Gendek v. Jehangir

503 N.E.2d 1161, 151 Ill. App. 3d 1028, 105 Ill. Dec. 155, 1987 Ill. App. LEXIS 1972

• Court: Appellate Court of Illinois
• Decided: February 3, 1987
• Docket: 85-0936
• Status: Published

Opinions

JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Bernard Gendek, appeals from the October 17, 1985, order dismissing pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619) his complaint for medical malpractice against defendant, Jehangir M. Jehangir, M.D.

On October 29, 1984, plaintiff filed a complaint in the circuit court of Du Page County against defendant alleging that on December 21, 1981, plaintiff came under defendant’s care in the emergency room of St. Margaret’s Hospital in Hammond, Indiana, where defendant improperly diagnosed and unskillfully treated an injury. As a result, plaintiff was required to obtain additional medical attention to alleviate the condition caused by the careless and negligent treatment of defendant. He also alleged that the action was a refiling “pursuant to Chapter 83, Section 24(a) of the Illinois Revised Statutes” (now recodified as section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217)) because the same cause was previously filed in the United States district court located “in the Northern District of Indiana” on December 13, 1983, but voluntarily dismissed without prejudice on February 22, 1984. Plaintiff further alleged that the same cause had been refiled previously pursuant “to Chapter 83, Section 24(a) of the Illinois Revised Statutes” on March 9, 1984, in the United States District Court for the Northern District of Illinois, but that he was given leave to voluntarily dismiss that complaint without prejudice upon learning that defendant was a resident of Illinois when the case was refiled. The initial refiling in the Federal court in Illinois was based upon diversity of citizenship.

Defendant moved to dismiss the complaint pursuant to section 2 — 619 asserting that plaintiff was barred from bringing the action as the second voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a) (28 U.S.C. Rule 41(a) (1982)) operated as an adjudication of the merits effectively precluding the filing of this complaint based upon the doctrine of res judicata, that plaintiff was barred from bringing the action pursuant to section 13 — 217 (Ill. Rev. Stat. 1985, ch. 110, par. 1,3 — 217) as this section, which allows a plaintiff who voluntarily dismisses a timely filed complaint after the statute of limitations has expired to refile his action in an Hlinois court, within one year, permits only one refiling, and that plaintiff was barred from bringing this action as the matter is controlled by Indiana substantive law which was not complied with by plaintiff prior to filing this action thereby prohibiting plaintiff from pursuing this action. Attached to a memorandum in support of defendant’s motion to dismiss was a copy of the complaint filed in the Federal district court in Indiana, a copy of the dismissal order from the Indiana district court, a copy of the complaint filed in Federal district court in Illinois, a copy of plaintiff’s motion to voluntarily dismiss the cause in Illinois for lack of subject matter jurisdiction pursuant to Rule 12(h) (28 U.S.C. Rule 12(h) (1982)) as it was discovered that defendant was a resident of Illinois, and a copy of the minute order dismissing the second complaint.

After considering the written and oral arguments of the parties, the trial court dismissed with prejudice plaintiff’s complaint pursuant to section 2 — 619. In a letter of opinion, the trial judge stated that the reasons for ruling in favor of defendant were based on the first two arguments presented in defendant’s motion to dismiss and that it was unnecessary to rule on the third argument.

On appeal, plaintiff contends that neither of the reasons on which the trial court based its dismissal were proper. As we hereinafter determine that plaintiff does not have the right to refile this action pursuant to section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217), we need not discuss defendant’s alternative contention that the two dismissals in Federal court operated as an adjudication on the merits effectively barring this refiling under the doctrine of res judicata.

Section 13 — 217 provides:

“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.” (Ill. Rev. Stat. 1985, ch.110, par. 13 — 217.)

This section provides plaintiffs with the absolute right to refile their complaint within one year for the reasons specified therein. (See Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 305, 472 N.E.2d 787.) 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 litigation upon the merits and to avoid its frustration upon grounds that are unrelated to the merits. (Roth v. Northern Assurance Co. Ltd. (1964), 32 Ill. 2d 40, 48, 203 N.E.2d 415.) Its provisions are to be liberally construed to achieve its remedial purpose. Keilholz v. Chicago & North Western Ry. Co. (1973), 10 Ill. App. 3d 1087, 1092, 295 N.E.2d 561, rev’d on other grounds (1974), 59 Ill. 2d 34, 319 N.E.2d 46.

