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No. 3-02-0511

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

PRESIDING JUSTICE McDADE delivered the opinion of the court:

Plaintiff, Debra A. Pratt-Holdampf, appeals from an order ofdismissal with prejudice granted by the circuit court of RockIsland County to Trinity Medical Center and other defendants.Because plaintiff's original complaint was improperly dismissed,we reverse and remand.

FACTS

This appeal stems from events surrounding the death ofRobert Guinn. On January 18, 1998, Robert suffered a stroke. Hewas taken to the emergency room at the Trinity Medical Center(Trinity) in Rock Island, Illinois, where he died hours later. Surviving Robert were his wife, Mary Guinn, and three adultchildren, Debra A. Pratt-Holdampf, Denise R. Dreifurst andJessica L. Guinn. Following the subsequent death of Mary, theWhiteside County probate court appointed plaintiff as specialadministrator of Robert's estate. Plaintiff was not an attorneylicensed to practice law in Illinois or in any otherjurisdiction.

Believing Robert's death may have been wrongfully caused byTrinity and its attending medical staff, plaintiff consulted withan attorney, Richard Dahl, who was licensed in Illinois butresiding out of the state. Pursuant to his instruction and hisassurance that the complaint could always be amended by anattorney at a later date, plaintiff escaped the bar of thestatute of limitations by filing, on February 8, 2000, a pro secomplaint and statutorily required medical report allegingmedical malpractice against Trinity and other defendants. In hercomplaint, plaintiff alleged that defendants negligently delayedthe diagnosis of Robert's medical condition and that theresulting delay in treatment caused his death. Plaintiff furtherasserted that defendants were also negligent in failing toadminister proper care, thereby effectively hastening Robert'sdeath. No summons issued at the time the complaint was filed andno defendant was then served.

Two months later, and prior to any response by defendants,an appearance was filed on plaintiff's behalf by Thomas Pastrnak,a licensed Illinois attorney. Pastrnak caused the summons andcomplaint to be served on the defendants. He later withdrewciting a conflict of interest. In granting the motion towithdraw on July 17, 2000, the court ordered defendants toproceed with plaintiff pro se if she was unable to secure counselwithin 21 days. Supplemental appearances on behalf of plaintiffwere filed by Dahl and other licensed Illinois attorneys. Itappears that plaintiff was represented by counsel at every stageof the proceedings, including service of process, subsequent tothe initial filing.

Defendants had filed motions to dismiss and strike andaddenda thereto from May through August 2000, but none had beenruled on. On January 18, 2001, Trinity filed a supplementalmotion pursuant to section 2-619 of the Illinois Code of CivilProcedure (735 ILCS 5/2-619 (West 2000)), requesting dismissal ofplaintiff's complaint. Other defendants joined in this motion. In support, defendants relied on the newly decided case ofRatcliffe v. Apantaku, 318 Ill. App. 3d 621, 742 N.E.2d 843(2000), to argue for the first time that the original complaintfiled by plaintiff, a nonattorney special administrator, was anullity, and thus, no valid complaint had ever been filed.

Plaintiff responded that she filed the complaint not only asthe special administrator but also on "behalf of herself and hertwo sisters." She also claimed to have made reasonable anddiligent efforts to secure counsel to file the original complaintand noted that all subsequent pleadings were made by Illinoisattorneys who had supplementally appeared and filed responses tothe motions.

On May 10, 2001, following three changes of judge pursuantto plaintiff's allegations of conflict, a hearing was held ondefendants' motions. The trial court determined that plaintiff,as the special administrator of decedent's estate, could not filea valid complaint for wrongful death because she was not anattorney. Plaintiff's original complaint was found to be void abinitio and was dismissed without prejudice. On May 31, inresponse to plaintiff's motion for leave to file an amendedcomplaint and defendants' objections to the filing, the courtmodified its May 10 order to deny leave to file an amendedcomplaint, but gave plaintiff leave to file a new complaintwithin 14 days. This order also required issuance and service ofsummons.

