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Appellate Court Date: 2020.10.30
11:59:08 -05'00'
Eighner v. Tiernan, 2020 IL App (1st) 191369
Appellate Court STANLEY EIGHNER, Plaintiff-Appellee, v. PATRICIA J.
Caption TIERNAN, Defendant-Appellant.
District & No. First District, Fourth Division
No. 1-19-1369
Filed March 5, 2020
Rehearing denied April 17, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 18-L-11146; the
Review Hon. Moira S. Johnson, Judge, presiding.
Judgment Certified question answered.
Judgment reversed and remanded with directions.
Counsel on Michael J. Ripes and Keith J. Rhine, of Ripes, Nelson, Baggot &
Appeal Kalobratsos, P.C., of Chicago, for appellant.
John P. DeRose, of John P. DeRose & Associates, of Hinsdale, for
appellee.
Panel JUSTICE REYES delivered the judgment of the court, with opinion.
Presiding Justice Gordon and Justice Lampkin concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, Stanley Eighner, filed a complaint in the circuit court of Cook County alleging
he was injured in a motor vehicle collision involving defendant, Patricia J. Tiernan. Plaintiff
subsequently moved to voluntarily dismiss the complaint with leave to refile pursuant to
section 2-1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2014)). The
circuit court granted the motion. Less than a year later, plaintiff attempted to refile his
complaint under the original case number (14-L-11428). After repeated failures at motioning
the matter before the circuit court, plaintiff filed his complaint under a new case number (18-
L-11146) and was successful. Thereafter, defendant filed a motion to dismiss pursuant to
section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2018)), in which she argued
that plaintiff did not timely refile his complaint as contemplated by section 13-217 of the Code
(735 ILCS 5/13-217 (West 1994)). 1 The circuit court denied the motion to dismiss and
certified the following question for appeal pursuant to Illinois Supreme Court Rule 308 (eff.
Jan. 1, 2016): “Whether refiling a complaint in a previously dismissed lawsuit as opposed to
filing a new action satisfies the language of 735 ILCS 5/13-217, which states a plaintiff may
commence a new action after the case is voluntarily dismissed pursuant to 735 ILCS 5/2-1009.”
For the reasons that follow, we answer the certified question in the negative. Furthermore, we
reverse the judgment of the circuit court and remand with directions to grant the motion to
dismiss.
¶2 BACKGROUND
¶3 On November 3, 2014, plaintiff filed a negligence action against defendant seeking
damages for personal injuries he received in a motor vehicle collision that occurred on
November 2, 2012. Thereafter, on May 18, 2017, the circuit court granted plaintiff’s motion to
voluntarily dismiss the matter pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009
(West 2014)). The order provided that the matter was voluntarily dismissed “without prejudice
and with leave to reinstate within one year of the date of this Order pursuant to the terms of
Section 5/2-1009 of the Illinois Code of Civil Procedure.”
¶4 On April 23, 2018, plaintiff filed (under the original case number) a “Notice of Refiling
Complaint Being Reinstated Within One Year of Voluntary Dismissal” along with a copy of
the complaint being refiled. Plaintiff then notified defense counsel by leaving messages with
defense counsel’s assistant and through e-mails that the matter had been refiled. When the
matter was not set for case management, plaintiff contacted the circuit court of Cook County’s
clerk’s office to inquire about the status of the case. Plaintiff was advised to refile the matter
under a new case number, which he did on October 15, 2018.
¶5 After defendant was served with the complaint in the newly filed matter, she moved to
dismiss the case pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West
2018)). Defendant maintained that because the complaint was refiled more than one year after
1
Public Act 89-7, which amended section 13-217 of the Code effective March 1995 (Pub. Act 89-
7 (eff. Mar. 9, 1995)), was held to be unconstitutional in its entirety by the Illinois Supreme Court in
Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). Accordingly, the effective version of section 13-
217 of the Code is the version that was in effect prior to the March 1995 amendment. Hudson v. City
of Chicago, 228 Ill. 2d 462, 469 n.1 (2008).
