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05/11/95 JOANNE HARDIMON v. CARLE CLINIC

May 11, 1995

JOANNE HARDIMON, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LARRY HARDIMON, DECEASED, PLAINTIFF-APPELLEE,
v.
CARLE CLINIC ASSOCIATION, A PROFESSIONAL CORPORATION AND DR. ROBERT TURNGREN, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Champaign County. No. 93L79. Honorable John G. Townsend, Judge Presiding.

As Corrected May 31, 1995.

Honorable John T. McCULLOUGH, J., Honorable James A. Knecht, P. J., Honorable Robert W. Cook, J., Concurring

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

Defendants filed an interlocutory appeal pursuant to Supreme Court Rule 308(a) (Official Reports Advance Sheet No. 26 (Dec. 22, 1993), R. 308(a), eff. Feb. 1, 1994) based on denial of their motion to strike and dismiss plaintiff's timely complaint for failure to obtain the appointment of a personal representative of the estate prior to the expiration of the two-year limitations period. The trial court certified two questions for interlocutory review. As will be explained, we address only the first:

"(a) When an initial Complaint is filed on December 23, 1991, which alleges that the Plaintiff has been duly appointed a Special Administrator although no appointment of a Special Administrator was made pursuant to and in accordance with Section 2.1 of the Wrongful Death Act prior to the filing of the initial Complaint, nor any appointment of a Special Administrator or a Probate Estate Administrator prior to the running of all applicable two-year limitation periods for an alleged death on May 12, 1990, can the doctrine of 'relation back' be applied to allow the appointment of a Probate Estate Administrator on May 3, 1994, and her intervention into this case on August 22, 1994, to prevent the action from being time-barred?"

On May 12, 1990, plaintiff's decedent died. On December 23, 1991, plaintiff, alleging she was "Special Administrator of the Estate of Larry Hardimon," filed a medical malpractice complaint against defendants under the Wrongful Death Act (Act) (740 ILCS 180/1 et seq. (West 1992)), including a request for recovery of funeral and burial expenses, and a survival action pursuant to section 27-6 of the Probate Code of 1975 (755 ILCS 5/27-6 (West 1992)). In November 1993 defendants moved to dismiss the complaint on the basis that no administrator or special administrator had been appointed and there was, therefore, no proper party plaintiff. Plaintiff filed a petition for appointment of administrator in the probate court (No. 94-P-294) and was appointed administrator on May 3, 1994. Thereafter, the plaintiff was allowed to file an amended complaint as administrator of the estate containing substantially the same allegations as the initial complaint, the court finding that the doctrine of relation back applied to the facts of the case. On the defendants' motion, the court certified two questions for interlocutory appeal.

Section 2-616 of the Code of Civil Procedure (Code) (735 ILCS 5/2-616 (West 1992)) provides for "relation back" of amendments to pleadings. Relevant portions of that section provide:

"(a) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense *** which may enable the plaintiff to sustain the claim for which it was intended to be brought ***.

(b) The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute *** 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 *** 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 or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action *** an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended." 735 ILCS 5/2-616(a),(b) (West 1992).

Defendants argue that a proper appointment of an administrator within the two-year limitations period provided under the Act is a condition precedent which precludes application of the relation-back provisions of section 2-616(b) of the Code. Plaintiff points out that section 2-616(b) was enacted to avoid technical procedural errors such as occurred here to enable controversies to be decided on their merits. (See Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 458 N.E.2d 530, 76 Ill. Dec. 130.) Plaintiff points to three cases which are substantially similar to the facts presented here.

In Pavlov v. Konwall (1983), 113 Ill. App. 3d 576, 447 N.E.2d 982, 69 Ill. Dec. 547, the plaintiff was appointed special administrator of the estate of plaintiff's decedent pursuant to provisions of the Act. On that same date, plaintiff filed a timely complaint as administrator alleging an action against the defendant for wrongful death. The appointment was subsequently invalidated, however, since it had been made on the motion of a person not entitled to recovery under the Act. After expiration of the two-year statute of limitations, plaintiff was properly appointed administrator and filed an amended complaint containing substantially the same allegations as the original complaint. The defendant argued the plaintiff was not a proper party to the original complaint, making that filing a nullity, and that both the limitations period and the requirement that the action be brought in the name of the personal representative of the deceased were conditions precedent to recovery under the Act. Relying on the precursor to section 2-616(b) of the Code, the court held that the relation-back doctrine was enacted to preserve causes of action against loss by reason of technical rules of pleading and that an amendment could relate back to cure a defective pleading which did not set forth a condition precedent. Pavlov, 113 Ill. App. 3d at 579-80, 447 N.E.2d at 984-85.

In Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95, 21 Ill. Dec. 801, the plaintiff in her individual capacity brought a timely action alleging that defendant's malpractice had caused the decedent's death. Plaintiff was appointed and filed an amended complaint as administrator of the estate more than two years after decedent's death. On appeal following entry of summary judgment for defendant on unrelated issues, the court noted that the relation-back doctrine was included in the precursor to section 2-616(b) "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." ( Redmond, 65 Ill. App. 3d at 675, 382 N.E.2d at 100, citing Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222, 15 N.E.2d 838.) The court found that earlier cases precluding amendment after the limitations period for failure to set forth a condition precedent had been expressly disapproved under the reasoning of Metropolitan Trust. In that case, the court analyzed the predecessor to section 2-616(b) of the Code:

"The sole requirement of that paragraph is that the cause of action set up in the amendment grew out of the same transaction or occurrence set up in the original pleading. Briefly summarized, section 46 [now section 2-616] permits any amendment of a pleading, filed in apt time, after the time limited for commencing suit to set up a cause of action on any claim which was intended to be brought by the original pleading, provided, only, that it grew out of the same transaction or occurrence, and it is not necessary that the original pleading technically state a cause of action, or that a cause of action set out in the ...


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