2026 IL App (1st) 242524-U
No. 1-24-2524
Order filed March 20, 2026
FIFTH DIVISION
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
CHARLOTTE TOBIN, ) Appeal from the ) Circuit Court of Cook County, Plaintiff-Appellant, ) Law Division. ) v. ) No. 2024 L 000763 ) ROBERT DAVID MYERS, ) Honorable ) Barbara N. Flores, Defendant-Appellee. ) Judge, presiding.
PRESIDING JUSTICE MITCHELL delivered the judgment of the court. Justice Oden Johnson and Justice Wilson concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in dismissing plaintiff’s complaint where it was the second refiling of the same cause of action.
¶2 Plaintiff Charlotte Tobin appeals the circuit court’s dismissal of her complaint against
defendant Robert David Myers under section 13-217 of the Code of Civil Procedure (735 ILCS
5/13-217 (West 1994)). At issue is whether the circuit court erred in dismissing plaintiff’s
complaint as a barred second refiling of the same cause of action because the circuit court order
dismissing the first refiled complaint stated, “plaintiff may refile this case.” For the following
reasons, we affirm. No. 1-24-2524
¶3 I. BACKGROUND
¶4 On March 29, 2015, plaintiff Charlotte Tobin and her then-husband, defendant Robert
David Myers, were involved in an alleged domestic dispute. In 2017, plaintiff filed a complaint
against defendant for assault, battery, and intentional infliction of emotional distress arising from
the incident. In 2019, plaintiff voluntarily dismissed the complaint.
¶5 In 2020, plaintiff refiled her complaint against defendant. In 2023, the circuit court
dismissed the complaint for want of prosecution. The circuit court’s written order stated, “this case
is dismissed for want of prosecution. Plaintiff may refile this case, since a motion to vacate DWP
will not be entertained.”
¶6 In 2024, plaintiff again refiled her complaint against defendant in front of a new judge.
Defendant moved to dismiss the complaint as a barred second refiling of the same cause of action
under section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1994)). The circuit
court dismissed the complaint. This timely appeal followed. Ill. S. Ct. R. 303 (eff. July 1, 2017).
¶7 II. ANALYSIS
¶8 Plaintiff argues that the circuit court erred in dismissing her complaint because the judge
who dismissed plaintiff’s first refiled complaint gave plaintiff permission to refile her complaint
again, and refiling was the only avenue for relief. Defendant argues that plaintiff’s second refiling
is barred by statute (735 ILCS 5/13-217 (West 1994)) regardless of the language in the circuit
court’s order dismissing the first refiled complaint. We review the dismissal of a complaint under
section 13-217 of the Code of Civil Procedure de novo. Ware v. Best Buy Stores, L.P., 2024 IL
App (1st) 231326, ¶¶ 4-5.
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¶9 Section 13-217 of the Code of Civil Procedure states that when a plaintiff voluntarily
dismisses an action, the plaintiff can commence a new action within one year or within the
remaining period of limitations, whichever is greater:
“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, 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 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, or the action is dismissed for want of prosecution ***.” 735 ILCS 5/13-217 (West 1994).
The Illinois Supreme Court has “interpret[ed] the language of section 13-217 as providing for one
and only one refiling regardless of whether the applicable statute of limitations has expired.”
Flesner v. Youngs Development Co., 145 Ill. 2d 252, 253 (1991). The statute “was not intended to
permit multiple refilings of the same action.” Timberlake v. Illini Hospital, 175 Ill. 2d 159, 163
(1997). If a plaintiff refiles a dismissed complaint and it is again dismissed, “the reason for the
second dismissal is of no consequence at all.” Id. at 165. “No matter why the second dismissal
took place, the statute does not give plaintiff the right to refile again.” Id.
