Hupp v. Gray

• Decision Date: 06 October 1978
• Docket Number: No. 49509,49509
• Citation: 73 Ill.2d 78,22 Ill.Dec. 513,382 N.E.2d 1211
• Parties: , 22 Ill.Dec. 513 George T. HUPP, Appellee, v. Laurence GRAY et al., Appellants.
• Court: Illinois Supreme Court

Page 1211

382 N.E.2d 1211

73 Ill.2d 78, 22 Ill.Dec. 513

George T. HUPP, Appellee, v. Laurence GRAY et al., Appellants.

No. 49509.

Supreme Court of Illinois.

Oct. 6, 1978.

Rehearing Denied Dec. 1, 1978.

James T. Griffin, Michael B. Roche, Thomas D. Rafter and Edward J. Lesniak, Chicago (Hubachek, Kelly, Rauch & Kirby, Chicago, of counsel), for appellants.

Jason E. Bellows of Bellows & Bellows, Chicago, for appellee.

RYAN, Justice:

This is an appeal from a decision of the appellate court, reversing an order of the circuit court of Cook County, which had dismissed the complaint filed by plaintiff, George T. Hupp.

Between May of 1965 and January of 1966 plaintiff purchased shares of stock in an insurance company through the brokerage firm of A. G. Becker, Inc. (Becker), and Laurence Gray, Becker's agent. In 1971 plaintiff filed a four-count complaint in the United States District Court for the Northern District of Illinois against Becker and Gray, for damages suffered as a result of certain losses in the transactions. Counts I and III alleged that the defendants had violated certain provisions of the Securities Exchange Act of 1934 with relation to the stock transactions (15 U.S.C. secs. 78j(b), 78g). Counts II and IV were pendent State claims alleging negligence and fraud by the defendants in connection with the same transactions. In May 1972 the district court dismissed the Federal counts on the ground that they were barred by the applicable statute of limitations. Also, insofar as the plaintiff's attempt to obtain a Federal forum for litigating his Federal claims had failed, the district court dismissed the State claims for lack of pendent jurisdiction. In the Federal court of appeals, the plaintiff argued that the statute of limitations barring the Federal claims should have been tolled as a result of alleged fraudulent concealment by the defendants. The court of appeals disagreed and affirmed the district court's order of dismissal on August 12, 1974. Hupp v. Gray (7th Cir. 1974), 500 F.2d 993.

In September 1974 the plaintiff filed a complaint in the circuit court of Cook County based on the same facts as the Federal complaint and founded upon common law fraud. In the Circuit Court he claimed that if his cause of action accrued in 1967 and expired for purposes of the State claims in 1972, that his situation came within section 24 of the Limitations Act (Ill.Rev.Stat.1973, ch. 83, par. 24a), which, at that time, allowed a nonsuited plaintiff one year to refile his action if the statute of limitations had run on his claim. The circuit court held that section 24 was unavailable to the plaintiff because he did not file within one year of his nonsuit, as required by the statute, but instead filed within one year of the affirmance by the court of appeals of the district court's order. In this connection, the court found that the one-year period began to run on the date of the original nonsuit in the district court. The appellate court held that the one-year period within which the plaintiff was required to refile his action began to run with the affirmance of the nonsuit by the court of appeals. Since the plaintiff had refiled within a year of that date, the appellate court reversed the finding of the circuit court. (46 Ill.App.3d 381, 5 Ill.Dec. 8, 361 N.E.2d 8.) We granted defendant's petition for leave to appeal.

Section 24, as it read at the time the plaintiff filed his action in the circuit court of Cook County, provided as follows:

"In the actions specified in this Act * * * where the time for commencing an action is limited, if judgment is given for the plaintiff but reversed on appeal; or if there is a verdict for the plaintiff and, upon matter alleged in arrest of judgment, the judgment is given against the plaintiff; or if the plaintiff is nonsuited, or the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff * * * may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the plaintiff is nonsuited or the action is dismissed for want of prosecution." Ill.Rev.Stat.1973, ch. 83, par. 24a.

During the pendency of this case in the appellate court, the legislature amended section 24 by substituting the words "the action is (voluntarily) dismissed by the plaintiff" for the words "if the plaintiff is nonsuited" (Ill.Rev.Stat.1977, ch. 83, par. 24a). Consequently, as the statute now reads, its protection would now be unavailable to plaintiff, since his action was nonsuited and not voluntarily dismissed.

