Greene v. Helis, 1-92-2375

Citation252 Ill.App.3d 957,192 Ill.Dec. 202,625 N.E.2d 162
Decision Date26 August 1993
Docket NumberNo. 1-92-2375,1-92-2375
Parties, 192 Ill.Dec. 202 Charles GREENE, Plaintiff-Appellant, v. Steven HELIS, as Special Administrator of the Estate of Ralph Berndt, Deceased, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Frank J. DiBella, Ltd., Chicago (Frank J. DiBella and George E. Dykes, of counsel), for plaintiff-appellant.

Querrey & Harrow, Ltd., Chicago (Kevin J. Caplis and Michael Resis, of counsel), for defendant-appellee.

Justice HOFFMAN delivered the opinion of the court:

Plaintiff, Charles Greene, appeals from the dismissal of his personal injury action as barred under certain provisions of the Limitations Act (Ill.Rev.Stat.1991, ch. 110, par. 13-101 et seq.) ("Act"), and from the denial of his motion to reconsider the dismissal. He raises as issues (1) whether the trial court properly determined that his claim was barred by the statute of limitations, and (2) whether defendant, Steve Helis, as Special Administrator of the Estate of Ralph Berndt, waived the statute of limitations as a defense.

About February 8, 1990, plaintiff filed a personal injury action naming Ralph Berndt as defendant for damages he sustained on April 27, 1988, when Berndt's vehicle collided with one in which plaintiff was a passenger. Following five attempts at service, summons was returned unserved on March 1, 1990. Berndt had died of unrelated causes on July 18, 1989.

In fall of 1990, plaintiff filed two notices of motion to suggest Berndt's death of record and for appointment of a special administrator. On February 15, 1991, plaintiff filed a motion suggesting Berndt's death and requesting that Marilou Heinen, who was apparently employed by the law firm of plaintiff's counsel, be appointed special administrator "for the purpose of continuing defense" of the case. That same day, the municipal division of the circuit court entered an order appointing Heinen "special administrator" of Berndt's estate. On March 22, 1991, without leave of court, plaintiff filed an amended complaint naming Heinen as defendant in her capacity as special administrator.

On May 6, 1991, the probate division of the circuit court issued letters of office to Heinen, appointing her independent administrator of Berndt's estate and authorizing her to take possession of and collect the estate and to do all acts required by law.

Also on May 6, 1991, an appearance and jury demand was filed on behalf of Berndt's estate (hereinafter "defendant"), along with a motion to transfer venue. Defendant subsequently served plaintiff with discovery and also filed an answer to the complaint, raising as a special defense contributory negligence on plaintiff's part. Plaintiff filed his discovery requests and responses to defendant's discovery and special defense.

On September 16, 1991, on motion by defendant, the municipal division entered an order substituting attorney Steve Helis in place of Heinen as special administrator of Berndt's estate. About a week later the court granted a motion by defendant for leave to file contribution claims against certain third parties.

On November 7, 1991, defendant filed a combined motion to withdraw his answer and to strike and dismiss plaintiff's complaint pursuant to Code of Civil Procedure section 2-619(a)(5) (Ill.Rev.Stat.1991, ch. 110, par. 2-619(a)(5)) on the grounds the action was barred by the statute of limitations. Defendant also filed a response to a motion to dismiss by third-party defendants and served these defendants with discovery.

Following a hearing, the trial court granted defendant's motion and dismissed the suit with prejudice. Plaintiff then sought reconsideration of this dismissal, but the court denied his motion on the basis that the suit was barred under section 13-202 of the Act (Ill.Rev.Stat.1989, ch. 110, par. 13-202). The court found that the original complaint of February 8, 1990, naming a deceased defendant, was void ab initio and failed to invoke the court's jurisdiction; and the amended complaint of March 22, 1991, naming the special administrator of Berndt's estate, and the order of September 19, 1991, substituting Helis as special administrator, did not relate back to the filing of the original action. The instant appeal timely followed. For the reasons below, we must affirm.

On appeal, plaintiff concedes that the original complaint against a decedent was a nullity. However, he maintains this defect was cured by the amended complaint. Specifically, he contends that this case fell within the ambit of section 13-209 of the Act (Ill.Rev.Stat.1989, ch. 110, par. 13-209), under which he had six months from the date letters of office issued to Heinen to initiate suit against her as estate administrator. There are several problems with this theory.

