ILLINOIS OFFICIAL REPORTS
Appellate Court
Fiorito v. Bellocchio, 2013 IL App (1st) 121505
Appellate Court MICHAEL FIORITO, Plaintiff-Appellant, v. JOSEPH BELLOCCHIO,
Caption Defendant-Appellee.
District & No. First District, Fourth Division
Docket No. 1-12-1505
Rule 23 Order filed June 28, 2013
Rule 23 Order
withdrawn October 21, 2013
Opinion filed October 24, 2013
Held In a personal injury action arising from an October 19, 2001, automobile
(Note: This syllabus accident, the trial court properly dismissed the third successive complaint
constitutes no part of plaintiff filed, since plaintiff initially retained an attorney who filed an
the opinion of the court action without plaintiff’s knowledge on August 25, 2003, then plaintiff
but has been prepared discharged his first attorney and retained new counsel who filed a second
by the Reporter of action on October 16, 2003, after being unable to determine whether an
Decisions for the action had been filed against defendant, then, after learning of the action
convenience of the filed by his first attorney, plaintiff voluntarily dismissed the second action
reader.)
and proceeded with the first action until May 18, 2010, when he
voluntarily dismissed that action and refiled an action against defendant
on May 16, 2011, and under the circumstances, plaintiff’s one-year
refiling period began running on March 24, 2004, when the second suit
was voluntarily dismissed, not May 16, 2011, when the first suit was
dismissed.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-L-5031; the Hon.
Review Kathy M. Flanagan, Judge, presiding.
Judgment Affirmed.
Counsel on Randall F. Peters, of Randall F. Peters & Associates, of Chicago, for
Appeal appellant.
Bruce Farrel Dorn & Associates, of Chicago (Ellen J. O’Rourke and
Jonathan C. Suttle, of counsel), for appellee.
Panel PRESIDING JUSTICE HOWSE delivered the judgment of the court,
with opinion.
Justices Palmer and Taylor concurred in the judgment and opinion.
OPINION
¶1 This appeal arises from an order of the circuit court granting defendant Joseph
Bellocchio’s motion to dismiss plaintiff Michael Fiorito’s personal injury action. On appeal,
plaintiff contends that the trial court erred in granting defendant’s motion to dismiss on
grounds that refiling was beyond the one-year right to refile provided by statute. For the
following reasons, we affirm.
¶2 BACKGROUND
¶3 Plaintiff was involved in an automobile accident with defendant on October 19, 2001.
Plaintiff retained attorney Olson to represent him. On or about August 25, 2003, attorney
Olson filed a personal injury complaint, case No. 03 L 10225, against defendant seeking
damages for injuries plaintiff sustained in the accident. However, plaintiff was not aware that
attorney Olson filed the complaint. On or about September 19, 2003, plaintiff discharged
attorney Olson. Plaintiff subsequently retained new counsel, attorney Peters, who
unsuccessfully sought to determine whether attorney Olson had filed suit. Because he was
unable to ascertain whether a suit had been filed and because under the statute of limitations
the time to file the suit expired on October 19, 2003, attorney Peters filed suit for the same
accident against defendant on October 16, 2003, as case number 03 L 12346. Plaintiff
subsequently learned that a suit was filed by attorney Olson. On March 24, 2004, plaintiff
voluntarily dismissed case number 03 L 12346, the second suit, pursuant to section 2-1009
of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2004)), and
proceeded with case number 03 L 10225, the first suit.
¶4 On May 18, 2010, plaintiff voluntarily dismissed case number 03 L 10225, the first suit.
Plaintiff then refiled a complaint against defendant with respect to the same accident on May
16, 2011. Defendant filed a motion to dismiss under section 2-619 of the Code (735 ILCS
-2-
5/2-619 (West 2010)) arguing that section 13-217 of the Code (735 ILCS 13-217 (West
2010)) allowed for only one refiling of a case after voluntary dismissal. He further contended
that the filing was untimely and violated section 13-217 because the one-year period of
refiling began to run when plaintiff dismissed case number 03 L 12346 on March 24, 2004.
In response, plaintiff argued that the second case was dismissed pursuant to section 2-
619(a)(3) (735 ILCS 5/2-619(a)(3) (West 2004)) based on duplicative suits and that the
second suit was a nullity from its inception.
¶5 The trial court disagreed with plaintiff’s characterization of the dismissal, finding that
the order entered on March 24, 2004, dismissing the suit specifically stated that it was a
voluntary dismissal pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009 (West
2004)). Accordingly, plaintiff’s one-year refiling limitations period under section 13-217
began to run at that point. The court found that the May 16, 2011 refiling, while within one
year of the May 18, 2010 dismissal of the first suit, was beyond the one-year period provided
by section 13-217. The trial court cited to Rodgers-Orduno v. Cecil-Genter, 312 Ill. App. 3d
1150 (2000), in support of its determination that defendant’s motion to dismiss should be
granted.
¶6 Plaintiff then filed a motion to reconsider, arguing that the trial court misapplied the law.
The trial court denied plaintiff’s motion to reconsider, finding that plaintiff’s arguments were
the same as in the initial response to defendant’s motion and all were considered and
reviewed. This timely appeal followed.
¶7 ANALYSIS
¶8 On appeal, plaintiff contends that the trial court erred in granting defendant’s motion to
dismiss on grounds that refiling was beyond the one-year right provided by statute.
