February 16, 2001
_____________________________________________________________________________________

_____________________________________________________________________________________

_____________________________________________________________________________________

Kurt and Julie Keller filed this action against JosephWalker to recover damages sustained in an automobile accident. Unknown to the Kellers, Walker died from unrelated causesapproximately one year prior to the day they filed theircomplaint. A default judgment was entered against Walker, andthe Kellers were awarded damages.

Counsel for Walker filed this appeal, seeking adetermination that the trial court lacked subject matterjurisdiction and requesting that the default judgment be vacated. We hold that a trial court has subject matter jurisdiction toappoint a personal representative under section 13-209(c) of theCode of Civil Procedure (Code) (735 ILCS 5/13-209(c) (West1998)), when a party mistakenly commences an action against adeceased person and all other conditions of the statute are met.

Consequently, the default judgment is vacated and this causeis remanded to allow the Kellers an opportunity to amend theircomplaint, naming an appointed personal representative asdefendant.

FACTS

On April 14, 1997, a motor vehicle accident occurred betweenKurt Keller and Joseph Walker. Julie Keller was a passenger inthe Keller vehicle. On May 1, 1998, Walker died for reasonsunrelated to the accident. On April 13, 1999, the Kellers fileda complaint against Walker and issued a summons to serve him viathe Illinois Secretary of State under the mistaken belief that hehad moved.

The law firm of Meade, Engelberg & Associates (Meade)received notice of the Kellers' suit from its client ValorInsurance Company, Walker's insurance company at the time of theaccident. Shortly thereafter, Meade sent a letter and a copy ofWalker's death certificate to the Kellers informing them thatWalker was deceased. A hearing was set for August 26, 1999, inwhich Meade made a special and limited appearance to inform thecourt that Walker had died. At the hearing, the Kellers claimedthey did not receive notice of Walker's death and were unaware ofMeade's letter. The court entered an order of default againstWalker.

Several weeks later, Meade filed a motion objecting topersonal jurisdiction based on improper service on the Secretaryof State. The Kellers, who were unable to discover a will onfile or that an estate had been created, filed a motion tosuggest death of record and appoint a special administrator.

At a September 15, 1999, hearing on all pending motions,Meade withdrew its motion objecting to jurisdiction based onimproper service, and the court vacated the default judgment. The court granted the Kellers' motion to suggest death of recordand appoint a special administrator, ordering Valor Insurance toappoint an administrator within 30 days. Valor never compliedwith this order; so, two months later a second default judgmentwas entered against Walker. Thereafter, the court enteredjudgment in favor of Julie and Kurt in the amounts of $20,000 and$1,500, respectively.

On December 22, 1999, Meade presented a motion to vacate thedefault judgment, requesting leave to file an appearance and answer the complaint. The court found that Meade had submittedto the jurisdiction of the court by agreeing to appoint a specialadministrator and indicated that it would grant Meade's motionprovided that Meade pay the Kellers $300 in sanctions.

One month later, Meade filed a motion to vacate the December22, 1999, order and all prior orders, to strike and dismiss thecomplaint based on lack of subject matter jurisdiction, and forsanctions. The court denied the motion. Meade appealed thecourt's decision, and the Kellers cross-appealed requestingattorney fees and costs.

ANALYSIS

The first issue we address on appeal is whether the trialcourt properly determined that it had subject matter jurisdictionto adjudicate the Kellers' complaint.

Meade argues that because Walker was deceased prior to thefiling of the Kellers' complaint, the original complaint filedone year after Walker's death was null, void ab initio, and didnot invoke the jurisdiction of the trial court. In addition,subject matter jurisdiction was not conferred on the court whenMeade appeared on behalf of Walker's insurance company becausesubject matter jurisdiction cannot be waived or consented to bythe parties. The Kellers contend, however, that subject matterjurisdiction exists under section 13-209(c) of the Code (735 ILCS5/13-209(c) (West 1998)).

We review a trial court's decision that it has subjectmatter jurisdiction de novo. City of Marseilles v. Radke, 287Ill. App. 3d 757, 679 N.E.2d 125 (1997).

Jurisdiction is of two types, subject matter jurisdictionand personal jurisdiction. Volkmar v. State Farm MutualAutomobile Insurance Co., 104 Ill. App. 3d 149, 432 N.E.2d 1149(1982). Personal jurisdiction may be waived. Volkmar, 104 App.3d at 151, 432 N.E.2d at 1151. However, subject matterjurisdiction cannot be waived, conferred by stipulation, orconsented to by the parties. City of Marseilles, 287 Ill. App.3d at 761, 679 N.E.2d at 128 (1997). Lack of subject matterjurisdiction can be raised at any time, even on appeal. City ofMarseilles, 287 Ill. App. 3d at 761, 679 N.E.2d at 128.

