Cross v. Ochsenschlager ( 2024 )

2024 IL App (2d) 210330-UNo. 2-21-0330
Order filed October 16, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
VALERIE CROSS f/k/a ) Appeal from the Circuit Court
Valerie Nieznanski, ) of Kane County.
)
Plaintiff-Appellant, )
)
v. ) No. 09-L-649
)
IRVING OCHSENSCHLAGER, as Special )
Representative of the Estate of KENLYNN )
CAROL DOLLARS, deceased, ) Honorable
) Mark A. Pheanis,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE McLAREN delivered the judgment of the court.
Justices Hutchinson and Kennedy concurred in the judgment.
ORDER
¶1 Held: The trial court erred when it granted the defendant’s motion to dismiss because the
plaintiff could proceed via appointment of a special representative rather than a
personal representative where no estate was opened for the deceased defendant; and
the trial court properly ruled that neither the doctrines of the law-of-the-case nor
collateral estoppel barred the defendant from asserting that plaintiff failed to
establish proximate cause. Trial court is reversed in part and affirmed in part.
¶2 This case involves who should represent the interests of a deceased defendant regarding
her insurance liability coverage against plaintiff’s lawsuit. We determine that plaintiff properly
2024 IL App (2d) 210330-Usought the appointment of Irving Ochsenschlager as special representative to defend the lawsuit
and represent the interest of the decedent’s insurer.
¶3 In 2002, following a jury trial, plaintiff, Valerie Cross, f/k/a Valerie Nieznanski, was
awarded $462,000 in damages for injuries sustained in an automobile accident with Kenlynn Carol
Dollars. On appeal, we reversed and remanded the trial court’s entry of the jury award based on
evidentiary errors. Nieznanski v. Dollars, No. 2-02-0864 (Sept. 23, 2003) (unpublished order under
Supreme Court Rule 23). Subsequently, plaintiff voluntarily dismissed her original complaint and
filed a new complaint against Dollars. Shortly thereafter, plaintiff learned that Dollars had died.
Plaintiff filed a motion to appoint Irving Ochsenschlager as the special representative of Dollars’
estate for purposes of defending the lawsuit. The plaintiff then filed an amended complaint naming
Ochsenschlager as the special representative of Dollars’ estate. Eventually, counsel for Dollars’
insurer, State Farm, appeared on behalf of defendant (Ochsenschlager, as special representative of
the estate of Dollars).
¶4 Plaintiff moved to declare defendant was barred by the doctrines of the law-of-the-case and
collateral estopped from arguing the lack of proximate cause. The trial court denied this part of
defendant’s motion. Defendant, now represented by counsel for State Farm, filed a motion to
dismiss plaintiff’s complaint, arguing that the action was barred due to a lack of subject matter
jurisdiction. Defendant argued that plaintiff failed to appoint a personal representative of Dollars’
estate, as required by section 13-209(c) of the Code of Civil Procedure (Code) (735 ILCS 13-
209(c) (West 2020). The trial court granted defendant’s motion.
¶5 Plaintiff argues that the trial court erred when it dismissed her complaint for failure to
comply with section 13-209 of the Code and denied her motion to bar defendant from litigating
proximate cause. We reverse, in part, and affirm, in part, respectively.
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2024 IL App (2d) 210330-U¶6 I. BACKGROUND
¶7 In June 1996, Dollars’ vehicle collided with plaintiff’s vehicle. In October 1997, plaintiff
filed a complaint alleging that Dollars was negligent for driving the wrong way down a one-way
street and that she sustained injuries as a result of the collision. A jury found in favor of plaintiff
and returned a verdict for $462,000. Dollars appealed and we reversed and remanded for a new
trial holding that the trial court evidentiary rulings prevented Dollars from presenting evidence
that plaintiff was malingering. Nieznanski v. Dollars, No. 2-02-0864 (Sept. 23, 2003) (unpublished
order under Supreme Court Rule 23).
¶8 On October 16, 2008, plaintiff voluntarily dismissed her case pursuant to section 2-1009
of the Code (735 ILCS 5/2-1009 (West 2008)). Unbeknownst to plaintiff, Dollars had died in
December 2008. In January 2009, Dollars’ will was filed in the circuit court of Du Page County.
The will named Dollars’ husband, Harvey Dollars (Harvey), as executor. No letters of office were
issued to open an estate on Dollars’ behalf. On October 15, 2009, plaintiff refiled her complaint
against Dollars. When the process server attempted to serve Dollars with summons, Harvey told
the process server that Dollars had died, and he refused to take the documents. In a letter dated
December 20, 2009, Harvey informed the court that his wife had died the previous December, his
attorneys and the State Farm attorneys told him that he is “not involved in this case,” and he did
not want to receive information involving the case.
