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02/06/89 Bernard O. Lopez, Adm'r of v. . Oyarzabal Et Al.

February 6, 1989

BERNARD O. LOPEZ, ADM'R OF THE ESTATE OF MICHAEL A. LOPEZ, DECEASED, PLAINTIFF-APPELLANT

v.

VICTOR R. OYARZABAL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

535 N.E.2d 8, 180 Ill. App. 3d 132, 128 Ill. Dec. 794 1989.IL.140

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

Rehearing Denied March 17, 1989.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Plaintiff, Bernard O. Lopez, appeals from the dismissal of his wrongful death and dramshop action in the trial court which was dismissed on the basis that he failed to be appointed administrator of his son's estate prior to the expiration of the statute of limitations and, therefore, he was not a proper party plaintiff. On appeal, plaintiff contends that his appointment as administrator following the expiration of the statute of limitations for both the wrongful death action and the dramshop action relates back to the date of filing of the original complaint wherein he alleged he was the administrator of the estate.

On October 17, 1984, plaintiff brought a wrongful death action against defendant, Victor R. Oyarzabal, and alleged that plaintiff, Bernard O. Lopez, was the "duly acting and authorized administrator of the estate of Michael A. Lopez, Deceased." Michael Lopez, the son of Bernard Lopez, had died in a motorcycle accident on October 6, 1984. At the time of the filing of the complaint, plaintiff had not been appointed as administrator of the estate pursuant to the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 1-1 et seq.).

On December 7, 1984, a first amended complaint was filed seeking recovery under the Illinois Dramshop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135) and adding the two additional defendants, Martha Margalski and Thomas Margalski. The first amended complaint also alleged that plaintiff was the administrator of the estate of the decedent. On December 21, 1984, defendant Oyarzabal filed a motion to strike the amended complaint contending that plaintiff had not been properly appointed administrator of the estate of Michael Lopez. On March 5, 1985, the trial court entered an order striking the first amended complaint, denying plaintiff's motion for appointment of a special administrator and granting plaintiff leave to file a second amended complaint.

On March 18, 1985, plaintiff's motion to be appointed as special administrator was granted by an order entered in the law division. *fn1 On March 29, 1985, a second amended complaint was filed in which the allegations were identical to those stated in the first amended complaint. On December 3, 1986, defendants Two-Way Inn, Inc., Martha Margalski and Thomas Margalski moved to dismiss the second amended complaint arguing that plaintiff had never been properly appointed administrator of the estate of Michael Lopez by the probate court and that his action was barred since the statute of limitations had expired.

Thereafter, on February 4, 1987, pursuant to the Probate Act, letters of administration were granted to plaintiff naming him administrator of the estate of Michael Lopez. On March 18, 1987, plaintiff filed a response to defendants' motion to dismiss contending that his appointment as administrator related back to the date of the filing of the original complaint and, therefore, any subsequent amended complaint arising out of the same occurrence was not barred by the expiration of the statute of limitations. On October 26, 1987, defendants' motion to dismiss was granted by the trial court and plaintiff now appeals.

The Illinois Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 2) requires that the action be brought within two years of the date of the occurrence. Section 2-616 of the Illinois Code of Civil Procedure, however, provides that prior to final judgment an amendment may be allowed to introduce "any party who ought to have been joined as plaintiff or defendant." (Ill. Rev. Stat. 1985, ch. 110, par. 2-616.) Section 2-616 further provides for the relation back of amended complaints:

"The cause of action . . . set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted . . . in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act . . . which is a necessary condition precedent to the right of recovery . . . if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action." (Ill. Rev. Stat. 1985, ch. 110, par. 2-616.)

The legislative intent of the relation back provision has been construed as the preservation of causes of action, including those brought under the Wrongful Death Act (Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95), and those brought under the Dramshop Act (Wolf v. Redmore (1986), 142 Ill. App. 3d 770, 491 N.E.2d 1367), "against loss by reason of technical rules of pleading" (Pavlov v. Konwall (1983), 113 Ill. App. 3d 576, 578, 447 N.E.2d 982, 984). "[The] right to amend and the relation back of an amendment depend on whether the original complaint furnished to the defendant all the information ...


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