Flesner v. Youngs Development Co.

• Decision Date: 31 October 1991
• Docket Number: No. 71242,71242
• Citation: 582 N.E.2d 720,145 Ill.2d 252,164 Ill.Dec. 157
• Parties: , 164 Ill.Dec. 157 E.H. FLESNER et al., Appellees, v. YOUNGS DEVELOPMENT COMPANY et al., Appellants.
• Court: Illinois Supreme Court

Page 720

582 N.E.2d 720

145 Ill.2d 252, 164 Ill.Dec. 157

E.H. FLESNER et al., Appellees, v. YOUNGS DEVELOPMENT COMPANY et al., Appellants.

No. 71242.

Supreme Court of Illinois.

Oct. 31, 1991.

Richard F. Record, Jr. and Paul R. Lynch, Craig & Craig, Mt. Vernon, for appellants.

Heyl, Royster, Voelker & Allen, Peoria (Gary D. Nelson, Karen L. Kendall, and Joseph G. Feehan, of counsel), for Amicus Curiae Illinois Ass'n. of Defense Trial Counsel.

John E. Gadau, Zimmerly, Gadau, Selin & Otto, Champaign, Reino C. Lanto, Jr., Wilson & Lanto, P.C., Rantoul, for appellees.

Justice HEIPLE delivered the opinion of the court:

The issue before the court is whether plaintiffs are allowed more than one refiling of an action if the refilings fall within the applicable statute of limitations pursuant to section 13-217 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, 13-217). We interpret the language of section 13-217 as providing for one and only one refiling regardless of whether the applicable statute of limitations has expired.

Section 13-217 provides as follows:

"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 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.

This suit arose out of a written option for leasing coal lands between plaintiffs Henry and Anna Flesner, now both deceased, and defendant Youngs Development Company, a partnership, and its partners C. James Youngs and Darwin Youngs. Plaintiffs initially began their lawsuit against defendants in the United States District Court for the Central District of Illinois in May 1981. That case was dismissed for lack of jurisdiction in November 1981. Plaintiffs refiled their action in the circuit court of Jefferson County, Illinois, in April 1982. On December 2, 1986, plaintiffs filed a motion for voluntary dismissal. Over defendants' objections, an "Order of Dismissal Without Prejudice" was entered on December 17, 1986.

Plaintiffs then filed their third complaint on December 11, 1987, arising out of the same facts and claims as the two previous lawsuits. Defendants' motion to dismiss the action was granted in October 1988. Plaintiffs then filed a motion to reconsider the order of dismissal with prejudice. The circuit court allowed plaintiffs' motion to set aside the order of dismissal and to reinstate the complaint. The appellate court affirmed. 563 N.E.2d 1097. We reverse.

In so ruling, we concur in the analysis and rulings announced in the appellate court opinions of Walicek v. Ciba-Geigy Corp. (1987), 155 Ill.App.3d 667, 108 Ill.Dec. 85, 508 N.E.2d 246, Bernstein v. Gottlieb Memorial Hospital (1989), 185 Ill.App.3d 709, 134 Ill.Dec. 20, 542 N.E.2d 20, and Howard v. Francis (1990), 204 Ill.App.3d 722, 150 Ill.Dec. 69, 562 N.E.2d 599. These cases all stand for the proposition that section 13-217 expressly permits one, and only one, refiling of a claim even if the statute of limitations has not expired. Correspondingly, we reject the contrary analysis as promulgated by the appellate court in Relaford v. Kyaw (1988), 173 Ill.App.3d 1034, 123 Ill.Dec. 553, 527 N.E.2d 1328.

Accordingly, we reverse the orders of the trial and appellate courts which reinstated plaintiffs' complaint and we order dismissal of the plaintiffs' complaint.

Reversed and dismissed.

Chief Justice MILLER, specially concurring:

I concur in the court's disposition of the present appeal but write separately to explain the basis for my agreement.

Under section 13-217 of the Code of Civil Procedure, if a plaintiff voluntarily dismisses an action, "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." (Ill.Rev.Stat.1989, ch. 110, par. 13-217.) In Gendek v. Jehangir (1988), 119 Ill.2d 338, 343, 116 Ill.Dec. 230, 518 N.E.2d 1051, a decision not cited by the majority, this court held that section 13-217 "was not intended to permit multiple refilings following voluntary dismissals of an action for which the original statute of limitations has lapsed."