¶9 In January 2010, plaintiff proposed Ochsenschlager for appointment as representative of
Dollars’ estate, and the trial court ordered that notice be sent to Harvey of the proposed
appointment. In March 2010, the trial court granted plaintiff’s motion to appoint Ochsenschlager
as special representative for Dollars’ estate, and for leave to file an amended complaint, instanter.
Plaintiff’s amended complaint named Ochsenschlager as the special representative and the
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2024 IL App (2d) 210330-Udefendant in the case. Subsequently, an attorney for State Farm entered an appearance on behalf
of the special representative. Defendant unsuccessfully moved to remove Ochsenschlager as the
special representative.
¶ 10 In December 2020, defendant filed a motion to dismiss plaintiff’s amended complaint but
failed to specify the procedural predicate on which that request for relief was based. Defendant
argued that section 13-209(c) of the Code (735 ILCS 5/13-209(c) (West 2020) required plaintiff
to appoint a personal representative of Dollars’ estate, instead of a special representative and thus,
her action was time barred, and the trial court lacked subject-matter jurisdiction.
¶ 11 The trial court granted defendant’s motion and dismissed plaintiff’s amended complaint.
The court’s order noted that each subsection of section 13-209 covers distinct scenarios with
different requirement for proceeding with a suit, and that “following the requirements of one
[sub]section will not serve to confer jurisdiction under another.” Subsections (b) and (c) provide:
“(b) If a person against whom an action may be brought dies before the expiration
of the time limited for the commencement thereof, and the cause of action survives, and is
not otherwise barred:
(1) an action may be commenced against his or her personal representative
after the expiration of the time limited for the commencement of the action, and
within 6 months after the person’s death;
(2) if no petition has been filed for letters of office for the deceased’s estate,
the court, upon the motion of a person entitled to bring an action and after the notice
to the party’s heirs or legatees as the court directs and without opening an estate,
may appoint a special representative for the deceased party for the purposes of
defending the action. If a party elects to have a special representative appointed
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2024 IL App (2d) 210330-Uunder this paragraph (2), the recovery shall be limited to the proceeds of any
liability insurance protecting the estate and shall not bar the estate from enforcing
any claims that might have been available to it as counterclaims.”
(c) If a party commences an action against a deceased person whose death is
unknown to the party before the expiration of the time limited for the commencement
thereof, and the cause of action survives, and is not otherwise barred, the action may be
commenced against the deceased person’s personal representative if all of the following
terms and conditions are met:
(1) After learning of the death, the party proceeds with reasonable diligence
to move the court for leave to file an amended complaint, substituting the personal
representative as defendant.
(2) The party proceeds with reasonable diligence to serve process upon the
personal representative.
(3) If process is served more than 6 months after the issuance of letters of
office, liability of the estate is limited as to recovery to the extent the estate is
protected by liability insurance.
(4) In no event can a party commence an action under this subsection (c)
unless a personal representative is appointed and an amended complaint is filed
within 2 years of the time limited for the commencement of the original action.”
(Emphases added.) 735 ILCS 5/13-209(b) (West 2020).
¶ 12 In its written order, the trial court stated:
“The suit filed by plaintiff was a nullity. Jurisdiction would only be conveyed
pursuant to strict adherence to the requirements enumerated in 13-209(c). This did not
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2024 IL App (2d) 210330-Uoccur. Accordingly, this Court lacks subject matter jurisdiction, and this defect is not
waivable and can be raised at any time.”
¶ 13 The trial court reasoned that subsection (b) of section 13-209 did not apply because plaintiff
was not aware of Dollars’ death prior to filing her complaint. According to the court, only
subsection (c) applied to this case because Dollars’ death was not known to plaintiff when she filed
her complaint, and she did not know about Dollars’ death until after the expiration of the
limitations period. Relying on Relf v. Shatayeva, 2013 IL 114925, the trial court stated that it was
now too late for plaintiff to file an action under subsection (c) because the “extra two-year window
afforded by section 13-209(c)(4) has closed.”
¶ 14 This appeal followed. On October 24, 2022, we held the appeal in abeyance pending our
supreme court’s decision in Lichter v. Carroll, 2023 IL 128468. The supreme court entered its
decision on October 26, 2023, and we requested supplemental briefing addressing the decision’s
impact on this case.
¶ 15 II. ANALYSIS
¶ 16 Plaintiff raises two issues on appeal: (1) whether the trial court erred when it dismissed her
case pursuant to section 13-209(c) of the Code, and (2) whether the trial court erred when it denied
her motion to declare that defendant’s negligence “proximately caused some money damages”
based on the doctrines of the law-of-the-case and collateral estoppel.
