Find Legal Information

FOURTH DIVISION
FILED: 08/23/01

The plaintiff, Monique Minikon, individually and as mother andnext friend of Dashun Minikon, a minor, appeals from an order ofthe circuit court dismissing the personal injury claims sheasserted against the defendant, Olga Escobedo, special administrator of the estate of George Thompson, deceased. For the reasonswhich follow, we reverse the order of the circuit court and remandthis cause for further proceedings.

On January 2, 1997, the plaintiff and her minor son, DashunMinikon, were riding in a motor vehicle driven by George Thompson when it collided with a motor vehicle driven by Philip Gyadu-Mantey. On December 31, 1998, the plaintiff filed the instantnegligence action against both Thompson and Gyadu-Mantey, seekingdamages for injuries she and her son sustained as a result of thecollision. After several unsuccessful attempts to serve Thompsonwith process, the plaintiff discovered that he had died on August28, 1998, due to causes unrelated to this litigation.

On August 5, 1999, the trial court granted the plaintiff'smotion, filed that same day, to spread Thompson's death of record. Subsequently, on September 15, 1999, the plaintiff filed a motionrequesting that Escobedo, a secretary employed by her attorneys, beappointed as special administrator of Thompson's estate for thepurpose of defending this action. On September 27, 1999, thatmotion was granted, and Escobedo was so appointed.

The plaintiff asserts that Escobedo executed a waiver ofservice of summons on December 8, 1999. The record does notcontain any such waiver but does contain a motion Escobedo filed onJanuary 27, 2000, in which she admitted that she "waived service ofsummons and complaint on December 8, 1999."

On January 20, 2000, Escobedo filed an appearance and jurydemand in her capacity as special administrator of Thompson'sestate. Thereafter, on January 27, 2000, Escobedo filed a motionto dismiss the plaintiff's complaint as to Thompson. Escobedonoted that the plaintiff had never filed an amended complaintnaming Escobedo in her representative capacity as a defendant andthat, in fact, the only complaint on file named Thompson as adefendant. She argued that the filing of the complaint againstThompson after his death did not invoke the jurisdiction of thecourt. The plaintiff did not respond to the motion. Instead, onJanuary 31, 2000, she filed a motion seeking leave to file anamended complaint naming Escobedo in her representative capacity asa party defendant. On February 10, 2000, the trial court enteredan order dismissing the plaintiff's original complaint and grantingher leave to file an amended complaint instanter.

Thereafter, on March 7, 2000, Escobedo filed a motion todismiss the amended complaint, arguing that the claims assertedagainst her therein are time-barred. Escobedo argued, inter alia,that the plaintiff failed to proceed with reasonable diligence, asrequired by section 13-209(c) of the Code of Civil Procedure (Code)(735 ILCS 5/13-209(c)(West 1998)), in moving for leave to file theamended complaint substituting her as a defendant in herrepresentative capacity. In the motion, Escobedo noted that 191days had elapsed from the date that Thompson's death was spread ofrecord to the date the plaintiff sought leave to file her amendedcomplaint. In her response to the motion, the plaintiff arguedthat she acted with reasonable diligence under the circumstances. She also attributed a portion of her delay in seeking leave to filean amended complaint to the refusal of defense counsel to seek theappointment of a special administrator after being advised thatThompson was dead and to the fact that her own attorney was in theprocess of moving to a new law firm.

On April 25, 2000, the circuit court granted Escobedo's motionand dismissed the plaintiff's action against her "with prejudice." The trial court also made a written finding pursuant to SupremeCourt Rule 304(a) (155 Ill. 2d R. 304(a)) that there was no justreason to delay the enforcement of or appeal from its order. Thereafter, the plaintiff filed a motion for reconsideration, whichthe trial court denied on July 27, 2000. This timely appealfollowed.

Initially, we agree with Escobedo that the source of ourjurisdiction over the instant appeal is Rule 304(a), rather thanSupreme Court Rule 303 (155 Ill. 2d R. 303), as asserted by theplaintiff. At the time the trial court entered its April 25, 2000,order, which constituted a final judgment as to Escobedo, theplaintiff's claim against Gyadu-Mantey remained pending, thusprecluding an appeal pursuant to Rule 303. A final judgment as tofewer than all the parties in a case can be taken only pursuant toRule 304(a) and only when the trial court makes the necessaryfindings, as the court did in the instant case. 155 Ill. 2d R.304(a).

