1 

2023 IL App (5th) 220418-U 

NO. 5-22-0418 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

KOREY WEDEMEYER and KRISTIN ) Appeal from the

WEDEMEYER, ) Circuit Court of

 ) Randolph County.

Plaintiffs-Appellants, ) 

 ) 

v. ) No. 20-L-16 

 ) 

ESTATE OF COLLEEN S. BENNETT and ) 

BEN BENNETT, ) Honorable 

 ) Richard A. Brown,

Defendants-Appellees. ) Judge, presiding.

______________________________________________________________________________ 

JUSTICE VAUGHAN delivered the judgment of the court.

 Presiding Justice Boie and Justice Barberis concurred in the judgment.

 

 ORDER

¶ 1 Held: The appeal is dismissed where no valid defendant exists, relief pursuant to section 

 2-401(b) involving misnomer is unavailable, and the time to allow plaintiffs to 

amend their complaint to add a viable defendant pursuant to section 2-616(d) has

 expired. 

¶ 2 Plaintiffs, Korey Wedemeyer and Kristin Wedemeyer, appeal the circuit court’s order 

finding they entered into a binding settlement agreement and said agreement was enforceable. On 

appeal, they argue that the circuit court’s finding of a binding and enforceable settlement 

agreement was against the manifest weight of the evidence. For the following reasons, we vacate 

the circuit court’s order and dismiss the appeal. 

NOTICE

This order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1).

NOTICE

Decision filed 08/11/23. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2 

¶ 3 I. BACKGROUND

¶ 4 On June 24, 2019, plaintiff Korey Wedemeyer was involved in a vehicle accident with 

Colleen Bennett. Colleen died at the scene as a result of injuries sustained in the crash. On July 29, 

2019, plaintiffs’ counsel sent correspondence to GEICO, the insurer of the vehicle Colleen was 

driving. Counsel’s correspondence advised GEICO of its representation of Korey and extended a 

settlement offer. The final portion of the correspondence was entitled “Time Limited Offer of 

Settlement” and stated, inter alia, the following:

“In light of these facts, Korey is extending a onetime policy limits demand (which 

is subject to proof) to settle his bodily injury claims for the single person policy 

limits of any and all insurance policies which provided coverage or may have 

provided coverage for Collen [sic] Benet’s [sic] alleged negligence in said motor 

vehicle crash. In return, Korey will execute a release of liability for your insured 

and/or your insured’s estate, if the conditions set forth herein are satisfied.

 This [is a] very generous proposal of settlement of Korey’s claim and is 

contingent upon tendering/payment of the demanded amounts on or before the close 

of business on Friday, August 30, 2019. Please made the check payable to Korey 

Wedemeyer and his attorneys The Cagle Law Firm. My office will hold said 

settlement and not deposit them until the release is executed by Korey and returned 

to your office. Moreover, please be advised that under tender of the applicable 

policy limits my law firm agrees to indemnify, defend[,] and hold the parties related 

harmless against all liens and claims for liens asserted against the settlement funds 

pursuant to 735 ILCS 5/2-2301.” 
3 

¶ 5 On July 30, 2019, GEICO sent correspondence to The Cagle Law Firm by facsimile that 

stated: 

 “This letter is to acknowledge your correspondence dated July 29, 2019, in 

which you confirm your representation of Korey Wedemeyer for injuries sustained 

in the automobile accident of June 24, 2019. We also acknowledge your demand of 

our policy limits to settle the Bodily Injury claim of Korey Wedemeyer.

 I have reviewed the information included in your demand, and as GEICO 

Casualty Company will agree to meet your demand and agree to tender its 

$25,000.00 policy limits to settle the Bodily Injury claim of Korey Wedemeyer. As 

such, I will fax the release to your offices under a separate cover. I have also 

tendered payment in the amount of $25,000.00 as instructed in your July 29, 2019, 

letter.” 

¶ 6 GEICO also sent a second facsimile comprised of correspondence and a release on July 30, 

2019. The correspondence stated the check would be mailed under separate cover and advised 

counsel to contact Ms. Maloy if there were any questions. The release discharged Ben W. Bennett, 

the Estate of Colleen S. Bennett and GEICO Casualty Company. A check in the amount of $25,000

was mailed to plaintiffs’ counsel. 

