Mabry v. Village of Glenwood

2015 IL App (1st) 140356

FIRST DIVISION
SEPTEMBER 14, 2015

No. 1-14-0356

DANIEL and DENISE MABRY; DAVID and DANETTE )
COOPER, ) Appeal from the
) Circuit Court of
Plaintiffs, ) Cook County.
)
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 ) Honorable
Wynn; Thomas Yuskus; and Barbara Yuskus, ) Rodolfo Garcia,
) Judge Presiding.
Intervening Plaintiffs-Appellants). )

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
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
1-14-0356

they were tolled by the application of: (1) the relation back doctrine; (2) the equitable tolling

doctrine; or (3) the class action tolling rule. For the following reasons, we reverse the judgment

of the circuit court of Cook County.

¶2 BACKGROUND

¶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.

1
Mabry-Cooper’s original complaint also named as defendants the Metropolitan Water
Reclamation District of Greater Chicago; the Thorn Creek Basin Sanitary District; Cook County;
the Cook County Highway Department; the Forest Preserve District of Cook County; the Illinois
Department of Transportation; and the State of Illinois.
2
Count I alleged that all of the defendants, except for the State of Illinois and the Illinois
Department of Transportation, were “sanitary districts” subject to the provisions of 70 ILCS
2605/19; count II alleged a claim of common law trespass; count III alleged an action for
common law nuisance; count IV was an action for negligence relying on the doctrine of res ipsa
loquitur; count V alleged negligent operation of the sewer system; count VI alleged negligent
design of the sewer system; count VII alleged a taking of Mabry-Cooper’s property without just
compensation, in violation of the rights established under article I, section 15 of the Illinois
Constitution. Ill. Const. 1970, art. I, § 15.

-2-
1-14-0356

¶5 On November 13, 2007, Glenwood filed a motion which was brought under both sections

2-615 and 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West

2006)) to dismiss Mabry-Cooper's complaint. On April 28, 2008, Mabry-Cooper filed a first

amended complaint, which alleged only two counts, common law trespass and negligent

operation of the sewer system, against Glenwood. 3 On June 11, 2008, Glenwood filed an answer

to the first amended complaint and also filed a section 2-619 motion seeking partial dismissal.

On July 30, 2008, following the suggestion of the circuit court, Glenwood filed a motion for

judgment on the pleadings, which realleged the arguments contained in its June 11, 2008 section

2-619 motion. On December 3, 2008, the circuit court entered an order which struck parts of

Mabry-Cooper’s prayer for relief, denied Glenwood's motion to dismiss based on the public duty

doctrine, and granted Glenwood leave to raise the public duty doctrine as an affirmative defense.

On December 12, 2008, Glenwood filed its amended affirmative defenses to Mabry-Cooper's

first amended complaint. Subsequently, both parties engaged in a series of pretrial conferences.

¶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.

3
Mabry-Cooper did not rename the seven other defendants from the original class action
complaint.

-3-
1-14-0356

On April 30, 2013, Glenwood filed a section 2-619 motion to dismiss, requesting the circuit

court to dismiss the claims of the intervening plaintiffs with prejudice on the grounds that each of

their claims was barred by the statute of limitations. In the motion, Glenwood argued that the

intervening plaintiffs’ claims were governed by section 8-101(a) of the Local Governmental and

Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101(a) (West

2012)), which bars any claim filed against a governmental entity that is not brought within one

year of the date on which the cause of action accrued. Glenwood claimed that, because the

intervening plaintiffs’ claims accrued on April 16, 2006 at the onset of the flooding and property

damage to their homes, any claims which they filed subsequent to April 16, 2007 were time-

barred. Further, Glenwood acknowledged that there is a class action tolling rule which states

that an applicable statute of limitation is tolled for all members of the asserted class who would

be parties where the lawsuit is allowed to continue as a class action. However, Glenwood argued

that in Illinois the class action tolling rule applies only where the named plaintiffs seek

certification of the purported class "as soon as practicable" after the original complaint is filed.

Thus, Glenwood claims, because Mabry-Cooper did not move to certify the class as soon as

practicable after their proposed class action lawsuit was filed, the tolling rule did not preserve the

claims of the 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

-4-
1-14-0356

certification arose from various dilatory techniques on the part of Glenwood.

¶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).

