1 NOTI CE Decisi on fi led 07 /08/ 10. The t ext of this dec ision m ay be changed or
corr ected prior to the filing of a Petit ion for Re hea ri ng o r th e dispos it ion of

the s ame. NO. 5-08-0591 IN THE APPELLATE COURT OF ILLINO IS FIFTH DISTRICT

__________

___________

__________________________________________________ _ NEIL NAGEL, as Adm

inistr ator of the

Estate of ) Appeal fr om the Brandon Neil

Nagel, De cease d, ) Circui t Court of ) Randolp h Coun ty. Plaintiff-A ppellant, ) ) v. ) No. 07-L-13 ) JOHN I NMAN, ) Honorab le ) Richar d A. Brown, Defendant-Appellee. ) Judge, pr esiding.

__________

___________

__________________________________________________ _ JUSTICE CHAPM AN delivere d the opin ion of th e court: The plaintiff, N eil Nagel, filed a wron gful-death action alleging that the defen dant's negligence caused the death of his son, Bran don Neil N agel, in an auto mobile accident. Although th e comp laint l isted t

he plaint iff in his c apacit

y a s the spe cial a

dministrator

of Brandon 's estat

e, he was not appointed t

o act in t hat capacity

until si x monthsafter the suit
was fi le d. Th e p la in ti ff

su bs eq ue nt ly filed a moti on for a volunta ry dismi ssal, which the court granted. He later filed the instan t action raising th e same allegati on s. The court granted the defendant's motion to dism iss, finding that

(1) the plaintif

f's authority to act as the specia

l admi nistra tor for Bra

ndon's es tate t

ermi nated when t

he or iginal suit was dismissed without p rejudice an d (2) the suit was time -barre d. The plai ntiff appea

ls, ar guing that both of these

findings wer

e in error. At issue is wheth er the plaintiff was required to file an ame

nded compl aint

after being appointed as the special administrator in the f

irst suit. According

to the defe ndant, th e lack of an amended complaint re ndered the p laintiff's original suit a nul lity, which in t urn made the savi ngs provisi on of the Lim

itati ons Act (735 ILCS 5/13-217 (West 2006)) inapplicable. We reverse.2

On Septem

ber 29, 1999, t

he plaint iff's s on, Brandon

Neil Nagel, died as aresult of
an automobi le acc ident wit h the defenda

nt, John Inman. On November 10, 1999, the plai ntiff filed a complaint under

the Wrongful Dea

th Act (740 ILCS 180/0.01 et seq. (West 1998)). He alleged negligence and willful and wanton conducton the part of the d efendan t. The capti on named the plaintiff in his capac ity as the administ

rator of Brandon's estate; however, he ha d n ot ye t been appoi nted to act in that

capaci ty . On April 27, 2000, the plai ntiff filed a m otion to be a

ppointed as

the special administrator of Brandon 's estate . On May 17, 2000, he fil ed an amended mot ion to be appoi

nted. On May

19, 200 0, t he court entered an order a

ppointing the

plainti ff as the s

pecial admini strat

or of the es tate of Br

andon Neil Nagel an d on May 30, 20 00, issued letters o f office

. On May 5, 2006, the pla intiff fil ed a mot

ion for a volunt

ary dismi ssal pursuant

t o secti on 2-1009 of the Code of Ci vil Proce dure (73 5 ILCS 5 /2 -1009 (Wes t 2006) ). On August 2, 2006, thecou rt entered an order dism issing the cause without prejudice, conditionedon the plai

ntiff'spay ment t o the defenda

nt of the defenda

nt's c osts in t

he amount of $1,153.79 (see 735 ILCS 5 /2-1009(a) (West 2006)). OnJuly 25, 2007, the plaintiff filed the c ompl aint that for ms the basis of th is appeal. The a llegatio ns and parties in the second compla int were identical t

o those in the original complaint. The caption once again n amed the plaintiff in his capacityas the a

dministrator of the estate of Bra ndon N eil Nagel. He did not file a petiti on to be appoint

ed as the administrat

or. According t

o th e plaintiff, it w as not necessary to do so because his appointment carr ied over af ter the first suit was v oluntarily dismissed. OnMarch 26, 2 008, the d efendan t filed a motion to dismiss the suit. He argued that the plaintiff's au thority to act as the special admin istr ator of Brandon's estate term inated when the f

irst suit was volu ntarily

dismi ssed. Thus , he conte nded, the plai

ntiff lacked the capacity to bring a

suit on beh alf of the esta te in the second suit. In additi on, the defe ndant3

arguedthat the

statut e of lim itati ons for

bringing a suit under th e Wrongf ul Death Act had
run. See 740 IL CS 180 /2 (West 2006 ) (providin g a tw o-y ear statut e of lim itati ons for wrongf ul-death claims). In a

