SANDRA RELF, Appellee, v. NATASHA SHATAYEVA, as Special Adm‘r of the Estate of Joseph Grand Pre, Jr., Appellant.
114925
Supreme Court of Illinois
October 18, 2013
2013 IL 114925
Supreme Court
Relf v. Shatayeva, 2013 IL 114925
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
After an automobile accident defendant died and plaintiff, unaware of this, was unable to obtain service in the timely action, the statutory two-year extension of the limitation period if a decedent‘s personal representative is substituted as defendant was not available where plaintiff used the unauthorized procedure of successfully asking the circuit court to appoint an employee of plaintiff‘s attorney as “special administrator“—limitations dismissal upheld.
Decision Under Review
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. James E. Snyder, Judge, presiding.
Judgment
Appellate court judgment reversed.
Circuit court judgment affirmed.
Ellen J. O‘Rourke and Jean M. Bradley, of Bruce Farrel Dorn & Associates, of Chicago, for appellant.
David B. Nemeroff and Adam S. Goldfarb, of Chicago, for appellee.
Cynthia S. Kisser, of Lawrence H. Hyman & Associates, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
Justices
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.
Chief Justice Kilbride dissented, with opinion.
OPINION
¶ 1 Plaintiff, Sandra Relf, brought an action against Joseph Grand Pre, Jr., in the circuit court of Cook County to recover damages for personal injuries she sustained in a motor vehicle accident. At the time plaintiff filed her action, Mr. Grand Pre was deceased, his will had been admitted to probate, and letters of office had been issued to his son to serve as independent administrator of his estate. Claiming she was not aware of Mr. Grand Pre‘s death when she filed suit, and without notice to the estate, the independent administrator, or Grand Pre‘s heirs and legatees, plaintiff subsequently sought and was granted permission to have a secretary in her attorney‘s office appointed as “special administrator” to defend Mr. Grand Pre‘s estate against her claims.
¶ 2 Substitution of the “special administrator” did not occur until after the two-year limitations period for personal injury actions had expired. The “special administrator” therefore moved to dismiss plaintiff‘s cause of action as time-barred under
¶ 3 BACKGROUND
¶ 4 The motor vehicle accident which gave rise to this litigation occurred in February of 2008. In February of 2010, just as the two-year statute of limitations for personal injury actions (
¶ 5 Mr. Grand Pre was the sole defendant named in the complaint. At the time the complaint was filed, however, Mr. Grand Pre was actually deceased. He had passed away on April 25, 2008, shortly after the accident.
¶ 6 The record shows that a paid death notice giving the circumstances of Mr. Grand Pre‘s death was published in the Chicago Tribune on April 30, 2008. The record further shows that probate proceedings involving his estate were initiated in the circuit court of Cook County in August of 2008. Mr. Grand Pre‘s will was admitted to probate in September of 2008 and, at the same time, letters of office were issued to his son, Gary, to serve as independent administrator of Mr. Grand Pre‘s estate. These were all matters of public record.
¶ 7 The sheriff failed to effectuate service of process on Mr. Grand Pre, who, as we have just noted, was dead. Still not realizing that Mr. Grand Pre was deceased, plaintiff then sought and was granted leave to have a special process server appointed to attempt service on him. The special process server quickly discovered that Mr. Grand Pre was no longer living and conveyed that information to plaintiff on May 17, 2010. Plaintiff took no immediate corrective action in response to the special process server‘s news, and on May 24, 2010, the circuit court dismissed plaintiff‘s cause of action for lack of diligence in attempting to effectuate service.1 Because plaintiff‘s failure to exercise diligence occurred after the governing limitations period had expired, the dismissal was with prejudice.
¶ 8 On September 24, 2010, plaintiff asked the circuit court to set aside its order dismissing the case for lack of diligence. In a separate motion filed the same day, plaintiff also asked the court to take notice of Mr. Grand Pre‘s death, to appoint a “special administrator” for the purposes of defending plaintiff‘s action against him, and to grant plaintiff leave to file an amended complaint.