¶ 7 After receiving no response, GEICO sent correspondence to plaintiffs’ counsel on 

December 2, 2019, December 10, 2019, and January 7, 2020, following up on the proposed 

settlement. On January 28, 2020, plaintiffs’ counsel sent correspondence to GEICO stating it failed 

to meet a condition precedent in that GEICO failed to send documentation proving the policy limit 

was $25,000. Plaintiffs’ correspondence withdrew the prior offer and offered to settle the case for 
4 

$800,000. Additional correspondence was exchanged, and the parties continued to dispute whether 

a settlement was reached. 

¶ 8 On July 10, 2020, plaintiffs filed suit against defendants the “Estate of Colleen S. Bennett; 

& Ben W. Bennett” The complaint alleged, inter alia, that Ben Bennett was appointed independent 

administrator of the Estate of Colleen S. Bennett on July 10, 2020. The complaint alleged three 

counts: (1) negligence against Colleen’s estate, (2) negligent entrustment against Ben as the 

decedent’s husband and joint owner of the pickup truck Colleen was driving in the accident, and 

(3) loss of consortium against both defendants. A summons was issued to “defendant Ben W. 

Bennett” on June 30, 2020. The summons was served on August 15, 2020. On August 21, 2020, 

plaintiffs filed a motion for leave to file a first amended complaint to include punitive damages. 

¶ 9 On October 6, 2020, counsel for defendants entered an appearance on behalf of the “Estate 

of Colleen Bennett and Ben Bennett” and demanded a jury trial. Counsel also moved for leave to 

submit the answers and affirmative defenses out of time due to the plaintiffs’ complaint being 

served at the wrong address for Ben. On October 9, 2020, the trial court granted the motion. 

Counsel filed answers on behalf of Ben and the Estate of Colleen Bennett, denying the majority of 

the allegations. Counsel also filed affirmative defenses on behalf of Colleen’s estate that alleged, 

inter alia, plaintiffs’ claims were barred by the doctrine of (1) settlement, (2) estoppel, and 

(3) waiver because plaintiff Korey Wedemeyer and defendant entered into an enforceable 

settlement agreement based on plaintiff’s July 29, 2019, offer and GEICO’s July 30, 2019, 

acceptance. On October 23, 2020, plaintiffs filed an answer to the affirmative defense admitting 

their counsel sent correspondence to GEICO on July 29, 2019, with a settlement offer and GEICO

sent a responsive letter on July 30, 2019. They denied that any settlement was reached. 
5 

¶ 10 On December 14, 2020, the trial court granted plaintiffs’ motion for leave to file an 

amended complaint. The amended complaint was filed on December 21, 2020, and alleged four 

counts: negligence against Colleen’s estate, willful and wanton conduct against Colleen’s estate, 

negligent entrustment against Ben, and loss of consortium against both defendants. Counsel for 

defendants filed answers and again raised the affirmative defense related to the alleged July 2019 

settlement agreement. On January 14, 2021, plaintiffs again admitted they sent the July 29, 2019, 

correspondence and GEICO sent correspondence dated July 30, 2019, but argued no settlement 

was reached because GEICO failed to meet conditions precedent related to the offer. 

¶ 11 On July 27, 2021, plaintiffs moved to voluntarily dismiss defendant, Ben W. Bennett, 

without prejudice. Plaintiffs also filed a motion to strike and for summary judgment or summary 

determination of defendants’ affirmative defense related to the settlement. A memorandum of law 

was provided in support of the motion. Both pleadings were further supported by the affidavit of 

plaintiffs’ counsel, Zane T. Cagle, stating his office never received proof of the policy limits. 

¶ 12 On August 3, 2021, the trial court granted plaintiffs’ motion to voluntarily dismiss and 

issued an “agreed dismissal order” voluntarily dismissing “Defendant Ben W. Bennett ONLY 

without prejudice with the right to re-file within one (1) year pursuant to 735 ILCS 5/2-1009.” The 

order stated the case would “continue against Defendant Estate of Colleen S. Bennett.” 

