Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois No.
The opinion of the court was delivered by: Justice Breslin
Kurt and Julie Keller filed this action against Joseph Walker to recover damages sustained in an automobile accident. Unknown to the Kellers, Walker died from unrelated causes approximately one year prior to the day they filed their complaint. A default judgment was entered against Walker, and the Kellers were awarded damages.
Counsel for Walker filed this appeal, seeking a determination that the trial court lacked subject matter jurisdiction and requesting that the default judgment be vacated. We hold that a trial court has subject matter jurisdiction to appoint a personal representative under section 13-209(c) of the Code of Civil Procedure (Code) (735 ILCS 5/13-209(c) (West 1998)), when a party mistakenly commences an action against a deceased person and all other conditions of the statute are met.
Consequently, the default judgment is vacated and this cause is remanded to allow the Kellers an opportunity to amend their complaint, naming an appointed personal representative as defendant.
On April 14, 1997, a motor vehicle accident occurred between Kurt Keller and Joseph Walker. Julie Keller was a passenger in the Keller vehicle. On May 1, 1998, Walker died for reasons unrelated to the accident. On April 13, 1999, the Kellers filed a complaint against Walker and issued a summons to serve him via the Illinois Secretary of State under the mistaken belief that he had moved.
The law firm of Meade, Engelberg & Associates (Meade) received notice of the Kellers' suit from its client Valor Insurance Company, Walker's insurance company at the time of the accident. Shortly thereafter, Meade sent a letter and a copy of Walker's death certificate to the Kellers informing them that Walker was deceased. A hearing was set for August 26, 1999, in which Meade made a special and limited appearance to inform the court that Walker had died. At the hearing, the Kellers claimed they did not receive notice of Walker's death and were unaware of Meade's letter. The court entered an order of default against Walker.
Several weeks later, Meade filed a motion objecting to personal jurisdiction based on improper service on the Secretary of State. The Kellers, who were unable to discover a will on file or that an estate had been created, filed a motion to suggest death of record and appoint a special administrator.
At a September 15, 1999, hearing on all pending motions, Meade withdrew its motion objecting to jurisdiction based on improper service, and the court vacated the default judgment. The court granted the Kellers' motion to suggest death of record and appoint a special administrator, ordering Valor Insurance to appoint an administrator within 30 days. Valor never complied with this order; so, two months later a second default judgment was entered against Walker. Thereafter, the court entered judgment in favor of Julie and Kurt in the amounts of $20,000 and $1,500, respectively.
On December 22, 1999, Meade presented a motion to vacate the default judgment, requesting leave to file an appearance and answer the complaint. The court found that Meade had submitted to the jurisdiction of the court by agreeing to appoint a special administrator and indicated that it would grant Meade's motion provided that Meade pay the Kellers $300 in sanctions.
One month later, Meade filed a motion to vacate the December 22, 1999, order and all prior orders, to strike and dismiss the complaint based on lack of subject matter jurisdiction, and for sanctions. The court denied the motion. Meade appealed the court's decision, and the Kellers cross-appealed requesting attorney fees and costs.
The first issue we address on appeal is whether the trial court properly determined that it had subject matter jurisdiction to adjudicate the Kellers' complaint.
Meade argues that because Walker was deceased prior to the filing of the Kellers' complaint, the original complaint filed one year after Walker's death was null, void ab initio, and did not invoke the jurisdiction of the trial court. In addition, subject matter jurisdiction was not conferred on the court when Meade appeared on behalf of Walker's insurance company because subject matter jurisdiction cannot be waived or consented to by the parties. The Kellers contend, however, that subject matter jurisdiction exists under section 13-209(c) of the Code (735 ILCS 5/13-209(c) (West 1998)).
We review a trial court's decision that it has subject matter jurisdiction de novo. City of Marseilles v. Radke, 287 Ill. ...