¶ 9 In support of her request for a “special administrator,” plaintiff asserted that she had not learned of Mr. Grand Pre‘s death until receiving notice of it from the special process server and that she was unaware as to whether “any personal representative has been appointed by the Estate of [Mr. Grand Pre].” Plaintiff proposed that Natasha Shatayeva, an employee/legal assistant of her lawyer, be appointed to serve “as the Special Administrator of the Estate of [Mr. Grand Pre], deceased.” Shatayeva was the attorney‘s secretary.
¶ 11 Once Shatayeva was designated by the court to represent Mr. Grand Pre‘s estate, she moved to dismiss plaintiff‘s cause of action pursuant to
¶ 12 Plaintiff‘s second amended complaint was filed in March of 2011. Shatayeva responded by filing a motion to dismiss pursuant to
¶ 13 Shatayeva further argued that the General Assembly has provided litigants with a mechanism for bringing a cause of action where, as here, a person against whom an action may be brought dies before expiration of the time limit for commencement of that action, and the cause of action survives and is not otherwise barred. Shatayeva asserted, however, that plaintiff failed to follow the statutory requirements in this case.
¶ 14 Under
¶ 15 In this case, a petition for letters of office for Mr. Grand Pre‘s estate had been filed and
¶ 16 Shatayeva further argued that the legislature has provided an additional safe harbor to aid plaintiffs where, as is claimed by plaintiff‘s counsel to be the situation here, the action is brought directly against the deceased person and the plaintiff does not learn that the defendant is actually dead until the limitations period has expired. In such circumstances, and assuming the cause of action survives and is not otherwise barred,
¶ 17 Although a personal representative had been appointed in the matter before us in September of 2008, plaintiff never moved the court to have that personal representative substituted as a defendant and never attempted service on that personal representative. Instead, the plaintiff arranged to have one of her attorney‘s employees, his secretary, appointed “special administrator.” Shatayeva asserted that where, as here, a personal representative has already been appointed in probate proceedings, appointment of a separate special representative for the deceased party is improper. Accordingly, Shatayeva asserted, the pleadings naming her as a party are impermissible and should be stricken and the case should be dismissed as time-barred.
¶ 18 The circuit court found Shatayeva‘s arguments to be meritorious and granted her motion to dismiss. The appellate court reversed and remanded. 2012 IL App (1st) 112071. It held that because plaintiff was unaware of Mr. Grand Pre‘s death at the time she filed her complaint,
¶ 19 ANALYSIS
¶ 20 This case was decided by the circuit court on a motion to dismiss pursuant to
¶ 21 In reviewing whether a cause of action is untimely, we are not bound by the conclusions of either the circuit or the appellate court. Whether a cause of action was properly dismissed under
¶ 22 We begin our review with the obvious and unfortunate reality that the actual alleged tortfeasor, Mr. Grand Pre, is no longer with us. He died shortly after the motor vehicle accident which gave rise to this case, and was long dead by the time plaintiff filed her initial complaint in February of 2010. Under the common law of Illinois, a dead person is a nonexistent entity and cannot be a party to a suit. Volkmar v. State Farm Mutual Automobile Insurance Co., 104 Ill. App. 3d 149, 151 (1982). If a person is already dead when an action is asserted against him or her, the proceedings will not invoke the trial court‘s jurisdiction, and any judgment entered in the case will be a nullity. Danforth v. Danforth, 111 Ill. 236, 240 (1884); Bricker v. Borah, 127 Ill. App. 3d 722, 724 (1984). For these reasons, plaintiff‘s initial complaint naming Mr. Grand Pre as the defendant did not operate to preserve plaintiff‘s claims arising from her collision with Mr. Grand Pre‘s vehicle in February of 2008. Those claims remain viable if and only if plaintiff‘s subsequent action in substituting Shatayeva as the defendant, which did not occur until the normal two-year limitations period for personal injury actions had already expired, operated to preserve plaintiff‘s otherwise untimely cause of action.