¶ 13 On August 30, 2021, defendant filed its response to plaintiffs’ motion related to its 

affirmative defense and filed a cross-motion for summary judgment with a memorandum in 

support. The response relied on GEICO’s July 30, 2019, correspondence to plaintiffs’ counsel 

accepting the settlement and stating that “$25,000.00 was indeed the ‘policy limit[s] of 

Defendant’s GEICO policy.” Defendant argued that offer and acceptance were shown. 

Defendant’s cross-motion for summary judgment was based on the same facts. 
6 

¶ 14 After additional responses and replies were filed, on December 1, 2021, the trial court 

issued an order finding that the parties disputed whether plaintiffs received GEICO’s July 30, 

2019, letter of acceptance, and if they did, whether the letter amounted to proof of the insurance 

policy limits. After finding these to be material issues, summary judgment was denied. The court 

issued an order setting the limited issue of whether a settlement agreement had been reached for a 

trial. 

¶ 15 The bench trial was held on March 18, 2022. Testimony from Ms. Maloy and Rajeev 

Kumar was provided at the hearing. Ms. Maloy testified about her correspondence to plaintiffs’ 

counsel accepting the settlement offer, as well as her communications with Mr. Kumar to 

determine whether the facsimiles were successfully sent. She further testified that her 

correspondence to plaintiffs’ counsel confirmed the policy limit and no request for specific 

documentation was requested in the settlement demand. Mr. Kumar testified that he was the 

software development manager for GEICO. He identified and addressed documentation regarding 

whether a facsimile was successfully sent and confirmed Ms. Maloy’s two facsimiles were sent at 

the same time and were successfully transmitted. Following clarification of the exhibits admitted, 

the parties submitted closing arguments. The court took the matter under advisement.

¶ 16 On March 24, 2022, the trial court issued an order finding that GEICO’s July 30, 2019, 

correspondence stated that $25,000 was the policy limit. The court further found that no evidence 

was presented that defendant had any other liability policies and proof of policy limits could not 

be provided for policies that did not exist. The court found plaintiffs’ demand for proof was 

nonspecific, and that GEICO’s correspondence complied with the request. The court found the 

parties settlement agreement was “binding and shall be given full force and effect.” 
7 

¶ 17 On April 12, 2022, plaintiffs filed posttrial motions requesting reconsideration of the 

court’s finding of a settlement and further disputing the settlement was enforceable. On June 3, 

2022, the trial court denied the motions. The order entered judgment in favor of defendant and 

directed GEICO to tender payment of $25,000 to “Korey Wedemeyer and his attorneys.” Plaintiffs 

timely appealed.

¶ 18 II. ANALYSIS

¶ 19 On appeal, plaintiffs argue that the trial court erred by finding a settlement was reached. 

They further argue that the trial court erred by enforcing the settlement contract. However, before 

we address the merits of the appeal, we must first address the validity of the defendant captioned 

as the “Estate of Colleen Bennett.”1

 Reviewing courts have “an independent duty to ensure that

the trial court and this court have jurisdiction over a case.” People v. Arriaga, 2023 IL App (5th) 

220076, ¶ 12. This duty is applicable in both civil and criminal cases. People v. O’Connor, 313 Ill. 

App. 3d 134, 135 (2000). We review jurisdictional issues de novo. In re Marriage of Britton, 2022 

IL App (5th) 210065, ¶ 39. 

¶ 20 It is well settled that “estates are not natural or artificial persons and lack capacity to sue 

or be sued.” Precision Components, Inc. v. Estate of Kuntz, 112 Ill. App. 3d 309, 310 (1983); 

Mareskas-Palcek v. Schwartz, Wolf & Bernstein, LLP, 2017 IL App (1st) 162746, ¶ 32; Estate of

Godair v. Case, 220 Ill. App. 348, 349 (1920). “A party to litigation must have a legal existence, 

either natural or artificial, to sue or be sued.” Jackson v. Village of Rosemont, 180 Ill. App. 3d 932, 

937 (1988). An action against a deceased person must be brought in the name of the executor or 

1

We requested supplemental briefing on this issue and both parties provided briefs addressing this 

issue. 
8 

administrator as the representative of the estate. Wisemantle v. Hull Enterprises, Inc., 103 Ill. App. 

