DANIEL MABRY; DENISE MABRY; DAVID COOPER; and DANETTE COOPER, Plaintiffs, v. VILLAGE OF GLENWOOD, Defendant-Appellee (Latasha Baker; Sandra Brown; Claudette Burchett; Lillian Cann; Sandra Chapman; Cathie Cranfield; Kerry Durkin; Gwen Durkin; Robert Farr; Rochelle Farr; Kevin Holliday; Tasha Holliday; Cornelius Jones; Robyn Jones; Latanya Jones; Dwayne Lockette; Carolyn Lockette; Maria Lopez; Patricia Moore; Antionne Davis; Barbara Pawlowski; Shirley Richmond; Janice Rockette; Harold Ross; Vanessa Ross; John Stehle; Marjorie Reckley; Yvonne Williams; Arthur Wynn; Carmela Wynn; Thomas Yuskus; and Barbara Yuskus, Intervening Plaintiffs-Appellants).
No. 1-14-0356
Appellate Court of Illinois, First District, First Division
SEPTEMBER 14, 2015
2015 IL App (1st) 140356
Honorable Rodolfo Garcia, Judge Presiding.
Justices Connors and Harris concurred in the judgment and opinion.
OPINION
¶ 1 This appeal arises from the December 17, 2013 order of the circuit court of Cook County which dismissed as time-barred the claims filed by 32 individual plaintiffs who intervened (intervening plaintiffs) into a negligence action filed against the defendant, Village of Glenwood (Glenwood). On appeal, the intervening plaintiffs argue that their claims were timely because
BACKGROUND
¶ 2
¶ 3 On April 16, 2007, plaintiffs Daniel and Denise Mabry, and David and Danette Cooper (collectively, Mabry-Cooper) filed a proposed class action complaint against Glenwood and seven other defendants.1 The complaint alleged that Mabry-Cooper had suffered property damage after a heavy rainstorm caused sewage and sewer water to back up into their residences on April 16, 2006. Mabry-Cooper brought the claim on their own behalf and as representatives of a purported class constituting all Glenwood residents who had suffered similar property damages as a result of the sewer backup.
¶ 4 The original complaint contained seven counts, all but one of which was brought against all of the defendants.2 On August 28, 2007, after several named defendants each filed a motion to dismiss the claims against them, the circuit court, on Mabry-Cooper‘s own motion, entered an order dismissing without prejudice the claims against all of the defendants except for Glenwood. Thus, the case proceeded with only Mabry-Cooper‘s counts against Glenwood.
¶ 6 On June 28, 2010, the circuit court ordered the parties to confer on an agreed order to establish a discovery schedule in response to Mabry-Cooper‘s impending filing of a motion to certify the class. The parties then established the schedule and began conducting discovery. However, Mabry-Cooper did not file a motion to certify the class. On March 1, 2013, the circuit court granted Mabry-Cooper leave to file another amended complaint “naming all plaintiffs.”
¶ 7 On March 28, 2013, Mabry-Cooper filed a second amended complaint against Glenwood, alleging common law trespass and negligent operation of the sewer system. The second amended complaint withdrew the class action allegations and added the 32 intervening plaintiffs.
¶ 8 On June 6, 2013, Mabry-Cooper and the intervening plaintiffs filed a response to Glenwood‘s motion to dismiss the claims of the intervening plaintiffs. The response noted that Illinois courts often require named plaintiffs to exercise “due diligence” in seeking class certification but argued that, in this instance, the class action tolling rule still applied. Therefore, they argued, the claims of the intervening plaintiffs were not time-barred. Mabry-Cooper and the intervening plaintiffs further claimed that part of the reason for their failure to move for class
¶ 9 On December 17, 2013, the circuit court granted Glenwood‘s motion to dismiss the claims of the intervening plaintiffs as time-barred under section 8-101(a) of the Tort Immunity Act. Id. Additionally, the court held that the class action tolling rule did not apply even though Mabry-Cooper timely filed their original class action complaint because Mabry-Cooper‘s proposed class was never certified. Because the individual claims of Mabry-Cooper against Glenwood remain pending in the circuit court, the circuit court‘s December 17, 2013 order certified that there was no just reason to delay enforcement or appeal of the order.
¶ 10 On January 16, 2014, the intervening plaintiffs filed a timely notice of appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).
ANALYSIS
¶ 11
¶ 12 We note that, as this appeal comes from the granting of a motion to dismiss, our standard of review is de novo. Haber v. Reifsteck, 359 Ill. App. 3d 867, 868 (2005).
¶ 13 On appeal, the intervening plaintiffs argue that the circuit court erred in granting Glenwood‘s motion to dismiss. In support of this contention, the intervening plaintiffs present three arguments as to why their claims were not time-barred under the Tort Immunity Act. The intervening plaintiffs allege that their claims were preserved due to the application of (1) the relation-back doctrine; (2) the equitable tolling doctrine; or (3) the class-action tolling rule.
