E.H. FLESNER et al., Appellees, v. YOUNGS DEVELOPMENT COMPANY et al., Appellants.
No. 71242
Supreme Court of Illinois
October 31, 1991
252 Ill. 2d 252
MILLER, C.J., specially concurring. CLARK and CUNNINGHAM, JJ., dissenting.
Richard F. Record, Jr., and Paul R. Lynch, of Craig & Craig, of Mt. Vernon, for appellants.
John Gadau, of Zimmerly, Gadau, Selin & Otto, of Champaign, and Reino C. Lanto, of Wilson & Lanto, P.C., of Rantoul, for appellees.
Heyl, Royster, Voelker & Allen, of Peoria (Gary D. Nelson, Karen L. Kendall and Joseph G. Feehan, of counsel), for amicus curiae Illinois Association of Defense Trial Counsel.
JUSTICE HEIPLE delivered the opinion of the court:
The issue before the court is whether plaintiffs are allowed more than one refiling of an action if the refilings fall within the applicable statute of limitations pursuant
“In the actions specified in Article XIII of this Act or any other act or contract whеre the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction.” (Emphasis added.)
Ill. Rev. Stat. 1987, ch. 110, par. 13-217 .
This suit arose out of a written option for leasing coal lands between plaintiffs Henry and Anna Flesner, now both deceased, and defendant Youngs Development Company, a partnership, and its partners C. James Youngs and Darwin Youngs. Plaintiffs initially began their lawsuit against defendants in the United States District Court for the Central District of Illinois in May 1981. That case was dismissed for lack of jurisdiction in November 1981. Plaintiffs refiled their action in the circuit court of Jefferson County, Illinois, in April 1982. On December 2, 1986, plaintiffs filed a motion for voluntary
Plaintiffs then filed their third complaint on December 11, 1987, arising out of the same facts and claims as the two previous lawsuits. Defendants’ motion to dismiss the action was granted in October 1988. Plaintiffs then filed a motion to reconsider the order of dismissal with prejudice. The circuit court allowed plaintiffs’ motion to set aside the order of dismissal and to reinstate the complaint. The appellate court affirmed. We reverse.
In so ruling, we concur in the analysis and rulings announced in the appellate court opinions of Walicek v. Ciba-Geigy Corp. (1987), 155 Ill. App. 3d 667, Bernstein v. Gottlieb Memorial Hospital (1989), 185 Ill. App. 3d 709, and Howard v. Francis (1990), 204 Ill. App. 3d 722. These cases all stand for the proposition that
Accordingly, we reverse the orders of the trial and appellate courts which reinstated plaintiffs’ complaint and we order dismissal of the plaintiffs’ complaint.
Reversed and dismissed.
CHIEF JUSTICE MILLER, specially concurring:
I concur in the court‘s disposition of the present appeal but write separately to explain the basis for my agreement.
Under
Significantly, the language used in Gendek governs not only the plaintiff who seeks to lengthen, year by year, the time allоwed for suit beyond the original limitations period through a succession of voluntary dismissals and refilings, but also the plaintiff who attempts to voluntarily dismiss and then refile the action within the single one-year period afforded by
“We agree *** that the plaintiff may not engage in multiple refilings after the statute of limitations has expired. We also agree that
section 13-217 was not intended to allow the plaintiff to extend the statute of limitations in one-year increments by successive dismissаls and refilings. Once a statute of limitations has passed, the plaintiff is entitled to refile only once and that refiling must take place within one year of the dismissal.” (Emphasis in original.) 205 Ill. App. 3d at 645.
Thus,
By its own terms,
Once it is conceded that
The underlying rationale was well expressed in Gibellina v. Handley (1989), 127 Ill. 2d 122, 134:
“While a [voluntary dismissal] motion in conjunction with
section 13-217 may protect the right of a plaintiff to have a deсision in the particular case made on the merits of the claim by potentially permitting ‘two bites of the apple’ when the first bite turns sour, the statutory scheme does not allow a third bite.” (127 Ill. 2d at 134.)
The same reasoning is, in my view, applicable here. Indeed, recent decisions of this court have demonstrated that a plaintiff‘s statutory right to voluntarily dismiss аn action even once should not be viewed in isolation but rather must be balanced against other considerations. (See, e.g., Gibellina, 127 Ill. 2d 122; O‘Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273.) To deny
JUSTICE CLARK, dissenting:
I respectfully dissent.
