{
  "id": 2431029,
  "name": "MICHAEL H. ROSE, Plaintiff-Appellee, v. MARY A. KASZYNSKI, Ex'r of the Estate of Ben Kaszynski, Deceased, Defendant-Appellant",
  "name_abbreviation": "Rose v. Kaszynski",
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    "judges": [],
    "parties": [
      "MICHAEL H. ROSE, Plaintiff-Appellee, v. MARY A. KASZYNSKI, Ex'r of the Estate of Ben Kaszynski, Deceased, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nThe present appeal arises out of a breach of contract action filed by plaintiff, Michael Rose, against Ben Kaszynski. During the pendency of this action, Ben Kaszynski (decedent) died on March 21, 1984. On April 10, 1984, letters of office in the decedent\u2019s estate were issued, and Mary Kaszynski, decedent\u2019s wife (defendant), was appointed executor of decedent\u2019s estate on the same day. On October 4, 1984, the death of decedent was suggested and spread of record. Defendant was joined as a party to the pending action on February 19, 1985, and approximately one month later, she was served with summons.\nOn August 5, 1985, defendant moved for involuntary dismissal of the action on the ground that she was not joined as a party within the proper time limitation imposed by section 18 \u2014 12 of the Probate Act of 1975 (111. Rev. Stat. 1987, ch. IIOV2, par. 18 \u2014 12 (Probate Act). Her motion was denied, and she subsequently filed for reconsideration. That motion was granted, and in the same order, the trial court dismissed the cause with prejudice. Plaintiff then moved to vacate that order, and upon reconsideration, the court vacated the dismissal and reinstated the cause. Plaintiff was ultimately awarded $7,950 plus costs following a trial. Defendant now appeals and we affirm.\nDefendant maintains on appeal, as she did in her motion for involuntary dismissal, that section 18 \u2014 12 of the Probate Act barred plaintiff\u2019s action in the present case. Section 18 \u2014 12 provides in pertinent part as follows:\n\u201c(a) All claims against the estate of a decedent, except expenses of administration and surviving spouse\u2019s or child\u2019s award, not filed with the representative or the court within 6 months after the entry of the original order directing issuance of letters of office are barred as to all of the decedent\u2019s estate, unless notice is not published as provided in subsection (a) of Section 18 \u2014 3 but is published as provided in subsection (b) of Section 18 \u2014 3. in which event all claims not filed within 6 months after the first publication date are barred as to all of the decedent\u2019s estate ***.\u201d (Ill. Rev. Stat. 1987, ch. IIOV2, par. 18 \u2014 12(a).)\nDefendant reasons that because letters of office were filed on April 10, 1984, and defendant was not joined until February 19, 1985, over 10 months later, plaintiff\u2019s claim against her as executor of decedent\u2019s estate was untimely.\nIn support of her position, defendant cites In re Estate of Worrell (1982), 92 Ill. 2d 412, 442 N.E.2d 211. In that case, the plaintiff therein had also filed an action against the decedent prior to her death. The plaintiff, however, did not learn of the death until nine months thereafter. Meanwhile, letters of administration had been issued and publication for claims of creditors was made in accordance with section 18 \u2014 3 of the Probate Act (Ill. Rev. Stat. 1977, ch. llO1^, par. 18 \u2014 3). Nonetheless, the plaintiff failed to file his claim in the probate proceedings or move to substitute the administrator as the party defendant in the underlying action within the six-month period under section 18 \u2014 12. Accordingly, our supreme court held that the statute applied to bar the action, reasoning that it is the obligation of the creditor to formally notify the estate representative of his claim even where suit is pending at the decedent\u2019s death.\nWhile the Worrell decision would appear dispositive of this appeal given that plaintiff was made aware of decedent\u2019s death on October 4, 1984, albeit only six days prior to the expiration of six months from the issuance of testamentary letters for decedent\u2019s estate, a recent United States Supreme Court decision renders Worrell no longer viable, at least under the circumstances of the present case.