                                    2018 IL App (1st) 170070


                                                                            FIRST DIVISION
                                                                            May 21, 2018



No. 1-17-0070

                                         IN THE
                              APPELLATE COURT OF ILLINOIS
                                FIRST JUDICIAL DISTRICT


THELMA MAE WALSTAD, Special                         )        Appeal from the
Administrator for Rebecca Hess, Deceased,           )        Circuit Court of
                                                    )        Cook County.
 Plaintiff-Appellee,                                )
                                                    )
v.                                                  )
                                                    )
CHARLOTTE KATHRYN KLINK, as Executor )
of the Estate of Robert Flores, Deceased, and d/b/a )
Flores Properties Inc.; THE CITY OF                 )        No. 16 L 007175
CHICAGO, a Municipal Corporation; and               )
CHARLOTTE K. FLORES, a/k/a Charlotte                )
K. Klink, Individually,                             )

                                                    )

 Defendants                                         )

                                                    )
(Charlotte Kathryn Klink, as Executor of the Estate )        Honorable
of Ronald Flores, Deceased,                         )        Moira Johnson and
                                                    )        Annette R. Hubbard,
        Defendant-Appellant).                       )        Judges Presiding.


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

                                            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
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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

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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

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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

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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, and the jury returned a verdict in favor of

plaintiff and against the estate of Flores in the amount of $2,514,849. Klink, as executor of the

estate, filed this timely appeal.

¶ 12                                       ANALYSIS

¶ 13    Initially we note that plaintiff did not submit an appellee brief. However, given that “the

record is simple and the claimed errors are such that the court can easily decide them without the

aid of an appellee’s brief,” we will consider the merits of this appeal. First Capitol Mortgage

Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). We further note that the record

does not contain a transcript of the proceedings below on plaintiff’s motions to amend,

defendant’s motion to dismiss, or on any motions to substitute parties—proceedings relevant to

this appeal. As appellant, Klink has the duty to present a complete record of the proceedings so

that this court is fully informed of what occurred below. Rosestone Investments, LLC v. Garner,

2013 IL App (1st) 123422, ¶ 31. “Where the record is incomplete, we resolve any doubts against

the appellant and presume that the order entered by the trial court conformed both to the law and

to the facts of the case.” Id.

¶ 14    Klink contends that section 18-12(b) of the Probate Act bars consideration of plaintiff’s

claim against the estate. Section 18-12(b) provides that all claims against an estate are “barred 2

years after decedent’s death, whether or not letters of office are issued upon the estate of the

decedent.” 755 ILCS 5/18-12(b) (West 2016). This section is a grant of jurisdiction, and as such,

the trial court has no power or jurisdiction to hear a claim against the estate after the statutory

period has passed. In re Marriage of Epsteen, 339 Ill. App. 3d 586, 596 (2003). Klink does not

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dispute that Hess’s original complaint against Flores was timely filed. However, after Flores’s

death, the proper party became the estate of Flores, which is a distinct legal entity from Flores

the individual. See Vaughn v. Speaker, 126 Ill. 2d 150, 159 (1988). Klink argues that since Flores

died on November 29, 2010, and plaintiff filed her third-amended complaint against his estate

almost three years later on September 13, 2013, the trial court had no jurisdiction to consider

plaintiff’s complaint and should have granted defendants’ section 2-619 motion to dismiss.

¶ 15   As support, Klink relies primarily on two cases. These cases, however, are factually

distinct from the case at bar. In Polly v. Estate of Polly, 385 Ill. App. 3d 300, 301 (2008), the

plaintiff filed a complaint for the first time after the two-year period expired whereas here,

plaintiff timely filed her original complaint and filed her second-amended complaint within two

years of Flores’s death. In the other case, In re Estate of Worrell, 92 Ill. 2d 412, 414 (1982), the

estate did not have knowledge of the claim until after the statutory period expired. Unlike the

defendant in Worrell, Klink, as administrator of the estate, knew of plaintiff’s claims because she

was also a defendant in the prior, timely-filed complaints. These distinctions are significant in

resolving this appeal.

¶ 16   Section 2-616 of the Code “permits an amended pleading to relate back to the date of the

original pleading if the original pleading was timely and the amendment grew out of the same

transaction or occurrence set up in the original pleading.” Lawler v. University of Chicago

Medical Center, 2017 IL 120745, ¶ 20. This provision is “applicable whether a particular time

limitation is regarded as a prescription governing the right to sue or as a statute of limitations.”