Significantly, the language used in Gendek governs not only the plaintiff who seeks to lengthen, year by year, the time allowed for suit beyond the original limitations period through a succession of voluntary dismissals and refilings, but also the plaintiff who attempts to voluntarily dismiss and then refile the action within the single one-year period afforded by section 13-217. A second refiling is prohibited in either instance. Indeed, the appellate court in the present case recognized that both plaintiffs would be treated alike under the statute. The appellate court stated:

"We agree * * * that the plaintiff may not engage in multiple refilings after the statute of limitations has expired. We also agree that section 13-217 was not intended to allow the plaintiff to extend the statute of limitations in one-year increments by successive dismissals and refilings. Once a statute of limitations has passed, the plaintiff is entitled to refile only once and that refiling must take place within one year of the dismissal." (Emphasis in original.) 205 Ill.App.3d at 645.

Thus, section 13-217 affords a single one-year extension of time, and a plaintiff may not further lengthen the time for bringing suit through subsequent refilings. Moreover, it is also clear from the language used in Gendek, as well as that used by the appellate court in the present case, that a plaintiff may not attempt multiple refilings during the single one-year extension allowed by the statute. The question that remains, then, is whether multiple, or successive, refilings are permitted during the original limitations period. The statutory language and the case law require that this question be answered in the negative.

By its own terms, section 13-217 is applicable "whether or not the time limitation for bringing such action expires during the pendency of such action." (Ill.Rev.Stat.1989, ch. 110, par. 13-217.) This language was added to the statutory predecessor of section 13-217 in 1967, and it replaced a proviso restricting application of the statute to cases in which the limitations period expired during pendency of the suit. The amendment therefore made the statute applicable regardless of whether the original limitations period had already run. (See Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill.App.3d 59, 75-76, 26 Ill.Dec. 1, 387 N.E.2d 831.) The 1967 amendment thus eliminated, for purposes of the refiling provision, any distinction between causes of action for which the original limitations period had expired and those for which it had not.

Once it is conceded that section 13-217 may not be used to gain successive one-year extensions of time for bringing suit and, more important, that the statute bars multiple refilings during the single one-year extension it affords, I fail to see how that provision may be read to permit multiple refilings of an action during the original limitations period. Section 13-217 itself draws no distinction among those different cases. The statutory language cannot be understood to prohibit successive refilings in the first two instances, when the refilings would occur either after or during the single one-year extension of time afforded to plaintiffs, but to allow successive refilings in the third instance, when they would occur during the original statute of limitations.

The underlying rationale was well expressed in Gibellina v. Handley (1989), 127 Ill.2d 122, 134, 129 Ill.Dec. 93, 535 N.E.2d 858:

"While a [voluntary dismissal] motion in conjunction with section 13-217 may protect the right of a plaintiff to have a decision in the particular case made on the merits of the claim by potentially permitting 'two bites of the apple' when the first bite turns sour, the statutory scheme does not allow a third bite." (127 Ill.2d at 134, 129 Ill.Dec. 93, 535 N.E.2d 858.)

The same reasoning is, in my view, applicable here. Indeed, recent decisions of this court have demonstrated that a plaintiff's statutory right to voluntarily dismiss an action even once should not be viewed in isolation but rather must be balanced against other considerations. (See, e.g., Gibellina, 127 Ill.2d 122, 129 Ill.Dec. 93, 535 N.E.2d 858; O'Connell v. St. Francis Hospital (1986), 112 Ill.2d 273, 97 Ill.Dec. 449, 492 N.E.2d 1322.) To deny section 13-217 the consistent interpretation that I have suggested and permit a third bite of the apple here would be contrary to that authority.

Justice CLARK, dissenting:

I respectfully dissent.

In Gendek v. Jehangir (1988), 119 Ill.2d 338, 343, 116 Ill.Dec. 230, 518 N.E.2d 1051, this court observed:

"The purpose of section 13-217, and its predecessor, section 24 of the Limitations Act (Ill.Rev.Stat.1981, ch. 83, par. 24a), is to facilitate the disposition of...