¶ 23 The parties agree that resolution of this question rests squarely on the construction and application of
¶ 25 Section 13-209 is divided into three sections. Subsection (a) (
¶ 26 Subsection (b) sets forth the basic procedures and time requirements that must be followed in situations where a person against whom an action may be filed dies before the limitations period runs out, the action survives the person‘s death, and it is not otherwise barred. If no petition has been filed for letters of office for the decedent‘s estate, the court may appoint a “special representative” for the deceased party for the purposes of defending the action.
¶ 27 The provisions of section 13-209(b) presuppose that the plaintiff is aware of the defendant‘s death at the time he or she commences the action. A separate set of requirements apply where, as in this case, the defendant‘s death is not known to plaintiff before expiration of the limitations period and, unaware of the death, the plaintiff commences the action against the deceased defendant directly. This scenario is governed by
¶ 28 The appellate court here concluded that
¶ 29 Why plaintiff was not yet aware of Mr. Grand Pre‘s death when she filed suit is unclear. The record shows that a paid death notice had been published in the newspaper, that probate proceedings had commenced, and that information regarding Mr. Grand Pre‘s death and the related probate proceedings was readily available through the circuit clerk‘s office and online. But whether plaintiff should have known of Mr. Grand Pre‘s death is not the question. Under the express terms of
¶ 30 We turn then to the central issue in this case: whether plaintiff‘s actions once she did learn of Mr. Grand Pre‘s death complied with the conditions required by
¶ 31 There is no dispute that plaintiff‘s cause of action falls within the category of cases covered by
¶ 32 The Code of Civil Procedure does not define the term “personal representative” for purposes of
¶ 33 The rules governing executors and administrators are set forth in the Probate Act of 1975 (
¶ 34 The terminology employed by the General Assembly in
¶ 35 Plaintiff would have us treat “personal representatives” and “special representatives” as interchangeable, but her approach is incompatible with the history of
¶ 36 That a “personal representative” means one appointed pursuant to a petition for issuance of letters of office is confirmed by
¶ 37 That “personal representative” as used in
¶ 38 That a “personal representative” refers to someone appointed pursuant to a petition for letters of office while “special representative” designates someone appointed by the court in situations where no petition for letters of office for the decedent‘s estate has been filed is further supported by the fact that
¶ 39 When construing statutes, it is appropriate to consider similar and related enactments, though not strictly in pari materia. We must presume that several statutes relating to the same subject are governed by one spirit and a single policy, and that the legislature intended the several statutes to be consistent and harmonious. Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 511-12 (2007). Accordingly, we believe that
¶ 40 So, too, does
¶ 41 In this case, a petition for issuance of letters of office was filed pursuant to the Probate Act, but it was filed by Mr. Grand Pre‘s son, and it was the son to whom the letters of office were granted. Mr. Grand Pre‘s son was therefore his “personal representative” under
¶ 42 Why plaintiff referred to Shatayeva‘s appointment using the term “special administrator” is unclear. She cited no statutory authority for that request in her motion, and the term is not used anywhere in
¶ 43 As previously discussed,
¶ 44 While
¶ 45 In Keller v. Walker, 319 Ill. App. 3d 67 (2001), a panel of the Third District of the Appellate Court did conclude that the plaintiffs in a personal injury action could satisfy the requirements of
¶ 46 Under the plain language of
¶ 47 Practitioners familiar with trusts and estates will recognize that the Probate Act itself makes provision for appointment of special administrators under limited circumstances. They will also recognize, however, that those provisions are of no use to plaintiff here and
¶ 48
¶ 49 The Probate Act also allows appointment of a special administrator to represent the estate in a proceeding for issuance of a citation on behalf of the estate in cases where a person is believed “(1) to have concealed, converted or embezzled or to have in his possession or control any personal property, books of account, papers or evidences of debt or title to lands which belonged to a person whose estate is being administered in that court or which belongs to his estate or to his representative or (2) to have information or knowledge withheld by the respondent from the representative and needed by the representative for the recovery of any property by suit or otherwise” (
¶ 50 Finally,
¶ 51 We note, moreover, that a common thread in all of the foregoing provisions is that appointment of a special administrator is appropriate only where action or inaction by the personal representative designated by the decedent may be adverse to the interests of the decedent‘s estate. Plaintiff has not cited any cases permitting the appointment of a special administrator to protect the interests of a decedent‘s estate where, as here, an estate is already opened, letters of office have already issued to an executor to settle and distribute the estate, the executor has undertaken his responsibilities and no conflict of interest is alleged.