3d 878, 881 (1981). It is the person in this capacity that must be served with summons. Id. 

¶ 21 Here, it is undisputed that although plaintiffs’ complaint alleged that Ben Bennett was the 

independent administrator of the Estate of Colleen Bennett, the suit was filed against the estate, 

not the administrator. Further, while summons for “Defendant, Ben Bennett” (who was also named 

as an individual defendant in this matter) was issued and served (at the wrong address), no 

summons was ever issued to Mr. Bennett as the independent administrator Colleen’s estate. 

¶ 22 In the supplemental briefing, defendant requested dismissal since no valid defendant 

remained after “defendant, Ben Bennett” was voluntarily dismissed given plaintiffs’ failure to 

either name or serve the administrator of the estate in any of the filed complaints. Defendant argued 

that the estate’s status is that of a nullity and, therefore, the case is void ab initio. Plaintiffs argued 

that misnomer applied pursuant to section 2-401(b) of the Code of Civil Procedure (Code) (735 

ILCS 5/2-401(b) (West 2020)) and, if it did not, section 2-616(d) of the Code (id. § 2-616(d)) 

allowed for amendment of the pleading because the requirements for relation back were met for a 

case involving mistaken identity. Plaintiffs also filed a motion to change defendant’s name 

pursuant to misnomer. Defendant objected arguing that misnomer was inapplicable for nonexistent 

parties. 

¶ 23 A. Misnomer

¶ 24 “Misnomer of a party is not a ground for dismissal[,] but the name of any party may be 

corrected at any time, before or after judgment, on motion, upon any terms and proof that the court 

requires.” 735 ILCS 5/2-401(b) (West 2020). We note, however, there is a substantial difference 

“between a misnomer—which occurs when a party files an action against the correct party under 

an incorrect name—and mistaken identity—which occurs where the petition names the wrong 
9 

party.” Odle v. Department of State Police, 2015 IL App (5th) 140274, ¶ 8. The “ ‘misnomer 

statute applies only to correctly joined and served, but misnamed, parties.’ ” Capital One Bank, 

N.A. v. Czekala, 379 Ill. App. 3d 737, 743 (2008) (quoting Barbour v. Fred Berglund & Sons, Inc., 

208 Ill. App. 3d 644, 648 (1990)). “ ‘The pivotal determination is whether plaintiff actually serves 

the real party in interest with a copy of the complaint and summons, within the time limits allowed 

by law, so that actual notice of the complaint has been lodged against it and notice of the need to 

respond has been given to the party in interest, albeit incorrectly named.’ ” Borg v. Chicago 

Zoological Society, 256 Ill. App. 3d 931, 934 (1993) (quoting Yedor v. Centre Properties, Inc., 

173 Ill. App. 3d 132, 137-38 (1988)).

¶ 25 In Tyler v. J.C. Penney Co., 145 Ill. App. 3d 967, 969 (1986), the plaintiff named the 

“Market Place” as a defendant. Market Place moved to dismiss the action with prejudice claiming 

it did not have legal status to be sued. The court noted that “the problem here is not that the 

plaintiffs misnamed a proper party, it is that they did not even name a proper party, and they may 

not claim the benefits of the misnomer rule.” Id. at 974. Defendant’s motion was granted, and the 

dismissal was upheld on appeal with the court stating a “complaint which does not name a party 

legally in existence is in reality a nullity as to that party.” Id. at 972-73. 

¶ 26 Borg v. Chicago Zoological Society, 256 Ill. App. 3d 931, 936-37 (1993), however, reached 

a contrary conclusion when addressing the named defendant, Chicago Zoological Park, Inc. a/k/a 

Brookfield Zoo, instead of the actual name of the defendant, Chicago Zoological Society. Borg

found this was “not a case where the wrong party was sued” and noted defendant was commonly 

referred to as the Brookfield Zoo and that both the Chicago Zoological Park and Brookfield Zoo 

were listed in the Chicago telephone directory, whereas the Chicago Zoological Society was not. 