In Gendek v. Jehangir (1988), 119 Ill. 2d 338, 343, this court observed:
“The purpose of
section 13-217 , and its predecessor, section 24 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 24a ), is to facilitate the disposition of litigation upon the merits and to avoid its frustration upon grounds that are unrelated to the merits. [Citation.] We agree with our appellate court, however, that the provision was intended to serve as an aid to the diligent, not a refuge for the negligent. [Citations.] Accordingly, we find that the provision was not intended to permit multiple refilings following voluntary dismissals of an action for which the original statute of limitations had lapsed. A contrary interpretation would foster abuse of the judicial system by allowing a nondiligent plaintiff to circumvent (through repeated filings and dismissals of substantially identical actions) the otherwise applicable statute of limitations. We cannot conclude that the General Assembly intended such a rеsult.” (Emphasis added.)
JUSTICE CUNNINGHAM joins in this dissent.
JUSTICE CUNNINGHAM, also dissenting:
I respectfully dissent.
The majority reaches the conclusion that
First, however, to fully understand the basis for this dissent‘s argument, it is necessary to analyze a recent case by this court, that of Gendek v. Jehangir (1988), 119 Ill. 2d 338. Gendek, too, concerned
The facts of Gendek show that the plaintiff, after having been dismissed from Federal court due to lack of jurisdiction, filed suit in State court pursuant to
The original intent of the statute is now apparently lost in antiquity. We must, as the majority has dоne, now discern the intent from the plain language of the statute itself, as well as from how the statute has been interpreted in the past. It is my belief that the more recent interpretations have gone beyond those originally made. In my view, the meaning attributed to the statute by the majority is incorrect in that it unnecessarily limits a plaintiff in the options available.
The three appellate opinions cited by the majority find their beginnings in two other opinions, one from the Federal court and one from the Illinois appellate court. The first, Harrison v. Woyahn (7th Cir. 1958), 261 F.2d 412, dealt with an action for personal injuries in which, according to the court, the plaintiff repeatedly sued the defendant. The Federаl court analyzed the predecessor to
The other case which forms the basis for the appellate court opinions is Smith v. Chicago Transit Authority (1978), 67 Ill. App. 3d 385. Smith, too, dealt with a situation where the facts revealed an attempt by the plaintiff tо bypass the statute of limitations through
“The original [statute of limitations] period is not added or extended for an additional year, but the real nature of section 24 is that it is a saving clausе to prevent the bar which otherwise would be applicable. It thus acts as a limited extension to prevent injustice; it should not be permitted to become a harassing renewal of litigation.” (Smith, 67 Ill. App. 3d at 388.)
The focus by the appellate court on the potential for the statute to become a tool for harassing litigation clearly сontemplates its abuse once the statute of limitations has run. Furthermore, the court‘s use of the term “limited extension” indicates a desire to prevent injustice to the plaintiff when the statute of limitations may come into play.
The first appellate opinion cited by the majority, Walicek v. Ciba-Geigy Corp. (1987), 155 Ill. App. 3d 667, cites Smith and Harrison to support its view that the statute allows for only one refiling after the first complaint has been dismissed. Walicek finds support for this argument by stating that ”Smith has been interpreted to hold that section 24(a) only permits one additional filing after the first complaint has been dismissed.” (Walicek, 155 Ill. App. 3d at 670, citing LaBarge, Inc. v. Corn Belt Bank (1981), 101 Ill. App. 3d 741, 745.) The court in LaBarge, however, merely employed a curt one-line statement that “section 24 only permits one additional filing after the first suit has been dismissed” without explanation or elaboration. The Smith court made no such broad determination. Thus LaBarge, and through it Walicek, was incorrect, at least insofar as how Smith was actually written.
The second appellate opinion cited by the majority, Bernstein v. Gottlieb Memorial Hospital (1989), 185 Ill. App. 3d 709, cites Gendek and Walicek for the proposition that “[t]he language of
The final appellate opinion cited by the majority, Howard v. Francis (1990), 204 Ill. App. 3d 722, relies
Nevertheless, there is still the philosophy in these opinions that the plain language of the statute clearly indicates the limitation of the statute‘s use to one. The phrase “may commence a new action” is seized upon as indicating that one and only one use is permitted. To this I can only ask how else the legislature might have worded the phrase, for few plaintiffs, I am sure, contemplate filing more than one action at the same time. The wording is no more than an acknоwledgment that, after a voluntary dismissal or dismissal for want of prosecution, the plaintiff will commence a single new action until procedure dictates that that action be dismissed, after which another single new action might be commenced should the time guidelines of the statute allow.
An additional phrase seized upon by these casеs is the commencement of the new action “within one year or within the remaining period of limitation, whichever is greater.” This is viewed as proof positive that the statute is a limiting provision which operates to cut off the remaining period in a statute of limitations once
I believe that
An additional effect the majority‘s opinion would have upon plaintiffs’ causes is strikingly evident upon the facts of this case. The rule espoused by the majority in effect serves to cut off completely the ability of the plaintiffs to utilize the voluntary dismissal statute (
The majority by its opinion is asserting that
For this and the above reasons, I dissent.
JUSTICE CLARK joins in this dissent.