¶ 10 Plaintiff’s original complaint was voluntarily dismissed. Under section 13-217, plaintiff
had the right to refile her complaint once. Plaintiff did so in 2020. After that refiled complaint was
dismissed for want of prosecution, plaintiff was not permitted to refile a second time. See, e.g.,
Mann v. Upjohn Co., 324 Ill. App. 3d 367, 375-76 (2001) (explaining that the plaintiff had no right
to a second refiling where the original complaint was voluntarily dismissed and the first refiling
was dismissed for want of prosecution); Phillips v. Bruzgul, 2021 IL App (1st) 191980, ¶ 17
(same); Walicek v. Ciba-Geigy Corp., 155 Ill. App. 3d 667, 672 (1987) (“Plaintiff availed himself
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of section 13-217 after the first dismissal and cannot again, for a second time, avail himself of this
section.”).
¶ 11 Plaintiff argues she had a right to refile her complaint a second time because the circuit
court order dismissing the first refiled complaint stated, “plaintiff may refile this case.” The circuit
court, however, is “not free to rewrite legislation.” People v. Reyes, 2023 IL 128461, ¶ 34; State
ex rel. Raoul v. Elite Staffing, Inc., 2024 IL 128763, ¶ 56 (“[A]fter the Illinois Supreme Court has
construed a statute, that construction becomes, in effect, a part of the statute and any change in
interpretation can be effected by the General Assembly if it desires so to do.” (Internal quotation
marks and brackets omitted.)). Because it was plaintiff’s first refiled complaint that was dismissed,
section 13-217 does not permit plaintiff to refile a second time, regardless of the language in the
order.
¶ 12 Plaintiff argues a second refiling was the only avenue for relief under the circuit court’s
order since it stated, “a motion to vacate DWP will not be entertained.” But under the Code of
Civil Procedure, plaintiff could have moved to set aside the dismissal order. See 735 ILCS 5/2-
1301(e) (West 2022) (“The court *** may on motion filed within 30 days after entry thereof set
aside any final order or judgment ***.”). Although plaintiff argues this would have violated the
circuit court’s order, plaintiff could have clarified to the circuit court that she already exhausted
her one permitted refiling and asked the circuit court to vacate the dismissal or modify its order.
See id.; Welch v. Ro-Mark, Inc., 79 Ill. App. 3d 652, 656 (1979) (“A trial court has jurisdiction for
a period of 30 days after the entry of a final order or judgment to modify or vacate the final order
or judgment ***.”). Instead, plaintiff made no motions after the dismissal and waited one year
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2026 IL App (1st) 242524-U
No. 1-24-2524
Order filed March 20, 2026
FIFTH DIVISION
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
CHARLOTTE TOBIN, ) Appeal from the ) Circuit Court of Cook County, Plaintiff-Appellant, ) Law Division. ) v. ) No. 2024 L 000763 ) ROBERT DAVID MYERS, ) Honorable ) Barbara N. Flores, Defendant-Appellee. ) Judge, presiding.
PRESIDING JUSTICE MITCHELL delivered the judgment of the court. Justice Oden Johnson and Justice Wilson concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in dismissing plaintiff’s complaint where it was the second refiling of the same cause of action.
¶2 Plaintiff Charlotte Tobin appeals the circuit court’s dismissal of her complaint against
defendant Robert David Myers under section 13-217 of the Code of Civil Procedure (735 ILCS
5/13-217 (West 1994)). At issue is whether the circuit court erred in dismissing plaintiff’s
complaint as a barred second refiling of the same cause of action because the circuit court order
dismissing the first refiled complaint stated, “plaintiff may refile this case.” For the following
reasons, we affirm. No. 1-24-2524
¶3 I. BACKGROUND
¶4 On March 29, 2015, plaintiff Charlotte Tobin and her then-husband, defendant Robert
David Myers, were involved in an alleged domestic dispute. In 2017, plaintiff filed a complaint
against defendant for assault, battery, and intentional infliction of emotional distress arising from
the incident. In 2019, plaintiff voluntarily dismissed the complaint.