¶ 14 Section 8-101(a) of the Tort Immunity Act provides that “[n]o civil action *** may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.”
¶ 15 First, we find that because the intervening plaintiffs did not raise either of the first two arguments in the circuit court, those claims for relief are forfeited. It is a well-settled principle that arguments not raised before the circuit court are forfeited and cannot be raised for the first time on appeal. Village of Roselle v. Commonwealth Edison Co., 368 Ill. App. 3d 1097, 1109 (2006).
¶ 16 Even if not forfeited, neither argument is well-founded. The equitable tolling doctrine serves to toll the relevant statute of limitations in only three circumstances: (1) where the defendant actively misled the plaintiff; (2) where the plaintiff was prevented from asserting his or her rights in some extraordinary way; or (3) where the plaintiff mistakenly asserted his or her rights in the wrong forum. Clay v. Kuhl, 189 Ill. 2d 603, 614 (2000). These circumstances are not applicable here.
¶ 17 Additionally, no case in Illinois has ever applied the doctrine of relation back to a case such as this. The intervening plaintiffs cite to no case from this state, or any other, in which a court has related the post-limitation period filing of a complaint by one individual plaintiff back to the timely filing of a different complaint by a different individual plaintiff against the same defendant. Accordingly, had the first two arguments not been forfeited, they would still not be applicable here. Consequently, resolution of this appeal turns on whether the class action tolling rule applied to the case at bar.
¶ 18 In American Pipe & Construction Co. v. Utah, the United States Supreme Court established the class action tolling rule and held that “the commencement of a class action
¶ 19 In Steinberg v. Chicago Medical School, our supreme court subsequently established the same rule and cited to American Pipe for support. 69 Ill. 2d 320, 342-43 (1977). However, in Steinberg, the class action tolling rule was not so narrowly tailored. Instead, our supreme court held that a proposed class action tolled the statute of limitations for members of the proposed class where the circuit court granted the defendant‘s motion to dismiss the proposed class action complaint for failure to state a claim. Id. at 342. Our supreme court ultimately reversed that dismissal and remanded the cause to the circuit court for the typical pretrial determinations necessary to the continued maintenance of a lawsuit as a class action. Id. at 342-43. In doing so, the court reiterated American Pipe‘s holding in asserting that “commencement of the class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit continued as a class action.” Id. at 342.
¶ 20 In Crown, Cork & Seal Co. v. Parker, the United States Supreme Court subsequently clarified and expanded the American Pipe tolling protection to include plaintiffs filing either individual claims or those seeking to intervene once the circuit court denied class certification. 462 U.S. 345 (1983). There, class certification of the original lawsuit was denied because the named plaintiffs’ claims were not typical of those of the class, the named plaintiffs would not be adequate representatives, and the class was not so numerous as to make joinder impracticable.
¶ 21 In Munsterman v. Illinois Agricultural Auditing Ass‘n, this court, adhering to the reasoning and holding in American Pipe, held that the filing of a proposed class action tolled the statute of limitations until the day on which the named plaintiffs dropped the class action allegations and filed an amended complaint naming each plaintiff individually. 106 Ill. App. 3d 237, 240 (1982). There, in Munsterman, a proposed class action complaint was filed prior to the expiration of the relevant five-year statute of limitations period. Id. at 238. The named plaintiffs subsequently abandoned the class action allegations and filed an amended complaint, naming themselves and several other intervening plaintiffs individually, which itself was eventually dismissed years later. Id. Following this dismissal, a new group of plaintiffs, none of whom had been named in the original class action complaint or as intervenors in the amended complaint, filed their own separate claims. Id. On appeal from the dismissal of their complaint as time-barred, the new plaintiffs claimed that the class action tolling rule served to toll the limitations period until the eventual dismissal of the amended complaint to which they were never parties. Id. at 240. The Munsterman court disagreed. Instead, the court found that the rule did toll the statute of limitations for any subsequent intervenors or individual claims, but that it did so only until the day on which the original named plaintiffs dropped their class action allegations and
¶ 22 Later, this court applied the class action tolling rule in Hess v. I.R.E. Real Estate Income Fund, Ltd., 255 Ill. App. 3d 790 (1993). In Hess, twelve consolidated appeals arose from violations of the Illinois Securities Law of 1953, which required all persons selling securities to register with the Secretary of State. Id. at 793-94 (citing
¶ 23 On appeal, the defendants claimed that the general rule of class action tolling did not
¶ 24 Later, in Portwood v. Ford Motor Co., our supreme court once again discussed the class action tolling rule. 183 Ill. 2d 459 (1998). There, a group of plaintiffs filed a complaint in the United States District Court for the District of Columbia seeking certification of a nationwide class action against defendant Ford Motor Company. Id. at 461. Thereafter, the district court initially certified a class action but that determination was reversed on appeal. Id. On remand, the district court denied certification of the class and dismissed the plaintiffs’ individual claims.