\nIn Tulsa Professional Collection Services, Inc. v. Pope (1988), 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340, the Court considered an Oklahoma probate statutory scheme nearly identical to that in Illinois. Under the nonclaim provision of Oklahoma\u2019s probate code, creditors\u2019 claims against an estate are generally barred unless filed within two months of the publication of notice of the commencement of probate proceedings. The Court in Tulsa held, however, that mere notice by publication to certain creditors is inadequate for purposes of the due process clause of the fourteenth amendment, thereby reversing the decision of the Oklahoma Supreme Court. Rather, the Court ruled that due process requires \u201c \u2018[njotice by mail or other means as certain to ensure actual notice\u2019 \u201d to all known or reasonably ascertainable creditors of the estate. 485 U.S. at_, 99 L. Ed. 2d at 579, 108 S. Ct. at 1348, quoting Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 800, 77 L. Ed. 2d 180,188, 103 S. Ct. 2706, 2712.\nIn reaching its conclusion, the Tulsa Court reasoned that a creditor\u2019s claim is considered a property interest protectable by the due process clause and that the probate court\u2019s intimate involvement throughout the probate proceedings is so pervasive that it must be considered State action. Upon balancing the due process rights of the individual creditor against the State\u2019s legitimate interest in the expeditious resolution of the proceedings, the Court found that it is not so cumbersome to require the creditor\u2019s receipt of actual notice, particularly where mail is inexpensive and efficient, and where public notice will suffice for creditors whose identities are not ascertainable by reasonably diligent efforts. Since the Court was unable to glean from the record whether the appellant\u2019s identity as a creditor was known or reasonably ascertainable by the appellee, it remanded the cause on this basis.\nAs in Tulsa, defendant here never gave actual notice to the plaintiff in the underlying action. Yet, unlike the Court in Tulsa, we find no need to remand the instant cause to the trial court for a determination of whether plaintiff\u2019s identity as a creditor of decedent was known or reasonably ascertainable by defendant. Given the fact that defendant is decedent\u2019s widow and the underlying action had been pending for approximately five years prior to decedent\u2019s death, we believe the above standard has been met, triggering a violation of plaintiff\u2019s due process rights. Therefore, under the mandate of Tulsa and the fourteenth amendment of the United States Constitution, we are obliged to uphold the trial court\u2019s decision to allow plaintiff\u2019s action, notwithstanding our State Supreme Court\u2019s decision in Worrell to the contrary.\nIn light of our holding above, we need not address plaintiff\u2019s argument regarding section 2 \u2014 1008(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1008(b)), which concerns a court\u2019s discretionary authority to dismiss a claim if a motion to substitute a party is not filed within 90 days after a decedent\u2019s death is suggested of record.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nO\u2019CONNOR and QUINLAN, JJ., concur.\nThe comparable provision in Illinois requires that claims be filed within six months of publication. Ill. Rev. Stat. 1987, ch. IIOV2, par. 18 \u2014 3(b).",
        "type": "majority",
        "author": "JUSTICE BUCKLEY"
      }
    ],
    "attorneys": [
      "Anthony C. Raecuglia & Associates, of Peru (James A. McPhedran, of counsel), for appellant.",
      "Morgan & Karzov, Ltd., of Chicago (Arnold J. Karzov and Philip S. Witt, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "MICHAEL H. ROSE, Plaintiff-Appellee, v. MARY A. KASZYNSKI, Ex'r of the Estate of Ben Kaszynski, Deceased, Defendant-Appellant.\nFirst District (1st Division)\nNo. 88-0061\nOpinion filed December 27, 1988.\nRehearing denied February 2, 1989.\nAnthony C. Raecuglia & Associates, of Peru (James A. McPhedran, of counsel), for appellant.\nMorgan & Karzov, Ltd., of Chicago (Arnold J. Karzov and Philip S. Witt, of counsel), for appellee."
  },
  "file_name": "0266-01",
  "first_page_order": 288,
  "last_page_order": 291
}