D'Last Corp. v. Ugent, 1-96-0016

• Decision Date: 30 April 1997
• Docket Number: No. 1-96-0016,1-96-0016
• Citation: 224 Ill.Dec. 30,681 N.E.2d 12,288 Ill.App.3d 216
• Parties: , 224 Ill.Dec. 30 D'LAST CORPORATION, f.k.a. D'Last Studio Photography, Inc. v. Avery A. UGENT; The Bradley Adam Corporation; American-International Immigration Agency, Inc.; and Pan American Photographic Supply Corporation.
• Court: United States Appellate Court of Illinois

Page 12

681 N.E.2d 12

288 Ill.App.3d 216, 224 Ill.Dec. 30

D'LAST CORPORATION, f.k.a. D'Last Studio Photography, Inc. v. Avery A. UGENT; The Bradley Adam Corporation American-International Immigration Agency, Inc. and Pan American Photographic Supply Corporation.

No. 1-96-0016.

Appellate Court of Illinois First District, Third Division.

April 30, 1997.

Rodney F. Reeves, Chicago, for Plaintiff-Appellant.

Robert A. Filpi, Stack & Filpi Chartered, Chicago, for Defendants-Appellees.

Justice GORDON delivered the opinion of the court:

D'Last Corporation, the plaintiff, appeals from the dismissal of its complaint pursuant to section 13-217 of the Illinois Code of Civil Procedure (735 ILCS 5/13-217 (West 1994)) which permits a single refiling of an action.

The facts relevant to disposition of this case show that the plaintiff first filed a complaint for injunctive and other relief on January 15, 1992 in the chancery division of the circuit court of Cook County. In that action, the plaintiff alleged tortious conduct by the defendants against plaintiff's passport photography business that commenced in July 1991 and continued through the date of the complaint. Count I sought temporary and permanent injunctions based upon defendants' interference with plaintiff's business, and counts II and III sought compensatory and punitive damages based upon defendants' slander of plaintiff's business and intentional interference with plaintiff's contractual relationships. On September 2, 1992, plaintiff filed an amended complaint changing the named defendants and adding claims for trespass, public and private nuisance, unfair competition, deceptive trade practices, and conspiracy. ¹ On March 4, 1993, after plaintiff's request for injunctive relief was mooted by the cessation of wrongful conduct by the defendants, the chancery court transferred plaintiff's case to the law division for litigation of plaintiff's tort and statutory claims. On January 31, 1994, plaintiff's amended complaint was dismissed for want of prosecution; but, pursuant to plaintiff's motion to vacate that dismissal, the cause was voluntarily dismissed by the plaintiff on March 10, 1994.

On February 18, 1994, D'Last filed a complaint in the United States District Court for the Northern District of Illinois. That complaint, filed against many of the defendants named in the earlier action, ² alleged acts of harassment and tortious and criminal conduct, including solicitation to murder and extortion, during the period of July 1991 through November 1992 and pled theories of trade slander, intentional interference with contract and prospective contract, consumer fraud, antitrust violations (see 15 U.S.C. § 1 et seq. (Sherman Antitrust Act)) and RICO violations (see 18 U.S.C. § 1961 et seq. (Racketeer Influenced and Corrupt Organizations Act)). On September 19, 1994, the federal court dismissed the RICO and antitrust counts for failure to state claims upon which relief could be granted; and, refusing to exercise supplemental jurisdiction, dismissed the state law counts without prejudice (see 28 U.S.C. § 1367). The plaintiff appealed the dismissal of the RICO count. That dismissal was affirmed by the Seventh Circuit Court of Appeals on April 5, 1995.

On March 8, 1995, D'Last filed the action which is the subject of the instant appeal. The defendants named in that action were named as defendants in the earlier state and federal actions. The complaint alleged various acts of wrongdoing by the defendants and their employees during the period of August 1991 through November 1992. It sounded in nuisance (counts I, II, III); trade slander and libel (counts IV, V, VI); consumer fraud and deceptive trade practices (counts VII, VIII); and tortious interference with contract and potential contract (counts IX, X, XI, XII). On April 17, 1995, the defendants moved to dismiss the complaint on the grounds that it was barred by section 13-217 of the Code of Civil Procedure (the Code) (735 ILCS 5/13-217 (West 1994)); and the trial court dismissed the complaint with respect to "all causes of action which were raised or could have been raised in the 1992 cause of action between the parties." (R.C. 208). On July 24, 1995, D'Last filed an amended 24-count complaint repleading the 12 counts previously dismissed. In those counts, however, D'Last limited the alleged wrongful conduct of the defendants to acts that occurred during the period of August 1991 to September 2, 1992. The latter 12 counts, which set forth identical theories of recovery, were premised upon defendants' wrongful conduct that allegedly occurred during the period of September 2, 1992 to November 1992. On November 29, 1995, that amended complaint was dismissed without leave to amend pursuant to section 13-217 of the Code.