¶ 25 Applying the principles of the United States Supreme Court‘s holding in American Pipe and its progeny, as well as the holding of our supreme court in Steinberg and its progeny, we hold that the class action tolling rule applied to the instant case.
¶ 26 We find the Munsterman case particularly instructive. There, the court held that the timely filing of a proposed class action served to toll the limitations period until the day on which the original plaintiffs dropped their class action allegations and filed individual actions. Munsterman, 106 Ill. App. 3d at 240. Here, the cause of action accrued on April 16, 2006, when allegedly a heavy rainstorm caused sewage and sewer water to back up into the homes of several
¶ 27 In the case at bar, Glenwood asserts that the circuit court correctly dismissed the intervening plaintiffs’ claims because Mabry-Cooper did not pursue class certification during the pendency of their proposed class action and, thus, did not meet the requirement of moving for certification “as soon as practicable” as established by the Code. Further, Glenwood argues that this failure to move for certification equates to a failure to act with “due diligence,” which nullifies application of the class action tolling rule. Accordingly, Glenwood argues, Mabry-Cooper‘s timely filed proposed class action did not serve to toll the limitation period for the intervening plaintiffs.
¶ 28 In support of this contention, Glenwood cites to several cases, none of which concern the class action tolling rule or the necessity of “due diligence” for its application.4 Instead,
¶ 29 Thus, none of the aforementioned cases, or any others within the State of Illinois, mention a requirement of “due diligence” in order for the protections of the class action tolling rule to take effect. Indeed, not only is Glenwood‘s assertion unsupported by caselaw but it is also completely inconsistent with the principles of the cases which formulated the class action tolling rule.
¶ 30 Additionally, the circuit court dismissed the intervening plaintiffs’ claims on the basis that Mabry-Cooper did not receive certification of their proposed class. This is a clear misreading and misapplication of the class action tolling rule, the specific purpose of which is to preserve the claims of potential class plaintiffs in the event that the class is not certified. At no point did the circuit court order Mabry-Cooper to move for certification. Instead, the court ordered Mabry-Cooper and Glenwood to confer on a discovery schedule in order to prepare the motion for certification. Moreover, the issue of class certification is “typically factual and should be decided with the benefit of discovery.” P.J.‘s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d 992, 1001 (2004); Weiss v. Waterhouse Securities, Inc., 335 Ill. App. 3d 875 (2002). Accordingly, even if defendant‘s due diligence was a requirement of the class action tolling rule, it appears reasonable that Mabry-Cooper did not move for certification during the pendency of discovery.
¶ 31 Furthermore, a reversal here is consistent with the principles of the class action tolling rule as established by American Pipe. In American Pipe, the United States Supreme Court reasoned that a class action tolling rule is consistent with the purpose of both the class action mechanism and the relevant statute of limitations. Id. at 554. We find this discussion instructive. There, the Supreme Court stated that a “class action is *** a truly representative suit designed to avoid, rather than encourage, unnecessary filing of repetitious papers and motions.” Id. at 550. The Supreme Court reasoned that, while a tolling rule would allow members of the proposed class to rely on a pending cause instead of asserting numerous individual claims, “a rule requiring successful anticipation of the determination of the viability of the class would breed needless duplication of motions.” Id. at 553-54.
¶ 32 Moreover, the Supreme Court added that “statutory limitation periods are ‘designed to
“are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors.” Id. at 554-55.
¶ 33 Similarly, we find that our decision here preserves the fundamental purpose of both the class action mechanism and the Tort Immunity Act‘s limitations period. Should we impose a somewhat arbitrary deadline as to when members of a purported class must either intervene or file their own protective claims, based on nothing more than the statute‘s ambiguous requirement that representative plaintiffs in a proposed class action must move for certification “as soon as practicable,” we would encourage the duplicative filing and judicial inefficiency which the rule is designed to prevent. Moreover, doing so would establish the bright line rule which the legislature purposefully avoided in enacting such language. Additionally, the application of the tolling rule does not prejudice Glenwood or any other similarly situated defendant who receives
¶ 34 Further, this decision is consistent with the contours of the class action tolling doctrine as established in Illinois. Mabry-Cooper‘s class claims against Glenwood were not dismissed for lack of standing. Their claims were not filed in federal court, thus cross-jurisdictional tolling does not apply. Additionally, the record does not indicate that Glenwood offered a full settlement tender to Mabry-Cooper, or any other named plaintiff, during the pendency of the class action and before Mabry-Cooper failed to move for certification. We decline to affirm the dismissal of the intervening plaintiffs’ claims or further limit the application of the class action tolling rule, without any authority instructing us to so act.
¶ 35 Accordingly, we find that the class action tolling rule served to protect the claims of the intervening plaintiffs and that it was error for the circuit court to grant Glenwood‘s motion to dismiss.
¶ 36 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand the intervening plaintiffs’ cause to the circuit court for further proceedings.
¶ 37 Reversed and remanded.