¶ 17 A. Dismissal Pursuant to Section 13-209 of the Code
¶ 18 Plaintiff challenges the trial court’s grant of defendant’s motion to dismiss for lack of
subject matter jurisdiction. We note that the trial court did not specify the procedural predicate on
which defendant’s motion to dismiss was based. However, section 2-619(a)(1) authorizes the
dismissal of a complaint where the court does not have jurisdiction of the subject matter of the
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2024 IL App (2d) 210330-Uaction. 735 ILCS 5/2-619(a)(1) (West 2020). We review de novo a section 2-619(a) motion to
dismiss. Illinois Road & Transportation Builders Ass’n v. County of Cook, 2022 IL 127126, ¶ 11.
¶ 19 Initially, we clarify that this case does not involve a matter of the trial court’s subject matter
jurisdiction. This case involves a justiciable matter raised in a civil action within the general
jurisdiction of the circuit court. See Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199
Ill. 2d 325, 334 (2002). The plaintiff’s alleged failure to comply with a statutory limitation period
did not deprive the trial court of subject matter jurisdiction. See id. at 334.
¶ 20 However, this case does involve the interpretation of section 13-209 of the Code, known
as the “Death of Party” statute. The interpretation of a statute is a question of law that we review
de novo. Goodman v. Goodman, 2023 IL App. (2d) 220086 ¶ 32.
¶ 21 The primary goal of statutory construction is to ascertain and give effect to the intention of
the legislature. M.U. By & Through Kelly U. v. Team Illinois Hockey Club, Inc., 2024 IL 128935,
¶ 16. The best indication of legislative intent is the statutory language, given its plain and ordinary
meaning. Id.¶ 22 In particular, we consider the interpretation of subsections (b) and (c) of section 13-209,
that govern the procedures for causes of action brought against a deceased party. 735 ILCS 5/13-
209(b), (c) (West 2020).
¶ 23 Lichter instructs:
“The plain language of subsection (b)(2) provides that, if a defendant dies before the statute
of limitations period has run and no estate has been opened for the deceased defendant and
there is no personal representative, the plaintiff may move to appoint a special
representative to defend the lawsuit. 735 ILCS [5-]13-209(b)(2) (West 2020).)” (Emphases
in original). Lichter, 2023 IL 128468, ¶ 20.
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2024 IL App (2d) 210330-U¶ 24 Here, as in Lichter, the trial court dismissed plaintiff’s lawsuit because it determined that
subsection (c) applies, which requires the naming of a personal representative. Id. ¶ 9. However,
because there was no personal representative of Dollars’ estate, “plaintiff was entitled to name a
special representative pursuant to subsection (b)(2).” (Emphasis in original). Id. ¶ 35.
¶ 25 Defendant maintains that the trial court abused its discretion when it appointed
Ochsenschlager as special representative on plaintiff’s sole recommendation. Defendant cites Relf
v. Shatayeva, 2013 IL 114925, to support its argument. Defendant misrepresents Relf.
¶ 26 In Relf, the plaintiff filed a personal injury suit against a driver who had died shortly after
an accident with the plaintiff. Id. ¶¶ 1, 5. When the plaintiff filed her suit, the decedent’s will had
been admitted to probate, and letters of office were issued to the decedent’s son to serve as
independent administrator of the estate. Id. ¶ 6. Later, the trial court granted the plaintiff’s request
to appoint her attorney’s legal assistant as “special administrator” of the deceased’s estate. Id. ¶ 10.
The trial court dismissed the plaintiff’s lawsuit as untimely because the plaintiff failed to follow
the requirements of section 13-209 of the Code. Id. ¶¶ 12-17. The supreme court held that the
plaintiff was required to sue the personal representative of the estate—the decedent’s son. The
plaintiff argued that a “special administrator” sufficed, but the supreme court noted that the term
“special administrator” “is not used anywhere in section 13-209.” Id. ¶ 42. The court recognized
that the term “special representative” appeared in section 13-209 and might be considered roughly
“equivalent” to a special administrator, but that fact did not assist the plaintiff, as the portions of
section 13-209 of the Code that concerned the appointment of personal representatives was entirely
distinct from those governing special representatives. Id. ¶ 35.
¶ 27 Conversely, here, nothing indicates that plaintiff failed to follow the requirements of
section 13-209; the trial court appointed Ochsenschlager as special representative, where no letters
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2024 IL App (2d) 210330-Uof office had been issued to anyone to represent Dollars’ estate. Therefore, Relf is distinguishable
from this case and is not controlling.
¶ 28 Defendant also asserts that according to Relf, the Probate Act provides that a special
representative under section 13-209 of the Code ‘ “may not be selected upon the recommendation
of any person having an interest adverse’ to the deceased.” Id. ¶ 54. Defendant interprets this
portion of Relf too broadly.