In urging reversal of the trial court's order dismissing herclaims against Escobedo as special administrator of Thompson'sestate, the plaintiff argues that the mere fact that Thompson wasdead when she filed her original complaint against him will notsupport the trial court's dismissal order. The plaintiff furtherargues that she fully complied with the provisions of section 13-209(c) of the Code, including its reasonable diligencerequirements. Escobedo, however, contends that the claims assertedagainst her in the plaintiff's amended complaint are time-barred.

Unfortunately, the parties have briefed their respectivepositions as if there is no distinction between the dismissal ofcount I of the plaintiff's amended complaint, which asserted aclaim in favor of the plaintiff individually, and the dismissal ofcount II, brought by the plaintiff for the benefit of her minorson. However, the minority of Dashun Minikon mandates that the twocounts be analyzed separately.

Section 13-211 of the Code provides in pertinent part that:

"If the person entitled to bring an action,specified in Sections 13-201 through 13-210 of this Act,at the time the cause of action accrued, is under the ageof 18 *** then he or she may bring the action within 2years after the person attains the age of 18 years". 735ILCS 5/13-211 (West 1998).

The amended complaint in this case, filed on February 10, 2000,states specifically that Dashun Minikon is a minor. Nothing in therecord disputes this fact. As such, on the date the amendedcomplaint was filed, no statute of limitations could yet have runas to any claim on behalf of Dashun.

Having concluded that the claim asserted in favor of theplaintiff's minor son was not time-barred, we find that the trialcourt erred, as a matter of law, in dismissing count II of theamended complaint. We continue our analysis, however, to determinethe propriety of the trial court's dismissal of the claim assertedagainst Escobedo in favor of the plaintiff individually. We beginwith Escobedo's assertion that, as the amended complaint was filedbeyond the two-year statute of limitations, it must relate back tothe date of filing of the original complaint in order to avoiddismissal.

In Vaughn v. Speaker, 126 Ill. 2d 150, 533 N.E.2d 885 (1988),our supreme court applied the relation back doctrine set forth insection 2-616(d) of the Code (735 ILCS 5/2-616(d) (West 1998)) inthe context of an action originally brought against a deceasedperson. The plaintiffs' original complaint in Vaughn was timelybut named a deceased defendant. After the applicable limitationperiod had expired, the plaintiffs amended their complaint to namethe decedent's co-executors as defendants. In holding that theamended complaint did not relate back to the filing of theplaintiffs' original complaint, the Vaughn court did not simplyfind that the original complaint was a nullity. Rather, the courtexamined the requirements for the application of the relation backdoctrine and determined that the plaintiffs could not satisfy therequirements set forth in section 2-616(d) as there was noindication that either co-executor knew prior to the running of thestatute of limitations that a complaint had been filed. Vaughn,126 Ill. 2d at 159-60.

Subsequent to the supreme court's decision in Vaughn, thelegislature amended section 13-209 of the Code by adding to itsubsection (c), which provides as follows:

"(c) If a party commences an action against adeceased person whose death is unknown to the partybefore the expiration of the time limited for thecommencement thereof, and the cause of action survives,and is not otherwise barred, the action may be commencedagainst the deceased person's personal representative ifall of the following terms and conditions are met:

(1) After learning of the death, the party proceedswith reasonable diligence to move the court for leave tofile an amended complaint, substituting the personalrepresentative as defendant.

(2) The party proceeds with reasonable diligence toserve process upon the personal representative.

(3) If process is served more than 6 months afterthe issuance of letters of office, liability of theestate is limited as to recovery to the extent the estateis protected by liability insurance.

(4) In no event can a party commence an actionunder this subsection (c) unless a personal representative is appointed and an amended complaint is filedwithin 2 years of the time limited for the commencementof the original action." 735 ILCS 5/13-209(c) (West1998).

Apparently, the legislature enacted section 13-209(c) to specifically address situations where a plaintiff is unaware, at the timeshe files her action, that a named defendant is dead. Keller v.Walker, 319 Ill. App. 3d 67, 71, 744 N.E.2d 381 (2001). Escobedoacknowledges this fact but, nevertheless, argues that an amendedcomplaint filed against the decedent's personal representativeafter the expiration of the applicable limitation period must stillsatisfy the criteria for relation back set forth in section 2-616(d) of the Code in order to avoid being dismissed as time-barred. In support of this proposition, Escobedo cites to thiscourt's decision in Greene v. Helis, 252 Ill. App. 3d 957, 625N.E.2d 162 (1993). We find Escobedo's argument in this regard tobe without merit and her reliance upon Greene to be misplaced.