Id. at 936. Ultimately, the court found that all three names involved “the same entity.” Id. The 
10 

court stated it was “not persuaded” by the case law presented by defendant “since in those cases 

of mistaken identity, plaintiff either sued a nonentity, or the real party in interest was not named 

and served.” Id. at 937.

¶ 27 Here, the circumstances involve a suit against an estate which lacks the capacity to sue or 

be sued and is a legal nonentity. Estate of Hudson v. Tibble, 2018 IL App (1st) 162469, ¶ 26. In 

order to sue Colleen’s estate, plaintiffs were statutorily required to bring the lawsuit against 

Colleen’s “personal representative.” 735 ILCS 5/13-209(b) (West 2020); see also Relf v. 

Shatayeva, 2013 IL 114925, ¶¶ 26-27. However, no lawsuit was brought against the personal 

representative of Colleen Bennett’s estate. Further, despite alleging that Ben Bennett was the 

independent administrator of Colleen’s estate, the plaintiffs failed to issue summons to Ben 

Bennett, in that capacity. It is undisputed that an estate is not a valid legal entity and, thus, lacks 

the legal capacity to sue or to be sued. Casteneda v. Ingram, 2018 IL App (1st) 170065, ¶ 13 (citing 

Mareskas-Palcek, 2017 IL App (1st) 162746, ¶ 32).

¶ 28 In addressing how misnomer should be applied to a legally nonexistent entity, we turn to 

Vaughn v. Speaker, 126 Ill. 2d 150 (1988). In Vaughn, the plaintiff initially filed suit against 

William Speaker for negligence stemming from a car accident that occurred 23 months earlier. Id. 

at 154. However, Mr. Speaker died 10 months before plaintiff filed suit. Id. After learning of his 

death, after the statute of limitations had run, plaintiffs then filed suit against the co-executors of 

the deceased’s estate and summons was served on the co-executors. Id. at 155. The executors 

moved to dismiss, and the motion was granted. Id. The dismissal was affirmed on appeal when the 

court found the initial action was a nullity that could not be amended and, therefore, the second 

complaint could not relate back to the initial filing. Id. 
11 

¶ 29 The Illinois Supreme Court granted leave to appeal, examined sections 2-1008(b), 2-401, 

and 2-616 of the Code, and, after noting that these statutes required liberal interpretation, found 

that “[e]ven under a most liberal construction” none of those provisions was “of avail to plaintiffs.” 

Vaughn, 126 Ill. 2d at 157-58.2 With regard to section 2-401, addressing misnomer, the court found 

that changing the name of the decedent to that of decedent’s executors was not “simply the 

correction of a misnomer.” Id. at 158. “This is not a situation where, for example, a plaintiff merely 

misspelled a defendant’s surname or sued an incorrect common name. Instead, plaintiffs here 

intentionally sued [the deceased] when they should have sued his estate.” Id. at 158-59. The court 

noted that an individual and their estate could not exist contemporaneously, were wholly distinct 

legal entities, and therefore found that substitution of the estate “was not merely the correction of 

a misnomer” and section 2-401 could not “be invoked for relation back of the second complaint to 

the date of the original filing.” Id. at 159. 

¶ 30 We find substantial differences between Vaughn and the case at bar. Namely, Vaughn was 

dealing with two legal entities that did not exist contemporaneously. Here, while an estate and its

administrator generally do exist contemporaneously, only one is a legal entity with capacity to be 

sued and can be classified as a real party in interest. A “ ‘real party in interest’ has an actual and 

substantial interest in the subject matter of the action, as distinguished from one who has only a 

nominal, formal, or technical interest in, or connection with, the case. See Vukusich v. 

Comprehensive Accounting Corp., 150 Ill. App. 3d 634, 640 (1986); see also Black’s Law 

Dictionary 1264 (6th ed. 1990).” Lyons v. Ryan, 201 Ill. 2d 529, 534-35 (2002). “If the named 

2

Section 2-1008(b) was not raised by plaintiffs; however, it is equally unavailing here because 

Colleen Bennett passed away long before plaintiffs filed suit. See 735 ILCS 5/2-1008(b) (West 2020). 
12 

party in fact exists, but is not a real party in interest, a court can conclude that the plaintiff has 

mistakenly sued the wrong party.” Zito v. Gonzalez, 291 Ill. App. 3d 389, 393 (1997). 