memorandum suppo rting his motion to dismiss, he argued that the "proper plaintiff"–Neil Nagel asthe administrator of Brandon Nagel's estate–was never madea party

to the original suit because the plaintiff never filed eit her an amended compla int or a mot ion for the s

ubstitut ion of a part

y. He di d not ad dress the applica bility of the savin gs provisio n (735 IL CS 5/13 -217 (West 20 06)). OnMay 16, 2008, the plaintiff filed a peti tion to be appointedas t he special admini strat

or of Brand on's estate in this second suit. He states in his brief that he did so only out of "an abu ndance of

caution." Th e court neve r ruled on th is motion. I nst ead, on July 7, 2008, the court en tered an order granting the defendant's motion to dism iss. The court explained its ratio nale as follow s: "The Court has considered that Plaintiff has nev er been ap pointed a special admini strat

or in the above[-]styl ed cause. Plaintiff's a uthority t o act as admini strat

or terminate dwhen the C ourt entered an Order o n Augu st 2, 2006 , dismissi ng [the original complaint witho ut prejud ice]. Proceed ing on th e complaint in this cau se is barred by the statute of

limitations when raised as a defense b y defendant." OnJuly 18, 2008, the plaintiff filed a m otion to reconsider, which the court den iedon October 30, 2008. This appe al followe d. The plaintiff first argues that the court er red in findi

ng that his

claim was tim e-barr ed. He argues that the sa vings pro vis ion of t he Limitations Act clearly applies to mak e his compla int timely beca

use the allegations of the two causesof action were identical. We agree. Anaction brou ght und er the Wrong ful Death A ct must be brought within two years of the dece dent'sdeath (740 ILCS 180/2 (West 2006)). However, un der t he savings4

provision of the Limitation s Act, i f a t imely filed action is dism

issed without prejudice pursuant to a mot ion for a voluntar

y di smis sal, a

n identic al act

ion may be filed wit

hin one yea r of the o rde r dism

issing t he origina

l acti on or the remaini

ng limi tations period,

w hichever

is later. 735 ILC S 5/13-2 17 (West 200 6). This pro vision is app licable t o wrongf ul-death claims. Winger

v. Franciscan Medical Center , 299 Ill. App. 3d 364, 368, 701 N.E.2d 813, 815-16 ( 1998) (cit ing Kristan v

. Belmont Community Hospi tal , 51 Ill. App. 3d523, 525, 366 N.E.2d 1068, 1070 (1977)). The re is no question t

hat t he pla inti ff complied with t hese requi rements . He filed his original complaint le ss than two months after Brandon 's death, and he filed his second complaint wit hin one year of the order

dismi ssing his first suit. However, the defendant argues that the p lain tiff failed to follow other procedural requirements in his f irst suit. He further argues that this failure rend ered the first suit a nullity, thus making th e savings pro vision inap plicable. A wrongf ul-death action m

ust be fil ed by

a repre sentat

ive of the de cedent on

behalf of the estate. Pavlov v. Ko nwall , 113 Ill. App. 3d 576, 577, 447 N.E.2d 982, 983 (198 3); Redmond v. Centr al Community Hos

pital , 65 Ill. App . 3d 669 , 676, 38 2 N.E .2d95, 100 (1978). Thus, there is n o proper p laintiff if th e next of k in of a dece dent sues in h is or her individual capacity . See Jablonski v. Rothe , 287 Ill. App. 3d 752, 754, 678 N.E. 2d 1108, 1109 (1997); Redmond , 65 Ill. App . 3d at 677, 382 N. E.2d at 101. Si mila rly , there is no proper plainti ff where the

person nam

ed in the c aption as

the adm inistr ator of the deceden t's estate was not pro perly

appointed (see Pavlov , 113 Ill. App. 3d at 577, 447 N.E. 2d at 983)
or–as ha pp en ed he re –w he re th e p er so n n am ed ha s n ot ye t been appointed a s the administrat

or (see Hardimon v. Car

le Clini c Ass'n , 272 Ill. App. 3d 117, 119, 650 N.E. 2d 281, 282 (1995), abrogated on othe r groundsby Biller

beck v. Caterpil

lar Tract or Co. , 292 Ill. App. 3d 350, 68 5 N.E.2d 1018 (1 997)). Id ea ll y, the adm

inistr ator shoul d be appointe d first a nd the wrongful -d eath action5

filed subsequen tly. Lindsey v

. Special Administr

ator of Estate of Phillips , 219 Ill. App. 3d 372, 37 7, 579 N .E.2d 44 5, 448 (1 991). Ho wever, a failure to follow this procedure

is not necessarily

fatal to a

caus e of a cti on. Nu

merous cases

have found that where an admini strat

or is ap poi nted afte r the suit is fi led, the a ppo intme nt w ill re late b ack t o th e time when the suit was filed