As a preliminary matter, we note that the accident giving rise to plaintiff's claim occurred April 27, 1988. Although the original complaint was timely, the amended complaint was filed nearly one year after the expiration of the two-year limitations period for personal injury actions under the Act. (Ill.Rev.Stat.1989, ch. 110, par. 13-202.) Under the supreme court case of Vaughn v. Speaker (1988), 126 Ill.2d 150, 127 Ill.Dec. 803, 533 N.E.2d 885, the amended complaint does not relate back to the original.

In Vaughn, the court addressed a situation very similar to that at bar. There, the plaintiffs' initial suit was timely but named a deceased defendant. Then, with leave of court on the basis of an alleged misnomer, the plaintiffs amended their complaint after the limitations period to name the decedent's executors. In concluding that the amended complaint did not relate back, the court first stated that changing the name of the defendant from a deceased to his executors did not constitute the mere correction of a misnomer. (Vaughn, 126 Ill.2d at 158, 127 Ill.Dec. 803, 533 N.E.2d 885.) The court went on to determine that the amended complaint did not fall within the relation-back doctrine of Code of Civil Procedure section 2-616(d) (Ill.Rev.Stat.1989, ch. 110, par. 2-616(d)), where there was no evidence or assertion that the estate executor was aware, prior to the limitations period, that suit had been filed. Vaughn, 126 Ill.2d at 159-60, 127 Ill.Dec. 803, 533 N.E.2d 885.

Similarly, in the case at bar there is no evidence that Berndt's estate was aware prior to the expiration of the limitations period on April 27, 1990, that a complaint had been filed against him. It was not until several months later that plaintiff first moved to suggest Berndt's death of record. Accordingly, under Vaughn, the amended action did not relate back and was barred.

Additionally, the amended complaint is a nullity because it was filed without leave of court. A complaint adding a claim or new party cannot be filed without an express grant of leave. (Callaghan Paving Inc. v. Keeneyville Construction Co. Inc. (1990), 197 Ill.App.3d 937, 145 Ill.Dec. 458, 557 N.E.2d 228; Condell Hospital v. Health Facilities Planning Board (1987), 161 Ill.App.3d 907, 113 Ill.Dec. 765, 515 N.E.2d 750, aff'd (1988), 124 Ill.2d 341, 125 Ill.Dec. 189, 530 N.E.2d 217; Allen v. Archer Daniels Midland Co. (1985), 129 Ill.App.3d 783, 84 Ill.Dec. 921, 473 N.E.2d 137.) Failure to obtain leave has been deemed a jurisdictional defect and thus non-waivable. (See Torley v. Foster G. McGaw Hospital (1983), 116 Ill.App.3d 19, 72 Ill.Dec. 75, 452 N.E.2d 7.) In any case, an amended pleading filed without leave does not toll the statute of limitations, and must be disregarded on appeal. (Condell, 161 Ill.App.3d at 935, 113 Ill.Dec. 765, 515 N.E.2d 750; McGinnis v. A.R. Abrams, Inc. (1986), 141 Ill.App.3d 417, 420, 95 Ill.Dec. 642, 490 N.E.2d 115.) Finally, such leave must be expressly granted by court order and will not be implied. McGinnis, 141 Ill.App.3d at 420-21, 95 Ill.Dec. 642, 490 N.E.2d 115.

In the case at bar, plaintiff moved to have Heinen appointed special administrator of Berndt's estate, and after the court ordered this appointment, plaintiff merely filed his amended complaint without ever obtaining leave to amend, or to substitute Heinen as defendant (see Ill.Rev.Stat.1989, ch. 110, par. 2-1008(b)). Thus, his amended complaint must be disregarded by this court.

The crux of plaintiff's contention on appeal derives from section 13-209 of the Act, which applies to survival actions against decedents which, at the time of the decedent's death, were not yet barred by the statute of limitations. Section 13-209 permits the filing of such actions against the decedent's executors or administrators after the expiration of the applicable limitations period, provided, in relevant part, that they are filed "within six months after the issuing of letters of office" for the decedent's estate. Ill.Rev.Stat.1989, ch. 110, par. 13-209; Rivera v. Taylor (1975), 61 Ill.2d 406, 336 N.E.2d 481; McCue v. Colantoni (1980), 80 Ill.App.3d 731, 36 Ill.Dec. 263, 400 N.E.2d 683.

In the instant case, plaintiff does not dispute that the amended complaint was filed over one month before the issuance of letters of...

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