Flesner v. Youngs Development Co.

JUSTICE CUNNINGHAM, also dissenting:

I respectfully dissent.

The majority reaches the conclusion that section 13— 217 allows for only one refiling after a prior dismissal, whether or not the statute of limitations has run. Since the majority opinion merely adopts the positions taken by three separate appellate court opinions, those three opinions will be addressed.

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 section 13—217. It dealt with it, however, in a somewhat more narrow manner than has since been utilized. On the whole it involved the use of the statute after the applicable statute of limitations had run. The rule set forth there stated that section 13—217 could be used only once when the statute of limitations had come into play.

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 section 13—217 after the original statute of limitations had run on his cause. Thereafter, the plaintiff voluntarily dismissed his State court suit and then attempted to refile again. The situation on which the court in Gendek refused to allow the suit reflected the plaintiff’s attempt to use section 13—217 twice after the statute of limitations had run. It was under those circumstances in which the court noted that continual filings by the plaintiff under the statute would not be allowed. The court made no attempt at that point to limit the plaintiff’s ability to file multiple suits within the statute of limitations period.

The original intent of the statute is now apparently lost in antiquity. We must, as the majority has done, 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 It is my belief that the more recent interpretations have gone beyond those originally made.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 Federal court analyzed the predecessor to section 13—217, section 24 of the Limitations Act, in a manner which suggested that the plaintiff should be limited in the number of times the statute could be used. The intent of the court, however, was to prevent “legislating] authority for interminable pendency of lawsuits— from nonsuit to refiling in endless monotonous cycles— all within tidy yearly units of time.” {Harrison, 261 F.2d at 413 .) Clearly this concern revolves around the potential for bypassing the statute of limitations through what is now section 13—217, for when the applicable statute of limitations is still in force, as it now is due to Gendek, there can be no interminable pendency of lawsuits.

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 to bypass the statute of limitations through section 13—217. The plaintiff there was first injured in 1969 and filed her first suit in 1970. The suit was dismissed in 1973 for want of prosecution. Later in 1973 the plaintiff filed suit again through the use of section 24, section 13—217’s predecessor. The second suit was dismissed in 1976, again for want of prosecution. The plaintiff then attempted to utilize the statute again in 1977, an attempt the appellate court thwarted by affirming the trial court’s dismissal of the final suit. The appellate court reasoned that the statute was an extension statute which could only be used once when invoked.

“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 clause 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 contemplates 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 section 13—217 judicially has been construed to mean that *** a plaintiff may refile his claim once before the expiration of the applicable statute of limitations or within a single year, whichever period is greater.” (Bernstein, 185 Ill. App. 3d at 712 .) Gendek, the only supreme court case cited for this proposition, says no such thing, however. The actual finding in Gendek is that the statute “was not intended to permit multiple refilings following voluntary dismissals of an action for which the original statute of limitations has lapsed.” (Emphasis added.) (Gendek, 119 Ill. 2d at 343 .) The decision in Bernstein was thus premised upon an incorrect interpretation of the primarily cited case.

The final appellate opinion cited by the majority, Howard v. Francis (1990), 204 Ill. App. 3d 722 , relies upon Walicek and Bernstein for its decision, and so must also be incorrect.

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 acknowledgment 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 cases 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 section 13 — 217 is used. It is, however, merely an acknowledgement that the provision has the potential for use near to the time when the statute of limitations will run, and serves to guarantee sufficient time to the plaintiff to refile.

I believe that section 13—217 is a saving provision which is not intended to come into operation during the applicable statute of limitations, but rather to operate only when the limitations period may serve to cut off a plaintiff’s action. The statute allows the plaintiff an opportunity to take full advantage of whatever time is available under the applicable statute of limitations, and should that limitations period have run or be on the verge of running, allow the plaintiff one final opportunity to salvage his cause. There is no danger of prejudice to the defendant under these circumstances since the threat of continual filings is cut off upon reaching the applicable statute of limitations and then the one potential use of section 13—217.

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 (Ill. Rev. Stat. 1987, ch. 110, par. 2—1009). The plaintiffs here, due to the initial filing in Federal court, thereby forfeited their right to a voluntary dismissal once their State court action was filed, since to do so would cut off completely their ability to have their grievances heard.

The majority by its opinion is asserting that section 13—217 was created to prevent harassment by plaintiffs. I believe the better rule is to allow the trial court the discretion to determine when repeated filings by the plaintiff constitute harassment, a procedure easily handled through motions by the defendant. Establishing a hard and fast rule such as the majority does here is neither necessary nor required. I would affirm the orders of the circuit and appellate courts which reinstated the plaintiff’s complaint.

For this and the above reasons, I dissent.

JUSTICE CLARK joins in this dissent.