. Jablonski , 287 Ill. Ap p. 3 d at 755, 678 N.E. 2d at 1110; se e also, e.g. , Hardimon , 272 Ill. App. 3d at 122, 65 0 N.E.2d at 284; Pavlov , 113 Ill. App. 3d at 579, 447 N.E.2d at 984. The plaintif

f argues tha t the instant case is precisely analogous t

o those ca ses. The defenda nt, however, c ontends tha t there is one key

differenc e: in al l of these c ases, the admini strat

or filed an amended complai nt after being appointed as the administrat or. See Jablonski , 287 Ill. App. 3d at 754, 678 N.E.2d at 1109; Hardimon , 272 Ill. App. 3d at 118, 650 N.E.2 d at 282; Pavlov , 113 Ill. Ap p. 3d at 57 7, 447 N .E.2d at 98 3; Redmond , 65 Ill. App. 3d at 677, 382 N.E. 2dat 101. The defendant argues that this step was critical because there was no proper pla

intiff when t

he origina

l compl aint was

filed; t hus, he cont

ends, the original complain t was a nullity and an amende d complaint was n ecessary. In response, the p laintiff po ints out t hat th e origina l compl aint al

ready named t he plaintiff in his capacity

as the administ

rator of Brandon's estate. To require him to file an amended complaint identical to his orig inal comp laint, he contends, would elevate form over substance. See Jablonski , 287 Ill. App. 3d at 755, 678 N.E.2d at 1110 (explai ning that one purpose of the do ctrine of relatio n back is to "av oid e levating questions of form over questions of substance" in a way

that preclude s a consi derati on of the cla ims on t he merits)

. We note t hat the r

elati on-back doct

rine is codified i

n secti on 2-616 of the Code of Civ il Procedure , a sta

tute tha t speci ficall

y r elate s to amendment s to plea dings. 735 ILCS 5/2-616 (West

2006). We a

lso acknowl edge that , as the defendant poi

nts out, a ll thecases
we have disc

ussed do invol

ve amended

pleadings . Neve

rthe les s, we

agre e wit h the p laintiff6

that accept ing the de fendant's position woul d be at odds wi th the purpos e of the re lationback doctrine. Neither party has pointe d us to any

case t hat squar ely address es the que stion of whether an amended pleading is necess ary to invoke the relation-back doctrine, and we are aware of n one. In three of the cases we have discuss ed, it was nece ssa ry for th e pla

inti ffs to file am ended com

plaints for other reason s. In Jablonski , the parents of the decedent filed theiroriginal complain t in their own n ames as individuals rather than as the adm inistrators of their child's es tate. Jablonski , 287 Ill. Ap p. 3d at 75 4, 678 N .E.2d at 11 09. Similarly, in Redmond , a widow amend ed her complaint b ecause she hadfiled the orig inal complaint in her capacity as an individua l. Redmond , 65 Ill. App. 3d at 671, 382 N.E.2d at 97. In Pavlov , an amended complaint wasnecessar y because the court

struck a prior com

plaint before the plaintiff

was proper ly appointed as the spec ia l administr ator of the d ecedent's estate, leaving no complaint on f ile. Pavlov , 113 Ill. Ap p. 3d at 57 7, 447 N .E.2d at 98 3. The excepti on is the Four th Distr ict' s opinion in Hardimon , which invol ved a scenario nearly identical to that invo lved here. T he plaintiff there filed a w rongfu l-death action, purportedl

y i n her capacity

as the a dministrator

of the decedent's estat

e, even t hough she had not yet been ap pointed as th e administrator. Hardimon , 272 Ill. App. 3dat 119, 650 N.E.2d at 282. She subsequently peti tioned to be appointed as the administra tor. After her appointment, she filed an a mended complaint e ven though s he was al ready named a s the admini strat

or in the origin al complaint. Hardimon , 272 Ill. App. 3d at 119, 650 N.E.2d at 282. The opinion does

not make clear whether

the amended plea ding made any chang es to the original

compla int or was ne cessa ry for re asons other than invoking the relation-back statute, but it does include l anguag e that seem s to imply that an amended compla int was necessary for this purpose. See Hardimon , 2 72 Ill. App. 3d at 122, 650 N.E. 2d at 284 (explai ning that the plaintiff cured the "defect [in her cap acity