Section 13-217 of the Code of Civil Procedure 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, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, * * * 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, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by the United States District Court for improper venue." 735 ILCS 5/13-217 (West 1994).

Based upon this provision, the trial court dismissed plaintiff's second state court complaint finding that it was an impermissible second refiling. See Flesner v. Youngs Development Co., 145 Ill.2d 252, 164 Ill.Dec. 157, 582 N.E.2d 720 (1991) (stating that section 13-217 permits one refiling).

The plaintiff argues on appeal that its second state court complaint was not a second refiling. In support of this argument, the plaintiff contends that the federal action was not the single permissible refiling because that action was not dismissed on one of the bases enumerated in section 13-217. See Fanaro v. First National Bank, 160 Ill.App.3d 1030, 112 Ill.Dec. 432, 513 N.E.2d 1041 (1987). The plaintiff also argues that the federal complaint was not a refiling of the earlier state action because it contained federal claims not previously raised in the state action. Finally, the plaintiff argues that, even if the second state court complaint was a second refiling, it was so only with respect to counts I through XII. The plaintiff argues that counts XIII through XXIV raise new causes of action and, as such, do not constitute a refiling of the earlier state complaint. For the reasons discussed below, we reject plaintiff's arguments and affirm the dismissal of plaintiff's amended complaint in its entirety.

Plaintiff's first contention, that the federal complaint was not the single refiling permitted by section 13-217, finds support in the case of Fanaro v. First National Bank, 160 Ill.App.3d 1030, 112 Ill.Dec. 432, 513 N.E.2d 1041 (1987). In Fanaro, the plaintiff filed an action in the state court which was dismissed for want of prosecution. The plaintiff then filed a complaint in the federal court. That complaint raised the previously dismissed state claims and raised federal statutory violations not previously alleged. The federal court dismissed the federal claims for failure to state claims upon which relief could be granted and terminated the pendent state claims. The plaintiff then filed a third complaint in the state court in which he realleged the prior state claims and added a new count for common law fraud. The defendants moved to dismiss the third complaint as an impermissible refiling under section 13-217 of the Code; but the court denied the motion. The appellate court affirmed the trial court and held that the federal court's refusal to exercise pendent jurisdiction over state law claims was not a dismissal for lack of subject matter jurisdiction such that the federal court refiling did not constitute the single permissible filing under section 13-217.

Recently, our supreme court rejected the holding in Fanaro and its distinction between a federal court's dismissal of the refiled complaint for lack of supplemental jurisdiction (which includes pendent jurisdiction) and a federal court's dismissal of the refiled complaint for lack of subject matter jurisdiction. Timberlake v. Illini Hospital, 175 Ill.2d 159, 221 Ill.Dec. 831, 676 N.E.2d 634 (1997). In Timberlake, the court held that a federal court's "dismissal for lack of supplemental jurisdiction has no different effect on a plaintiff's right to refile under section 13-217 than does a dismissal for lack of subject matter jurisdiction generally." Timberlake, at 164, 221 Ill.Dec. at 834, 676 N.E.2d at 637. Under facts identical to Fanaro and to the instant case, the Timberlake court upheld the dismissal of the plaintiff's second state court action because the plaintiff's refiling of her identical state court claims in the federal court after those claims had been dismissed in the earlier state court action constituted the single refiling permitted by section 13-217 of the Code.

Here, as in Timberlake, the plaintiff was entitled to one refiling of the claims voluntarily dismissed in the first action filed in the circuit court of Cook County. If the federal complaint realleged the causes of action raised in the prior state action, then that action would have been the single refiling of those claims permitted by section 13-217 even though the federal court dismissed the state claims for lack of...