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the initial complaint was voluntarily dismissed, as required by section 13-217 of the Code, the
matter should be dismissed with prejudice. In response, plaintiff asserted that he was not
required to refile the complaint under a new case number in order to comply with section 13-
217 of the Code and that he timely refiled the complaint in the initial action on April 23, 2018.
In reply, defendant asserted that in order to comply with section 13-217, plaintiff had to vacate
the dismissal and seek leave to refile the complaint or refile the matter under a new case
number. Defendant argued that because plaintiff did not seek leave from the court and untimely
filed a new cause of action, her motion to dismiss should be granted.
¶6 The circuit court denied the motion to dismiss and certified the question at issue in this
appeal: “Whether refiling a complaint in a previously dismissed lawsuit as opposed to filing a
new action satisfies the language of 735 ILCS 5/13-217, which states a plaintiff may
commence a new action after the case is voluntarily dismissed pursuant to 735 ILCS 5/2-1009.”
¶7 ANALYSIS
¶8 As this appeal concerns a question of law certified by the circuit court pursuant to Illinois
Supreme Court Rule 308 (eff. Jan. 1, 2016), our review is de novo. Rozsavolgyi v. City of
Aurora, 2017 IL 121048, ¶ 21. Under the de novo standard, “we perform the same analysis a
trial court would perform and give no deference to the judge’s conclusions or specific
rationale.” Bituminous Casualty Corp. v. Iles, 2013 IL App (5th) 120485, ¶ 19. De novo review
is also appropriate as the appeal arose in the context of an order denying a section 2-619 motion
to dismiss (Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006)) and its resolution turns
on a question of statutory interpretation of section 13-217 of the Code. See Rosenbach v. Six
Flags Entertainment Corp., 2019 IL 123186, ¶ 18.
¶9 The rules of statutory construction are well known:
“The fundamental rule of statutory construction is to ascertain and give effect to the
legislature’s intent. [Citation.] The best indication of legislative intent is the statutory
language, given its plain and ordinary meaning. [Citation.] Where the language is clear
and unambiguous, we must apply the statute without resort to further aids of statutory
construction. [Citation.] However, if the statutory language is ambiguous or unclear,
this court may look beyond the act’s language to ascertain its meaning. [Citation.] A
statute is ambiguous if it is capable of more than one reasonable interpretation.
[Citation.] The construction of a statute is a question of law that we review de novo.”
Nowak v. City of Country Club Hills, 2011 IL 111838, ¶ 11.
¶ 10 Before this court, defendant argues that the certified question should be answered in the
negative. Defendant maintains that, under the plain language of section 13-217, a “new action”
requires the filing of a new lawsuit with the circuit clerk, relying on language in Richter v.
Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 48. Plaintiff disagrees that section 13-217 is
limited to only those actions that are refiled under a new case number and maintains that there
is no rule, local or otherwise, that requires a plaintiff to do so in order to be in compliance with
section 13-217. Accordingly, plaintiff contends the circuit court correctly determined that his
refiling of the complaint in the 2014 action was sufficient to satisfy section 13-217. 2
We observe that plaintiff raised numerous factual issues in his brief. Such factual arguments are
2
improper when a matter is before us on a certified question. See Rozsavolgyi, 2017 IL 121048, ¶ 25.
Accordingly, our review is limited to the issues raised by the certified question and we will not go
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¶ 11 We begin with an examination of the statute at issue. Section 13-217 of the Code is a
savings provision that allows plaintiffs to refile a cause of action if its prior disposition was
based on the reasons outlined in the statute. 735 ILCS 5/13-217 (West 1994); Timberlake v.
Illini Hospital, 175 Ill. 2d 159, 162 (1997). Its purpose is to facilitate the disposition of
litigation upon the merits and to avoid its frustration upon grounds that are unrelated to the
merits. Gendek v. Jehangir, 119 Ill. 2d 338, 343 (1988); Schrager v. Grossman, 321 Ill. App.