to repre sent the

estat e] by7

appointment

as administr

ator in probate and the fil

ing of an amended complai nt " (emphasis
a dded )). As previously m entioned, however, the court did not explicitly address whether this was a requirement, a question it was not call ed upon to decide. We believ e that ac cepting the defendant's interpreta tion would elevate form over substance and preve nt the plainti f f's claim from being decided on the merits . Our cases makeclear that the a

p pointment of an administra tor itself relat es back t o the tim e of the original pleading. See Jablonski , 287 Ill. App. 3d at 756-57, 678 N.E.2d at 1111 (re

jecting
adefendant's argument that t he amended complaint c ould not relate back to the original filing where no probate estate had been opened or adm

inistr ator appointed at the time i

t was filed); Pavlov , 113 Ill. Ap p. 3d at 57 7, 447 N .E.2d at 98 3 (answering in th e affirmative a certified question that asked whether the " 'proper appointment of

an administrat

or' " relate s back to the time of

the original co mplaint). Thus, the order appointing t

he plaint iff as the admini strat

or of Brandon'sestat

e rela ted back t

o the time when he filed his original complaint. This cured th e only defect in the co mplaint, without the need to am

end any thing
on the fa ce of t he com plai nt. Torequire

an ame nded compl aint

under these circums tances would be at odds wi

th the poli cy

embodie d in the relation-back stat ute and in the many

cases that have add ressed the issue. We emphas ize tha

t the plaintiff's complai

nt was never st

ricken i n the first suit. If the defenda ntfelt th at it was necess ary for the plaintiff to file an amended com plaint (even thoughit would have

been ident

ical t o the com plaint he was amending), he could have filed
amo ti on to st ri ke th e c om pl ai nt he no w a rg ue s w as al wa ys a nulli ty . He als o could have filed his own motion s eeking to s ubstitut e the plainti ff in his ca

pacity as the a dministrator of Brandon'sestat

e for thepla intiff in his individual capacity . See 735 ILCS 5/2-1008(a) (West 20 06 ) ( pr ov id in g t ha t o n t he mo ti on of an y pa rt y, the court

may enter a n order making
an y pe rs on wh o i s a lr ea dy a party a party in a differe nt capac ity

"with or wi

thout a cha

nge8

in the title of th e cause"). Instead, how ever, he allow ed the suit to remain pending for six yea rs without tak ing either of those actions. Moreover, he acce pted the be

nefits of allowing the complaint to be d ismissed voluntarily by accept ing the pay

ment of hi s costs

from the plai ntiff

. This act ion was inc onsiste

nt with a pos ition tha

t the com plaint was a nullity all along. The Third Dist

rict ha s addres sed an ana

logous sit uation, albeit in a differen t context. In M cMann v. Il linois Mi

dland Coal Co. , 149 Ill. Ap p. 427 (1 909), a minor b rought a personal injury

suit in hi s own name

instea d of bringing it

by a next frie nd. The fact

that the plai ntiff was a m inor and lacked th e capacity to sue in his own n ame only came to the court's attent ionafter the plai ntiff died whi le his s

uit was pe

nding. McMann , 149 Ill. App. at 428. The admini strat

or of his estate s ough t to be substi tuted as the plai ntiff, and t

he defendant objected. The de fenda

nt was appar entl y unawa re unt il t his t ime that the teenaged pl aint

iff (its empl oyee ) wasa mi

nor. The tr

ial court subst ituted the adminis tra

tor a s the plai ntiff

. McMann , 149 Ill. App. at 428. Onappeal, the defendant argued, much as the defendant ar gues her e, that " it was questionab le whether any suit was in ex isten ce" when t he admi nistra tor sought t

o be substituted

as the pl aintiff due

to the m inor plaintiff's la ck of c apac ity to sue in his own
name. McMann , 149 Ill. App. at 428. The court re jected t his argum ent, expl aining tha

t the minor's suit was

"not subject to be aba ted or dismiss ed without l eave to a mend by substit utingsome person as ne xt friend." McMann , 149 Ill. App. at 428. Once a prop er party (the adm

inistr ator) wa s ins tead sub stituted, it was too late for the de fendant to challe nge the suit as a nullity based on the minor's lack of capaci ty prior to t he substi tution. McMann , 149 Ill. App. at 428. Here, we have concluded t hat the pl aintiff' s appointm ent as t he admi nistra tor of Brand on's estat

e in May 2000 cured the

defect wi

th no need to a

mend the compla int o r9

caption or to substitute parties . However, even assuming that some further a cti on wa s required–as it was in McMann –we do not beli eve that this would ha

