One Fish Two Fish, LLC v. Struif
196 N.E.3d 31
Ill. App. Ct.2021Background
- Struif was minority member and general manager in a restaurant ownership structure controlled by Kornick and OFTF; disputes arose after Kornick terminated her employment (2002) and sought to buy her membership interest.
- Struif sued in federal court (2003) raising Title VII and multiple state-law claims against Kornick and related entities; she voluntarily dismissed claims against Kornick in April 2004 and the federal court initially (erroneously) entered an order stating those dismissals were "with prejudice," later corrected to "without prejudice."
- In the state action (State Case I), Struif refiled counterclaims against the same parties (Sept. 2004); the trial court later dismissed her claims against Kornick as barred by res judicata based on the (erroneous) federal order, then vacated that dismissal after the federal court corrected its order. The trial court nonetheless refused to reinstate Kornick claims citing the Illinois one-refiling rule (735 ILCS 5/13-217).
- Struif later added third-party claims against Lisa Koch alleging transfers of Struif’s ownership interests to Koch; the trial court dismissed Koch claims as time-barred (statute of limitations) and dismissed many other pleadings under one-refiling/related doctrines.
- After a bench trial on a subset of claims, the trial court entered declaratory relief restoring certain interests/distributions to Struif, awarded reduced taxable costs to Struif, and denied other claims. Struif appealed several rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reinstating Struif’s claims against Kornick after the trial court vacated its prior res judicata dismissal counts as a prohibited "refiling" under §13-217 | Reinstatement corrects an erroneous involuntary dismissal and is not a new refiling; she already used her one refiling when she filed counterclaims in this (present) case | Reinstating would be an additional refiling beyond the one allowed after her voluntary federal dismissal; she filed State Case II so she used her one refiling | Reversed trial court: reinstatement is not a new §13-217 refile because it restores existing claims erroneously dismissed; trial court erred in denying reinstatement |
| Whether conversion/related claims against Koch were time-barred under the five-year statute of limitations and discovery rule | Limitations did not run until May 2010 when subpoena response first showed transfer to Koch; discovery rule delays accrual | Struif knew by Oct. 2003 she was wrongfully withheld distributions and thus had duty to investigate; limitations began then | Affirmed: statute began no later than Oct. 2003; claim filed in 2011 was untimely and dismissal was proper |
| Whether the trial court erred in reducing Struif’s claimed costs because OFTF did not file a counteraffidavit | Without a counteraffidavit, claimed costs must be accepted as true | OFTF objected on multiple legal and factual grounds (some nonfactual), trial court gave opportunity for itemized objections and supporting documentation; record does not show abuse of discretion | Affirmed: absence of a counteraffidavit alone does not require reversal; incomplete appellate record precludes meaningful review of cost reductions |
Key Cases Cited
- Flesner v. Youngs Dev. Co., 145 Ill. 2d 252 (discusses one-refiling rule under §13-217)
- Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484 (single group of operative facts defines one cause of action)
- Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161 (discovery rule accrual: plaintiff must investigate once wrongful injury is known)
- National Underground Constr. Co. v. E.A. Cox Co., 273 Ill. App. 3d 830 (reinstatement after erroneous dismissal is not a new action for §13-217 purposes)
- Dubina v. Mesirow Realty Dev., Inc., 178 Ill. 2d 496 (refiled action is a new and separate action under §13-217)
- Schrager v. Grossman, 321 Ill. App. 3d 750 (res judicata principles for single operative facts)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (appellate-preservation and appellate record burden)
- Wells v. Travis, 284 Ill. App. 3d 282 (knowledge of injury, not identity of tortfeasor, triggers accrual)
- Zdeb v. Baxter Int’l, Inc., 297 Ill. App. 3d 622 (issues first raised in posttrial motion are waived)
- Riley Acquisitions, Inc. v. Drexler, 408 Ill. App. 3d 397 (standard of review for award of costs: abuse of discretion)