Two issues are raised for our consideration. First, defendants argue that they are entitled to the benefit of the recent amendment, and that it should be retroactively applied to abate the plaintiff's action. Second, we are asked to decide whether the one-year time limit of section 24, within which plaintiff was required to refile his action, began to run on the date of the original dismissal by the Federal district court or as of the date of the affirmance of the dismissal by the Seventh Circuit Court of Appeals.

Section 24 is, in effect, an extension of the applicable limitation period. Although under the amended section the extension no longer applies to orders such as that entered against the plaintiff, the fact remains that the refiling by the plaintiff had occurred before the effective date of the amendment. An amendment shortening a limitation period does not operate to divest a litigant of his cause of action if his suit has already been filed. If, for example, a limitation statute permits the filing of an injury action within two years and the plaintiff files his suit for such an injury 18 months after the cause of action accrued and while his suit is pending the limitation statute is amended requiring the filing of such actions within one year, the amendment has no effect on the pending action. This is essentially what occurred in our case.

This is quite different from the repeal or amendment of a statute creating a cause of action. This court has held that where a statute which gives a special remedy is repealed without a saving clause all pending suits predicated thereon will terminate as of the date of the repeal. (Board of Education v. Nickell (1951), 410 Ill. 98, 101 N.E.2d 438; Orlicki v. McCarthy (1954), 4 Ill.2d 342, 346, 122 N.E.2d 513.) Also, as was held in Orlicki, an amendment to a limitation statute shortening the period within which an action must be filed will be applied retroactively to actions not as yet commenced, provided there is a reasonable time after the effective date of the amendment within which to bring the action. See Meegan v Village of Tinley Park (1972), 52 Ill.2d 354, 359, 288 N.E.2d 423.

This court has recently held that an amendment which extends a statute of limitations will not be applied retroactively so as to revive a cause of action which had already been barred by the expiration of the original limitation period (Arnold Engineering, Inc. v. Industrial Com., 72 Ill.2d 161, 20 Ill.Dec. 573, 380 N.E.2d 782 (May 26, 1978). We likewise hold that an amendment shortening the limitation period will not be applied retroactively in such a manner as to terminate a cause of action filed within the limitation period prior to the effective date of the amendment.

Resolution of the second question turns on whether the plaintiff filed his action in the Cook County circuit court within the time limit prescribed by section 24, that is, within one year of his nonsuit. We conclude that the time for such filing began to run from the date of the nonsuit in the Federal district court, and not, as the appellate court held, from the affirmance of the order by the Seventh Circuit Court of Appeals.

Two cases decided by the appellate courts of this State have dealt with the precise issue presented by the facts in the instant case, Sager Glove Corp. v. Continental Casualty Co. (1962), 37 Ill.App.2d 295, 185 N.E.2d 473, and Skolnick v. Martin (1968), 98 Ill.App.2d 166, 240 N.E.2d 296.

In Sager, plaintiff brought an action on fidelity bonds issued by the defendant. The suit was dismissed by the superior court of Cook County on December 2, 1957, the appellate court affirmed the dismissal in December 1958, and this court denied leave to appeal on May 20, 1959. The plaintiff filed a suit based on the same cause of action on February 1, 1960, in the circuit court of Kane County. Although the statute of limitations had run on the substantive claim, plaintiff argued that he was entitled to the protection of section 24. The circuit court of Kane County disagreed and accordingly dismissed the plaintiff's complaint.

In affirming the order of the circuit court, the appellate court held that the year within which plaintiff was required to file his action under section 24 began to run on the date of dismissal in the trial court. The court noted that, pursuant to the unambiguous wording of the statute, there were only two times when a new action could be filed within the extended period, namely where judgment for plaintiff was reversed on appeal and also after judgment was given against the plaintiff. The court pointed out that the plaintiff (like the plaintiff in the instant case), clearly did not fall within the first category. And, the court concluded that in order for the plaintiff to properly fall within the second category, it would have to "construe the statute which states ' * * * judgment given against the plaintiff' to mean ' * * * judgment affirmed against the plaintiff.' " (37 Ill.App.2d 295, 299, 185 N.E.2d 473, 475.) The court held that the statute did not admit of such a construction.

After Sager was decided, the legislature amended section 24 on two separate occasions, in 1965 and again in 1967. However, the portion of the...