ve render ed the cause of action a nullit y. Instea d, the sui t would have r

emai ned subject

to a motion to sub stitute the plainti ff in his re

present ative c apacit

y a s a part

y i f the defenda nt belie

ved that m

otion
was ne ce ss ar y. Once the suit was vo luntarily dismissed, it was too late fo r the defen dant to argue that it was n ever prop erly before the court. We conclude t

hat theplainti ff's appoi

ntment as the a dministrator

of Brand on's estate in the first suit rel ated back to the time it was originally

filed, without the need to file an amended pleading o r a motion for th e substitutio n of a par ty. Thus, the suit was pro perly before the court

when it was

voluntari ly

dismi ssed, a

nd the plai

ntiff ma y a vail himself of the savings provision (735 ILCS 5/13-217 (West 2006)). The plainti ff next argue s that t he court e rred in fi nding that his capacity

to act as the
s pe cialadministrator of B randon's estate terminated when his f irst suit was volu ntarily dismi ssed. We disagree. However, we agree with his alternative c ontention that the court may grant his May 2008 petiti on to be appointed a s the spe cial a dministrator

for Brand on's estate, thus curing this defect. The plainti ff argues t

hat his a ppointme nt as the administrator in the first suit car ried
over into this subsequent suit. In support of thi s argument, he poi nts to the language of

the lette rs of office

issued t o him on May

30, 2000, which authorized him to " take poss ession of and collect t he es tat e of the de cedent[] a nd to do a

ll actsrequi

red of him by law. " He argues that thi s language

was broad e

nough to grant auth ority to do more than pro secute the lawsuit. It is c lear fr

om the r ecord, however, tha

t despit e the bre adth of this

language, no authoritywas ever

sought or granted

to do any thing other

than prose cute a c laim

against the defenda nt. The petit

ion to be appoi

nted as t he admi nistra tor specific ally

allege d that the claim ag ai ns t t he de fe nd an t w as th e o nl y asset of Brandon'sestat

e. Wher e, as he re, the10

wrongf ul-death claim is the only asset of the deced ent's estate , the Wrongful Death Act all ows the appoint

ment of a specia l admi nistra tor for the purpose of bri

nging the claim . 740 ILCS 180/2.1 (West

2006). The plainti ff was appointed pursuant to this statute , which, by its te rms, gives only

the author

ity to bring the

claim. Were it

necessary for the plaintif f to do more, he would have need ed to open a probate estate an d be appo inte d pursu ant to provisions

of the Probat

e Act of 1975 (755 ILCS 5/1-1 et seq. (West 2006)). T hus, we agree with the defenda

nt that t he plaint iff's a uthority to act a s the admini strat

or for the purpose

of bringing a claim terminated with the or der volun tarily dismissing the first suit. As the plain ti ff points out, however, t he court never rule d on his peti tion to be appointedas the s

pecial admini strat

or in thesecond suit. Because that suit was timel y file d under the s avings provi sion of the Li mita tions Act (735 ILCS 5/13-217 (West 2006)), the court may grant the petition and appoint the plaintiff as the s pecial administrator. Th is appointment w ould relate bac k to the time he filed his 2007 complaint. For the reason s stated, we reverse th e order of the trial court.

Reverse d.

GOLDENHER SH, P.J., and WELCH, J., concur.NO. 5-08-0591 IN THE APPELLATE COURT OF ILLINO IS FIFTH DISTRICT

____________________________________________________________ _________________

_____ _ NEIL NAGEL, as Adm

inistr ator of the

Estate of ) Appeal fr om the Brandon Neil

Nagel, De cease d, ) Circui t Court of ) Randolp h Coun ty. Plaintiff-A ppellant, ) ) v. ) No. 07-L-13 ) JOHN I NMAN, ) Honorab le ) Richar d A. Brown, Defendant-Appellee. ) Judge, pr esiding.

____________________________ _________________

_____________________________________ _ Opinion Filed : July 8, 2010

____________________ _________________

_____________________________________________ _ Justices : Honorab le Melissa A. Chap man, J.,

Honorab le Richard P. G oldenhersh , P.J., Honorab le Thomas M. Welch, J., Concur

_____________________________ _________________

____________________________________ _ Att orne ys Darrell Dun ham, Tara Dahl, D arrell Dunha m & Associates, 308 West Wa lnut, for P.O. Box 803, Car bondale, IL 62903 Appellant

_____ _________________________________________________________________ _____________ Attorney Arthur W. Morris, Traughber & Morris, Ltd., 217 South Main Str eet, P. O. Box 587, for Columbia , IL 62236 Appellee

______________________________ _________________

___________________________________ _