Also on May 31, plaintiff filed a memorandum in support ofher motion to file the amended complaint, asserting that theoriginal complaint had been filed in February 2000 but not serveduntil April 2000, after attorney Pastrnak entered his appearanceand effected the service without making any change to theexisting complaint. Plaintiff claimed that the attorney'sactions constituted adoption and ratification, thereby validatingthe wrongful death action -- if it had ever been invalid -- andeliminating the statutory concern that no attorney was involved. Defendants responded to this assertion, but there was no ruling.

On June 25, 2001, there was a hearing in which the courtsought to clarify the various issues on the record. It found thatplaintiff filed her pro se complaint in her capacity as specialadministrator of her father's estate and that complaint was, bylaw, a nullity and void ab initio. After reviewing the contentsof the complaint, it further found that the complaint on behalfof plaintiff's sisters was also a nullity and void from themoment of its filing. Those claims were dismissed withoutprejudice. It also found that the action was brought byplaintiff in both her capacity as special administrator andindividually. It dismissed the individual claim withoutprejudice and granted leave to file an amended complaint. Plaintiff filed her amended complaint that same day. The rulingsmade at the June 25 hearing were reduced to writing and a writtenorder was filed on July 17, 2001, which permitted Pratt to amendthe complaint within 30 days of June 26, 2001.

Thereafter, defendants moved to dismiss the amendedcomplaint which had been filed on June 25, claiming that it didnot comply with the statute of limitations, challenging thephysician's certificate of merit, and otherwise attacking themerits of the complaint.

In responding to the limitations challenge in these motions,plaintiff asserted that her June 25 amended complaint should,pursuant to section 2-616 of the Code of Civil Procedure (735ILCS 5/2-616 (West 2000)), relate back to the original filing ofFebruary 8, 2000. Defendant Trinity replied, attacking both therelation back argument and the sufficiency of the medical report,together with other assertions of pleading deficiencies.

On September 4, 2001, at a hearing on pending motions, thecourt reversed itself again, holding that it had erred inallowing plaintiff to amend because the original complaint was anullity and the relation back statute presupposes an action thatcan be amended. Consequently, the court ruled that the June 25"amended complaint" should be treated as an original complaintfiled on that date and decided the merit issues raised bydefendants. The order culminated in a decision that the June 25,2001, amended/new complaint was dismissed and plaintiff was givenuntil October 2, 2001, to file a new amended complaint with a newreport of a reviewing health care professional in compliance withsection 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622(b)(West 2000)). The decisions reached at this hearing werememorialized in the court's written order of October 4, 2001.

Also on October 4, plaintiff's lead counsel was allowed towithdraw pursuant to a motion filed in September and over theplaintiff's objection. On October 9, Richard Dahl, plaintiff'slocal counsel, also sought leave to withdraw, reciting his lackof expertise to pursue the malpractice action without theinvolvement of lead counsel. He also requested an extension oftime for plaintiff to secure counsel competent to file theamended complaint and new medical certificate of merit. Althoughhe was initially denied leave to withdraw, the court reversedthat decision but denied the extension of time. On November 16,2001, the same day that Dahl was allowed to withdraw, the courtgranted defendants' motions for a final order, dismissingplaintiff's amended/new complaint filed June 25, 2001, withprejudice.

On December 13, 2001, attorney Stayart entered hisappearance for plaintiff and, on December 17, moved to vacate thejudgment, for leave to file an amended complaint, and forreconsideration. Defendants resisted the motion and, on June 19,2002, arguments on plaintiff's motion were heard by the newlyassigned judge on the case. The motion was denied and plaintifftimely appealed.

