DeClerck v. Simpson

• Decision Date: 14 August 1991
• Docket Number: No. 70510,70510
• Citation: 143 Ill.2d 489,577 N.E.2d 767,160 Ill.Dec. 442
• Parties: , 160 Ill.Dec. 442 Jack DeCLERCK, Appellee, v. Gayle SIMPSON et al., Appellants.
• Court: Illinois Supreme Court

Page 767

577 N.E.2d 767

143 Ill.2d 489, 160 Ill.Dec. 442

Jack DeCLERCK, Appellee, v. Gayle SIMPSON et al., Appellants.

No. 70510.

Supreme Court of Illinois.

Aug. 14, 1991.

Jeffery C. Taylor, Decatur, and Merry C. Rhoades, Carbondale, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., for appellants.

Joseph A. Bartholomew, Cook, Shevlin, Keefe, Ysursa, Braver & Bartholomew, Ltd., Belleville, for appellee.

Justice THOMAS J. MORAN delivered the opinion of the court:

Plaintiff, Jack DeClerck, filed suit in the circuit court of Christian County alleging that defendants, Gayle Simpson (Simpson) and WAND Television, Inc. (WAND), had broadcast false statements about him. The defendants filed a motion to dismiss based on the statute of limitations (Ill.Rev.Stat.1987, ch. 110, par. 13-201), which was denied. The circuit court then granted the defendants' application for interlocutory appeal (134 Ill.2d R. 308). Thereafter, the appellate court affirmed the trial court's decision and remanded the cause for further proceedings. (200 Ill.App.3d 889, 146 Ill.Dec. 271, 558 N.E.2d 234.) The defendants' petition for leave to appeal to this court was allowed (134 Ill.2d R. 315).

The sole issue for review is whether section 13-217 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 13-217) (hereinafter savings statute) is applicable to a case that was initially filed in Federal district court, and later dismissed by that court because of improper venue.

In August 1987, plaintiff, the sheriff of Christian County, originally filed a cause of action in the United States District Court for the Eastern District of Missouri, alleging that, in 1986, the defendants broadcasted libelous statements about him. The complaint also alleged that Simpson and WAND conspired with other defendants to violate his civil rights. On a motion to dismiss for lack of jurisdiction and improper venue, the Federal court, without discussing the jurisdictional issue, dismissed the counts against Simpson and WAND on the basis of improper venue.

Following the dismissal of the Federal action, the plaintiff, on March 30, 1988, filed a complaint in the circuit court of Christian County, Illinois, alleging that defendants Simpson and WAND knowingly broadcasted false statements about him. The defendants then filed a motion to dismiss claiming the alleged defamatory statements had been made more than one year before the filing of the complaint, and therefore, the statute of limitations period (Ill.Rev.Stat.1987, ch. 110, par. 13-201) had run. The defendants acknowledged that the Illinois Code of Civil Procedure had a savings statute (Ill.Rev.Stat.1987, ch. 110, par. 13-217), but argued that it did not apply to this case.

In a written opinion, the circuit court judge denied the motion to dismiss on the basis that there had not been an adjudication on the merits in the Federal court, thus the dismissal of the plaintiff's Federal case was involuntary. The judge then held that the savings statute applied, and the cause of action was, thus, not time-barred, as it was filed within one year from the dismissal of the Federal action. Upon the defendants' application, the circuit court certified the question for interlocutory review. (134 Ill.2d R. 308.) The appellate court then granted the application for interlocutory review and, with one justice dissenting, affirmed the circuit court, finding that the savings statute applied to all cases of involuntary dismissals. 200 Ill.App.3d 889, 146 Ill.Dec. 271, 558 N.E.2d 234.

In pertinent part, the savings statute states:

"[I]f judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or 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, 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 such judgment is reversed or entered against the plaintiff, or 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." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 110, par. 13-217.)

The instant case can only be "saved" if the plaintiff can show that a dismissal for improper venue fits within the statute.