¶ 11 ANALYSIS

¶ 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." 745 ILCS 10/8-101(a) (West 2012). Neither party disputes that Glenwood is a local

-5-
1-14-0356

entity subject to the provisions of the Tort Immunity Act. Accordingly, absent the application of

some tolling principle, the claims of Mabry-Cooper and the intervening plaintiffs became time-

barred one year after their causes 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

-6-
1-14-0356

suspends the applicable statute of limitations as to all asserted members of the class who would

have been parties had the suit been permitted to continue as a class action." 414 U.S. 538, 554,

(1974). Further, in American Pipe, the supreme court specified that the rule applied to cases in

which "class action status [was] denied solely because of failure to demonstrate that 'the class is

so numerous that joinder of all members is impracticable,' " in accordance with the requirements

of the Federal Code of Civil Procedure (Fed. R. Civ. P. 23(a)). Id. at 552-53.

¶ 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.

-7-
1-14-0356

Id. at 347-348. Following the denial of class certification, several additional plaintiffs filed their

own individual actions against the same defendant, which were dismissed as time-barred. Id. at

348. Despite this, and because the additional individual plaintiffs would have been a member of

the putative class had it been certified as such, the supreme court held that "[o]nce the statute of

limitations has been tolled, it remains tolled for all members of the putative class until class

certification is denied. At that point, class members may choose to file their own suits or to

intervene as plaintiffs in the pending action." Id. at 354.

¶ 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

-8-
1-14-0356

proceeded as individual plaintiffs. Id. at 239-40. Accordingly, the new plaintiffs' claims were

time-barred as they were filed long after the voluntary dismissal of the original plaintiffs'

proposed class action complaint and after the tolled statute of limitations period had expired. Id.

¶ 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 Ill. Rev. Stat. 1985, ch. 121½, ¶

137.8A). Plaintiff Hess had purchased securities from defendant I.R.E. through unregistered

brokers. Id. at 794. Consequently, Hess brought a proposed class action claim on behalf of all

persons who had purchased securities from the unregistered brokers against I.R.E. and 15 other

defendants who had used the services of those brokers. Id. Following this, the circuit court

dismissed the class action complaint for lack of standing, as Hess had dealt with only defendant

I.R.E. and not the other 15 defendants. Id. In response, Hess joined additional plaintiffs who

had purchased securities from the other 15 defendants and filed an amended class action

complaint. Id. at 794-95. The circuit court again dismissed the class allegations for lack of

standing. Id. at 795. Subsequently, Hess and 11 other plaintiffs filed individual actions against

the defendants. Id. The circuit court then ordered several defendants to repurchase the securities

which they had sold to specific plaintiffs, including Hess who had filed her original claim within

the statutory limitations period. Id. at 796. Additionally, the circuit court dismissed the claims

of the remaining plaintiffs who had not brought their claims within the statutory limitation

period, holding that the pendency of Hess' class action claims did not serve to toll the limitation

period. Id.

¶ 23 On appeal, the defendants claimed that the general rule of class action tolling did not

-9-
1-14-0356

apply where the class action complaint was dismissed because the named plaintiff lacked

standing. Id. at 808. In response, the plaintiffs argued that the tolling rule applied where a

named plaintiff had standing with respect to some but not all defendants. Id. Relying on cases in

other states on this issue, this court held that where a class action complaint is dismissed because

the named plaintiff lacks standing, application of the class action tolling rule should be decided

on a case by case basis with the court "weigh[ing] the interests that will be served by the

application of the tolling rule against the potential for abuse." Id. In doing so, the court held that

because Hess’ lack of standing as to any defendant other than I.R.E. was apparent on the face of

the complaint, it was unreasonable for absent class members to rely on an obviously defective

class action lawsuit to protect their rights. Id. at 810. Thus, this court found that allowing

application of the tolling rule would invite abuse by parties "attempt[ing] to use the class action

device to preserve the rights of potential plaintiffs who were sleeping on their rights." Id. The

court weighed this potential for abuse against the "comparatively small burden" of requiring the

inclusion of a named plaintiff with standing as to each alleged defendant. Id. at 811.

Accordingly, because Hess had standing as to defendant I.R.E., this court held that the class

action tolling rule served to protect only the claims of any plaintiff who had been injured by

defendant I.R.E. Id.

¶ 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.

