Appeal from Circuit Court of Sangamon County No. 00L203 Honorable Robert J. Eggers, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
The question raised in this case is whether an amended complaint adding additional parties is properly filed within the period of the statute of limitations when the clerk tells counsel the order granting leave to file the amended complaint will be entered by the court as a routine matter, but that is not done. The trial court answered the question in the negative and granted the motions to dismiss filed by the additional defendants. We reverse and remand.
Plaintiff Patricia Fischer is the independent administratrix of the estate of Laveda Mary Zara, who died December 29, 1998. An action for the death of a person arising out of patient care shall not be brought more than two years after knowledge of the death. 735 ILCS 5/13-212(a) (West 2000). Under section 13-212(a) of the Code of Civil Procedure (Code), the last day for filing an action in this case was December 29, 2000.
On June 30, 2000, plaintiff filed a complaint against defendant Senior Living Properties, L.L.C., d/b/a Westabbe Health Care Center (Senior Living). Summons was issued and Senior Living filed its entry of appearance. Plaintiff obtained leave of court for additional time to file the affidavit and report required by section 2-622 of the Code (735 ILCS 5/2-622 (West 2000)). Senior Living had not filed an answer as of December 29, 2000.
On December 27, 2000, plaintiff's attorney, officed in Effingham County, filed an amended complaint with the circuit clerk of Sangamon County. The amended complaint added two defendants, defendant St. John's Hospital of the Hospital of Sisters of the Third Order of St. Francis, d/b/a St. John's Hospital of Springfield (St. John's), and defendant Joseph J. Maurer, M.D. Plaintiff's attorney personally delivered the following documents to the circuit clerk: a certificate of service on Senior Living, a motion for leave to file the amended complaint instanter, a proposed order granting leave to file the amended complaint instanter, and summons accompanied by copies of the amended complaint. The circuit clerk advised plaintiff's attorney that the order for leave would be tendered to the judge that day as a routine matter unless plaintiff's attorney was informed otherwise. The documents were all file-stamped on December 27, 2000, summons was issued, and St. John's and Dr. Maurer were served on January 3, 2001.
On January 30, 2001, Dr. Maurer's attorney told plaintiff's attorney the court file failed to reflect entry of the order granting leave to file the amended complaint instanter. Without objection the order was entered following a hearing on February 13, 2001. Dr. Maurer filed a motion to dismiss on March 23, 2001, alleging that the complaint failed to state a cause of action and was not filed within the two-year statute of limitations, because the complaint was not filed until after December 29, 2000.
On June 5, 2001, after a hearing, the trial court entered an order allowing St. John's to adopt Dr. Maurer's motion to dismiss, allowing plaintiff's counsel to file an affidavit to supplement the record as to the statements made by the clerk's office personnel, and allowing the motions to dismiss on the basis that the statute of limitations had expired on December 29, 2000. The trial court subsequently made a finding under Rule 304(a) (155 Ill 2d R. 304(a)) that there was no just reason for delaying either enforcement or appeal.
Motions to dismiss, both under sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2000)), present questions of law which we review de novo. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 494, 639 N.E.2d 1282, 1293-94 (1994).
This court has stated that "an amended complaint, adding additional parties, filed without leave of the court is a nullity." Allen v. Archer Daniels Midland Co., 129 Ill. App. 3d 783, 786, 473 N.E.2d 137, 139 (1985). We had previously recognized that there are problems when leave of court must be obtained to amend a complaint near the end of a limitations period. Clark v. Brokaw Hospital, 126 Ill. App. 3d 779, 782-83, 467 N.E.2d 652, 655 (1984) (motion to convert respondent in discovery to a defendant sufficient if motion made within six-month period even though the motion is not heard and ruled on until after six-month period). The customary deliberate method of setting and hearing motions may not be appropriate where the statute of limitations is about to expire. In Allen, we declined to consider the procedure mentioned in Clark because there was no evidence that the motion for leave to amend was filed within the period of limitations. Allen, 129 Ill. App. 3d at 786, 473 N.E.2d at 139. Allen and Clark both recognize that strict compliance is not always required in obtaining leave to amend a complaint.
Petrella v. Leisky, 92 Ill. App. 3d 880, 417 N.E.2d 134 (1981), the case relied upon by Allen for the "nullity" language quoted above, involved the filing of a complaint as a supplemental pleading under section 2-609 of the Code (735 ILCS 5/2-609 (West 2000)). Section 2-609 specifically requires that a supplemental pleading be "by leave of court and upon terms." 735 ILCS 5/2-609 (West 2000). The complaint in Petrella was not a proper supplemental pleading because supplemental pleadings are only employed to set forth matters arising after the original pleading has been filed. Petrella, 92 Ill. App. 3d at 881, 417 N.E.2d at 136. There was apparently no motion for leave to amend filed in Petrella. The case cited by Petrella for the proposition that an ineffective attempt to amend a complaint is a nullity had applied "prior law" to an attempt to amend made without leave of court and after judgment. Register Gazette Co. v. Larash, 109 Ill. App. 236, 237-38 (1903); Petrella, 92 Ill. App. 3d at 883, 417 N.E.2d at 137. Clearly a defendant who is added after judgment and without any opportunity to defend is unfairly prejudiced by the amendment.
Section 2-616 of the Code, dealing with amendments "introducing any party who ought to have been joined," contains no specific requirement that leave of court be obtained. 735 ILCS 5/2-616(a) (West 2000). The section simply provides that "[a]t any time before final judgment amendments may be allowed on just and reasonable terms." (Emphasis added.) 735 ILCS 5/2-616(a) (West 2000). Perhaps the legislature could lay down an inflexible rule that no amendment adding parties could ever be effective without a signed order granting leave to amend. The very general language of section 2-616, however, does not establish such a rule. The ...