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Minikon v. Escobedo

August 23, 2001

MONIQUE MINIKON, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF DASHUN MINIKON, A MINOR, PLAINTIFF-APPELLANT
v.
OLGA ESCOBEDO, SPECIAL ADMINISTRATOR OF THE ESTATE OF GEORGE THOMPSON, DECEASED, DEFENDANT-APPELLEE, AND PHILIP GYADU-MANTEY, DEFENDANT



The opinion of the court was delivered by: Justice Hoffman

UNPUBLISHED

Appeal from the Circuit Court of Cook County Honorable John Laurie, Judge Presiding

The plaintiff, Monique Minikon, individually and as mother and next friend of Dashun Minikon, a minor, appeals from an order of the circuit court dismissing the personal injury claims she asserted against the defendant, Olga Escobedo, special administrator of the estate of George Thompson, deceased. For the reasons which follow, we reverse the order

of the circuit court and remand this cause for further proceedings.

On January 2, 1997, the plaintiff and her minor son, Dashun Minikon, were riding in a motor vehicle driven by George Thompson when it collided with a motor vehicle driven by Philip Gyadu-Mantey. On December 31, 1998, the plaintiff filed the instant negligence action against both Thompson and Gyadu-Mantey, seeking damages for injuries she and her son sustained as a result of the collision. After several unsuccessful attempts to serve Thompson with process, the plaintiff discovered that he had died on August 28, 1998, due to causes unrelated to this litigation.

On August 5, 1999, the trial court granted the plaintiff's motion, filed that same day, to spread Thompson's death of record. Subsequently, on September 15, 1999, the plaintiff filed a motion requesting that Escobedo, a secretary employed by her attorneys, be appointed as special administrator of Thompson's estate for the purpose of defending this action. On September 27, 1999, that motion was granted, and Escobedo was so appointed.

The plaintiff asserts that Escobedo executed a waiver of service of summons on December 8, 1999. The record does not contain any such waiver but does contain a motion Escobedo filed on January 27, 2000, in which she admitted that she "waived service of summons and complaint on December 8, 1999."

On January 20, 2000, Escobedo filed an appearance and jury demand in her capacity as special administrator of Thompson's estate. Thereafter, on January 27, 2000, Escobedo filed a motion to dismiss the plaintiff's complaint as to Thompson. Escobedo noted that the plaintiff had never filed an amended complaint naming Escobedo in her representative capacity as a defendant and that, in fact, the only complaint on file named Thompson as a defendant. She argued that the filing of the complaint against Thompson after his death did not invoke the jurisdiction of the court. The plaintiff did not respond to the motion. Instead, on January 31, 2000, she filed a motion seeking leave to file an amended complaint naming Escobedo in her representative capacity as a party defendant. On February 10, 2000, the trial court entered an order dismissing the plaintiff's original complaint and granting her leave to file an amended complaint instanter.

Thereafter, on March 7, 2000, Escobedo filed a motion to dismiss the amended complaint, arguing that the claims asserted against her therein are time-barred. Escobedo argued, inter alia, that the plaintiff failed to proceed with reasonable diligence, as required by section 13-209(c) of the Code of Civil Procedure (Code) (735 ILCS 5/13-209(c)(West 1998)), in moving for leave to file the amended complaint substituting her as a defendant in her representative capacity. In the motion, Escobedo noted that 191 days had elapsed from the date that Thompson's death was spread of record to the date the plaintiff sought leave to file her amended complaint. In her response to the motion, the plaintiff argued that she acted with reasonable diligence under the circumstances. She also attributed a portion of her delay in seeking leave to file an amended complaint to the refusal of defense counsel to seek the appointment of a special administrator after being advised that Thompson was dead and to the fact that her own attorney was in the process of moving to a new law firm.

On April 25, 2000, the circuit court granted Escobedo's motion and dismissed the plaintiff's action against her "with prejudice." The trial court also made a written finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there was no just reason to delay the enforcement of or appeal from its order. Thereafter, the plaintiff filed a motion for reconsideration, which the trial court denied on July 27, 2000. This timely appeal followed.

Initially, we agree with Escobedo that the source of our jurisdiction over the instant appeal is Rule 304(a), rather than Supreme Court Rule 303 (155 Ill. 2d R. 303), as asserted by the plaintiff. At the time the trial court entered its April 25, 2000, order, which constituted a final judgment as to Escobedo, the plaintiff's claim against Gyadu-Mantey remained pending, thus precluding an appeal pursuant to Rule 303. A final judgment as to fewer than all the parties in a case can be taken only pursuant to Rule 304(a) and only when the trial court makes the necessary findings, as the court did in the instant case. 155 Ill. 2d R. 304(a).

In urging reversal of the trial court's order dismissing her claims against Escobedo as special administrator of Thompson's estate, the plaintiff argues that the mere fact that Thompson was dead when she filed her original complaint against him will not support the trial court's dismissal order. The plaintiff further argues that she fully complied with the provisions of section 13-209(c) of the Code, including its reasonable diligence requirements. Escobedo, however, contends that the claims asserted against her in the plaintiff's amended complaint are time-barred.

Unfortunately, the parties have briefed their respective positions as if there is no distinction between the dismissal of count I of the plaintiff's amended complaint, which asserted a claim in favor of the plaintiff individually, and the dismissal of count II, brought by the plaintiff for the benefit of her minor son. However, ...


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