- 10 -
1-14-0356

Id. at 462. Exactly one year after this dismissal, plaintiffs filed a proposed class action in the

circuit court of Cook County alleging a similar purported class, similar claim for relief, and

featuring 47 named plaintiffs who had also been named during the pendency of the dismissed

federal court class action. Id. On appeal from the circuit court's dismissal of their claim as

untimely, the plaintiffs claimed that the class action tolling rule served to protect their

subsequently filed class action in state court because the prior class action was timely filed in

federal court. Id. at 463. Our supreme court rejected this argument. Id. at 464. Our supreme

court found that such "cross-jurisdictional tolling" would invite forum-shopping by plaintiffs

seeking to take advantage of a generous tolling rule. Id. at 466. Further, our supreme court

asserted that such a rule would cause considerable delays in the litigation of state class action

claims and force Illinois courts to "entertain stale claims simply because the controlling statute of

limitations expired while a federal court considered whether to certify a class action." Id.

Accordingly, our supreme court held that a proposed class action timely filed in federal court did

not serve to toll the statute of limitations for actions subsequently filed in our circuit courts. Id.

at 467.

¶ 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

- 11 -
1-14-0356

residents of Glenwood, causing property damage. Mabry-Cooper filed their original proposed

class action complaint on April 16, 2007, exactly one year later and before the Tort Immunity

Act’s limitations period expired. Thus, from that date, the statute of limitations was tolled as to

all members of the putative class until the point at which class certification was denied or

abandoned. On March 28, 2013, when Mabry-Cooper abandoned the class action allegations,

the limitations period again started running. Since Mabry-Cooper's original proposed class

action was filed with one day remaining in the limitations period, the intervening plaintiffs then

had one day within which to file their intervening claims. Because Mabry-Cooper filed a second

amended complaint adding the intervening plaintiffs on the same day that Mabry-Cooper

abandoned their class action allegations, the intervening plaintiffs' claims against Glenwood

were timely filed pursuant to the class action tolling rule.

¶ 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,

4
See Nelson v. Murphy, 44 F.3d 497 (7th Cir. 1995); Bruemmer v. Compaq Computer
Corp., 329 Ill. App. 3d 755 (2002); Gelb v. Air Con Refrigeration & Heating, Inc., 326 Ill. App.

- 12 -
1-14-0356

Glenwood discusses some of the aforementioned cases which established and discussed the rule

before citing to cases with wildly different factual and procedural histories to establish its

asserted requirement of "due diligence." For example, Glenwood cites to Nelson v. Murphy for

the contention that, in class action litigation, a "[p]rompt decision one way or the other [on class

certification] is imperative *** so that the parties know whose interests are at issue." 44 F.3d

497, 500 (7th Cir. 1995). However, Glenwood fails to address the fact that the Seventh Circuit

made this assertion where plaintiffs had filed two motions for class certification on which the

district court failed to rule over a period of more than three years. Id. Next, Glenwood cites to

Bruemmer v. Compaq Computer Corp., for an example where this court stated that a plaintiff

failed to act with due diligence in moving for certification. Glenwood's argument here is also

misplaced. Bruemmer v. Compaq Computer Corp. involves application of the class action rule

that holds prospective class claims as moot where the proposed class plaintiffs have been offered

a tender of the full amount of damages prior to the filing of the plaintiffs' motion to certify the

class. 329 Ill. App. 3d 755, 762-63 (2002). There, the effect of a defendant’s tender offer relies

upon whether or not the proposed class plaintiffs exercised due diligence in moving to certify the

class. Id. at 763. This too is inapplicable to the case at hand.

¶ 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.

3d 809 (2001); Sommer v. United Savings Life Insurance Co., 128 Ill. App. 3d 808 (1984); Smith
v. Menold Construction, Inc., 348 Ill. App. 3d 1051 (2004); Kemp-Golden v. Department of
Children & Family Services, 281 Ill. App. 3d 869 (1996).

- 13 -
1-14-0356

¶ 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. 414 U.S. 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

- 14 -
1-14-0356

promote justice by preventing surprises through the revival of claims that have been allowed to

slumber until evidence has been lost, memories have faded, and witnesses have disappeared.' "

Id. at 554 (quoting Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342,

348-49 (1944)). The Supreme Court reasoned that these ends:

"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

- 15 -
1-14-0356

notice of both the size and subject matter of a potential claim by the timely filing of a proposed

class action lawsuit.

¶ 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.

- 16 -