Section 2-616(d) of the Code is not a limitation provision. Rather, it is a statute which, under certain circumstances, allowsthe filing of an amended complaint after the expiration of theapplicable limitation period to relate back to the date of thetimely filing of an earlier complaint. It is a codified legalfiction, the articulated purpose of which is to preserve a cause ofaction that would be otherwise barred by a statute of limitation. 735 ILCS 5/2-616(d) (West 1998). In contrast, section 13-209(c) isa limitation provision in itself which governs the period withinwhich an "action may be commenced against the deceased person'spersonal representative" (735 ILCS 5/13-209(c) (West 1998)). Hannah v. Gilbert, 207 Ill. App. 3d 87, 92, 565 N.E.2d 295 (1990). It stands to reason that, if a plaintiff falls within theprovisions of the latter statute, she need not avail herself of theformer.

We acknowledge, as Escobedo argues, that, in Greene, a caseinvolving an action initiated after the effective date of section13-209(c), we held that the plaintiff's amended complaint namingthe decedent's special administrator did not relate back to thedate of filing of the original complaint because one of therequirements of section 2-616(d) was not met. Greene, 252 Ill.App. 3d at 960; see also 735 ILCS 5/2-616(d) (West 1998). We alsoheld, though, that we were required to disregard the plaintiff'samended complaint because it was filed without leave of court andwas, therefore, a legal nullity. Greene, 252 Ill. App. 3d at 960-61. Contrary to Escobedo's assertion, however, we never held thata plaintiff availing herself of the provisions of section 13-209(c)of the Code must also satisfy the requirements of section 2-616(d)if an amended complaint naming the personal representative of adecedent as a defendant is filed after the expiration of theapplicable limitation period.

The issue in this case is not whether the filing of theplaintiff's amended complaint on February 10, 2000, relates back tothe filing of her original complaint on December 31, 1998. Theplaintiff does not assert that it does. Rather, the question iswhether the plaintiff satisfied all of section 13-209(c)'srequirements for the commencement of an action against the personalrepresentative of George Thompson.

Many of the factual prerequisites to the application ofsection 13-209(c) are not in dispute. The plaintiff's originalaction naming Thompson as a defendant was filed after Thompson haddied. The plaintiff claims not to have discovered Thompson's deathuntil July or early August 1999, and Escobedo offered no evidenceto the trial court contesting this assertion. The two-yearlimitation period applicable to the plaintiff's individual claimagainst Thompson (see 735 ILCS 5/13-202 (West 1998)) expired onJanuary 2, 1999, a date after the filing of the plaintiff'soriginal complaint but prior to the time that she learned ofThompson's death. The plaintiff's action against Thompson was onefor damages predicated upon negligence resulting in bodily injury. Consequently, the claim survived Thompson's death. 755 ILCS 5/27-6(West 1998)); Lindsey v. Special Administrator of the Estate ofGeorge Phillips, 219 Ill. App. 3d 372, 375, 579 N.E.2d 445 (1991). Further, since the record reveals that Thompson and his estate areprotected by liability insurance, the claim asserted in favor ofthe plaintiff individually is not "otherwise barred" within themeaning of section 13-209 of the Code. See Hannah, 207 Ill. App.3d at 92-94; 755 ILCS 5/18-12(c) (West 1998). Finally, it is clearthat Escobedo was appointed special administrator of Thompson'sestate and that the plaintiff's amended complaint was filed againsther within two years following the expiration of the statute oflimitation for bodily injury claims (735 ILCS 5/13-202 (West1998)).

With these facts being uncontested, the focus of our analysisis upon the remaining two prerequisites for the application ofsection 13-209(c), namely, the diligence requirements set forth insubsections (1) and (2) (735 ILCS 5/13-209(c)(1),(2) (West 1998)). Escobedo argues, as she did below, that the plaintiff failed toexercise reasonable diligence both in moving the court for leave tofile an amended complaint naming her as a party defendant asrequired by section 13-209(c)(1) and in serving process upon her asrequired by section 13-209(c)(2).

Section 13-209(c) does not define the term "reasonablediligence" and the statute does not indicate what factors a courtshould consider in determining whether a party has exercisedreasonable diligence either in seeking leave to file an amendedcomplaint or in serving process. The parties analogize the inquiryto the one performed by a court in the context of Supreme CourtRule 103(b) (177 Ill. 2d R. 103(b)) when determining whether aplaintiff has exercised reasonable diligence to obtain service ona defendant. We find this analogy to be appropriate.

