action, Mankowski supports their position, because here plaintiff was the only person with the authority to bring the original complaint. Defendants continue that Mankowski demonstrates that relation back is allowed when the plaintiff‘s capacity changes as long as the plaintiff is the only person who could inhabit that capacity. However, defendants argue, we should not infer from this that the relation-back doctrine applies when the change is to the plaintiff‘s identity, not his capacity, and when another person properly holds the necessary capacity to sue.
¶ 19 Second, defendants cite Pirrello, 2014 IL App (1st) 133964. In Pirrello, the plaintiff sued the defendant, a facility for young people with behavioral and mental health issues, for damages she incurred while a resident at the facility. Id. ¶¶ 3-4. The defendant filed a motion for partial summary judgment, arguing that the plaintiff was not entitled to recover damages incurred from the date of her accident to when she turned 18. Id. ¶ 5. The defendant argued that the plaintiff was covered by her father‘s health insurance at the time of her injuries and that her bills for her injuries were sent to her father аnd submitted to his insurance. Id. ¶ 6. The plaintiff‘s father never assigned his claim for recovery of those expenses under the Rights of
¶ 20 On appeal, the plaintiff argued that her father‘s claim under the Family Expense Act would relate back to the date she filed her original, timely complaint, because it arose out of the same transaction or occurrence, that is, her personal injuries. Id. ¶ 15. In affirming the trial court, the First District held that the relation-back doctrine did not apply, because the plaintiff never owned the cause of action under the Family Expense Act and that cause of action arose not out of her personal injuries but out of a separate and distinct occurrence, that is, her father‘s responsibility under the Family Expense Act to pay her medical bills. Id. ¶¶ 19-20. Because the plaintiff‘s father, as the owner of the cause of action, did not assert the claim within the limitations period, the trial court properly held that the claim was time-barred. Id. ¶ 20.
¶ 21 Defendants analogize the Pirrello situation to the situation here as follows. Because Jim did not own the cause of action on behalf of the Estate, as the Pirrello plaintiff did not own her father‘s cause of action under the Family Expense Act, the complaint could not be amеnded to add the owner after the limitations period had run. Plaintiff was the sole owner of the right to sue on behalf of the Estate, just as in Pirrello the plaintiff‘s father had the sole right to assert a claim derived from the Family Expense Act. Finally, the Pirrello court found that the plaintiff‘s attempt to assert the claim owned by her father was a legal nullity and that her proposed
¶ 22 Third, defendants cite Kubian, 272 Ill. App. 3d 246. In Kubian, the plaintiff‘s husband was taken to the defendants’ medical center, and he died upon being transferred by the defendant to its hospice care unit. Id. at 248. The husband‘s daughter from another marriage opened his estate as executor, and during the pendency of his estate the plaintiff signed an agreement waiving her rights in the estate and ratifying an antenuptial agreement, which itself stated that she would not make a claim as to any part of the estate and that she waived certain rights in the estate. Id. at 249. The plaintiff filed a wrongful-death suit in her individual capacity during the pendency of the estate, but the daughter did not bring a wrongful-death claim before the estate closed. Id.
¶ 23 We held that the trial court did not err in granting the defendants’ motion to dismiss the wrongful-death claim. Id. at 250. In reaching our holding, we found that the relation-back doctrine did not apply to the wrongful-death claim, for several reasons: (1) the daughter had the sole authority to control any litigation on behalf of the estate; (2) the Act would not allow an appointment оf a special administrator, because the estate had assets of approximately $33,000 (see
¶ 24 Defendants argue that Kubian, along with Mankowski and Pirrello, provides a basis to answer the certified question in the negative. We disagree, finding that none of the three cases provides such a basis.
¶ 25 First, Mankowski does not aid defendants. In Mankowski, we held that the plaintiff‘s amended complaint did relate back to the original complaint. Mankowski, 2014 IL App (2d) 140154, ¶ 56. The plaintiff filed her original complaint in her individual capacity but later the trial court granted her motion to be appointed as special administrator of the estate. Id. ¶¶ 6-7. We held that her amended complaint, which grew out of the same transaction or occurrence that was set out in the original complaint and which properly reflected her capacity as special administrator, related back to the original complaint that she filed only in her individual capacity. Id. ¶ 56. The logic of that case supports, rather than contradicts, the notion that an amended complaint can relate back when the plaintiff in the original complaint lacked the authority to sue under the Act.
¶ 26 Next, Pirrello presents a distinguishable situation from that posed by the certified question before us. There, the plaintiff sought to amend her complaint to bring a claim under the Family Expense Act, after the limitations period had run, but the claim did not arise out of the same transaction or occurrence as did the plaintiff‘s original claim. The plaintiff‘s original claim arose when she was personally injured while a resident at the defendant‘s facility, whereas her father‘s Family Expense Act claim arose out of his obligation to pay his daughter‘s medical bills. Pirrello, 2014 IL App (1st) 133964, ¶¶ 12, 19 (father‘s claim was not a claim for damages
¶ 27 Finally, Kubian presented a situation similar to that here but with one crucial difference: In Kubian, the plaintiff attempted in her amended complaint to be appointed as special administrator of her husband‘s estate despite an administrator already having been appointed, whereas here the question asks whether it was proper to substitute Calkins, the already appointed administrator, as plaintiff. Relation back did not apply in Kubian because under the Act, once letters of office issued to the deceased‘s daughter, the court had no power to appoint the plaintiff as special administrator in order to prosecute her claim. Kubian, 272 Ill. App. 3d at 252. Therefore, the determinative issue in Kubian was not actually the relation-back doctrine, because relation back, even if it theoretically applied, could not “cure the plaintiff‘s procedural miscues,” that is, the court could not appoint the plaintiff as special administrator to prosecute her amended claim whether the amended claim was timely or not. Id.
