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Frieda Walker v. Dennis Ware

March 29, 2013

FRIEDA WALKER,
PLAINTIFF-APPELLEE,
v.
DENNIS WARE, AS SURVIVING SPOUSE OF ANNE TAPLIN, DECEASED,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 09 L 6542 The Honorable Drella Savage, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Lampkin

PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Gordon and Reyes concurred in the judgment and opinion.

OPINION

¶ 1 This case comes before us pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010). The trial court certified the following question for our review: "does a sheriff's Return of Service that states 'reason not served-deceased' constitute knowledge of a person's death such that section 5/13-209(c) of the Illinois Code of Civil Procedure (735 ILCS 5/13-209(c) (West 2008)) should not apply and not allow a plaintiff to file an action against the representative of the deceased person after the time limited for commencement thereof has expired?" Based on the following, we answer in the negative.

¶ 2 FACTS

¶ 3 On June 23, 2008, plaintiff, Frieda Walker, allegedly was injured on a flight of stairs at a property located at a South Eberhart address in Chicago, Illinois. The alleged owner of the property was defendant, Anne Taplin (defendant Taplin).

¶ 4 On April 9, 2009, defendant Taplin died.

¶ 5 On June 4, 2009, plaintiff filed a complaint against defendant Taplin and a summons was issued with the Cook County sheriff to serve defendant at the subject property. On June 11, 2009, the summons was returned with a notation that defendant Taplin was "deceased" and, therefore, not served. The summons indicated that the information was "per daughter."

¶ 6 On August 11, 2009, plaintiff requested that an alias summons be served to defendant Taplin at a South Loomis address in Chicago, Illinois, an address other than the subject address. The summons was returned "not served" on August 20, 2009, with another notation that defendant Taplin was "deceased." The return of service indicated that the information regarding defendant Taplin's status as "deceased" was provided by defendant's grandson, Philip Taplin.

¶ 7 On June 23, 2010, plaintiff again requested that another alias summons be issued to defendant Taplin at the South Loomis address. The summons was returned "not served" on July 2, 2010, with a notation that defendant Taplin was "deceased."

¶ 8 On October 4, 2010, plaintiff filed a motion to serve by special order of the court, claiming "[defendant] is unable to be served because her and/or her family and/or other members of her household are falsely stating that [she] is deceased." The motion and attached affidavit submitted by plaintiff's attorney indicated that plaintiff "researched online" and "went to the Cook County Office of Vital Statistics," but was unable to confirm defendant Taplin's death. The motion further stated that "a diligent inquiry as to the location of [defendant] was made and reasonable efforts to effect and/or make service upon [defendant] have been unsuccessful." The trial court denied plaintiff's motion.

¶ 9 However, on October 21, 2010, the trial court appointed a special process server to serve defendant Taplin. Service was attempted on November 2, 2010, and November 4, 2010. The process server's affidavit, dated December 6, 2010, indicated that defendant Taplin was not served because "defendant is deceased per an unidentified, African-American male relative in his mid to late 50's who resides at the address of service. The undersigned also spoke to a neighbor who was unaware of the litigation, who confirmed that defendant was indeed deceased."

¶ 10 On March 1, 2011, plaintiff was granted leave to spread defendant Taplin's death of record and to amend her complaint to name "Dennis Ware, spouse of Anne Taplin, deceased," as defendant. Ware was personally served on March 3, 2011. On April 25, 2011, defendant Ware filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2008)), arguing, inter alia, that plaintiff's claim was barred by section 13-209(b) of the Code. On April 25, 2011, plaintiff filed a response arguing that her complaint was timely pursuant to section 13-209(c) of the Code because, at the time the complaint was filed, defendant Taplin's death was unknown and, upon learning about defendant Taplin's death from an online search on February 15, 2011, plaintiff amended the complaint within two weeks.

¶ 11 On September 14, 2011, following a hearing, the trial court denied defendant Ware's motion to dismiss, finding plaintiff did not have knowledge of defendant Taplin's death until after the relevant statute of limitations had expired and, therefore, the complaint was not barred pursuant to section 13-209(c) of the Code. In so finding, the trial court stated:

"[T]his court has said on more than one occasion, not only in this division but other divisions as well as it relates to service of summons, we've had people tell the sheriff that ...


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