Appeal from the Circuit Court of Cook County. No. 10 M1 300459 The Honorable James E. Snyder, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Cunningham concurred in the judgment and opinion.
¶ 1 Plaintiff, Sandra Relf, filed a personal injury action against decedent Joseph Grand Pre, Jr., who, unbeknownst to her, had passed away before she filed her complaint. Upon learning of decedent's death, plaintiff requested that a special administrator be appointed, which the circuit court granted. Defendant, Natasha Shatayeva, as special administrator for the estate of Joseph Grand Pre, Jr., deceased, filed a motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), alleging that plaintiff's complaint against decedent was a nullity and void because, prior to the filing of the complaint, a probate estate had already been established for decedent. The circuit court granted defendant's motion to dismiss. At issue is whether the circuit court properly granted defendant's section 2-619 motion to dismiss. We hold that the circuit court erred in granting defendant's motion to dismiss. Plaintiff was unaware decedent had passed away prior to the filing of her personal injury action. Upon learning of decedent's death, plaintiff properly proceeded according to the requirements of section 13-209(c) of the Code. 735 ILCS 5/13-209(c) (West 2010).
¶ 3 On June 20, 2011, the circuit court granted defendant's motion to dismiss pursuant to section 2-619 of the Code. 735 ILCS 5/2-619 (West 2010). On July 20, 2011, plaintiff timely filed her notice of appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶ 5 On February 22, 2010, plaintiff filed a complaint alleging decedent, whom she believed was named Joseph Grand, negligently operated a motor vehicle which collided with her motor vehicle on or about February 21, 2008. Due to this collision, plaintiff suffered personal injuries. On that same day, summons was issued to serve decedent. After the Cook County sheriff was unable to serve decedent, plaintiff filed a motion to appoint a special process server on April 23, 2010. The circuit court appointed a special process server on May 11, 2010.
¶ 6 On September 24, 2010, plaintiff filed a motion to spread death of record and for leave to appoint a special administrator. In her motion, plaintiff alleged that on or about May 17, 2010, she received notification from the special process server informing her that Joseph Grand had passed away on April 25, 2008. Plaintiff attached to her motion a document from the special process server, which stated "[a] search for Joseph Grand A/K/A Joseph H. Grand Pre discovered him to have been deceased as of 04/25/2008." Plaintiff alleged further that she "suggests appointing Natasha Shatayeva, an employee/legal assistant of [her counsel] to serve as special administrator of the Estate of Joseph Grand, deceased." Plaintiff also alleged that she was "unaware *** if any personal representative has been appointed by the Estate of Joseph Grand." Plaintiff requested that the circuit court enter an order to spread the death of record of decedent; to appoint Shatayeva as special administrator; and to allow leave to file a first amended complaint.
¶ 7 On October 5, 2010, the circuit court granted plaintiff's motion to spread death of record and for leave to appoint a special administrator. The court appointed Natasha Shatayeva as the special administrator of the estate of Joseph Grand, deceased, and granted plaintiff leave to file a first amended complaint.
¶ 8 On October 6, 2010, plaintiff filed her first amended complaint, which named as the party defendant, Natasha Shatayeva, as special administrator for the estate of Joseph Grand, deceased. On that same day, defendant was served.
¶ 9 On December 9, 2010, defendant filed a motion to dismiss plaintiff's lawsuit pursuant to Illinois Supreme Court Rule 103(b). Ill. S. Ct. R. 103(b) (eff. July 1, 2007). Defendant alleged plaintiff did not act with reasonable diligence in effecting service of process upon her. The circuit court denied defendant's motion on February 28, 2011.
¶ 10 On March 4, 2011, plaintiff filed a motion to correct misnomer. In her motion, plaintiff requested leave to file a second amended complaint amending decedent's name to be Joseph H. Grand Pre, Jr., instead of Joseph Grand. The circuit court granted plaintiff's motion to correct misnomer on March 21, 2011, and allowed plaintiff to file a second amended complaint.
¶ 11 On March 28, plaintiff filed her second amended complaint which named as defendant "Natasha Shatayeva, as special administrator for the estate of Joseph H. Grand Pre, Jr., deceased."
¶ 12 Subsequently, defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2-619 of the Code. 735 ILCS 5/2-619 (West 2010).*fn1 In her motion, defendant alleged that on August 13, 2008, a petition for probate for decedent Joseph Grand Pre, Jr., was filed in the probate division of the circuit court of Cook County. On February 22, 2010, plaintiff filed her complaint against decedent, whom she believed was named Joseph Grand. Defendant alleged further that "[d]espite the fact that a probate estate had been established for decedent, on October 6, 2010, [p]laintiff filed a [f]irst [a]mended [c]omplaint" against defendant. Defendant argued that because decedent predeceased plaintiff's original complaint, the complaint was a nullity and, thus, void. Defendant also argued that section 13-209(b) of the Code was "inapplicable to the instant case as [p]laintiff's [f]irst [a]mended [c]omplaint was not brought against a personal representative and it was not brought within six months after [decedent's] death." See 735 ILCS 5/13-209(b) (West 2010). Defendant argued further that plaintiff did not comply with section 13-209(c) of the Code, stating that "a petition for probate had ...