2013 IL App (2d) 121380
Ill. App. Ct.2013Background
- Hart sued Le for injuries from a July 29, 2008 car accident; original complaint was submitted via Du Page County’s e-filing system on July 29, 2010.
- The vendor/clerk rejected the original e-filing because the chosen summons return date was unavailable; a refile was attempted the same day but the filing was ultimately denied and later accepted as filed one day late (July 30, 2010).
- The original case was dismissed for want of prosecution on February 24, 2011. Hart refiled within one year (Feb. 14, 2012).
- Le moved to dismiss the refiled action under section 2-619, arguing the original filing was untimely so section 13-217 (the saving statute) did not revive the claim.
- Hart conceded the initial complaint was filed one day after the statute of limitations expired but sought equitable tolling to treat the July 29 attempt as timely.
- Trial court granted dismissal; on appeal the court affirmed, finding Hart failed to show due diligence and the record was insufficient to overcome the limitations defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the July 29, 2010 e-filing attempt tolled the statute so the original complaint was timely | Hart: vendor/clerk rejection was a technical error beyond counsel’s control and equitable tolling (plus local rule relief) should render the attempt timely | Le: the complaint was filed after limitations expired; no basis to apply §13-217 or equitable tolling | Court: Rejected—Hart failed to prove due diligence and record didn’t show she sought relief under local rule or otherwise acted promptly |
| Whether §13-217 applies to revive the claim | Hart: prior suit was effectively filed within limitations if equitable tolling applied | Le: §13-217 does not apply because the prior suit was not timely filed | Court: §13-217 not available because prior complaint was not shown to be timely filed |
| Whether the trial court erred in resolving factual disputes on a §2-619 motion without a jury demand | Hart: factual dispute (timing, vendor/clerk conduct) should preclude dismissal | Le: court properly resolved facts under §2-619 because no jury demand; record supported dismissal | Court: Acceptable for trial court to resolve facts; appellant failed to provide complete record so decision presumed correct |
| Whether local rule 5.14(b) relief was sought or required | Hart: attempted filings and vendor rejection warranted relief under the local rule to deem filing effective July 29 | Le: no showing that plaintiff invoked the local rule or obtained relief | Court: Plaintiff made no attempt (in record) to seek relief under the rule; due diligence lacking |
Key Cases Cited
- Williams v. Board of Review, 241 Ill. 2d 352 (2011) (explains equitable tolling and due-diligence standard)
- Mercantile Holdings, Inc. v. Feldman, 258 Ill. App. 3d 748 (1994) (defines §13-217 as a saving/revival statute)
- A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill. App. 3d 905 (1993) (standard for resolving factual disputes on a §2-619 motion)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (1984) (appellant’s duty to provide a complete record on appeal)
- Mackereth v. G.D. Searle & Co., 285 Ill. App. 3d 1070 (1996) (issues may be resolved as matter of law where evidence allows no reasonable difference of opinion)
- Miller v. Runyon, 77 F.3d 189 (7th Cir. 1996) (quoted definition of equitable tolling circumstances)