¶ 52 The absence of authority for appointment of a separate special administrator under such circumstances is not difficult to explain. Having two separate individuals attempting to operate simultaneously and independently on behalf of the same decedent poses obvious problems for the prompt, efficient and final settlement of the decedent‘s affairs. Moreover, Illinois law is clear that a testator has the right to designate by will who shall act as his personal representative, and a court may not ignore his directions and appoint someone else
¶ 53 Plaintiff urges us to adopt a “no harm, no foul” approach and sanction what she attempted to do on the grounds that there would be no prejudice to Mr. Grand Pre‘s estate from multiple representatives because she is not seeking recovery from Shatayeva beyond amounts for which the estate is protected by liability insurance. A threshold problem with this argument is that we have no basis for evaluating it. While plaintiff may perceive no prejudice to the estate, her interests are inherently antithetical to its, and the estate may very well have a different view. Unfortunately, we do not know what the personal representative of the estate or the heirs or legatees think because none of them were ever notified of this litigation or Shatayeva‘s appointment to defend against it.
¶ 54 The intrinsic conflict between plaintiff‘s interests and those of the estate is problematic for another reason as well. The Probate Act expressly and unequivocally holds that “[t]he person appointed *** special administrator under this Act may not be selected upon the recommendation of any person having an interest adverse to the person represented by the *** special administrator or by the attorney for the adverse party.”
¶ 55 It is true, of course, that Shatayeva‘s appointment was not predicated on the Probate Act. As noted earlier, we do not know what it was based on because no statutory basis for the appointment was stated in the motion seeking her appointment or in the order granting it, and, in any case, none of the circumstances under which the Probate Act authorizes appointment of a special administrator are present here. Even though the Probate Act is not directly controlling, however, the soundness of the principles underlying the foregoing provision is unassailable and further undermines the propriety of the procedure followed in appointing Shatayeva.
¶ 56 Plaintiff asks us to excuse her failure to discover that an estate had already been opened for Mr. Grand Pre on the grounds that her attorney did make some effort to check the court records, and was unsuccessful. Exactly what inquiries the attorney actually made, however, are never described. They could not have been significant, for, as counsel for Shatayeva points out, information regarding the estate and the appointment of Grand Pre‘s son as independent administrator was readily available through the Cook County circuit clerk‘s office and online. In any case, the claim “I tried” is not sufficient under the governing statute. While
¶ 57 We note, moreover, that even if plaintiff‘s delay in discovering the existence of the estate were excusable, that still would not justify her failure to then proceed as
¶ 58 Now, unfortunately for plaintiff, it is too late. The extra two-year window afforded by
¶ 59 CONCLUSION
¶ 60 For the foregoing reasons, we hold that plaintiff‘s substitution of her lawyer‘s secretary as “special administrator” in place of Mr. Grand Pre following expiration of the statute of limitations did not operate to preserve her otherwise invalid cause of action against him. Because an estate had already been opened for Mr. Grand Pre and letters of office had issued to his executor,
¶ 61 Appellate court judgment reversed.
¶ 62 Circuit court judgment affirmed.
¶ 63 CHIEF JUSTICE KILBRIDE, dissenting:
¶ 64 While I agree with the majority‘s conclusion that subsection (c) of section 13-209 applies to this case, I respectfully dissent from the majority opinion. I disagree with the majority‘s conclusion that plaintiff did not comply with subsection (c) of the applicable statute. In fact, that was never an issue raised or argued in this case. Notably, defendant conceded that plaintiff complied with the requirements of
¶ 65 In reviewing a statute, our objective “is to ascertain and give effect to the intent of the legislature.” Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, ¶ 56. In doing so, we must consider the plain and ordinary meaning of the language of the statute. Gaffney, 2012 IL 110012, ¶ 56. “We will not depart from the plain statutory language by reading into it exceptions, limitations, or conditions that conflict with the expressed intent of the legislature.” Gaffney, 2012 IL 110012, ¶ 56. Further, we will not utilize extrinsic aids of statutory interpretation unless the statutory language is unclear or ambiguous. Gaffney, 2012 IL 110012, ¶ 56.
