Flesner v. Youngs Development Co.
| Decision Date | 16 November 1990 |
| Docket Number | No. 5-89-0531,5-89-0531 |
| Citation | 563 N.E.2d 1097,205 Ill.App.3d 636 |
| Parties | , 150 Ill.Dec. 970 E.H. FLESNER; Annette Flesner Douglas a/k/a Annetta E. Douglas, Individually and as Administrator De Bonis Non of the Estate of Henry J. Flesner, Deceased, and as Executrix of the Estate of Anna M. Flesner, Deceased; Gertrude Flesner Waterbury; Mildred Flesner Ogle; \Hanna I. Crane; Reino C. Lanto; John Gadau; and Arthur M. Lerner, Plaintiffs-Appellees, v. YOUNGS DEVELOPMENT COMPANY, a partnership; C. James Youngs; and Darwin Youngs, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Richard F. Record, Jr. and Paul R. Lynch of Craig & Craig, Mount Vernon, for defendants-appellants.
John Gadau of Zimmerly, Gadau, Selin & Otto, Champaign, and Reino C. Lanto of Wilson & Lanto, P.C., Rantoul, for plaintiffs-appellees.
Plaintiffs initially filed this claim in the United States District Court on May 7, 1981, and it was dismissed on November 12, 1981, for want of jurisdiction. Plaintiffs refiled in the circuit court of Jefferson County, Illinois, on April 22, 1982, and on December 17, 1986, over defendants' objection, the trial court allowed plaintiffs to take a voluntary dismissal.
The present litigation, the third filing against these defendants, was initiated on December 11, 1987. Defendants' motion to dismiss the claim with prejudice was allowed on October 19, 1988, but the plaintiffs' motion to reconsider based upon this court's decision in Relaford v. Kyaw (1988), 173 Ill.App.3d 1034, 123 Ill.Dec. 553, 527 N.E.2d 1328, was allowed on July 24, 1989. The trial court included a finding pursuant to Supreme Court Rule 308 (107 Ill.2d R. 308) that the ruling contained in its order involved a question of law as to which there was substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate termination of the litigation. Defendants' petition for leave to appeal was granted.
Appellant asks this court to overrule its recent decision in Relaford and to adopt instead the First District's position which is set forth in the cases of Walicek v. Ciba-Geigy Corp. (1987), 155 Ill.App.3d 667, 108 Ill.Dec. 85, 508 N.E.2d 246, and Bernstein v. Gottlieb Memorial Hospital (1989), 185 Ill.App.3d 709, 134 Ill.Dec. 20, 542 N.E.2d 20. For the reasons set forth below we decline to do so.
Before discussing the Relaford- Bernstein disagreement, we will address the plaintiffs' contention that the defendants have waived their opportunity to challenge the refiling of this cause by failing to appeal the trial court's order of December 17, 1986, which allowed them to voluntarily dismiss the second filing of this case. The plaintiffs argue that Kahle v. John Deere Co. (1984), 104 Ill.2d 302, 84 Ill.Dec. 650, 472 N.E.2d 787, recognizes that such an order is final and appealable and that the defendants' failure to appeal from it precludes their raising any challenge to the third refiling of this case. We decline to adopt the plaintiffs' position on this point because to do so could require defendants to appeal from every voluntary dismissal taken by a plaintiff in order to prevent a subsequent refiling. While we have no actual statistics on this point, we are convinced that there are a large number of voluntary dismissals which are never refiled. To adopt the plaintiffs' position would be to cause a grossly inefficient use of legal and judicial resources. A rule which would require appeals in all cases of voluntary dismissals in order to prevent improper refilings in only a few would be neither warranted nor wise. We therefore hold that the defendants have not waived their position by failing to appeal the trial court's December 17, 1986, order.
The substantive issue before this court is whether a plaintiff may refile an action more than one time if the repeated filings are all within the applicable statute of limitations. Defendants' argument proceeds on several fronts. First, defendants contend that the First District's decisions in Walicek and Bernstein, which held that there could be only one refiling, express a preferable rule and should be followed in the Fifth District. Second, defendants contend that certain statements by the supreme court in Gendek v. Jehangir (1988), 119 Ill.2d 338, 116 Ill.Dec. 230, 518 N.E.2d 1051, and Gibellina v. Handley (1989), 127 Ill.2d 122, 129 Ill.Dec. 93, 535 N.E.2d 858, while not controlling on this point, strongly suggest that only one refiling should be allowed. Finally, defendants contend that even if this court does not wish to adopt the Bernstein holding and overrule Relaford, that Relaford should be limited to its facts, which involved a two-year statute of limitations, and should not be extended to a case involving a ten-year statute.
