Wilson v. Brant

• Decision Date: 18 May 2007
• Docket Number: No. 1-06-1702.,1-06-1702.
• Citation: 869 N.E.2d 818
• Parties: Terrance WILSON, Plaintiff-Appellant, v. Robert BRANT, Individually and as agent of Star Transportation Company, and Star Transportation Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

869 N.E.2d 818

Terrance WILSON, Plaintiff-Appellant, v.Robert BRANT, Individually and as agent of Star Transportation Company, and Star Transportation Company, Defendants-Appellees.

No. 1-06-1702.

Appellate Court of Illinois, First District, Sixth Division.

May 18, 2007.

Jason A. Marker, Quinn, Meadowcroft & Marker, Bolingbrook, for Appellant.

John R. Vallort, Courtney D. Carter, Chilton Yambert Porter & Young, LLP, Chicago, for Appellees.

Justice JOSEPH GORDONdelivered the opinion of the court:

I.BACKGROUND

On June 4, 2002, plaintiff, Terrance Wilson, filed an original, timely complaint against defendants, Robert Brant and Star Transportation Company(Star), alleging that on December 18, 2000, Brant negligently caused an automobile accident resulting in injuries to Wilson.That case was proceeding through the discovery stage when Wilson's counsel withdrew.On December 7, 2004, Wilson obtained a voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure(Code)(735 ILCS 5/2-1009(West 2004)).On December 7, 2005, after securing new counsel, Wilson attempted to refile his complaint pursuant to section 13-217(735 ILCS 5/13-217(West 2004)) by sending a complaint, notice of filing and proof of service through the regular United States mail to the Cook County circuit court clerk's office and the defendants.Wilson's documents were file stamped by the Cook County circuit court clerk on December 20, 2005.

On February 2, 2006, defendants brought a motion to dismiss pursuant to section 2-619(a)(4)(735 ILCS 5/2-619(a)(4)(West 2004)), contending that Wilson had not refiled in a timely manner.On March 30, 2006, the circuit court granted defendants' motion.Wilson then brought a motion to reconsider, which the circuit court denied on May 16, 2006.This appeal followed.

On appeal, Wilson contends that the "trend in Illinois" is to construe the mailing date as the date of filing and that this trend should be extended to where a plaintiff refiles a complaint after taking a voluntary dismissal.Wilson also contends that refiling a complaint pursuant to section 13-217(735 ILCS 5/13-217(West 2004)) is unlike the initial filing of a complaint under section 2-201(735 ILCS 5/2-201(West 2004)), which is not considered filed by mailing.Wilson also cites to Supreme Court Rules 12(145 Ill.2d R. 12) and 373 (155 Ill.2d R. 373) to support his position that refiling a complaint after a voluntary dismissal can be accomplished via mail.

Defendants contend that refiling a complaint after a voluntary dismissal is essentially the same as the commencement of a new action pursuant to section 2-201, where it is clear that a complaint will not be considered filed until it is stamped by the clerk.For the reasons that follow, we agree with defendants and affirm the judgment of the circuit court.

II.ANALYSIS

We initially note that Wilson has provided us with a deficient appellate record and has failed to comply with the requirements for appellant's briefs as described in Supreme Court Rule 342(155 Ill.2d R. 342).The circuit court's March 30, 2006, order granting defendant's motion to dismiss on the basis of timeliness, which is one of the orders Wilson appeals from, does not appear in the record or in the appendix to Wilson's brief.See155 Ill.2d R. 321("The record on appeal shall consist of the judgment appealed from");155 Ill.2d R. 342("The appellant's brief shall include * * * a copy of the judgment appealed from * * *").Wilson has also neglected to include a copy of the notice of appeal in his appendix in violation of Rule 342.Nevertheless, we note that there is no dispute as to the circuit court's March 30, 2006, order granting defendant's motion to dismiss, and that the May 16, 2006, order denying Wilson's motion for reconsideration is in the record and refers to the March 30 order.Moreover, Wilson's notice of appeal, while not in the appendix, does appear in the record.Therefore, we consider our mention of these deficiencies sufficient admonishment and are otherwise not deterred from considering the merits of Wilson's appeal.

Motions to dismiss pursuant to section 2-619 admit the legal sufficiency of the complaint but assert certain defects or defenses outside the pleading which defeat the claim.Wallace v. Smyth,203 Ill.2d 441, 447, 272 Ill.Dec. 146, 786 N.E.2d 980, 984(2002).The standard of review on appeal from an order granting a section 2-619 motion to dismiss is de novo.Wallace,203 Ill.2d at 447, 272 Ill.Dec. 146, 786 N.E.2d at 984.

Voluntary dismissals are governed by section 2-1009 of the Code, which states in pertinent part:

"(a)The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause."735 ILCS 5/2-1009(a)(West 2004).

