No. 2-15-0063 Opinion filed April 28, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re ESTATE OF NANCY KLEINE ) Appeal from the Circuit Court ) of Winnebago County. ) ) No. 14-L-79 ) (Richard Calkins, as Administrator of the Estate ) of Nancy Kleine, Plaintiff-Appellee, v. Alden ) Honorable Park Strathmoor, Inc., and Alden Park Strathmoor, ) J. Edward Prochaska, LLC, Defendants-Appellants). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion.

OPINION

¶1 Defendants, Alden Park Strathmoor, Inc., and Alden Park Strathmoor, LLC, petitioned

for leave to appeal under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), asking that we

answer the question of whether the relation-back doctrine applied to the amended pleadings, filed

after the action’s limitations period had run, of plaintiff, Richard Calkins. For the reasons set

forth herein, we answer the question in the affirmative: the amended pleadings related back to

the timely filed complaint.

¶2 I. BACKGROUND

¶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

the special administrator of the Estate was entered January 7, 2013, with letters of office filed the

same day.

¶4 Jim Kleine initiated this action on March 18, 2014, filing a three-count complaint that

alleged violations of the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2012)),

negligence under the Illinois Survival Act (755 ILCS 5/27-6 (West 2012)), and wrongful death

under the Illinois Wrongful Death Act (Act) (740 ILCS 180/1 et seq. (West 2012)). Calkins was

not named as a plaintiff. Jim brought the suit individually and as special administrator of the

Estate. However, Jim was not special administrator of the estate until March 20, 2014, when the

court granted his motion to be appointed special administrator.

¶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 complaint did not add Calkins as a plaintiff.

¶6 On July 17, 2014, defendants filed a motion to dismiss pursuant to section 2-619 of the

Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)). In their motion to dismiss, they

argued that the appointment of Jim as special administrator of the Estate was void because letters

of office for the Estate had already issued for Calkins and thus the court lacked jurisdiction to

appoint Jim. On July 23, 2014, the trial court entered an order granting defendants’ motion to

dismiss and allowing Calkins 14 days to file an amended complaint.

¶7 On August 8, 2014, Calkins, now as plaintiff, filed a second amended complaint, as

special administrator of the Estate. 1 On August 18, defendants moved to dismiss the second

1 The amended complaint was actually entitled “1st Amended Complaint at Law,” but we

note, as did the trial court in its October 17, 2014, order, that the amended complaint was

incorrectly captioned.

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amended complaint on the basis that it was filed after the relevant limitations period had run and

did not relate back to the original complaint. On October 17, 2014, the trial court denied

defendants’ motion to dismiss and ordered that they answer plaintiff’s second amended

complaint.

¶8 On October 30, 2014, defendants filed a motion to reconsider or, in the alternative, for

leave to file an interlocutory appeal pursuant to Illinois Supreme Court Rule 308. In their

motion, defendants argued that the recently decided case of Pirrello v. Maryville Academy, Inc.,

, directly applied to this case and supported that plaintiff’s second

amended complaint did not relate back to the original complaint. On December 29, 2014, the

trial court denied defendants’ motion to reconsider and granted their motion for an interlocutory

appeal. On January 8, 2015, the trial court found that the order involved a question of law for

which there were substantial grounds for difference of opinion and that an immediate appeal

would materially advance the ultimate termination of the litigation. The court certified the

following question:

“Whether the relation back 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.

¶ 10 II. ANALYSIS

¶ 11 Our review of a certified question on permissive interlocutory appeal is governed by

Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). Barbara’s Sales, Inc. v. Intel Corp., 227

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Ill. 2d 45, 57 (2007). Illinois Supreme Court Rule 308 provides an avenue for permissive appeal

of an interlocutory order where the trial court finds that the order involves a question of law for

which there is substantial ground for difference of opinion and that an immediate appeal from the

order may materially advance the ultimate termination of the litigation. Walker v. Carnival

Cruise Lines, Inc.,

(2008). On appeal pursuant to Rule 308, we are

limited to the question certified by the trial court, and the question must be one of law, which we

review de novo. Barbara’s Sales, Inc., 227 Ill. 2d at 58; In re Estate of Williams,

(2006).