¶ 66
¶ 67 Subsection (b) of section 13-209 provides, in relevant part:
“(b) If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred:
(1) an action may be commenced against his or her personal representative after the expiration of the time limited for the commencement of the action, and within 6 months after the person‘s death;
(2) if no petition has been filed for letters of office for the deceased‘s estate, the court, upon the motion of a person entitled to bring an action and after the notice to the party‘s heirs or legatees as the court directs and without opening an estate, may appoint a special representative for the deceased party for the purposes of defending the action. If a party elects to have a special representative appointed under this paragraph (2), the recovery shall be limited to the proceeds of any liability insurance protecting the estate and shall not bar the estate from enforcing any claims that might have been available to it as counterclaims.”
735 ILCS 5/13-209(b) (West 2010) .
¶ 69 Subsection (c) of section 13-209 provides:
“(c) If a party commences an action against a deceased person whose death is unknown to the party before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, the action may be commenced against the deceased person‘s personal representative if all of the following terms and conditions are met:
(1) After learning of the death, the party proceeds with reasonable diligence to move the court for leave to file an amended complaint, substituting the personal representative as defendant.
(2) The party proceeds with reasonable diligence to serve process upon the personal representative.
(3) If process is served more than 6 months after the issuance of letters office, liability of the estate is limited as to recovery to the extent the estate is protected by liability insurance.
(4) In no event can a party commence an action under this subsection (c) unless a personal representative is appointed and an amended complaint is filed within 2 years of the time limited for the commencement of the original action.” (Emphases added.)
735 ILCS 5/13-209(c) (West 2010) .
¶ 70 Subsection (c) of section 13-209 specifically addresses situations when a plaintiff is unaware, at the time of filing the action, that a named defendant is dead. Section 13-209(c) allows a plaintiff to proceed against a deceased person‘s personal representative if the plaintiff, at the time of the filing of the original complaint, did not know about the deceased‘s death. Subsection (c) makes no reference to whether an estate is open or closed. Rather, the focus is on the plaintiff‘s knowledge.
¶ 71 I would hold that the circuit court erred in granting defendant‘s section 2-619 motion to dismiss because plaintiff properly proceeded under section 13-209(c) of the Code. The plain language of subsection (c) states “[i]f a party commences an action against a deceased person whose death is unknown to the party before the expiration of the time limited for the commencement thereof.” (Emphases added.)
¶ 72 While I agree with the majority‘s conclusion that subsection (c) of section 13-209 applies to this case, I believe the majority misapplies subsection (c). Plaintiff alleged, and defendant does not dispute, that she followed the requirements of section 13-209(c)(1) through (4) of
¶ 73 The majority determines that Shatayeva does not qualify as a “personal representative” within the meaning of subsection (c), even though it admits that “[t]he Code of Civil Procedure does not define the term ‘personal representative’ for purposes of section 13-209.” Clearly, plaintiff used reasonable diligence to have a personal representative appointed and substituted for Mr. Grand Pre. Her mistake in misnaming the personal representative as “special representative” or “special administrator” should not result in a loss of her cause of action. Rather, now that plaintiff is aware an estate was opened for Mr. Grand Pre, plaintiff should be allowed to substitute the independent administrator of the estate for Shatayeva as Mr. Grand Pre‘s personal representative in this action. I would note that the estate is not prejudiced by allowing plaintiff to proceed because the liability of the estate is limited to the extent the estate is protected by liability insurance.
¶ 74 It is clear that the legislature enacted section 13-209(c) specifically to address situations when a plaintiff is unaware, at the time of filing a cause of action, that a named defendant is deceased. Accordingly, I would hold that plaintiff properly proceeded under section 13-209(c) of the Code and the circuit court erred when it granted defendant‘s section 2-619 motion to dismiss. I would, therefore, affirm the appellate court‘s judgment.
¶ 75 For the foregoing reasons, I respectfully dissent.