¶ 28 In contrast to Kubian is the First District‘s holding in Pavlov, 113 Ill. App. 3d 576, which we adopted in Mankowski. In Pavlov, the plaintiff filed a complaint under the Act on behalf of the deceased‘s estate. Id. at 577. The plaintiff filed his original complaint the same
¶ 29 Approximately nine months after the filing of the original complaint—and after the two-year limitations period had run—the plaintiff was properly appointed administrator of the estate, and he subsequently filed his second amended complaint, making substantially the same allegations as in the original. Id. The trial court denied the defendant‘s motion to dismiss but certified the following question for appeal: ” ‘Does a proper appointment of an administrator relate back to the initial filing of a complaint under the Wrongful Death Act?’ ” Id.
¶ 30 In answering the question, thе court noted that the relation-back doctrine was included in the Code of Civil Procedure “to implement the legislative intent to preserve causes of action including those sounding in wrongful death against loss by reason of technical rules of pleading.” Id. at 578. In light of the purpose of the relation-back doctrine, the court held that the plaintiff‘s second amended complaint related back to the filing of the original complaint. Id. at 578-79. The court reasoned that both complaints made substantially the same allegations and arose out of the same trаnsaction or occurrence and that the estate was always named as the interested party. Id. at 579. Moreover, the fact that the plaintiff was not properly named administrator until after the limitations period had run was “a technical consideration” that “should not prevent the cause from being decided on its merits in furtherance of justice.” Id. Further, the court rejected the argument that the failure to meet certain conditions precedent under the Act, in particular that the action be brought in the name of the personal representative
¶ 31 Further problematic for defendants’ position is Boatmen‘s National Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88 (1995). There, a father filed three amended wrongful-death complaints on behalf of his deceased daughter‘s estate, with the original complaint filed within the limitations period. Id. at 91, 103. The father sued in his capacity as special administrator of the estate and sought damages on behalf of the decedent‘s ” ‘next in kin.’ ” Id. at 91. It was later discovered, however, that the decedent had been married and therefore her parents were not ” ‘next in kin’ ” within the meaning of the Act. Id. A corporate administrator, Boatmen‘s National Bank of Belleville, was subsequently appointed special administrator of the estate and filed the fourth through ninth amended complaints. Id. at 93-96. The action went to trial on the ninth amended complaint, and Boatmen‘s secured a jury verdict for $2,500. Id. at 96. On appeal, however, the Fifth District reversed the judgment in a split decision, with the majority finding that the ninth amendеd complaint, which was filed outside of the limitations period, did not relate back to the original complaint. Id. at 97.
¶ 32 Our supreme court reversed the appellate court, reasoning that the original complaint informed the defendant of the nature of the underlying cause of action, that it was brought on behalf of the decedent‘s next of kin, and that the amended complaint did not change the nature of the suit, which was an action to recover for the wrongful death of the decedent. Id. at 105. Therefore, the amended complaint grew out of the same trаnsaction or occurrence as the original, and allowing relation back furthered the legislative intent of preserving a cause of action against
” ‘By the weight of authority, the addition as parties plaintiff in an action under the wrongful death statutes, of persons who might have instituted the action, is not regarded as the beginning of a new action by such additional plaintiffs as regards the statute of limitations.’ ” Id. (quoting C.T. Drechsler, Annotation, Change in Party After Statute of Limitations Has Run, 8 A.L.R. 2d 6, 47 (1949)).
¶ 33 After considering these cases and the relation-back statute itself (
¶ 34 Moreover, defendants’ reliance on Mankowski is misplaced, as Mankowski supports permitting relation back here. There, we found that the plaintiff was allowed to amend her
¶ 35 We see no reason why these differences should affect our application of the relation-back doctrine, and we stand by the holdings in Pavlov and Mankowski. Pavlov, Mankowski, and this case are all similar in that all the amended complaints added a proper plaintiff after the limitations period. The relation-back doctrine allows amendments if (1) the original complaint was timely filed, and (2) the cause of аction grew out of the same transaction or occurrence set out in the original, timely complaint.
¶ 36 Accordingly, we reject defendants’ argument and answer the certified question in the affirmative.
III. CONCLUSION
¶ 37 ¶ 38 We have answered thе certified question in the affirmative. That is, the relation-back doctrine applies to an amended complaint under the Act, where the original complaint was timely filed by an improperly appointed special administrator and the amended complaint substituted in the properly appointed administrator after the limitations period had run. We remand the cause to the trial court for further proceedings.
¶ 39 Certified question answered; cause remanded.