¶ 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,

. 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,

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which, fairly construed, is whether an amended complaint relates back to the original, timely

filed complaint where the original complaint was filed by an improperly appointed special

administrator under the Act and the amended complaint substituted in the properly appointed

administrator as plaintiff after the limitations period had run. We find that resolution of this

issue could materially advance the litigation because, if we answer in the negative, defendants’

motion to dismiss should have been granted.

¶ 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,

(“[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,

, 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,

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we will consider the issue because of its novelty and the intuitive appeal of defendants’

arguments.

¶ 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,

. 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]lthough 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

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appointment as special administrator. Id. ¶¶ 49, 51. The plaintiff was the “only party by whom

and in whose name the suit could be brought.” Id. ¶ 52. In a special concurrence, Justice Zenoff

reached the same outcome via an alternative rationale, relying on Pavlov v. Konwall,

(1983), which held that the relation-back doctrine applied where an improperly

appointed administrator was not properly appointed until after the limitations period for the

wrongful-death complaint had run.

. Justice McLaren specially concurred in both

rationales.

¶ 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,

. 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 and submitted to his insurance. Id. ¶ 6. The

plaintiff’s father never assigned his claim for recovery of those expenses under the Rights of

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Married Persons Act, commonly known as the Family Expense Act (750 ILCS 65/15(a)(1) (West

2008)), nor did he have any intention of joining her lawsuit. Pirrello,

. In response to the defendant’s motion, the plaintiff sought leave to file an amended

complaint adding her father as a plaintiff and asserting a claim under the Family Expense Act,

although the applicable limitations period had run. Id. ¶ 7. The trial court denied her motion to

file an amended complaint and granted partial summary judgment for the defendant, finding that

any claim under the Family Expense Act was time-barred. Id. ¶ 8.

¶ 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 amended 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

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amendment to the complaint would not cure that defect, because the father’s claim was time-

barred. Id. ¶ 19. Likewise, here, Jim did not have the authority to assert the original claim on

behalf of the Estate and it was a nullity, and amending the complaint to add plaintiff could not

cure the defect, because the limitations period had run.

¶ 22 Third, defendants cite Kubian,

. 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 of a special administrator, because the estate had assets of approximately $33,000

(see 740 ILCS 180/2.1 (West 1992) (a necessary condition for appointment of special

administrator is that the estate not have an asset beyond a cause of action arising under the Act));

and (3) letters of office had already issued by the time the plaintiff filed suit, and thus the trial

court did not have the authority under the Act to appoint a special administrator. Kubian, 272 Ill.

App. 3d at 252. “The ‘relation back’ doctrine [did] not, therefore, cure the plaintiff’s procedural

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miscues.”

However, this logic did not apply to the plaintiff’s loss-of-consortium claim,

which was a common-law cause of action, and we ultimately let the plaintiff proceed on that

claim. Id. at 252-57.

¶ 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,

. 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,

(father’s claim was not a claim for damages

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resulting from plaintiff’s personal injuries but was a “separate and distinct” claim for her medical

expenses under the Family Expense Act). The resolution of the certified question before us

depends not on whether the amended complaint arises out of the same transaction or

occurrence—the question implicitly assumes that—but instead on whether a change in parties—

from a party without the capacity to sue to a party with the capacity to sue—precludes relation

back under the Act. Accordingly, Pirrello, which held that the relation-back doctrine did not

allow the plaintiff to amend her complaint to add a separate and distinct cause of action after the

limitations period had run, does not support defendants’ position in the resolution of the question

before us.

¶ 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,

,

which we adopted in Mankowski. In Pavlov, the plaintiff filed a complaint under the Act on

behalf of the deceased’s estate.

. The plaintiff filed his original complaint the same

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day he moved to be appointed as administrator of the estate, but his appointment was defective

because it was made upon his motion and he was not entitled to recovery under the Act.