Simmons v. Hendricks, 32 Ill. 2d 489, 494 (1965). In enacting section 2-616, the legislature

sought to preserve a cause of action against loss due to “technical default unrelated to the

merits.” Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 355 (2008). Therefore, courts

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should liberally construe the provision’s requirements “in order to allow the resolution of

litigation on the merits and to avoid elevating questions of form over substance.” Boatmen’s

National Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88, 102 (1995). Although these cases

involved section 2-616(b), the underlying purpose and rationale of that subsection also apply to

section 2-616(d), which is applicable here. See Wilk v. Wilmorite, Inc., 349 Ill. App. 3d 880, 888

(2004) (noting that section 2-616(d) should be liberally construed “so that cases are decided on

their merits rather than on procedural technicalities” (internal quotation marks omitted)).

¶ 17   Section 2-616(d) allows a plaintiff, in certain circumstances, to amend a pleading and

bring a cause of action against a new defendant after the time for filing has passed. It provides:

            “(d) A cause of action against a person not originally named a defendant is not

       barred by lapse of time under any statute or contract prescribing or limiting the time

       within which an action may be brought or right asserted, if all the following terms and

       conditions are met: (1) the time prescribed or limited had not expired when the original

       action was commenced; (2) the person, within the time that the action might have been

       brought *** against him or her *** 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 proper

       party, the action would have been brought against him or her; and (3) it appears from the

       original and amended pleadings that the cause of action asserted in the amended pleading

       grew out of the same transaction or occurrence set up in the original pleading, *** even

       though the person was not named originally as a defendant. For the purpose of preserving

       the cause of action under those conditions, an amendment adding the person as a



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       defendant relates back to the date of the filing of the original pleading so amended.” 735

       ILCS 5/2-616(d) (West 2016).

¶ 18   The parties do not dispute that Hess’s original complaint against Flores and Klink was

timely filed, so the first requirement is satisfied. See Lawler, 2017 IL 120745, ¶ 28 (finding that

a timely-filed original complaint satisfies this element of section 2-616). Also, plaintiff’s claims

in all of her complaints arose from the same occurrence: Hess’s fall from the back porch of an

apartment building located at 2050-2052 West Summerdale Avenue in Chicago. Therefore, the

third requirement is satisfied. The issues here are whether Klink, as executor of the estate of

Flores, knew or should have known that plaintiff’s claim would have been brought against it but

for a mistake and whether she had notice of the claim so that it was not prejudiced in maintaining

a defense.

¶ 19   The language of section 2-616(d) substantially mirrors that of Rule 15(c) of the Federal

Rules of Civil Procedure (Fed. R. Civ. P. 15(c)). Thus, we find federal cases interpreting the

federal rule persuasive authority regarding the application of section 2-616(d). Owens v. VHS

Acquisition Subsidiary Number 3, Inc., 2017 IL App (1st) 161709, ¶ 27. In Krupski v. Costa

Crociere S.p.A., 560 U.S. 538, 548 (2010), the United States Supreme Court determined that

under Rule 15(c), the question of mistake “is not whether [the plaintiff] knew or should have

known the identity of [the new party] as the proper defendant, but whether [the new party] knew

or should have known that it would have been named as a defendant but for an error.” Our

appellate courts have adopted this analysis in subsequent cases including Owens, 2017 IL App

(1st) 161709, Mann v. Thomas Place, L.P., 2012 IL App (1st) 110625, Borchers v. Franciscan

Tertiary Province of the Sacred Heart, Inc., 2011 IL App (2d) 101257, Maggi v. RAS



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Development, Inc., 2011 IL App (1st) 091955, and Zlatev v. Millette, 2015 IL App (1st) 143173.

As this court reasoned in Zlatev,

       “[i]f a party is aware of a lawsuit arising out of a set of facts in which he was involved,

       and if that party knows or should know that the only reason he was not sued was due to a

       mistake on the plaintiff’s part, and if the notice of this lawsuit is sufficient that the party

       has not been prejudiced in his ability later to defend that suit on the merits, that party is

       hard-pressed to claim unfair treatment when the plaintiff later discovers the mistake and

       sues him.” Zlatev, 2015 IL App (1st) 143173, ¶ 33.

