Pellico v. Mork
101 N.E.3d 168
Ill. App. Ct.2018Background
- Gregory Pellico filed three materially identical actions against Lorraine Mork arising from alleged mismanagement of trusts and related torts: Case I (Du Page County, filed Apr. 12, 2013), Case II (N.D. Ill. federal court, filed Jan. 13, 2014), and Case III (Du Page County, filed May 17, 2016).
- Case I was voluntarily dismissed by Pellico on May 20, 2015.
- Case II was filed while Case I was still pending, stayed pending resolution of Case I, then dismissed by the federal court for lack of subject-matter jurisdiction on Jan. 28, 2016.
- After the federal dismissal, Pellico filed Case III in state court and later amended the complaint to add statutory and constitutional claims.
- Mork moved to dismiss Case III under section 13-217’s single-refiling rule (raised via section 2-619 motions) and other grounds; the trial court dismissed Case III with prejudice as barred by the one-refiling rule.
- Pellico appealed, arguing (1) Case II did not count as his single refiling because it was filed while Case I was still pending, and (2) Mork acquiesced to the multiple filings; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether section 13-217’s one-refiling rule barred Case III | Case II shouldn’t count as the single statutory refiling because it was filed while Case I remained pending; hence Case III is a permissible refiling after the federal dismissal | Pellico already used his one statutory refiling: Case I (voluntary dismissal) + Case II (federal dismissal) exhausted the single-refiling entitlement, so Case III is barred | The court held Case II counted as Pellico’s one refiling; Case III was the third filing and barred under section 13-217 |
| Whether defendant acquiesced or is estopped from asserting the single-refiling rule | Mork thwarted Pellico’s voluntary dismissal attempts and thus effectively acquiesced to multiple filings | Mork did not acquiesce; she moved to dismiss/stay and challenged federal jurisdiction before dismissals occurred | The court rejected Pellico’s acquiescence/estoppel claim; record showed Mork moved to dismiss and sought to protect her position |
| Whether procedural defenses (sovereign/quasi-judicial immunity or res judicata) required dismissal | (Subsidiary) Pellico argued merits claims were viable | Mork invoked immunity and res judicata as alternative grounds for dismissal | Court resolved case on section 13-217 and did not need to decide immunity or res judicata on the merits |
| Standard of review for dismissal under section 2-619 | N/A (procedural) | N/A | Court reviewed de novo and accepted well-pleaded factual allegations for purposes of the motion |
Key Cases Cited
- Timberlake v. Illini Hospital, 175 Ill. 2d 159 (1997) (interpreting section 13-217 to permit only one refiling)
- Schrager v. Grossman, 321 Ill. App. 3d 750 (2000) (holding a filing made while an earlier action was still pending still counts as the statutory refiling; plaintiff may not obtain a third refiling)
- Van Meter v. Darien Park District, 207 Ill. 2d 359 (2003) (explaining purpose and scope of section 2-619 dismissal practice)