The

defendant therefore moved to dismiss the complaint, and the court granted the dismissal but later

vacated it and reinstated the cause. The plaintiff filed an amended complaint but it was stricken.

¶ 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.

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?’ ”

¶ 30 In answering the question, the 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 transaction 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

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of the deceased, warranted dismissal of the amended complaint. Id. at 580. Rather, the court

noted, an amendment may relate back to a timely filed complaint in order to cure a defective

pleading that did not set forth a condition precedent under the Act. Id.; see Redmond v. Central

Community Hospital,

(1978).

¶ 31 Further problematic for defendants’ position is Boatmen’s National Bank of Belleville v.

Direct Lines, Inc.,

(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.

. The father sued in his capacity as special administrator of

the estate and sought damages on behalf of the decedent’s “ ‘next in kin.’ ”

. 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.

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.

. The action went to trial on the

ninth amended complaint, and Boatmen’s secured a jury verdict for $2,500.

. On

appeal, however, the Fifth District reversed the judgment in a split decision, with the majority

finding that the ninth amended complaint, which was filed outside of the limitations period, did

not relate back to the original complaint.

.

¶ 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.

.

Therefore, the amended complaint grew out of the same transaction or occurrence as the original,

and allowing relation back furthered the legislative intent of preserving a cause of action against

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loss by overly technical application of the rules of pleading.

In its analysis, the supreme

court also cited approvingly the American Law Reports:

“ ‘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.’ ”

(quoting C.T. Drechsler, Annotation, Change in Party After Statute of

Limitations Has Run,

, 47 (1949)).

¶ 33 After considering these cases and the relation-back statute itself (735 ILCS 5/2-616 (West

2012)), we answer the certified question in the affirmative: The relation-back doctrine applies to

an amended wrongful-death and survival complaint 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. The situation presented

by the certified question is similar to that in Pavlov, where the court found that the amended

complaint related back because the amended complaint made substantially the same allegations

and arose out of the same transaction or occurrence, the estate was always listed as an interested

party, and technical rules of pleading should not preclude resolving the case on its merits. The

main difference between Pavlov and the question before us is that in Pavlov no person was

properly appointed as administrator until after the limitations period had run, whereas here a

proper administrator was timely appointed but not added as a plaintiff until after the limitations

period had run. Yet, for purposes of the Act, the Pavlov plaintiff had the same authority to file

the original complaint as Jim did: none.

¶ 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

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complaint to add her capacity as the properly appointed special administrator and that the

amended complaint related back to her original, timely complaint. The main difference between

Mankowski and the situation here is the same difference present in Pavlov: in Mankowski, there

was no special administrator appointed within the limitations period but the plaintiff was

eventually appointed administrator, whereas here a proper administrator was timely appointed

but not added as plaintiff until after the limitations period had run.

¶ 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 action grew out of the same transaction or occurrence set

out in the original, timely complaint. 735 ILCS 5/2-616(b) (West 2012); see Boatmen’s National

Bank of Belleville,

(relation back allowed if two requirements are met: the

original pleading was timely filed and the original and amended pleadings grew out of the same

transaction or occurrence). While section 2-616(b) allows relation back if these two conditions

are met, section 2-616(a) describes the amendments that may be made “any time before final

judgment,” which include changing the cause of action, adding defenses, or “introducing any

party who ought to have been joined as plaintiff.” 735 ILCS 5/2-616(a) (West 2012). Moreover,

we “liberally construe the requirements of section 2-616(b) in order to allow the resolution of

litigation on the merits and to avoid elevating questions of form over substance.” Boatmen’s

National Bank of Belleville,

. Therefore, we hold that whether the amended

complaint added a new party or the same party in a new capacity does not affect our relation-

back analysis. To hold otherwise would be inconsistent with the purpose of the relation-back

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doctrine and would elevate the technical rules of pleading above our interest in resolving cases

on the merits.

¶ 36 Accordingly, we reject defendants’ argument and answer the certified question in the

affirmative.

¶ 37 III. CONCLUSION

¶ 38 We have answered the 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.

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