Chalco v. Landa

Opinion

2026 IL App (1st) 252296-U

SECOND DIVISION

September 8, 2026

No. 1-25-2296

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

MAYRA LLAPAPASCA CHALCO, ) Appeal from the Circuit Court of ) Cook County.

Plaintiff-Appellant, )

)

v. ) No. 2024 M1 132239 )

ELOISE LANDA and GERLAND PROPERTIES, )

) Honorable Aileen Bhandari, Defendants-Appellees. ) Judge, presiding.

PRESIDING JUSTICE D.B. WALKER delivered the judgment of the court.

Justices Van Tine and Ellis concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in granting defendants’ motion to dismiss. Affirmed.

¶2 Plaintiff Mayra Llapapasca Chalco filed a complaint alleging breach of contract and (in the alternative) unjust enrichment against defendants Eloise Landa and Gerland Properties. Defendants subsequently filed a motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2024)), which the trial court granted. On appeal, plaintiff contends that, because the dismissal of her complaint provided her with a one-year period of time to refile her complaint, the court erroneously dismissed her complaint with prejudice. For the following reasons, we affirm the judgment of the trial court.

¶3 BACKGROUND

¶4 The Prior, Initial Complaint

¶5 On July 27, 2018, plaintiff filed her initial, prior complaint against defendants in the trial court under case no. 2018-M1-126306 (the 2018 case), alleging substantially the same claims as the subsequent complaint that is the subject of this appeal. Plaintiff also alleged total damages of $16,490.47. 1 Plaintiff, however, did not have a summons issued until January 15, 2020. Defendants were subsequently served on January 22, 2020.

¶6 On June 14, 2023, plaintiff filed a motion for default judgment. On August 9, 2023, defendants filed a motion to dismiss the 2018 case. In lieu of responding, plaintiff filed an amended complaint on October 5, 2023, alleging the same claims and damages.

¶7 On July 12, 2024, defendants filed a motion to dismiss pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), arguing that plaintiff failed to exercise reasonable diligence in service of process. The trial court agreed, granting defendants’ motion and dismissing plaintiff’s complaint “without prejudice” on October 1, 2024.

¶8 The Instant Complaint

¶9 On December 6, 2024, plaintiff filed a complaint against defendants again alleging breach of contract, and in the alternative, unjust enrichment in the trial court under case no. 2024-M1- 132239 (the 2024 case), which is the current case before us. Plaintiff alleged that she was employed by defendants to perform general maintenance and janitorial services for defendants’ properties “pursuant to an oral agreement,” but when her employment with defendants ended on July 31, 2016, they neither paid her for her July 2016 work nor reimbursed her for various costs that she had incurred. Plaintiff re-alleged total damages of $16,490.47.

1 This court may take judicial notice of the trial court’s docket. See, e.g., In re N.G., 2018 IL 121939, ¶ 32; Wells Fargo Bank, N.A. v. Simpson, 2015 IL App (1st) 142925, ¶ 24 n.4.

3

¶ 10 On April 10, 2025, defendants filed a combined motion to dismiss pursuant to section 2- 619.1 of the Code. Defendants argued, inter alia, that plaintiff’s complaint was barred by the statute of limitations because plaintiff filed her complaint on December 6, 2024, but her action accrued on July 31, 2016, when her employment with defendants terminated and they allegedly neither paid her for her work nor reimbursed her for various expenses. Defendants concluded that, since the statute of limitations for the breach of an unwritten contract claim and the alternative unjust enrichment claim is five years, plaintiff’s complaint is barred.

¶ 11 In response, plaintiff noted that the prior 2018 case had been dismissed without prejudice due to a lack of diligent service pursuant to Rule 103(b). Plaintiff then reasoned that, since the dismissal was without prejudice, it was “similar to a dismissal for want of prosecution,” which provides her with the “ ‘absolute’ ” right to refile a complaint within one year pursuant to the “savings clause” (i.e., section 13-217 of the Code (735 ILCS 5/13-217) (West 2024)).

¶ 12 On June 26, 2025, the trial court granted defendants’ motion and dismissed the case with prejudice, finding that the statute of limitations barred plaintiff’s re-filed claims. On July 24, 2025, plaintiff filed a motion to reconsider, which the trial court denied on October 16, 2025.

¶ 13 This timely appeal follows.

¶ 14 ANALYSIS

¶ 15 On appeal, plaintiff contends that the trial court erred in dismissing her complaint where she had a right to refile her complaint pursuant to section 13-217 of the Code. Specifically, plaintiff argues that the previous dismissal without prejudice pursuant to Rule 103(b) “has the same effect” as a dismissal with prejudice, and therefore, section 13-217 entitles her to refile her complaint up to one year after the Rule 103(b) dismissal for lack of diligent service.

¶ 16 Section 2-619.1 of the Code permits a party to combine a section 2-615 motion to dismiss based upon a plaintiff’s substantially insufficient pleadings with a section 2-619 motion to dismiss

4

based upon certain defects or defenses. 735 ILCS 5/2-619.1 (West 2024); Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003).

¶ 17 Defendants’ motion to dismiss based upon the statute of limitations was brought pursuant to section 2-619. Section 2-619 provides for involuntary dismissal based upon certain defects or defenses. 735 ILCS 5/2-619 (West 2024). Section 2-619(a)(5) permits involuntary dismissal of a claim where the claim “was not commenced within the time limited by law,” i.e., where it is barred by the relevant statute of limitations. 735 ILCS 5/2-619(a)(5) (West 2024).

