Nagel v. Inman

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Nagel v. Inman

State: Illinois

Court: 5th District Appellate

Docket No: 5-08-0591 Rel

Case Date: 07/08/2010

Preview:N O T IC E Decision filed 07/08/10. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

NO. 5-08-0591 IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ NEIL NAGEL, as Administrator of the Estate of Brandon Neil Nagel, Deceased, ) Appeal from the ) Circuit Court of ) Randolph County. Plaintiff-Appellant, ) ) v. ) No. 07-L-13 ) JOHN INMAN, ) Honorable ) Richard A. Brown, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________ JUSTICE CHAPMAN delivered the opinion of the court: The plaintiff, Neil Nagel, filed a wrongful-death action alleging that the defendant's negligence caused the death of his son, Brandon Neil Nagel, in an automobile accident. Although the complaint listed the plaintiff in his capacity as the special administrator of Brandon's estate, he was not appointed to act in that capacity until six months after the suit was filed. The plaintiff subsequently filed a motion for a voluntary dismissal, which the court granted. He later filed the instant action raising the same allegations. The court granted the defendant's motion to dismiss, finding that (1) the plaintiff's authority to act as the special administrator for Brandon's estate terminated when the original suit was dismissed without prejudice and (2) the suit was time-barred. The plaintiff appeals, arguing that both of these findings were in error. At issue is whether the plaintiff was required to file an amended complaint after being appointed as the special administrator in the first suit. According to the defendant, the lack of an amended complaint rendered the plaintiff's original suit a nullity, which in turn made the savings provision of the Limitations Act (735 ILCS 5/13-217 (West 2006)) inapplicable. We reverse. 1

disposition of the same.

On September 29, 1999, the plaintiff's son, Brandon Neil Nagel, died as a result of an automobile accident with the defendant, John Inman. On November 10, 1999, the plaintiff filed a complaint under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)). He alleged negligence and willful and wanton conduct on the part of the defendant. The caption named the plaintiff in his capacity as the administrator of Brandon's estate; however, he had not yet been appointed to act in that capacity. On April 27, 2000, the plaintiff filed a motion to be appointed as the special administrator of Brandon's estate. On May 17, 2000, he filed an amended motion to be appointed. On May 19, 2000, the court entered an order appointing the plaintiff as the special administrator of the estate of Brandon Neil Nagel and on May 30, 2000, issued letters of office. On May 5, 2006, the plaintiff filed a motion for a voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009 (West 2006)). On August 2, 2006, the court entered an order dismissing the cause without prejudice, conditioned on the plaintiff's payment to the defendant of the defendant's costs in the amount of $1,153.79 (see 735 ILCS 5/2-1009(a) (West 2006)). On July 25, 2007, the plaintiff filed the complaint that forms the basis of this appeal. The allegations and parties in the second complaint were identical to those in the original complaint. The caption once again named the plaintiff in his capacity as the administrator of the estate of Brandon Neil Nagel. He did not file a petition to be appointed as the administrator. According to the plaintiff, it was not necessary to do so because his appointment carried over after the first suit was voluntarily dismissed. On March 26, 2008, the defendant filed a motion to dismiss the suit. He argued that the plaintiff's authority to act as the special administrator of Brandon's estate terminated when the first suit was voluntarily dismissed. Thus, he contended, the plaintiff lacked the capacity to bring a suit on behalf of the estate in the second suit. In addition, the defendant 2

argued that the statute of limitations for bringing a suit under the Wrongful Death Act had run. See 740 ILCS 180/2 (West 2006) (providing a two-year statute of limitations for wrongful-death claims). In a memorandum supporting his motion to dismiss, he argued that the "proper plaintiff"

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