¶9 Defendant filed a motion to dismiss based on sections 2-619(a)(5) and 2-619(a)(9) of the
Code (735 ILCS 5/2-619(a)(5), (a)(9) (West 2010)). Section 2-619(a)(5) of the Code
authorizes a court to dismiss a complaint if the complaint was “not commenced within the
time limited by law.” 735 ILCS 5/2-619(a)(5) (West 2010). A section 2-619(a)(9) motion to
dismiss alleges the claim asserted against the defendant is “barred by other affirmative matter
avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2010). A
section 2-619 motion admits the legal sufficiency of the plaintiff’s cause of action and all
well-pleaded facts alleged in the complaint are taken as true, but conclusions of law or fact
unsupported by specific factual allegations may be disregarded. Johnson v. Du Page Airport
Authority, 268 Ill. App. 3d 409, 414 (1994). We review a section 2-619 motion to dismiss
de novo. Lydon v. Eagle Food Centers, Inc., 297 Ill. App. 3d 90, 92 (1998).
¶ 10 The bases for defendant’s motion to dismiss were sections 2-1009 and 13-217 of the
Code. Section 2-1009 gives a plaintiff the right to voluntarily dismiss an action, without
prejudice, in whole or in part any time before trial or hearing begins. 735 ILCS 5/2-1009
(West 2010); Hudson v. City of Chicago, 228 Ill. 2d 462, 483 (2008). Section 13-217
provides a plaintiff with the right to refile the cause of action within one year of the date of
the dismissal order, regardless of the fact that the statute of limitations may have run during
that time. Mercantile Holdings, Inc. v. Feldman, 258 Ill. App. 3d 748, 751 (1994). Section
-3-
13-217 is termed a “savings statute” or “revival statute” because it “revives” a plaintiff’s
previous, timely filed complaint, beyond the limitations period, where no adjudication on the
merits has been obtained and the complaint has been dismissed for procedural reasons.
Mercantile Holdings, 258 Ill. App. 3d at 751.
¶ 11 Plaintiff cites to Lydon in support of his contention that the trial court improperly
dismissed his case. In Lydon, the plaintiff, who was injured in defendant’s supermarket, hired
an attorney who filed suit in the circuit court of Lake County. The day prior, another attorney
filed suit in the circuit court of Cook County, allegedly on plaintiff’s behalf. Lydon, 297 Ill.
App. 3d at 92. Plaintiff averred that she did not know the Cook County attorney, had never
spoken with him or retained him to represent her. Lydon, 297 Ill. App. 3d at 92. The Cook
County attorney filed a motion to voluntarily dismiss the Cook County action, but never
presented it to the court, and it was subsequently dismissed for want of prosecution. Lydon,
297 Ill. App. 3d at 92. Approximately seven months later, plaintiff voluntarily dismissed the
Lake County action. Lydon, 297 Ill. App. 3d at 92. Exactly one year later, plaintiff refiled the
Lake County action, and defendant moved to dismiss arguing that section 13-217 allowed
only one refiling and since this was plaintiff’s third filing of the same incident, her action
was barred. Lydon, 297 Ill. App. 3d at 92. The trial court granted defendant’s motion and
plaintiff appealed. Lydon, 297 Ill. App. 3d at 92.
¶ 12 This court reversed, finding that defendant failed to prove that plaintiff should have been
held accountable for the Cook County filing. Lydon, 297 Ill. App. 3d at 93. The court also
found that plaintiff did not ratify the filing of the Cook County action. Lydon, 297 Ill. App.
3d at 96. The court deemed the filing of the Cook County action a nullity. Lydon, 297 Ill.
App. 3d at 97.
¶ 13 Lydon is distinguishable from the facts in the instant case. Here, a complaint was filed
without plaintiff’s knowledge on August 25, 2003. Plaintiff filed a second, identical case
against the same defendant arising from the same incident on October 16, 2003. That case
was admittedly filed with plaintiff’s authorization, but plaintiff voluntarily dismissed it
pursuant to section 2-1009 (735 ILCS 5/2-1009 (West 2004)) on March 24, 2004. Although
plaintiff argues here that the first case was filed without authority, unlike the plaintiff in
Lydon, plaintiff adopted and ratified the unauthorized case filed by the first attorney–plaintiff
prosecuted the case for over six years before he voluntarily dismissed it. Plaintiff then filed
a third case against defendant on May 16, 2011. Plaintiff apparently argued at separate times
that the two prior actions were void ab initio; however, that argument certainly has no merit
with regard to the first action which he prosecuted for over six years before he voluntarily
dismissed it. Nor can he argue that the second case was a nullity when he gave his attorney
permission to file it.
¶ 14 While plaintiff technically only refiled the case once as the first two cases were pending
simultaneously, the one-year period began to run from the first voluntary dismissal rather
than from the second one. Rodgers-Orduno v. Cecil-Genter, 312 Ill. App. 3d 1150, 1153
(2000). Thus, in the instant case, plaintiff’s one-year refiling period began to run on March
24, 2004, and his May 16, 2011, refiling was well beyond the one-year limitations period of
the initial voluntary dismissal. The trial court therefore did not err in granting defendant’s
motion to dismiss.
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¶ 15 CONCLUSION
¶ 16 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 17 Affirmed.
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