Calkins v. Alden Park Strathmoor, Inc. (In re Estate of Kleine)

32 N.E.3d 70

In re ESTATE OF Nancy KLEINE (Richard Calkins, as Administrator of the Estate of Nancy Kleine, Plaintiff–Appellee,

v. Alden Park Strathmoor, Inc., and Alden Park Strathmoor, LLC, Defendants–Appellants).

No. 2–15–0063.

Appellate Court of Illinois, Second District.

April 28, 2015.

Lisa A. Jensen, of Jensen Law Office, LLC, of Rockford, for appellants.

Lynne Plum Duffey, of Law Offices of Craig L. Manchik & Associates, of Chicago, for appellee.

OPINION

Justice SPENCE delivered the judgment of the court, with 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 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., 2014 IL App (1st) 133964, 386 Ill.Dec. 108, 19 N.E.3d 1261, 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 Ill.2d 45, 57, 316 Ill.Dec. 522, 879 N.E.2d 910 (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., 383 Ill.App.3d 129, 133, 321 Ill.Dec. 422, 889 N.E.2d 687 (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, 316 Ill.Dec. 522, 879 N.E.2d 910 ; In re Estate of Williams, 366 Ill.App.3d 746, 748, 304 Ill.Dec. 547, 853 N.E.2d 79 (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, 383 Ill.App.3d at 133, 321 Ill.Dec. 422, 889 N.E.2d 687. 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, 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, 2013 IL 114925, ¶ 52, 375 Ill.Dec. 726, 998 N.E.2d 18 (“[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, 272 Ill.App.3d 246, 252, 209 Ill.Dec. 303, 651 N.E.2d 231 (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, 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, 2014 IL App (2d) 140154, 391 Ill.Dec. 473, 30 N.E.3d 1111. 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...