In Walicek the first complaint was filed on September 25, 1978, and was dismissed for want of prosecution on May 22, 1980. Plaintiff's second complaint was filed on February 8, 1982, and voluntarily dismissed on March 10, 1983. The statute of limitations for plaintiff's cause of action expired on April 17, 1982. Plaintiff's third complaint was filed on June 6, 1983, and defendants' motion to dismiss the plaintiff's third complaint based on the statute of limitations was denied, but the question involved was certified by the trial court.
The First District stated:
"Accordingly, in answer to the certified question, we hold that section 13-217 does not allow the filing of a third complaint after the applicable statute of limitations has expired when the first complaint had been dismissed for want of prosecution and the second complaint filed within the statute of limitations was voluntarily dismissed after the statute of limitations expired." (Walicek, 155 Ill.App.3d at 673, 108 Ill.Dec. at 89, 508 N.E.2d at 250.)
While it might be argued that Walicek is distinguishable because the statute of limitations had expired before the third complaint was filed, our reading of the case convinces us that the members of the panel of the fifth division of the First District are in agreement with those of the second division which decided Bernstein v. Gottlieb Memorial Hospital (1989), 185 Ill.App.3d 709, 134 Ill.Dec. 20, 542 N.E.2d 20. Even if Walicek were to be considered distinguishable, Bernstein clearly holds that multiple filings within the statute of limitations are not allowed. Bernstein and Walicek are the only cases that have been cited to us, and that our independent research has disclosed, that resolve the issue in this way. They are obviously not in agreement with this court's decision in Relaford.
We feel that both Walicek and Bernstein have misconstrued the purpose of section 13-217 (Ill.Rev.Stat.1989, ch. 110, par. 13-217) and that their analysis is neither historically accurate nor legally sound. An adequate explanation of our disagreement with the First District requires a relatively detailed discussion of two statutes: par. 2-1009 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1009) which governs voluntary dismissals, and section 13-217 (Ill.Rev.Stat.1989, ch. 110, par. 13-217) which governs refilings. In examining these statutes the effectuation of the legislature's intent should be foremost, and in achieving this result the following questions should be kept in mind:
At common law the plaintiff had an extremely broad right to take a nonsuit; it could be taken any time before the verdict was rendered in open court. (Berry v. Savage (1840), 2 Scam. 261; Chicago Title and Trust Co. v. Cook County (1935), 279 Ill.App. 462.) This right of the plaintiff to avoid an adverse ruling may have been based on some historical precursor that a verdict could not be returned against a plaintiff in his absence and which allowed the plaintiff to take a nonsuit by simply absenting himself from the courtroom (R. Michael, Illinois Practice § 42.2, at 340 (1989)), or it may have been a method of allowing a plaintiff to obtain some knowledge of the facts of the case in an aborted trial before the advent of discovery. (Howe v. Harroun (1856), 17 Ill. 494; see also Ferrini & Winter, Voluntary Dismissals--From Shield To Sword By The Convergence Of Improvident Actions, 21 J. Marshall L.Rev. 549, 551 (1988).) Regardless of the original basis there is no dispute that the right to take a nonsuit was both absolute and could be exercised at an extremely late stage of the proceedings. Berry, 2 Scam. 261.
What limitations were there upon this right of the plaintiff, or to put it another way, what protection was afforded the defendant under those circumstances? The first limitation, or protection, depending upon the point of view, was the applicable statute of limitations. If the plaintiff took a nonsuit, it was necessary to refile the claim within the statute of limitations or the claim would be barred. The protection afforded by the statute of limitations was later supplemented by statutes restricting the time and manner of taking voluntary dismissals.
The first limitation on voluntary nonsuits was enacted in 1819 and provided that:
"Every person desirous of suffering a nonsuit on trial, shall be barred therefrom unless he do so before the jury retire from the bar." (R.L. 486; Gale's Stat. 528.) (See also Berry, 2 Scam. 261; Daube v. Kuppenheimer (1916), 272 Ill. 350, 112 N.E. 61.)
Subsequent amendments in 1907 and 1933 imposed additional limitations. Section (a) of the present statute, Ill.Rev.Stat.1989, ch. 110, par. 2-1009(a), has been in existence in essentially its present form since 1933. It is extremely important to note that none of the statutes which impose limitations on the plaintiff's right to take a nonsuit imposed any limitations upon the plaintiff's right to refile a...
To continue reading
Request your trial