ANALYSIS

The sole issue raised by plaintiff on appeal is whether thetrial court's dismissal of the complaint was justified based onthe fact that it was improper for plaintiff, a pro se litigant,to represent her deceased father's estate in a wrongful deathaction. This is a question of law, which we review de novo. SeeWoods v. Cole, 181 Ill. 2d 512, 516, 693 N.E.2d 333 (1998). In Illinois, it is well established that only persons dulyadmitted to practice law in this state may appear on behalf ofother persons. Leonard v. Walsh, 73 Ill. App. 2d 45, 220 N.E.2d57 (1966); National Bank of Austin v. First Wisconsin NationalBank of Milwaukee, 53 Ill. App. 3d 482, 489, 368 N.E.2d 119(1977); Marken Real Estate & Management Corp. v. Adams, 56 Ill.App. 3d 426, 371 N.E.2d 1192 (1977). The normal effect of aperson's unauthorized practice on behalf of a party is to requiredismissal of the cause or to treat the particular actions takenby the representative as a nullity. Blue v. People, 223 Ill. App.3d 594, 585 N.E.2d 625 (1992). The purpose of the rule is toprotect litigants against the mistakes of those ignorant of thelaw and the schemes of the unscrupulous, and to protect the courtitself in the administration of its proceedings from thoselacking requisite legal skills. City of Chicago v. Witvoet, 12Ill. App. 3d 654, 299 N.E.2d 128 (1973). Illinois courts haveadhered to this general rule. Ratcliffe v. Apantaku, 318 Ill.App. 3d 621, 742 N.E.2d 843 (2000); Berg v. Mid-AmericaIndustrial, Inc., 293 Ill. App. 3d 731, 688 N.E.2d 699 (1997).

However, this rule is not to be applied automaticallywhenever a person not licensed to practice in Illinois signs apleading. Plaintiff correctly argues that Janiczek v. DoverManagement Co., 134 Ill. App. 3d 543, 481 N.E.2d 25 (1985),establishes an express exception to the nullity rule.

In Janiczek, the plaintiff retained an Illinois licensedattorney to handle a workers' compensation action and a personalinjury claim. The attorney settled the workers' compensationaction and subsequently was disbarred. He then filed theplaintiff's personal injury action, under the name of anotherattorney, without authorization to do so. Defendants then movedto dismiss the action, claiming plaintiff was represented by anonattorney and, therefore, the complaint was null and void abinitio. The circuit court granted the motion and dismissed

the case with prejudice. The appellate court reversed thedismissal, reasoning that dismissal of a layperson's claim underthe unique circumstances of this case defeated the purpose of therule, because the layperson's representative had been a licensedattorney when he was retained to render his services. Janiczek,134 Ill. App. 3d at 546, 481 N.E.2d at 26-27. The courtexplained:

"That rule is intended to protect litigants against themistakes of the ignorant and the schemes of theunscrupulous and to protect the court itself in theadministration of its proceedings from those lackingthe requisite skills. [Citation.] But, we do notbelieve that either of these purposes is promoted bythe dismissal of plaintiff's action. Not only wouldsuch a result clearly penalize an innocent partypossessing a substantial personal injury claim, but italso would overlook the fact that the party did securethe services of a licensed attorney to represent him attrial." Janiczek, 134 Ill. App. 3d at 546, 481 N.E.2dat 27.

A similar observation was made by the Fourth DistrictAppellate Court in McEvers v. Stout, 218 Ill. App. 3d 469, 578N.E.2d 321 (1991). The McEvers court allowed the plaintiffs toamend their medical malpractice complaint after the expiration ofthe statute of limitations where the original complaint wasdismissed as a nullity because it was filed by an attorney notlicensed to practice in Illinois. The court concluded that thenullity rule exacted too harsh a penalty on litigants:

"Underlying our decision is the recognition that anullity rule appears to punish the litigant rather thanthe offending attorney. This might be advisable, if wecould legitimately assume that litigants are aware ofthe rules relating to the practice of law. Assumingsuch would be unreasonable." McEvers, 218 Ill. App. 3dat 472, 578 N.E.2d at 322.

Moreover, in Moushon v. Moushon, 147 Ill. App. 3d 140, 497N.E.2d 820 (1986), this court held that a judgment of foreclosurewas not void because the complaint for foreclosure was filed by alay agent of the corporate mortgagee and not by a licensedattorney. In Moushon, the complaint for foreclosure was signed bythe corporate mortgagee's president, who was not an attorney.Defendants in the foreclosure action contended that the judgmentof foreclosure was void since the complaint was filed by a layagent of the corporation and not by a licensed attorney. Inrejecting this argument, we noted the complaint recited that thecorporate mortgagee, "comes by its attorney, and the trial courtrecord discloses that the corporation was represented by alicensed attorney at every stage of the proceeding." Moushon, 147Ill. App. 3d at 147, 497 N.E.2d at 825. Thus, "[t]he signature ofthe president of the corporation on the complaint was notimproper." Moushon, 147 Ill. App. 3d at 147, 497 N.E.2d at 825.