3d 750, 754 (2000). To that end, section 13-217 provides a plaintiff with the absolute right to
refile a complaint within one year or within the remaining limitations period, whichever is
greater. Timberlake, 175 Ill. 2d at 163. Section 13-217 provides in pertinent part:
“In the actions specified in Article XIII of this Act or any other act or contract where
the time for commencing an action is limited, if *** the action is voluntarily dismissed
by the plaintiff, *** 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 the action is voluntarily dismissed
by the plaintiff ***.” 735 ILCS 5/13-217 (West 1994).
¶ 12 Applying the rules of statutory construction, we conclude that the plain language of section
13-217 does not support plaintiff’s interpretation that reinstating the complaint under the
original case number satisfies the “new action” requirement. The “plain language of a statute
provides the most reliable indicator of legislative intent, and we must not depart from the plain
language of a statute by reading into it exceptions, limitations, or conditions that conflict with
the express legislative intent.” Hawes v. Luhr Brothers, Inc., 212 Ill. 2d 93, 105 (2004). The
phrase “may commence a new action” is unambiguous. “New” denotes a new case number, a
new filing fee, and a new summons to issue. Had the legislature intended to allow a plaintiff
to file an action after a dismissal under the old case number, it would have so provided and
would not have used the words “new action” in section 13-217. In addition, the legislature
would have provided a vehicle in which to vacate the dismissal.
¶ 13 This interpretation is supported by our supreme court’s statement in Richter that “[a] refiled
action pursuant to section 13-217 is not a restatement of the old action, but an entirely new and
separate action.” Richter, 2016 IL 119518, ¶ 48. Indeed, our supreme court has traditionally
found a distinction between original and refiled actions when considering section 13-217. See
Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 504 (1997) (“The original and
refiled actions are completely distinct actions.”). This distinction has also been made by other
courts. See Wilson v. Brant, 374 Ill. App. 3d 306, 311 (2007) (the commencement of a new
action under section 13-217 is not a “re-commencement” of the original action); Ramos v.
Kewanee Hospital, 2013 IL App (3d) 120001, ¶ 85 (same); Wells Fargo Bank v. Zajac, 2017
IL App (1st) 160787, ¶ 17 (“Section 13-217 pertains to refiling; it does not apply to
reinstatement.”).
¶ 14 Lastly, we observe that in answering the certified question our jurisdiction is limited to the
question presented to us by the circuit court. Lewis v. NL Industries, Inc., 2013 IL App (1st)
122080, ¶ 5. In this instance, we were limited to the interpretation of section 13-217 of the
beyond the question to consider other matters. See American Family Mutual Insurance Co. v. Plunkett,
2014 IL App (1st) 131631, ¶ 29.
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Code. We do not opine on whether the reinstatement of a case upon motion by the plaintiff
qualifies as a “new action” under section 13-217. Indeed, plaintiff here filed no such motion.
¶ 15 Based on the plain language of section 13-217, we conclude that the phrase “may
commence a new action” as set forth in section 13-217 requires a plaintiff to refile the
complaint under a new case number.
¶ 16 Having answered the certified question, in the interests of judicial economy and the need
to reach an equitable result, we next consider the propriety of the circuit court’s order that gave
rise to these proceedings. See De Bouse v. Bayer AG, 235 Ill. 2d 544, 558 (2009). The circuit
court denied defendant’s motion to dismiss on the basis that plaintiff timely refiled her
complaint pursuant to section 13-217 of the Code. As we have concluded that plaintiff’s actions
here did not effectuate a proper refiling of the case, we find the circuit court erred in denying
defendant’s motion to dismiss. Accordingly, we reverse the judgment of the circuit court and
remand this cause to the circuit court with direction to grant the motion to dismiss.
¶ 17 CONCLUSION
¶ 18 For the reasons stated, we answer the certified question in the negative and reverse the
judgment of the circuit court.
¶ 19 Certified question answered.
¶ 20 Judgment reversed and remanded with directions.
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