¶5 In 2020, plaintiff refiled her complaint against defendant. In 2023, the circuit court
dismissed the complaint for want of prosecution. The circuit court’s written order stated, “this case
is dismissed for want of prosecution. Plaintiff may refile this case, since a motion to vacate DWP
will not be entertained.”
¶6 In 2024, plaintiff again refiled her complaint against defendant in front of a new judge.
Defendant moved to dismiss the complaint as a barred second refiling of the same cause of action
under section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1994)). The circuit
court dismissed the complaint. This timely appeal followed. Ill. S. Ct. R. 303 (eff. July 1, 2017).
¶7 II. ANALYSIS
¶8 Plaintiff argues that the circuit court erred in dismissing her complaint because the judge
who dismissed plaintiff’s first refiled complaint gave plaintiff permission to refile her complaint
again, and refiling was the only avenue for relief. Defendant argues that plaintiff’s second refiling
is barred by statute (735 ILCS 5/13-217 (West 1994)) regardless of the language in the circuit
court’s order dismissing the first refiled complaint. We review the dismissal of a complaint under
section 13-217 of the Code of Civil Procedure de novo. Ware v. Best Buy Stores, L.P., 2024 IL
App (1st) 231326, ¶¶ 4-5.
-2- No. 1-24-2524
¶9 Section 13-217 of the Code of Civil Procedure states that when a plaintiff voluntarily
dismisses an action, the plaintiff can commence a new action within one year or within the
remaining period of limitations, whichever is greater:
“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, 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 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, or the action is dismissed for want of prosecution ***.” 735 ILCS 5/13-217 (West 1994).
The Illinois Supreme Court has “interpret[ed] the language of section 13-217 as providing for one
and only one refiling regardless of whether the applicable statute of limitations has expired.”
Flesner v. Youngs Development Co., 145 Ill. 2d 252, 253 (1991). The statute “was not intended to
permit multiple refilings of the same action.” Timberlake v. Illini Hospital, 175 Ill. 2d 159, 163
(1997). If a plaintiff refiles a dismissed complaint and it is again dismissed, “the reason for the
second dismissal is of no consequence at all.” Id. at 165. “No matter why the second dismissal
took place, the statute does not give plaintiff the right to refile again.” Id.
¶ 10 Plaintiff’s original complaint was voluntarily dismissed. Under section 13-217, plaintiff
had the right to refile her complaint once. Plaintiff did so in 2020. After that refiled complaint was
dismissed for want of prosecution, plaintiff was not permitted to refile a second time. See, e.g.,
Mann v. Upjohn Co., 324 Ill. App. 3d 367, 375-76 (2001) (explaining that the plaintiff had no right
to a second refiling where the original complaint was voluntarily dismissed and the first refiling
was dismissed for want of prosecution); Phillips v. Bruzgul, 2021 IL App (1st) 191980, ¶ 17
(same); Walicek v. Ciba-Geigy Corp., 155 Ill. App. 3d 667, 672 (1987) (“Plaintiff availed himself
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of section 13-217 after the first dismissal and cannot again, for a second time, avail himself of this
section.”).
¶ 11 Plaintiff argues she had a right to refile her complaint a second time because the circuit
court order dismissing the first refiled complaint stated, “plaintiff may refile this case.” The circuit
court, however, is “not free to rewrite legislation.” People v. Reyes, 2023 IL 128461, ¶ 34; State
ex rel. Raoul v. Elite Staffing, Inc., 2024 IL 128763, ¶ 56 (“[A]fter the Illinois Supreme Court has
construed a statute, that construction becomes, in effect, a part of the statute and any change in
interpretation can be effected by the General Assembly if it desires so to do.” (Internal quotation
marks and brackets omitted.)). Because it was plaintiff’s first refiled complaint that was dismissed,
section 13-217 does not permit plaintiff to refile a second time, regardless of the language in the
order.