In light of this discussion of prior cases, we find therisks to individual clients and to the integrity of the legalsystem inherent in representation by a person who has neverqualified to practice law are not present in the instant case. Here, plaintiff had consciously chosen to be represented by anattorney before the filing of the complaint. She made reasonableand diligent efforts to secure the participation of Richard Dahl,a licensed Illinois attorney. He advised her: (1) to locate aqualified doctor, who could prepare the requisite report tosupport a malpractice complaint, and (2) to sign and file thecomplaint. He specifically told her that the complaint could beamended once he returned to Illinois and entered his appearance. Furthermore, the failure of plaintiff's attorney to sign theinitial complaint bore no meaningful relation to plaintiff'sability to represent her father's estate. We believe that therule of allowing only persons duly admitted to practice law inthis state to appear on behalf of other persons is fairly andeffectively served by an order that reinstates plaintiff'scomplaint.

Finally, cases cited by defendants are distinguishable insignificant ways. In Ratcliffe v. Apantaku, 318 Ill. App. 3d 621,742 N.E.2d 843 (2000), the plaintiff, acting pro se and prior toher appointment as special administrator, brought a wrongfuldeath and survival action on behalf of her deceased motheralleging numerous acts of medical negligence against her mother'streating physicians. The plaintiff had never retained an attorneyat the trial level and continued to act pro se on appeal. Thepetition for the trial court to appoint counsel on her behalf wasproperly dismissed. Ratcliffe, 318 Ill. App. 3d at 623, 627, 742N.E.2d at 844, 847.

In Blue v. People, 223 Ill. App. 3d 594, 585 N.E.2d 625(1992), a pro se plaintiff filed a complaint for an order ofhabeas corpus in the name of his minor child alleging that thechild was being held in his mother's custody in violation of dueprocess of law. The plaintiff did not retain an attorney untilapproximately three weeks after his appellate reply brief wasfiled. Blue, 223 Ill. App. 3d at 596, 585 N.E.2d at 625-26.

In Waite v. Carpenter, 1 Neb. App. 321, 496 N.W.2d 1 (1992),the Nebraska Court of Appeals held that a personal representativewas acting in a representative capacity for the estate and couldnot proceed pro se in a wrongful-death action. The Waiteplaintiff retained a Nebraska counsel to appear solely forpurposes of contesting a summary judgment hearing rather thanentering a general appearance as counsel in the cases. Waite, 1Neb. App. at 324, 496 N.W. 2d at 3.

Unlike the situations in Ratcliffe, Blue and Waite,plaintiff in the instant case has been represented by counsel atevery stage of the proceeding since the filing of her complaint.

We find that dismissal of plaintiff's claims with prejudice onthis basis was improper. We reverse that decision.

That does not, however, answer all of the relevant questionsbecause the claims were also dismissed for plaintiff's failure tocomply with the requirements for a certificate of medical meritimposed by section 2-622 of the Illinois Code of Civil Procedure(735 ILCS 5/2-622 (West 2000)).

Plaintiff had been directed by the court to file a complaintto amend the amended complaint filed June 25, 2001, which thecourt had now characterized as the new "original" complaint. Shewas ordered on September 4 by oral ruling to file that amendedcomplaint to cure substantive deficiencies by October 2, 2001. That ruling was not reduced to writing until October 4, 2001 --two days after the amended complaint was due.

In the time between September 4 and October 2, plaintiff'slead attorney, Ian Alexander, sought leave to withdraw. Overplaintiff's objection, he was granted that leave on the same daythe written order was entered -- October 4, 2001. He had notfiled the amended complaint on October 2, nor, absent a writtenorder, was he obligated to have done so. When the preparation ofa written order is contemplated, oral rulings are not effectiveuntil its entry. People v. Rymut, 216 Ill. App. 3d 920, 576N.E.2d 1208 (1991); 134 Ill. 2d R. 271. When the order wasentered on October 4, it required plaintiff to do the impossible-- to file an amended complaint two days prior to its entry. Wehave found nothing in the record setting a new filing date.