In Smith v. Chicago Transit Authority (1978), 67 Ill. App. 3d 385, 385 N.E.2d 62, it was determined that the provision permits the filing of only one action after the original action has been dismissed and does not allow the filing of multiple new actions within one year after the original action has been dismissed. In Smith, the original suit as well as a second action were dismissed for want of prosecution. The third suit was dismissed by the trial court. A11 the suits were filed in the circuit court of Cook County and were based upon the same incident. The appellate court found that the provision was a saving clause which acted as a limited extension to prevent injustice, but did not warrant an extra addition to the one-year extension period fixed by statute. (67 Ill. App. 3d 385, 388, 385 N.E.2d 62.) Subsequent appellate court decisions have agreed with the result in Smith. See, e.g., Phillips v. Elrod (1985), 135 Ill. App. 3d 70,73, 478 N.E.2d 1078; LaBarge, Inc. v. Corn Belt Bank (1981), 101 Ill. App. 3d 741, 745, 428 N.E.2d 711; see also Harrison v. Woyahn (7th Cir. 1958), 261 F.2d 412, 413.

In Phillips v. Elrod (1985), 135 Ill. App. 3d 70, 478 N.E.2d 1078, a case quite similar to the case at bar, the appellate court also held that section 24a (now section 13 — 217) does not authorize successive refilings of the same action, but permits only a single refiling within a year of dismissal. In Phillips, plaintiff’s original suit in the circuit court of Cook County was voluntarily dismissed and a second suit premised on the same facts was filed in the United States District Court for the Northern District of Illinois. While the suit in the Federal district court was later voluntarily dismissed, the plaintiff was permitted to reinstate the Federal suit which was again dismissed, this time for want of prosecution. A third suit was filed in the circuit court of Cook County which was eventually dismissed on limitations grounds.

Plaintiff presents two arguments to avoid the decisive effect of the holdings of these decisions against him. First, he contends that as the refiling of his suit in the United States District Court for the Northern District of Illinois was dismissed for lack of jurisdiction, the Federal court never obtained jurisdiction in the refiled case and that this filing should be considered a nullity. Thus, he maintains that the later refiling in the circuit court of Du Page County constitutes the first refiling after the original voluntary dismissal in the Indiana Federal district court.

This contention is without merit. Section 13 — 217 specifically states that, among other reasons, if the action is dismissed by a United States district court for lack of jurisdiction, a new action may be commenced within one year. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217.) The statute clearly recognizes that the extended limitations period applies to a Federal court dismissal for want of jurisdiction. (See Conner v. Copley Press, Inc. (1984), 99 Ill. 2d 382, 385-86, 459 N.E.2d 955.) It can hardly be contended that the filing in Federal court under these circumstances is a nullity when our statute explicitly refers to- a dismissal in Federal court for want of jurisdiction.

Second, plaintiff argues that even if we conclude that the refiling of the suit in the Federal court in Illinois constituted a filed action, we either should adopt a policy that the successive-dismissal rule will not apply when the first dismissal is by stipulation, citing Poloron Products, Inc. v. Lybrand Ross Brothers & Montgomery (2d Cir. 1976), 534 F.2d 1012, or should interpret the Illinois cases prohibiting the' successive refilings as only applying to situations where there is a “harassing” -renewal of litigation. The former contention, based on the Poloron Products decision, can be summarily dismissed as it involves a Federal statute dissimilar to section 13 — 217. See 534 F.2d 1012, 1015-18.

Plaintiff also urges this court not to “blindly” accept those Illinois decisions which hold that a second refiling is prohibited. He argues that as the successive refilings here are not a “harassing” renewal of litigation and that as the nature of the statute is remedial, the technicality here should not defeat a cause of action in the absence of strong equitable grounds. We do not conclude, however, that the prior Illinois Appellate Court decisions cited above were premised on an examination of the “good faith” of the plaintiff in refiling the lawsuits. Instead, the decisions are based on the interpretation of the language in section 13 — 217 which has been held not to authorize successive refilings of the same action. (Phillips v. Elrod (1985), 135 Ill. App. 3d 70, 73, 478 N.E.2d 1078; Smith v. Chicago Transit Authority (1978), 67 Ill. App. 3d 385, 387, 385 N.E.2d 62.) Phillips v. Elrod (1985), 135 Ill. App. 3d 70, 478 N.E.2d 1078, is not distinguishable from this case and is controlling precedent for our decision. Were we to add the factor of a plaintiff’s lack of harassment in determining whether successive refilings are proper, we would be writing language into section 13 — 217 that is not contained therein and making analysis of the issue of refiling more subjective and difficult to determine in each case.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT J., concurs.