Plaintiffs have a nondelegable duty to take all necessarysteps to bring their actions to a prompt conclusion. Penrod v.Sears, Roebuck & Co., 150 Ill. App. 3d 125, 129, 501 N.E.2d 367(1986). As our supreme court observed in O'Connell v. St. FrancisHospital, 112 Ill. 2d 273, 282, 492 N.E.2d 1322 (1986), "[n]othingis more critical to the judicial function than the administrationof justice without delay." Just as the exercise of reasonablediligence in the service of process is essential to this purpose(O'Connell, 112 Ill. 2d at 282), so also is the exercise ofreasonable diligence in amending a complaint originally filedagainst a decedent to name and substitute the decedent's personalrepresentative as a defendant. Supreme Court Rule 103(b) assiststhe courts of this State in effectuating their historical andconstitutional mandate to render justice fairly and promptly (seeO'Connell, 112 Ill. 2d at 282) and we believe that the same can besaid of the diligence requirements set forth in section 13-209(c). Since both Rule 103(b) and the diligence requirements of section13-209(c) have a common purpose, the expeditious handling of suits,essentially the same factors should be considered in determiningwhether a plaintiff has exercised reasonable diligence.

In determining whether a plaintiff has exercised reasonablediligence in serving process, courts should consider: the length oftime used to obtain service; the plaintiff's activities and effortsin attempting to effectuate service; the plaintiff's knowledge ofthe defendant's location; the ease with which the defendant'swhereabouts could be ascertained; special circumstances affectingthe plaintiff's efforts to obtain service; and whether thedefendant was served. Segal v. Sacco, 136 Ill. 2d 282, 287, 555N.E.2d 719 (1990). The defendant's actual knowledge of thependency of a suit and the lack of prejudice to the defendant areadditional factors that courts consider in determining whether aplaintiff was diligent in effectuating service of process. Womickv. Jackson County Nursing Home, 137 Ill. 2d 371, 377, 561 N.E.2d 25(1990).

In determining whether, after learning of the decedent'sdeath, a plaintiff has exercised reasonable diligence in seekingleave of court to file an amended complaint against the personalrepresentative, courts should consider: the length of time betweenthe date that the plaintiff learns of the death and the date thatshe moves to file an amended complaint; the plaintiff's activitiesin preparation for the filing of an amended complaint; theplaintiff's knowledge of the filing of a petition for the issuanceof letters of office for the decedent's estate, if any; whether thepersonal representative had knowledge of the pendency of the actionnaming the decedent as a defendant; special circumstances whichmight have contributed to a delay in the plaintiff seeking leave tofile an amended complaint; whether an amended complaintsubstituting the personal representative as a defendant was everfiled; and any prejudice occasioned by a delay in the filing of anamended complaint. Consideration of these factors in determiningwhether a plaintiff has exercised diligence in seeking leave ofcourt to file an amended complaint naming a personal representativetakes into account the purpose of section 13-209(c).

In this case, the plaintiff learned that Thompson was dead inlate July or early August of 1999. On August 5, 1999, she filed amotion to suggest Thompson's death of record. Forty-one dayslater, on September 15, 1999, the plaintiff filed a motion seekingthe appointment of Escobedo as special administrator of Thompson'sestate for the purpose of defending this action. That motion wasgranted on September 27, 1999. The record before us does notreflect any activity on the plaintiff's part after Escobedo'sappointment until she executed a waiver of service on December 8,1999. After Escobedo executed the waiver, the plaintiff didnothing further until January 31, 2000, when she filed a motionseeking leave to file an amended complaint naming Escobedo as aparty defendant.

Escobedo argues that the 191 days which elapsed from the dateThompson's death was spread of record until the plaintiff filed hermotion for leave to amend her complaint to name Escobedo as adefendant evinces a lack of diligence. We believe, however, thatthe record clearly demonstrates that the plaintiff actedexpeditiously at all times up to the date that Escobedo wasappointed as the special administrator of Thompson's estate. It isthe period of four months and four days which elapsed betweenEscobedo's appointment and the date the plaintiff filed her motionfor leave to file an amended complaint which compels furtheranalysis.