On October 9, plaintiff's local counsel, Richard Dahl, alsosought leave to withdraw, asserting his lack of expertise topursue a medical malpractice action without experienced leadcounsel. At that time, he also asked for an extension of time topermit plaintiff to find counsel competent to file a propermalpractice complaint and certificate of medical merit. Thismotion was initially denied but, on November 16, Dahl was allowedto withdraw; however, no extension of time was granted. On thatsame day the court entered a final order dismissing plaintiff'sclaims with prejudice.

Plaintiff's new counsel entered his appearance on December13, 2001, and four days later, tendered an amended complaint witha motion to vacate the judgment, for reconsideration of thematter, and for leave to file an amended complaint. The newlyassigned fifth judge on the case had a hearing on the motions anddenied them.

We believe that, in the circumstances of proceduralconfusion described by the parties and documented by the record,it is fundamentally unjust to hold plaintiff foreclosed from anopportunity to file an amended complaint that relates back to theoriginal complaint filed by plaintiff on February 8, 2000, andadopted and served by counsel in April 2000.

CONCLUSION

Accordingly, we find that, under the facts of this case, thetrial court erred in finding plaintiff's complaint to be anullity that could not be amended and further erred in notsetting a date capable of being complied with for filing anamended complaint. The order of the circuit court of Rock IslandCounty is reversed and remanded for proceedings consistent withthis opinion.

Reversed and remanded.

SLATER, J., concurs.

HOLDRIDGE, J., dissents.

JUSTICE HOLDRIDGE, dissenting:

The majority accurately states that only licensed attorneyscan represent other persons in legal actions, and thatunauthorized legal practice requires dismissal of a cause. SeeRatcliffe v. Apantaku, 318 Ill. App. 3d 621 (2000); Leonard v.Walsh, 73 Ill. App. 2d 45 (1966); Blue v. People, 223 Ill. App.3d 594 (1992). However, I believe the majority errs in findingan exception to this rule under the instant facts. I thusrespectfully dissent.

The majority relies on three cases to construct itsexception, all of which are distinguishable. In Janiczek v.Dover Management Co., 134 Ill. App. 3d 543 (1985), the plaintiffretained a licensed attorney who was later disbarred unbeknownstto the plaintiff. In his disbarred state, the attorney filed acomplaint which was later dismissed according to the above-statedrule. "Given these unique circumstances" (Janiczek, 134 Ill.App. 3d at 546), the court held that dismissal with prejudice wasan unduly harsh sanction against the plaintiff, who neverconsciously chose to be represented by a lay person. Thus, anexception to the general rule was appropriate. In McEvers v.Stout, 218 Ill. App. 3d 469, 472 (1991) (involving an attorneylicensed in Wisconsin but not Illinois), the court elucidated therationale for this exception by stating: "a nullity rule appearsto punish the litigant rather than the offending attorney."

Unlike Janiczek and McEvers, the instant case does notinvolve a complaint filed by an unlicensed attorney for anunwitting client. Since Pratt-Holdampf prepared and filed herown complaint, she could not possibly claim that she thought theperson initiating the suit was duly licensed. Accordingly, theunique circumstances mentioned above are not present. Withoutsuch circumstances, as the Janiczek court noted, the general ruleof dismissal applies "even where the lay agent merely files thecomplaint over his own signature, and all subsequent courtappearances are made by a duly licensed attorney." Janiczek, 134Ill. App. 3d at 545. This is apparently what happened in theinstant case.

Neither is the decision in Moushon v. Moushon, 147 Ill. App.3d 140 (1986), availing to Pratt-Holdampf. In that case, acorporation's complaint (signed by its president, a non-attorney)survived because it stated that the corporation "c[ame] by itsattorney." Moushon, 147 Ill. App. 3d at 147. The instantcomplaint, on the other hand, was prepared, signed, and filed bya non-attorney. The Moushon court distinguished this situationwhen making its decision.

The cases cited by the majority simply do not justify adeparture from the well-established rule that non-attorneyscannot represent other parties in court. Accordingly, I dissent.