¶ 29 In Relf, the supreme court discussed the Probate Act because it provides for “appointment
of special administrators under limited circumstances.” Id. ¶ 46. Relf does not discuss the issue
presented here; the appointment of a “special representative” under section 13-209(b)(2) of the
Code, which as our supreme court explained was enacted:
“[T]o create a mechanism that allows the plaintiff to streamline the process and
avoid the time and costs of opening an estate in the probate court in a cause of action where
the defendant has died.” Lichter, 2023 IL 128468, ¶ 19.
Here, plaintiff was entitled to request a special representative under subsection 13-209(b)(2)
because no one was appointed as personal representative of Dollars’ estate and her will had not
been admitted to probate.
¶ 30 After a thorough review of the record, we determine that the trial court did not err in its
original appointment of Ochsenschlager as the special representative. Therefore, the trial court
erred when it dismissed plaintiff’s lawsuit.
¶ 31 B. Motion to Bar Based on Law-of-the-Case and Collateral Estoppel
¶ 32 Next, we address plaintiff’s argument that the trial court erred when it denied her motion
to declare that decedent Dollars’ negligence “proximately caused some money damages.”
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2024 IL App (2d) 210330-UDefendant argues that plaintiff’s argument is forfeited because it violates Supreme Court Rule
341(h). We agree.
¶ 33 Plaintiff’s brief fails to comply with Rule 341(h)(7), which requires that arguments with
contentions and reasons therefore be put forth with citations to authority, as well as pages of the
record. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Additionally, plaintiff’s attempt to incorporate
by reference 153 additional pages from its briefs, filings, and arguments before the trial court as
reflected in the record is a vague and unacceptable effort to address the issues argued below
without making cogent legal arguments with citations to authority before this court. See Vancura
v. Katris, 238 Ill. 2d 352, 370 (2010). “One sentence in a brief indicating that defendant
‘incorporated’ all claims made in earlier proceedings [was] not sufficient to satisfy Rule 341,
resulting in forfeiture of claims.” Vancura, 238 Ill. 2d at 370 (citing People v. Guest, 166 Ill. 2d
554, 565 (2005)). Moreover, Rule 341(b)(1) limits an appellant’s brief to 50 pages or 15,000
words. Ill. S. Ct. R. 341(b)(1) (eff. Oct. 1, 2020). Plaintiff cannot circumvent this rule by
incorporating by reference large chunks of the record. Therefore, plaintiff has forfeited her
argument regarding this issue.
¶ 34 Absent forfeiture, we determine that the trial court properly denied plaintiff’s motion to
declare that decedent Dollars’ negligence proximately caused some money damages. Plaintiff
contends that the law-of-the-case doctrine and collateral estoppel preclude defendant from arguing
on retrial that Dollars’ negligence did not proximately cause plaintiff’s alleged injuries or damages.
We disagree.
¶ 35 The law-of-the-case doctrine bars relitigating an issue that has already been decided in the
same case such that the resolution of an issue presented in a prior appeal is binding and will control
upon remand in the trial court and in a subsequent appeal before the appellate court. Goering v.
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2024 IL App (2d) 210330-UMidwest Neurology, Ltd., 2021 IL App (2d) 200735, ¶ 27. The doctrine applies to questions of law
and fact and encompasses a court’s explicit decisions as well as those decisions made by necessary
implication. Id.¶ 36 Plaintiff avers that the law-of-the-case doctrine prevents defendant from arguing on retrial
that Dollars’ negligence did not proximately cause “some injury and money damage to the
plaintiff.” However, this contradicts our prior holding: that defendant was entitled to a new trial
“[b]ecause defendant should have been allowed to present a defense that plaintiff was
malingering.” Nieznanski, No. 2-02-0864, at 13, 21. 1 Further, we reversed judgment as to the
award of all damages awarded by the jury. Id. at 11, 23. Therefore, in accordance with our prior
holding, the trial court properly denied plaintiff’s motion to declare Dollars’ negligence
proximately caused “some injury and money damage to the plaintiff.”
¶ 37 Plaintiff also maintains that collateral estoppel bars defendant from arguing on retrial that
Dollars’ negligence did not proximately cause “some injury and money damage to the plaintiff.”
Absent forfeiture, this argument has no merit because, inter alia, the issue was not resolved in a
final judgment on the merits. See Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 433
(2004) (stating that the minimum requirements for collateral estoppel include, “a final judgment
on the merits in the prior adjudication.”). Here, as previously discussed, we reversed and remanded
the award of damages because the trial court barred evidence that prevented “a defense that
plaintiff was malingering.” Nieznanski, No. 2-02-0864, at 13. Therefore, even if this issue had
been preserved by plaintiff, it would fail.
¶ 38 III. CONCLUSION
1
We note that to malinger is “[t]o feign illness or disability.” Black’s Law Dictionary 1145
(12th ed. 2024).
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2024 IL App (2d) 210330-U¶ 39 For the reasons stated, we reverse in part, and affirm in part the judgment of the circuit
court of Kane County.
¶ 40 Reversed in part and affirmed in part.
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