¶ 12 Plaintiff argues a second refiling was the only avenue for relief under the circuit court’s
order since it stated, “a motion to vacate DWP will not be entertained.” But under the Code of
Civil Procedure, plaintiff could have moved to set aside the dismissal order. See 735 ILCS 5/2-
1301(e) (West 2022) (“The court *** may on motion filed within 30 days after entry thereof set
aside any final order or judgment ***.”). Although plaintiff argues this would have violated the
circuit court’s order, plaintiff could have clarified to the circuit court that she already exhausted
her one permitted refiling and asked the circuit court to vacate the dismissal or modify its order.
See id.; Welch v. Ro-Mark, Inc., 79 Ill. App. 3d 652, 656 (1979) (“A trial court has jurisdiction for
a period of 30 days after the entry of a final order or judgment to modify or vacate the final order
or judgment ***.”). Instead, plaintiff made no motions after the dismissal and waited one year
before refiling her complaint again.
-4- No. 1-24-2524
¶ 13 Plaintiff also argues that her second refiling is proper because it would be “unreasonable
to penalize plaintiff for complying with an order of the circuit court” and the goal is to have “the
case decided on the merits.” Eigher v. Tiernan, 2021 IL 126101, ¶ 32. However, this discussion in
Eigher concerned a plaintiff who, based on language in the circuit court’s order, filed a notice of
reinstatement rather than moving to vacate the voluntary dismissal order to reinstate his complaint.
Id. ¶¶ 4-5, 30. Though plaintiff’s notice of reinstatement was not proper, it was timely filed
pursuant to the dismissal order within one year after the voluntary dismissal, “no greater than the
one-year period for filing new actions permitted by section 13-217.” Id. ¶¶ 31, 33. When no action
was taken in the case in response to the notice of reinstatement, plaintiff, for the first time, refiled
his complaint under a new case number after the one-year period had passed. Id. ¶¶ 7-9. Given
plaintiff’s attempts to comply with both the circuit court order and the one-year refiling period in
the statute, the Illinois Supreme Court held it was proper for the circuit court to hear the case on
the merits. Id. ¶¶ 32-33. Unlike plaintiff here, the plaintiff in Eigher “did not abuse the
reinstatement process” and only refiled his complaint once. Id. ¶ 33. “The policy considerations of
section 13-217 are to prevent multiple filings and dismissals and to prevent section 13-217 from
becoming a ‘harassing renewal of limitation.’ ” Walicek, 155 Ill. App. 3d at 673 (quoting Smith v.
Chicago Transit Authority, 67 Ill. App. 3d 385, 388 (1978)). Plaintiff’s attempt to refile her
complaint a second time is distinguishable from Eigher.
¶ 14 Lastly, plaintiff argues that this Court has previously permitted a second refiling in Stacken
v. Stratford Moes Inc., 2021 IL App (1st) 191982-U. But Stacken involved only one refiling. Id. ¶
2. In Stacken, the plaintiff’s initial complaint was dismissed for want of prosecution. Id. ¶ 6.
Plaintiff, however, timely moved to vacate the order dismissing for want of prosecution, which the
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circuit court granted. Id. Later, when plaintiff’s counsel failed to appear at a hearing, the circuit
court dismissed the complaint for want of prosecution. Id. ¶ 7. Plaintiff again moved to vacate the
order, but this time, the circuit court denied the motion to vacate the dismissal. Id. ¶¶ 7, 10. Then,
for the first time, plaintiff refiled the complaint. Id. ¶ 11. The circuit court initially held the refiling
was untimely, but this Court reversed, explaining that the motion to vacate tolled the statutory
period for refiling, and the one-year period to refile did not begin until the motion to vacate was
denied. Id. ¶¶ 11, 20-22. Unlike the plaintiff in Stacken, plaintiff here refiled her complaint twice.
Section 13-217 barred plaintiff from doing so, and thus, the circuit court did not err in dismissing
plaintiff’s second refiled complaint.
¶ 15 III. CONCLUSION
¶ 16 The judgment of the circuit court of Cook County is affirmed.
¶ 17 Affirmed.
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