Arnold v. Kapraun, P.C.

• Decision Date: 26 December 2018
• Docket Number: No. 1-17-2854,1-17-2854
• Citation: 138 N.E.3d 780,435 Ill.Dec. 166,2018 IL App (1st) 172854
• Parties: Jeff ARNOLD, d/b/a Arnold Family Chiropractic, Individually and as the Representative of a Class of Similarly Situated Persons, Plaintiff-Appellant, v. KAPRAUN, P.C., and Dr. Michael Kapraun, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 172854
138 N.E.3d 780
435 Ill.Dec. 166

Jeff ARNOLD, d/b/a Arnold Family Chiropractic, Individually and as the Representative of a Class of Similarly Situated Persons, Plaintiff-Appellant,
v.
KAPRAUN, P.C., and Dr. Michael Kapraun, Defendants-Appellees.

No. 1-17-2854

Appellate Court of Illinois, First District, Second Division.

Opinion filed December 26, 2018

Phillip A. Bock, Robert M. Hatch, and David M. Oppenheim, of Bock, Hatch, Lewis & Oppenheim, LLC, of Chicago, and Brian J. Wanca, of Anderson Wanca, of Rolling Meadows, for appellant.

Vincent A. Lavieri, of Gardiner Koch Weisberg & Wrona, of Chicago, for appellees.

JUSTICE HYMAN delivered the judgment of the court, with opinion.

435 Ill.Dec. 167

¶ 1 Once the statute of limitations tolls for absent class members, when does the statute begin to run again after the appellate court reverses the order of certification and the supreme court denies the petition for leave to appeal? Immediately from the date of the appellate court's original judgment? From the date of the supreme court's denial of the petition for leave to appeal (PLA)? From the date the clerk of court issued the mandate? Or from some other date? We hold that the statute of limitations resumed the day the supreme court denied the PLA. Accordingly, the intervening plaintiff waited too long to move to intervene, and we affirm the trial court's dismissal. Our decision obviates the need to consider plaintiff's remaining arguments on appeal.

¶ 2 Background

¶ 3 We discuss the facts most pertinent to our decision.

¶ 4 On March 2, 2006, and again in September 2006, defendants Kapraun, P.C., and Dr. Michael Kapraun and others allegedly "faxed" an unsolicited one-page advertisement to 7877 recipients without express permission or invitation. The original

138 N.E.3d 782

435 Ill.Dec. 168

complaint, filed on July 7, 2009, tolled the statute of limitations. The complaint alleged violations of the federal Telephone Consumer Protection Act of 1991 (TCPA) ( 47 U.S.C. § 227 et seq. (2012) ) and common law conversion and did not name Dr. Michael Kapraun and Kapraun, P.C., as defendants. Six months later, the complaint was amended to add Kapraun and Kapraun, P.C., as defendants. The plaintiff's attorneys, however, voluntarily dismissed that lawsuit and, at the same time, filed a new class action with Byer Clinic serving as plaintiff.

¶ 5 In June 2011, Byer Clinic voluntarily dismissed all the defendants except Dr. Kapraun and Kapraun, P.C. Thereafter, the trial court certified a class of recipients of Kapraun's faxes and appointed Byer Clinic as class representative. Kapraun appealed to this court under Illinois Supreme Court Rule 306(a)(8) (eff. Feb. 16, 2011).

¶ 6 On January 19, 2016, we issued Byer Clinic & Chiropractic, Ltd. v. Kapraun , 2016 IL App (1st) 143733, 400 Ill.Dec. 295, 48 N.E.3d 244, reversing class certification because Byer Clinic & Chiropractic, Ltd. (Byer Clinic) (i) lacked the ability to fairly and adequately protect the interest of the class and (ii) did not satisfy the commonality requirement for certification as the class representative. We remanded to the trial court for further proceedings, since Byer Clinic's individual action remained viable.

¶ 7 Byer Clinic petitioned for leave to appeal to the Illinois Supreme Court. The PLA was denied on May 25, 2016. The clerk of the appellate court issued the mandate on July 5, 2016.

¶ 8 On August 22, 2016, Jeff Arnold petitioned for leave to intervene as class representative for the recipients of the March 2006 faxes. On February 24, 2017, Kapraun moved to dismiss the complaint under section 2-619(a)(5) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(5) (West 2016) ), arguing mootness and the statute of limitations, and to strike the class claims under section 2-615 of the Code. Id. § 2-615. After a hearing, the trial court found the statute of limitations resumed running on May 25, 2016, the date of the denial of the PLA, which left 64 days before the four-year statute of limitations on TCPA violations expired. Arnold's August 22 petition to intervene was filed 89 days after the denial of the PLA. The trial court dismissed the complaint for expiration of the statute of limitations.

¶ 9 Standard of Review

¶ 10 We review a dismissal under section 2-619 de novo . Mabry v. Village of Glenwood , 2015 IL App (1st) 140356, ¶ 12, 397 Ill.Dec. 97, 41 N.E.3d 508 ; 735 ILCS 5/2-619 (West 2016).

¶ 11 Analysis

¶ 12 Impact of Appellate Court's Decertification of Class

¶ 13 In Byer Clinic , 2016 IL App (1st) 143733, 400 Ill.Dec. 295, 48 N.E.3d 244, this court found the purported class representative, Byer Clinic, failed to meet the adequacy requirement. We entered a judgment reversing the trial court's class certification order and remanded to the circuit court. Arnold now argues, in conclusory fashion, that the class remained certified, even though it lacked a class representative, and, therefore, the statute of limitations remained tolled. Arnold claims that we "implicitly contemplated a remand for substitution of an adequate class representative." (Emphasis added.). To the contrary, the opinion explicitly states, "[w]e find that the trial court abused its discretion in certifying the [Byer] Clinic as the...