¶ 20   To determine whether a mistake occurred, we examine the allegations in the original

complaint and other objective manifestations in the record that establish whom plaintiff intended

to sue. Mann, 2012 IL App (1st) 110625, ¶ 17. A plaintiff has not made a mistake if the

allegations reveal that he or she intended to sue one party for misconduct but, after the time

limitation period has passed, decides to add an additional defendant, not contemplated in the

original complaint, who may also have been liable. See id. ¶ 21. Rather, section 2-616(d) applies

where plaintiff’s allegations and the record show that the new defendant was the party

responsible for the claimed misconduct in the original complaint. Owens, 2017 IL App (1st)

161709, ¶ 40. In such a case, the new defendant should have an understanding that in failing to

name the defendant in a prior complaint, plaintiff “made a mistake regarding the proper party’s

identity.” Krupski, 560 U.S. at 548. We emphasize that the focus of section 2-616(d)’s analysis

remains on the defendant’s knowledge and that a “plaintiff’s intent in filing the original

complaint is relevant only to the extent that it sheds light on whether the prospective defendant

was reasonable in concluding that the plaintiff had made a mistake.” Zlatev, 2015 IL App (1st)

143173, ¶ 37.

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¶ 21   In the original complaint, Hess alleged that she was injured when she fell from the back

porch of a residential building owned and operated by Flores and his wife, Klink. Her complaint

contained counts of negligence and willful and wanton conduct against defendants Flores and

Klink regarding the installation, safety, and maintenance of the rear porch system at their West

Summerdale Avenue property. In 2011, after Hess had died, plaintiff filed a second-amended

complaint that contained substantially the same allegations against defendants but included a

count for wrongful death. However, unbeknownst to plaintiff, Ronald Flores had died in 2010.

The second-amended complaint continued to name Ronald Flores as a defendant instead of his

estate or a representative. In 2012, while the case continued in pretrial proceedings, Klink

opened an estate on behalf of Flores and plaintiff sought to amend her complaint a third time to

substitute the estate as defendant. We find that in her capacities as both defendant in plaintiff’s

ongoing case and executor of Flores’s estate, Klink knew of Hess’s allegations against Flores

and knew or should have known that after Flores’s death, a claim was not made against his estate

due to a mistake. “The reasonableness of the mistake is not itself at issue.” Krupski, 560 U.S. at

549.

¶ 22   For these same reasons, Klink had sufficient notice of Hess’s claims within the two-year

period so that the estate was not prejudiced in maintaining a defense on the merits. See Vaughn,

126 Ill. 2d at 160 (finding that section 2-616(d) requires that the substituted defendant have

knowledge a complaint had been filed prior to the lapse of the limitations period). Although the

original complaint did not contain a count for wrongful death, plaintiff’s second-amended

complaint was filed in 2011, less than one year after Flores’s death, and included a count for

wrongful death. Thus, Klink was aware of Hess’s death and plaintiff’s wrongful death claim well

within the two-year period contained in section 18-12 of the Probate Act. As our supreme court

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has found, “a defendant is not prejudiced if ‘his attention was directed, within the time

prescribed or limited, to the facts that form the basis of the claim asserted against him.’ ”

(Internal quotation marks omitted.) Porter, 227 Ill. 2d at 355 (quoting Boatmen’s National Bank

of Belleville, 167 Ill. 2d at 102). Since all three requirements of section 2-616(d) have been met,

plaintiff’s third-amended complaint relates back to the original complaint and is not barred by

section 18-12.

¶ 23   Our determination also furthers the public policy underlying section 2-616(d). The record

shows that plaintiff actively pursued Hess’s claim from the first filing through the filing of the

third-amended complaint, and the allegations made clear she sought recovery for damages

stemming from Hess’s fall at the West Summerdale Avenue property due to Flores’s misconduct.

Klink does not dispute that she at all times knew of plaintiff’s claim against Flores. To bar the

third-amended complaint simply because plaintiff failed to substitute, within two years of

Flores’s death, a representative of the estate as a defendant, goes against the purpose of section

2-616 to preserve causes of action against loss by reason of technical pleading rules and allow

resolution of the litigation on the merits.

¶ 24   For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 25   Affirmed.




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