The plaintiff points out that, during this period of time, sheobtained a waiver of service executed by Escobedo on December 8,1999. However, the execution of a waiver of service by Escobedodid nothing to eliminate the need for the plaintiff to file anamended complaint substituting Escobedo as a defendant in the placeof Thompson. A decedent and the special administrator of hisestate are separate entities (Vaughn, 126 Ill. 2d at 158-59), anda plaintiff is required to set forth in the body of her complaintthe names of all defendants against whom relief is sought (735 ILCS5/2-401(c) (West 1998)). Nor was the plaintiff required to obtaina waiver of service from Escobedo before she could seek leave tofile her amended complaint. Accordingly, we fail to see how thefact that the plaintiff obtained the waiver of service is relevantto a determination as to whether she exercised reasonable diligencein seeking leave to file an amended complaint.

We also fail to see the relevance of the fact that, as theplaintiff informs us, her attorney was in the process of moving toa different law firm in late December 1999 and early January 2000. Although counsel's move might well be viewed as an excuse for nothaving sought leave to file an amended complaint at some earlierdate, it can hardly be viewed as a "special circumstance" affectinghis ability to have done so.

We are left, then, to determine whether a four month and fourday period of inactivity between the date that Escobedo wasappointed special administrator and the date that the plaintiffsought leave to file an amended complaint is sufficient to supporta finding that the plaintiff failed to satisfy the diligencerequirement of section 13-209(c)(1). Our review of the recordfails to reveal any evidence that the delay of approximately fourmonths between Escobedo's appointment as special administrator ofThompson's estate and the filing of the plaintiff's motion seekingleave to file an amended complaint caused evidence to grow stale orcaused witnesses to become unavailable or their memories to lapse. Further, Escobedo has never argued that the delay in some mannerdenied her of a fair opportunity to investigate the circumstancesupon which the plaintiff's claim is predicated. See Segal, 136Ill. 2d at 288-89. Consequently, in the absence of any prejudiceto Escobedo and after a consideration of the relevant factors, weconclude that the plaintiff's inactivity for four months and fourdays is simply insufficient to support a finding that she failed toexercise reasonable diligence in moving the court for leave to fileher amended complaint after learning of Thompson's death.

Escobedo also argues that the plaintiff failed to exercisereasonable diligence in serving process upon her as required bysection 13-209(c)(2). She argues that the waiver of service sheexecuted on December 8, 1999, was ineffective as it was filed priorto the filing of the amended complaint. She correctly points outthat the plaintiff never even attempted to serve process upon herafter the filing of the plaintiff's amended complaint.

A court obtains personal jurisdiction over a defendant eitherwhen she is served with process or when she enters a generalappearance. Pearson v. Lake Forest Country Day School, 262 Ill.App. 3d 228, 232, 633 N.E.2d 1315 (1994). Any action taken by adefendant that recognizes a case as being in court constitutes theentry of a general appearance unless the action is taken for thesole purpose of objecting to the court's jurisdiction over thedefendant's person. In re Marriage of Snider, 305 Ill. App. 3d697, 699, 712 N.E.2d 947 (1999). On March 7, 2000, 25 days afterthe plaintiff filed the amended complaint naming her as adefendant, Escobedo filed a motion to dismiss, arguing that theclaims asserted against her were time-barred. By filing thismotion, Escobedo appeared generally, thus submitting herself to thejurisdiction of the court (Mueller v. Mueller, 36 Ill. App. 2d 305,307, 183 N.E.2d 887 (1962)) and waiving any requirement that she beserved with process (In re Marriage of Gorman, 284 Ill. App. 3d171, 178, 671 N.E.2d 819 (1996)). As such, Escobedo can hardly beheard to complain that the plaintiff failed to exercise reasonablediligence in serving her. Therefore, we find no factual basis tosupport any conclusion that the plaintiff failed to satisfy thediligence requirement in section 13-209(c)(2).

Whether we apply a de novo standard of review, as suggested bythe plaintiff, or an abuse of discretion standard, as is typicallyapplied to diligence determinations (see Womick, 137 Ill. 2d at376; Segal, 136 Ill. 2d at 286), we conclude that the trial courterred in its implicit finding that the plaintiff failed to satisfythe diligence requirements set forth in section 13-209(c) of theCode.

For the reasons stated, we find that the trial court erred indismissing the claims asserted by the plaintiff against Escobedo asspecial administrator of Thompson's estate as set forth in countsI and II of her amended complaint, we reverse the trial court'sjudgment in that regard, and remand this cause to the circuit courtfor further proceedings.

Reversed and remanded.

HARTMAN, P.J., and BARTH, J., concur.