Appeal from the Circuit Court of Cook County 00 L 06931 Honorable Kathy M. Flanagan, Judge Presiding
The opinion of the court was delivered by: Justice McBRIDE
Plaintiff Rosalio Campos, as special administrator of the estate of his deceased brother, Camerino Campos, appeals from an order of the circuit court of Cook County granting summary judgment to defendant Marcelino Campos, as trustee under the testamentary trust of Daniel Campos and executor of the estate of Daniel Campos, Marcelino's deceased brother. *fn1 Rosalio is not appealing from a prior order granting summary judgment to another defendant, the son of Daniel Campos, a beneficiary of the trust and the estate, who is also known as Daniel Campos. Without distinguishing between the two men who shared the same name, Rosalio alleged in an initial complaint that Daniel Campos' negligence in the operation, maintenance, and control of an apartment building resulted in a fire which caused Camerino's death in 1998. The building had been owned by the elder Daniel Campos until his death in 1996, but it was owned by his testamentary trustee in 1998 when the fire occurred. A summons and a copy of the initial complaint were served on the younger Daniel Campos, who appeared, answered the complaint, and responded to Rosalio's discovery. After the statute of limitations had expired and Rosalio was admittedly aware that the father was deceased and the son was defending the action, Rosalio amended his pleading, again suing "Daniel Campos" and suing Marcelino in his capacity as trustee. In a second amended complaint, Rosalio for the first time added Marcelino in his capacity as executor. Marcelino's motion for summary judgment was granted after the circuit court found there was no evidence that Rosalio intended to sue the deceased father within the statute of limitations period.
Rosalio's primary contention on appeal is that the record demonstrates his intent to sue the decedent within the limitations period and that he proceeded with reasonable diligence in seeking leave to amend his action after learning of the death through the discovery process. Rosalio argues that his second amended complaint was rendered timely by section 13-209(c) of the Code of Civil Procedure (735 ILCS 5/13-209(c) (West 2000)). Section 13-209(c) permits a party who "commences an action against a deceased person whose death is unknown to the party" to subsequently substitute the deceased person's representative as the defendant, even after the statute of limitations has run, if certain terms and conditions are met. 735 ILCS 5/13-209(c) (West 2000). Rosalio also contends that Marcelino is equitably estopped from disputing the applicability of section 13-209(c). Alternatively, Rosalio contends his action is not barred because of section 2-616(e) of the Code of Civil Procedure, which provides that a plaintiff's cause of action is not barred against a beneficiary of a land trust if the plaintiff has timely named the land trust. See 735 ILCS 5/2-616(e) (West 2000).
The record discloses the following facts. On August 5, 1998, a fire occurred at a four-unit apartment building located at the intersection of East 96th Street and South Exchange Avenue, Chicago. The building had two addresses -- two of the apartments in the building were accessible from an entrance at 9607 South Exchange Avenue and the other two apartments were accessible from an entrance at 2941 East 96th Street. Camerino, who resided in the building, suffered fatal smoke inhalation during the fire and died that same day.
On June 16, 2000, nearly two years after the fire occurred, Camerino's brother filed this action against Daniel Campos, seeking monetary damages. Rosalio alleged in paragraph 4 of the complaint that Daniel Campos owned, maintained, and controlled 9607 South Exchange Avenue. Further, defendant was negligent in failing to maintain smoke detectors in the building and in storing or allowing other persons to store flammable substances on the premises. On September 26, 2000, a special process server served a summons and a copy of the complaint at the address Rosalio provided, 2949 East 96th Street, Chicago, upon a member of the household of "Daniel J. Campos," and then mailed an additional copy of the summons and complaint to "Daniel J. Campos" at the same address.
On December 15, 2000, after the circuit court vacated any technical defaults and extended the time to answer or otherwise plead, "Daniel Campos" appeared. On January 24, 2001, "Daniel Campos" answered the complaint, denying the allegations that he owned, maintained, and controlled 9607 South Exchange Avenue.
On April 30, 2001, "Daniel Campos" responded to Rosalio's interrogatories and Rosalio's request to produce certain documents. He stated that his full name was "Daniel Julian Campos" and that his date of birth was August 4, 1982. Additionally, in response to interrogatories concerning ownership and insurance coverage as of the date of the fire, he stated, "I was not the owner of the premises."
When asked whether the premises were equipped with smoke alarms, he indicated on information and belief that smoke alarms were present when his father purchased the building in 1989 and that additional smoke alarms may have been installed thereafter. He also indicated that all four residential units were occupied on the date of the fire, but when asked whether he charged for rental of any of the units, he responded, "I did not rent the residential units." The interrogatory answers were signed by "Daniel J. Campos."
According to Rosalio, when his attorney received the interrogatory answers, the attorney telephoned defense counsel and learned that the elder Daniel Campos was deceased. A few days later, on May 7, 2001, Rosalio's attorney received a copy of the "Last Will and Testament of Daniel Campos." The will designated Marcelino as the executor of the estate of Daniel Campos, devised the subject real estate to "my son Daniel Julian Campos unto [Marcelino] Campos, as trustee," and gave the trustee discretion to terminate the trust when the son reached 18 years of age. The will also specified:
"In addition to any other powers that may be conferred *** by law, my trustee shall have power and authority:
J. To do all such acts, take such proceedings, and exercise all such rights and privileges, although not hereinbefore specifically mentioned, with relation to such property as I may leave, as if it were the absolute owner thereof ***."
The elder Daniel Campos died on November 18, 1996, nearly two years before the fire occurred.
On May 29, 2001, nearly three years after the fire, Rosalio was given leave to file an amended complaint "adding [an] additional party Defendant." The defendants named in the amended pleading were "Daniel Campos and Marcelino Campos, as trustee under Testamentary Trust of Daniel Campos." Rosalio now alleged that "Marcelino Campos, under testamentary trust of Daniel Campos for the use and benefit of Daniel Campos and Daniel Campos as beneficiary of said trust, owned, maintained and controlled" the subject real estate when the fire occurred.
"Daniel Campos" again denied the allegation that he had owned, maintained, and controlled the real property. After Rosalio obtained service of process on "Marcelino Campos as trustee," Marcelino appeared and answered, admitting ownership of the real property as a trustee for the use and benefit of Daniel Campos. In an affirmative defense, however, Marcelino contended that Rosalio's claims against him as a trustee, which were brought more than two years after the fire and were based on the Wrongful Death Act (740 ILCS 180/2(c) (West 2000) (every such action shall be commenced within two years after the death), the Survival Act (755 ILCS 5/27-6 (West 2000) (see 735 ILCS 5/13-202 (West 2000) (actions shall be commenced within two years next after the cause accrued)), and the family expense act (see 750 ILCS 65/15 (West 2000)), were barred by the statute of limitations.
On June 27, 2001, Rosalio sat for a deposition and stated the following. He was born on February 23, 1962, and his brother Camerino was born on May 30, 1982. Daniel Campos was his cousin, and Marcelino Campos was his father's cousin. The following exchange occurred during the deposition:
"Q: Was Daniel ever at the building prior to the fire?
Q: And the Daniel I'm referring to would be your cousin, Daniel Julian Campos?