¶ 31 “There are good and obvious reasons for barring litigation by and against persons or entities 

who are fictional and do not actually exist.” Santiago v. E.W. Bliss Co., 2012 IL 111792, ¶ 40 

(Karmeier, J., specially concurring); see also id. ¶ 55 (distinguishing Santiago from the cases cited 

by defendants which “address[ed] situations where a defendant did not exist at all [citations], 

where a corporation whose existence is defined by law was involved [citation], or where a 

summons was served on a nonexistent trust account [citation]” (Burke, J., specially concurring)). 

Here, the sole remaining defendant has no legal existence (see Mareskas-Palcek, 2017 IL App 

(1st) 162746, ¶ 32) and therefore cannot be a real party in interest as a matter of law. See Grieff v. 

Olsen’s Automotive Supply, 167 Ill. App. 3d 589, 591-92 (1988) (“Olsen’s Automotive Supply is 

not a legal entity. *** ([T]he misnomer rule) does not apply to that category of cases in which the 

defendant does not have legal status.”); see also Borg, 256 Ill. App. 3d at 937 (distinguishing its 

decision from those involving suits against nonentities or instances where the real party in interest 

was not named and served). Here, the remaining defendant is a nonentity, and the real party in 

interest was never actually served in his capacity as the administrator of the estate. Plaintiffs’ error 

can only be classified, at best, as a mistaken identity. As such, we hold that misnomer is 

inapplicable and deny plaintiffs’ motion to change defendant’s name pursuant to section 2-401(b). 

¶ 32 B. Mistaken Identity

¶ 33 Plaintiffs also argue, in the alternative, that this is a case of mistaken identity. To address 

issues of mistaken identity, we consider section 2-616(d) of the Code (735 ILCS 5/2-616(d) (West 

2020)). We also consider the analysis of this section found in Vaughn and Morton v. Madison 
13 

County Nursing Home Auxiliary, 198 Ill. 2d 183 (2001), although we note the statute has changed 

since those decisions were issued. 

¶ 34 In Vaughn, the supreme court noted the “appellate court found this provision inapplicable 

because ‘[i]n order for section 2-616 to apply there must also be an action pending against a person 

not originally named a defendant.’ ” Vaughn, 126 Ill. 2d at 159-60 (quoting Vaughn v. Speaker, 

156 Ill. App. 3d 962, 965 (1987)).3 The Illinois Supreme Court stated, “Regardless of whether an 

action against a decedent is under all circumstances a nullity, section 2-616(d) provides no relief 

to plaintiffs because the fourth requirement of that provision was not met: there is no indication or 

assertion that either co-executor knew prior to the running of the statute of limitations that a 

complaint had been filed.” Id. at 160. Similarly, in Morton, the court refused to apply section 2-

616(d) to allow for relation back because the plaintiff’s service on the county nursing home’s agent 

was not service on the agent of Madison County and therefore the third requirement was not met. 

Morton, 198 Ill. 2d at 189. 

¶ 35 We note that at least one appellate court found it “significant that [Vaughn] declined to 

base its holding *** on the proposition that a complaint filed against a dead person is a nullity for 

purposes of the relation back doctrine, even though that was the basis of the appellate court 

decision” and instead defaulted to review of the statute. Marcus v. Art Nissen & Son, Inc., 224 Ill. 

App. 3d 464, 470 (1991). Reliance on the statute when discussing relation back was also seen in a 

more recent Illinois Supreme Court decision. See Santiago, 2012 IL 111792, ¶¶ 27-28. In Santiago 

(id. ¶¶ 27-30), the court vacated the appellate court’s dismissal based on a nullity and distinguished 

3

The appellate court found the initial action a nullity which could not give rise to a pending 

action. Vaughn, 126 Ill. 2d at 159-60. 
14 

its case from that seen in Alton Evening Telegraph v. Doak, 11 Ill. App. 3d 381 (1973), after finding 

the plaintiff was a real person with a fictitious name as opposed to a fictitious person. 

