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Walstad v. Klink

Court of Appeals of Illinois, First District, First Division

May 21, 2018

THELMA MAE WALSTAD, Special Administrator for Rebecca Hess, Deceased, Plaintiff-Appellee,
CHARLOTTE KATHRYN KLINK, as Executor of the Estate of Robert Flores, Deceased, and d/b/a Flores Properties Inc.; THE CITY OF CHICAGO, a Municipal Corporation; and CHARLOTTE K. FLORES, a/k/a Charlotte K. Klink, Individually, Defendants Charlotte Kathryn Klink, as Executor of the Estate of Ronald Flores, Deceased, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 16 L 007175 Honorable Moira Johnson and Annette R. Hubbard, Judges Presiding.

          JUSTICE HARRIS delivered the judgment of the court with opinion. Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.



         ¶ 1 Defendant, Charlotte Kathryn Klink, as executor of the estate of Ronald Flores, appeals the order of the circuit court entering judgment on the jury's verdict in favor of plaintiff, Thelma Mae Walstad, as special administrator for Rebecca Hess. On appeal, defendant contends that the trial court erred in allowing plaintiff to amend her complaint and assert claims against the estate of Ronald Flores more than two years after Flores's death, in contravention of section 18-12(b) of the Probate Act of 1975 (Probate Act) (755 ILCS 5/18-12(b) (West 2016)). For the following reasons, we affirm.

         ¶ 2 JURISDICTION

         ¶ 3 The trial court entered judgment on the jury's verdict in favor of plaintiff on December 5, 2016. Defendant filed a notice of appeal on January 4, 2017. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. May 30, 2008), governing appeals from final judgments entered below.

         ¶ 4 BACKGROUND

         ¶ 5 The following facts are relevant to the issues on appeal. On August 18, 2004, Rebecca Hess was on the rear porch of an apartment in a residential building located at 2050-2052 West Summerdale Avenue in Chicago, Illinois. Hess fell from the porch and suffered injuries, including a spinal cord injury that resulted in paralysis. The property was owned and managed by Ronald Flores and his wife, Klink. On October 25, 2004, Hess filed a personal injury and premises liability complaint against Flores, individually and d/b/a Flores Properties Inc., and against the City of Chicago. Klink was added as a defendant by amendment on January 25, 2006. The complaint alleged negligence as well as willful and wanton conduct on the part of defendants regarding the installation, safety, and maintenance of the rear porch system. The City of Chicago filed a motion for summary judgment, which the trial court granted, and the city was dismissed as a defendant.

         ¶ 6 Hess's case was stayed while the dismissal was on interlocutory appeal. Meanwhile, Hess died on January 4, 2009, and her mother, Thelma Mae Walstad, was appointed special administrator of her estate. Ronald Flores died on November 29, 2010, and Klink filed a small estate affidavit on January 15, 2011, in lieu of opening an estate in his name. On May 24, 2011, this court affirmed the summary judgment and dismissal in Hess v. Flores, 408 Ill.App.3d 631 (2011), and the case was returned to the circuit court.

         ¶ 7 On June 6, 2011, a second-amended complaint was filed, which substituted Walstad as plaintiff. The second-amended complaint continued to name Ronald Flores and Klink as defendants. As in Hess's prior complaints, the second-amended complaint alleged counts of negligence and willful and wanton conduct against defendants regarding the installation, safety, and maintenance of the rear porch system at the West Summerdale Avenue property. However, the second-amended complaint also included a count for wrongful death and listed decedent's surviving next-of-kin as Walstad and decedent's sister, Deborah Hess.

         ¶ 8 On November 21, 2012, Klink opened the estate of Ronald Flores in order to file a medical malpractice and wrongful death claim on his behalf. Flores's will was entered into probate on November 27, 2012, and Klink was named independent executor of the estate. Plaintiff filed a motion to substitute the estate of Ronald Flores for Flores on March 5, 2013. At the hearing on the plaintiff's motion, the trial court found that Flores's death was not properly spread of record and ordered that his death be spread of record on the next court date. Klink produced Flores's death certificate on July 31, 2013, and his death was spread of record on September 6, 2013. On September 13, 2013, plaintiff filed a third-amended complaint naming the estate and Klink as defendants. This complaint contained essentially the same allegations against defendants as plaintiff made in the second-amended complaint.

         ¶ 9 On October 11, 2013, defendants filed a motion to dismiss the third-amended complaint pursuant to section 2-619(a)(1), (2), and (5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2012)). Defendants alleged that plaintiff's complaint "is not properly subject to the jurisdiction of [the] Court due to the lapse of two years since [Ronald's] death" and "[n]o estate for Ronald Flores has ever been opened [by plaintiff]." Defendants argued that because plaintiff "failed to file any claim pursuant to the Probate Act, or to open an estate, within the two-year period following Flores' death, " section 18-12(b) of the Probate Act barred consideration of the complaint.

         ¶ 10 In her answer to the motion to dismiss, plaintiff alleged that the case was on the appellate stay calendar when Flores died, and plaintiff had no knowledge of his death. Also, Klink did not spread his death of record or open an estate on his behalf. Instead, Klink filed a small estate affidavit on behalf of Flores and stated under oath "that there were no contested claims against the decedent, despite the fact that [Flores and Klink] had been defendants in this matter since 2004." Citing Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988), and Rose v. Kaszynski, 178 Ill.App.3d 266 (1988), plaintiff argued that actual notice is required in this situation, and since she did not get it, she may amend her complaint to substitute the estate for Flores even though more than two years have passed since his death. Plaintiff also argued that section 2-616(d) of the Code (735 ILCS 5/2-616(d) (West 2016)) allows a party under these circumstances to substitute an estate for a defendant, and the amended complaint is not considered untimely because it relates back to the originally filed complaint. The trial court denied defendants' motion to dismiss and pretrial proceedings continued in the matter.

         ¶ 11 On January 9, 2015, Klink filed for bankruptcy and requested that plaintiff's case be stayed during the proceedings. Plaintiff's case was placed on the bankruptcy stay calendar on January 12, 2015. That same day, plaintiff filed a motion to substitute Klink as executor of Flores's estate as a defendant. The bankruptcy court granted Klink an order of discharge on May 28, 2016, rendering plaintiff's claims against her as an individual nonactionable. On July 13, 2016, plaintiff's case was removed from the bankruptcy stay calendar and placed on the active trial calendar. The case went to trial before a jury, ...

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