Eighner v. Tiernan
155 N.E.3d 529
Ill. App. Ct.2020Background
- In 2014 Eighner sued Tiernan for injuries from a 2012 car collision.
- In May 2017 the circuit court granted plaintiff’s voluntary dismissal under 735 ILCS 5/2-1009, with leave to reinstate within one year.
- On April 23, 2018 plaintiff filed a “Notice of Refiling” and attached the complaint under the original case number; the clerk did not process the matter for case management.
- After inquiries, plaintiff filed the complaint again under a new case number on October 15, 2018.
- Tiernan moved to dismiss under 735 ILCS 5/2-619(a)(5), arguing plaintiff failed to "commence a new action" within one year as required by 735 ILCS 5/13-217. The circuit court denied the motion and certified a Rule 308 question.
- The appellate court answered the certified question, held that section 13-217 requires filing a new action (new case number), reversed the circuit court, and remanded with directions to grant dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether refiling a complaint in the dismissed case (i.e., filing a notice under the original case number) satisfies §13-217’s phrase “may commence a new action” | Eighner: his April 23, 2018 filing in the original case timely refiled the claim and satisfied §13-217 | Tiernan: §13-217’s “new action” requires opening a new lawsuit (new case number, fee, summons); plaintiff’s notice did not suffice | Held: No. “New action” means a separate filing under a new case number; plaintiff’s action under the old case number did not satisfy §13-217; appellate court reversed and directed dismissal |
Key Cases Cited
- Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518 (Ill.) (a refiled action under §13-217 is an entirely new and separate action)
- Timberlake v. Illini Hospital, 175 Ill. 2d 159 (Ill.) (§13-217 gives absolute right to refile within one year or remaining limitations period)
- Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496 (Ill.) (original and refiled actions are distinct)
- Nowak v. City of Country Club Hills, 2011 IL 111838 (Ill.) (rules of statutory construction)
- De Bouse v. Bayer AG, 235 Ill. 2d 544 (Ill.) (court may address additional issues in the interest of judicial economy)