Section 13-217, sometimes called the "saving"statute, permits a plaintiff to refile an action that has been voluntarily dismissed within one year from the date of the dismissal.Section 13-217 states 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 * * * 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 the action is voluntarily dismissed by the plaintiff."735 ILCS 5/13-217(West 1994).

Under the foregoing provisions, it is clear that Wilson had until December 7, 2005, or one year after he took a voluntary dismissal, to commence a new action.¹Wilson contends that he successfully filed within this time frame by placing his complaint in the mail on December 7, 2005, the last day available to him for filing.In support, he cites several cases where the mailbox rule has been applied, albeit with respect to filings made after the commencement of an action.SeeHolesinger v. Dubuque Feeder Pig Co.,104 Ill.App.3d 39, 42-43, 59 Ill.Dec. 859, 432 N.E.2d 645, 649(1982)(holding that a notice of appeal could be deemed filed on the day it was deposited in the mail);In re Marriage of Morse,143 Ill.App.3d 849, 852, 98 Ill.Dec. 67, 493 N.E.2d 1088, 1090(1986)(holding that a posttrial motion was filed as of the date of mailing);Board of Education, Benton Consolidated School District No. 47, Franklin County v. Benton Federation of Teachers, LocalNo. 1956,165 Ill.App.3d 514, 519, 116 Ill.Dec. 277, 518 N.E.2d 1257, 1260-61(1988)(holding that a posttrial motion for reconsideration was timely filed when mailed on the thirtieth day after judgment);People v. Aldridge,219 Ill. App.3d 520, 523, 162 Ill.Dec. 532, 580 N.E.2d 158, 159(1991)(holding that a motion to withdraw a guilty plea could be considered filed as of the mailing date);Board of Trustees of Southern Illinois University v. Department of Human Rights,190 Ill.App.3d 644, 649, 137 Ill.Dec. 926, 546 N.E.2d, 1039, 1042(1989)(holding that a defendant's appearance and answer could be deemed filed on the date of mailing);Pakrovsky v. Village of Lakemoor,274 Ill.App.3d 515, 518, 211 Ill.Dec. 271, 654 N.E.2d 1081, 1083(1995)(holding that the rejection of an arbitration award can be considered filed on the date of mailing).

Wilson acknowledges that the Illinois Appellate Court, in two specific cases, has refused to apply the mailbox rule to the filing of new actions: Wilkins v. Dellenback,149 Ill.App.3d 549, 102 Ill.Dec. 799, 500 N.E.2d 692(1986), andKelly v. Mazzie,207 Ill.App.3d 251, 152 Ill.Dec. 186, 565 N.E.2d 719(1990).He cites no contrary cases deviating from Wilkins and Kelly, but attempts to distinguish these cases from the instant facts.As shall be discussed below, we find Wilson's distinctions unavailing.

In Wilkins,plaintiff brought a medical malpractice action against a physician which, after being transferred from Cook County to Kane County upon defendant's motion, was dismissed for want of prosecution on June 2, 1983.Wilkins,149 Ill. App.3d at 551, 102 Ill.Dec. 799, 500 N.E.2d at 693.On May 31, 1985, plaintiff mailed a section 2-1401 petition to vacate the dismissal order, but the petition was not filed by the clerk until June 4, 1985.Wilkins,149 Ill.App.3d at 551, 102 Ill.Dec. 799, 500 N.E.2d at 693.Defendant filed a motion contending that plaintiff's motion was not filed within the required two year time frame.

On appeal, the court noted:

"[A][section 2-1401] petition * * * is not a continuation of the original proceeding but a commencement of a new cause of action.[Citations.]Like other pleadings, the petition must be in writing, filed with the clerk of the circuit court and made part of the record [citation], and as such is subject to motions to dismiss for failure to state a cause of action, and must be considered in the same manner as a civil complaint [citation]."Wilkins,149 Ill.App.3d at 553, 102 Ill.Dec. 799, 500 N.E.2d at 694-95.

The court then acknowledged:

"Although the weight of recent authority evinces a policy favoring the acceptance of the mailing date rather than the receiving date of certain documents, such as a post-trial motion or a notice of appeal, as the filing date of those documents with the clerk of the circuit court[citations], this policy has never been applied to the filing of pleadings such as a complaint or a section 2-1401 petition."Wilkins,149 Ill.App.3d at 553, 102 Ill.Dec. 799, 500 N.E.2d at 695.

A similar holding was reached in Kelly,207 Ill.App.3d 251, 152 Ill.Dec. 186, 565 N.E.2d 719.In Kelly,plaintiff alleged that on February 2, 1987, she was injured in a fall on defendant's property.Kelly,...