While at first blush one might classify this sequence ofevents as one involving personal jurisdiction, a review of thecases dealing with this subject reveals that the law is wellsettled that the court lacks subject matter jurisdiction where aparty files a suit against a deceased person. Volkmar, 104 Ill.App. 3d at 151, 432 N.E.2d at 1151; Wells v. Lueber, 43 Ill. App.3d 973, 358 N.E.2d 293 (1976); Reed v. Long, 122 Ill. App. 2d295, 259 N.E.2d 411 (1970). A deceased person cannot be a partyto a suit because such is a nonexistent entity and theproceedings are void ab initio. Reed, 122 Ill. App. 2d at 297,259 N.E.2d at 412. Proceedings against an individual who isdeceased at the time of the filing of suit are a nullity. Volkmar, 104 Ill. App. 3d at 151, 432 N.E.2d at 1151.

Section 13-209(c) of the Code provides that "[i]f a partycommences an action against a deceased person whose death isunknown to the party before the expiration of the time limitedfor the commencement thereof," and the cause of action is nototherwise barred, the action may be commenced against thedeceased's personal representative. 735 ILCS 5/13-209(c) (West1998). Subsection 13-209(c) also includes the following relevantrequirements: (1) after learning of thedeath, the partycommencing the actionmust diligently proceedto move the court forleave to file an amendedcomplaint, substitutingthe personalrepresentative asdefendant; (2) the partycommencing the actionmust diligently serveprocess upon therepresentative; and (3) aparty may not commence anaction under subsection(c) unless a personalrepresentative isappointed and an amendedcomplaint is filed withintwo years of the timelimited for thecommencement of theoriginal action. 735ILCS 5/13-209(c) (West1998).

Although we determine that the Kellers' suit was a nullityand void ab initio because Walker was deceased prior to the dayit was filed, we find that the court acquired subject matterjurisdiction pursuant to section 13-209(c) of the Code (735 ILCS5/13-209(c) (West 1998)). The legislature added 13-209(c) tospecifically address situations where plaintiffs are unaware thata deceased person was named as a defendant. Augustus v. Estateof Somers, 278 Ill. App. 3d 90, 662 N.E.2d 138 (1996). As such,the trial court had subject matter jurisdiction over the Kellers'claim. See Fredman Brothers Furniture Co. v. Department ofRevenue, 109 Ill.

2d 202, 486 N.E.2d 893 (1985) (observing that subject matterjurisdiction is conferred on courts by the constitution or bylegislative enactment). As the trial court had jurisdictionpursuant to section 13-209(c), the court should have proceeded to"substitute the personal representative as defendant" as requiredby section 13-209(c)(1).

Although section 13-209(c) does not specifically state how apersonal representative is to be appointed, section 13-209(b)(2)of the Code addresses this procedure. 735 ILCS 5/13-209(b)(2)(West 1998). When a person against whom an action may be broughtdies before the expiration of the time limited for thecommencement of the action, section 13-209(b)(2) provides that"the court, upon the motion of a person entitled to bring anaction ***, may appoint a special representative for the deceasedparty for the purposes of defending the action" if no petitionhas been filed for letters of office for the deceased's estate. 735 ILCS 5/13-207(b)(2) (West 1998).

The record reveals that the Kellers attempted to have apersonal representative appointed at the September 15, 1999,hearing. Although the court granted the Kellers' motion, thecourt failed to appoint a representative as required by section13-209(c)(1) and improperly ordered Valor Insurance to do so. Assuch, we vacate the default judgment and remand to allow for theappointment of a personal representative so that the Kellers mayamend their complaint.

The next issue we address is whether either party isentitled to sanctions.

Meade argues it is entitled to sanctions, apparently underSupreme Court Rule 375(b) (155 Ill. 2d R. 375(b)), because theKellers frivolously and in bad faith attempted to secure ajudgment knowing the court had no subject matter jurisdiction. In support of its argument, Meade asserts that the Kellers actedin bad faith when they proceeded with a null suit knowing Walkerwas deceased, when they twice sought and received a default orderand subsequent judgment against Walker, and when they continuedto contest efforts to have the null suit dismissed. The Kellersalso request sanctions under Supreme Court Rule 375(b) forattorney fees and costs as a result of Meade's alleged misconductthroughout the litigation.

Based on the record, we find insufficient evidence thateither party proceeded in bad faith. Therefore, we deny bothparties' requests for sanctions under Supreme Court Rule 375(b)(155 Ill. 2d R. 375(b)).

For the foregoing reasons, the judgment of the circuit courtof Will County is vacated, and this cause is remanded to thecircuit court with directions that it appoint a personalrepresentative and allow the Kellers to amend their complaintaccordingly.

Vacated and remanded with directions.

HOLDRIDGE and SLATER, JJ., concur.