¶ 18 When ruling on a motion to dismiss under section 2-619, a court must accept all well- pleaded facts in the complaint as true and draw all reasonable inferences from those facts in favor of the nonmoving party. Snyder v. Heidelberger, 2011 IL 111052, ¶ 8. As a result, a motion to dismiss pursuant to either section should not be granted unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recovery. Id. We review de novo the trial court’s decision on motions to dismiss brought under section 2-619. Id.

¶ 19 Section 13-205 of the Code states that, with certain exceptions not relevant here, “actions on unwritten contracts *** shall be commenced within five years next after the cause of action accrued.” 735 ILCS 5/13-205 (West 2024). In addition, the limitations period applicable to unjust enrichment claims is five years, “as set out in section 13-205 of the Code [citation].” CitiMortgage, Inc. v. Parille, 2016 IL App (2d) 150286, ¶ 40 (citing Frederickson v. Blumenthal, 271 Ill. App. 3d 738, 742 (1995)).

¶ 20 Supreme Court Rule 103(b) states, “If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant prior to the expiration of the applicable statute of limitations, the action as to that defendant may be dismissed without prejudice.” Ill. S. Ct. R. 103(b) (eff. July 1, 2007). The rule further instructs courts that, in determining a plaintiff’s exercise of reasonable diligence, they must review “the totality of the circumstances, including both lack of reasonable

5

diligence in any previous case voluntarily dismissed or dismissed for want of prosecution, and the exercise of reasonable diligence in obtaining service in any case refiled under section 13-217 of the Code ***.” Id. The Committee Comments to this last sentence indicates that it addresses situations where the plaintiff “has refiled a complaint under section 13-217 of the Code *** within one year of the case either being voluntarily dismissed pursuant to section 2-1009 [of the Code] or being dismissed for want of prosecution.” Id., Committee Comments (adopted June 5, 2007).

¶ 21 Section 13-217 of the Code provides in relevant part as follows:

“In the actions specified in Article XIII of this Act or any other act *** 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, or the action is dismissed by a United States District Court for improper venue, 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, 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

6

jurisdiction, or the action is dismissed by a United States District Court for improper venue.” 735 ILCS 5/13-217 (West 1994). 2 In essence, section 13-217 allows a plaintiff to refile a dismissed lawsuit within either one year or the remaining period of limitation (whichever is greater) in the following six specific situations: (1) judgment is entered for the plaintiff but reversed on appeal; (2) there is a verdict in favor of the plaintiff, but upon a motion in arrest of judgment, the judgment is entered against the plaintiff; (3) the plaintiff voluntarily dismisses the action; (4) the action is dismissed for want of prosecution; (5) a federal district court dismisses the action for lack of jurisdiction; or (6) a federal district court dismisses the action for improper venue.

¶ 22 In this case, the trial court did not err in granting defendants’ motion to dismiss. At the outset, plaintiff does not seem to dispute that her claim accrued on July 31, 2016, when her employment with defendants terminated and defendants failed to pay her for her prior work and reimburse her for various expenses. Therefore, her claims of breach of an unwritten contract or alternatively unjust enrichment had to have been brought within five years of that accrual date, i.e., not later than July 31, 2021. See 735 ILCS 5/13-205 (West 2024). However, the complaint in the 2024 case (the refiled complaint at issue here) was filed on December 6, 2024, which was well past the expiration of the statute of limitations.

¶ 23 Plaintiff, nonetheless, contends that the complaint was timely filed because her prior complaint in the 2018 case had been dismissed without prejudice pursuant to Rule 103(b) (for lack of diligent service), and since that 103(b) dismissal without prejudice has the same effect as a

2 Public Act 89-7, which amended section 13-217 of the Code effective March 1995 (Pub.

Act 897 (eff. Mar. 9, 1995)), was held to be unconstitutional in its entirety by our supreme court in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). Accordingly, the effective version of section 13-217 of the Code is the version that was in effect prior to the March 1995 amendment. See Hudson v. City of Chicago, 228 Ill. 2d 462, 469 n.1 (2008).

7

dismissal for want of prosecution, she had one year (or the remaining time until the statute of limitations expired, if greater) to refile her complaint pursuant to section 13-217 of the Code.

¶ 24 We disagree. None of the six specific situations listed in section 13-217 apply because plaintiff’s cause of action was dismissed pursuant to Rule 103(b) for lack of diligence, which is not one of the aforementioned reasons. We must interpret section 13-217 narrowly. See DeClerck v. Simpson, 143 Ill. 2d 489, 495-96 (1991) (holding that section 13-217 is “very specific and clear” and is a “plain, unambiguous statute”). Accordingly, since the dismissal for lack of diligence is not among the enumerated six, section 13-217 does not apply to this case.

¶ 25 Moreover, Rule 103(b) requires courts to consider all relevant circumstances in assessing reasonable diligence, including lack of diligence in cases that were “voluntarily dismissed or dismissed for want of prosecution,” as well as diligence in any refiled case under section 13-217 of the Code. Ill. S. Ct. R. 103(b) (eff. July 1, 2007). The comments clarify that this provision only applies to complaints refiled within one year following voluntary dismissal under section 2-1009 or dismissal for want of prosecution. Id., Committee Comments (adopted June 5, 2007). Nowhere in Rule 103(b) is there a provision allowing a plaintiff to refile a complaint dismissed for lack of diligent service within one year (or any other period of time) notwithstanding the expiration of the statute of limitations. Plaintiff’s claim on appeal is therefore without merit.

¶ 26 CONCLUSION

¶ 27 The trial court did not err in granting defendants’ motion to dismiss. Accordingly, we affirm the judgment of the trial court.

¶ 28 Affirmed.