At the outset it should be noted that the verbiage of the statute must be given its plain and ordinary meaning, and the intention of the legislature is best surmised from the language of the statute. (Franzese v. Trinko (1977), 66 Ill.2d 136, 139, 5 Ill.Dec. 262, 361 N.E.2d 585.) In order to fully understand the savings statute, a review of its history (and that of its predecessor, Ill.Rev.Stat.1963, ch. 83, par. 24a) is necessary. This court first interpreted the statute in the case of Roth v. Northern Assurance Co. (1964), 32 Ill.2d 40, 203 N.E.2d 415. The language of the savings statute in effect at the time of Roth was as follows:

"In any of the actions specified in any of the sections of this act or any other act or in any contract where the time of commencement of any action is limited, if judgment shall be given for the plaintiff, and the same be reversed by writ of error, or upon appeal; or if a verdict pass for the plaintiff, and, upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or, if the plaintiff has heretofore been nonsuited or shall be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors, or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after." (Emphasis added.) Ill.Rev.Stat.1963, ch. 83, par. 24a.

The dispute at issue in Roth was whether the savings statute applied to an action that had been filed within one year after the original action was dismissed by a Federal district court for lack of jurisdiction. The court stated that "[t]he plain purpose of section 24 [the savings statute] is to facilitate the disposition of litigation upon the merits and to avoid its frustration upon grounds that are unrelated to the merits." (Roth, 32 Ill.2d at 48, 203 N.E.2d 415.) Thus, the court held that a Federal court's dismissal of a case for lack of jurisdiction falls within the "nonsuit" provision of the statute.

Following the Roth decision, the savings statute was amended so that the clause including the term "nonsuit" was dropped, and replaced with the clause: "or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution." (Emphasis added.) (Ill.Rev.Stat.1977, ch. 83, par. 24a.) The amended statute was first discussed by this court in dictum in Hupp v. Gray (1978), 73 Ill.2d 78, 22 Ill.Dec. 513, 382 N.E.2d 1211.

The discussion of the amended savings statute in Hupp was dictum because the underlying cause of action arose under the prior statute and the court held that the amendment would not be applied retroactively. Hupp's complaint had been dismissed by the Federal district court for lack of jurisdiction prior to his filing a cause of action in an Illinois circuit court. The court found that the pre-1977 savings statute applied to the case, but that the amended (post-1977) act would not have applied "since his action was nonsuited and not voluntarily dismissed." Hupp, 73 Ill.2d at 82, 22 Ill.Dec. 513, 382 N.E.2d 1211.

This court thereafter reviewed a case under the savings statute, as amended in 1977, in Conner v. Copley Press, Inc. (1984), 99 Ill.2d 382, 76 Ill.Dec. 820, 459 N.E.2d 955. In Conner, the plaintiff had filed a defamation action against the defendant in the Federal District Court for the Southern District of Illinois. The court dismissed the case because of lack of subject matter jurisdiction. The plaintiff thereafter filed a complaint, with the same allegations, in the circuit court for Sangamon County. Although the plaintiff's filing in Sangamon County would have been within the allowable period if the savings statute applied, the defendant filed a motion to dismiss. The circuit court denied the motion. (Conner, 99 Ill.2d at 383-84, 76 Ill.Dec. 820, 459 N.E.2d 955.) On appeal to this court, it was held that the savings statute (as it existed at the time of the lawsuit) would not apply to a case dismissed from Federal court for lack of subject matter jurisdiction. The court further noted that "[d]ismissals for lack of jurisdiction are not voluntary dismissals * * *, but are dismissals by the court on another ground, viz., lack of jurisdiction." Conner, 99 Ill.2d at 387, 76 Ill.Dec. 820, 459 N.E.2d 955.

During the period between Hupp and Conner, the savings statute was again amended to make the statue applicable when "the action is dismissed by a United States District Court for lack of jurisdiction." (Emphasis added.) (Ill.Rev.Stat.1981, ch. 83, par. 24a.) (The amended statute did not apply in Conner because the underlying cause of action arose prior to 1981.) The instant case presents this court with its first opportunity to review the revised statute. The appellate court in the instant case held that the amendment had the effect of limiting Conner and reviving Roth. (200 Ill.App.3d at 893, 146 Ill.Dec. 271, 558 N.E.2d 234.) The reasoning of the appellate court was stated as follows:

"In the words of Justice Schaefer in Roth, 'it is illogical to assume that the legislature meant to prevent hardship in the case of a nonsuit, but not in...