¶ 36 The history of the relation back statute is also relevant. As noted in Morton, prior to 1954, 

the failure to join a proper party was fatal and no relation back was allowed. Morton, 198 Ill. 2d at 

186-87. However, in 1954, the legislature enacted what is now known as the relation back statute 

for instances of mistaken identity seen in section 2-616(d). Id. at 187. At the time Vaughn and 

Morton were issued, the statute contained five requirements, and if all five were not met, relation 

back was denied. Vaughn, 126 Ill. 2d at 160; Morton, 198 Ill. 2d at 187-89. Here, while plaintiffs 

argue that they meet all five requirements, the argument is based on a statute no longer in existence.

¶ 37 The legislature amended section 2-616(d) in 2001. See Pub. Act 92-116, § 5 (eff. Jan. 1, 

2002). The current section no longer contains five requirements; it contains three. See 735 ILCS 

5/2-616(d) (West 2020). Two requirements remain substantially the same and require the original 

complaint to be timely filed and the original and amended pleading arise from the same transaction. 

Id. However, the other requirements, which included the bases used to deny relation back in 

Vaughn and Morton, were revised. The revision removed the required findings that: (a) the failure 

to join was inadvertent, (b) actual service was made on the person although in the wrong capacity, 

and (c) actual knowledge by the party who was not named in the litigation of the litigation within 

the time allowed for filing a claim in that litigation. These requirements were replaced by the

current language that states: 

“[T]he person, within the time that the action might have been brought or the right 

asserted against him ***, received such notice of the commencement of the action 

that the person will not be prejudiced in maintaining a defense on the merits and 

knew or should have known that, but for a mistake concerning the identity of the 
15 

of the proper party, the action would have been brought against him.” Id. § 2-

616(d)(2). 

¶ 38 While the differences are subtle, such differences would potentially allow for the relation 

back doctrine to apply in this matter because Ben Bennett was actually served as an individual 

defendant with a copy of the complaint filed within the prescribed time limitations and therefore 

Ben Bennett, as administrator of Colleen Bennett’s estate, would have received notice of the 

action, although he was not served in that capacity. However, the relation back doctrine cannot 

save the case at bar.

¶ 39 Section 2-616(a) limits amendments, which include “introducing any party who ought to 

have been joined as plaintiff or defendant” to “any time before final judgment.” Id. § 2-616(a). “A 

‘final judgment’ is a determination by the circuit court on the issues presented by the pleadings 

‘which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.’ ” People 

v. Shinaul, 2017 IL 120162, ¶ 10 (quoting Hernandez v. Pritikin, 2012 IL 113054, ¶ 47). Courts 

have long held that following the issuance of final judgment, a plaintiff has no statutory right to 

amend a complaint except to amend the pleading to conform with the proofs, an amendment not 

applicable here. See Asher Farm Ltd. Partnership v. Wolsfeld, 2022 IL App (2d) 220072, ¶ 47 

(citing 735 ILCS 5/2-616(c) (West 2020)); FHP Tectonics Corp. v. American Home Assurance 

Co., 2016 IL App (1st) 130291, ¶ 36; Tomm’s Redemption, Inc. v. Hamer, 2014 IL App (1st) 

131005, ¶ 14; Aarrow Ambulance v. Davis, 16 Ill. App. 3d 318, 319-20 (1974); Fox v. Department 

of Revenue, 34 Ill. 2d 358, 360 (1966). Here, the trial court issued its final judgment on June 3, 

2022, and the time allowing plaintiffs to amend their complaint to add a new defendant, namely 

“Ben Bennett, as the administrator of the Estate of Colleen Bennett,” has long passed. Plaintiffs’ 

failure to timely move to amend the complaint before the circuit court entered final judgment 
16 

precludes amendment. Therefore, we reject plaintiffs’ argument that the relation back statute is 

applicable. 

¶ 40 III. CONCLUSION

¶ 41 With no viable defendant, this case is a nullity. Accordingly, we vacate the trial court’s 

judgment and dismiss the appeal. 

¶ 42 Vacated; appeal dismissed.