Fiorito v. Bellocchio , 2013 IL App (1st) 121505 ( 2013 )

FOURTH DIVISION
October 24, 2013
2013 IL App (1st) 121505
No. 1-12-1505
MICHAEL FIORITO, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 11 L 5031
)
JOSEPH BELLOCCHIO, ) Honorable
) Kathy M. Flanagan,
Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE HOWSE delivered the judgment of the court, with opinion.
Justices Palmer and Taylor concurred in the judgment and opinion.
OPINION
¶ 1 This appeal arises from an order of the circuit court granting defendant Joseph
Bellocchio's motion to dismiss plaintiff Michael Fiorito's personal injury action. On appeal,
plaintiff contends that the trial court erred in granting defendant's motion to dismiss on grounds
that refiling was beyond the one-year right to refile provided by statute. For the following
reasons, we affirm.
¶ 2 BACKGROUND
¶ 3 Plaintiff was involved in an automobile accident with defendant on October 19, 2001.
Plaintiff retained attorney Olson to represent him. On or about August 25, 2003, attorney Olson
filed a personal injury complaint, case No. 03 L 10225, against defendant seeking damages for
1-12-1505
injuries plaintiff sustained in the accident. However, plaintiff was not aware that attorney Olson
filed the complaint. On or about September 19, 2003, plaintiff discharged attorney Olson.
Plaintiff subsequently retained new counsel, attorney Peters, who unsuccessfully sought to
determine whether attorney Olson had filed suit. Because he was unable to ascertain whether a
suit had been filed and because under the statute of limitations the time to file the suit expired on
October 19, 2003, attorney Peters filed suit for the same accident against defendant on October
16, 2003, as case number 03 L 12346. Plaintiff subsequently learned that a suit was filed by
attorney Olson. On March 24, 2004, plaintiff voluntarily dismissed case number 03 L 12346,
the second suit, pursuant to section 2-1009 of the Illinois Code of Civil Procedure (Code) (735
ILCS 5/2-1009 (West 2004)), and proceeded with case number 03 L 10225, the first suit.
¶ 4 On May 18, 2010, plaintiff voluntarily dismissed case number 03 L 10225, the first suit.
Plaintiff then refiled a complaint against defendant with respect to the same accident on May 16,
2011. Defendant filed a motion to dismiss under section 2-619 of the Code (735 ILCS 5/2-619
(West 2010)) arguing that section 13-217 of the Code (735 ILCS 13-217 (West 2010)) allowed
for only one refiling of a case after voluntary dismissal. He further contended that the filing was
untimely and violated section 13-217 because the one-year period of refiling began to run when
plaintiff dismissed case number 03 L 12346 on March 24, 2004. In response, plaintiff argued
that the second case was dismissed pursuant to section 2-619(a)(3) (735 ILCS 5/2-619(a)(3)
(West 2004)) based on duplicative suits and that the second suit was a nullity from its inception.
¶ 5 The trial court disagreed with plaintiff's characterization of the dismissal, finding that
the order entered on March 24, 2004, dismissing the suit specifically stated that it was a
-2-
1-12-1505
voluntary dismissal pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009 (West 2004)).
Accordingly, plaintiff's one-year refiling limitations period under section 13-217 began to run at
that point. The court found that the May 16, 2011 refiling, while within one year of the May 18,
2010 dismissal of the first suit, was beyond the one-year period provided by section 13-217. The
trial court cited to Rodgers-Orduno v. Cecil-Genter, 312 Ill. App. 3d 1150 (2000), in support of
its determination that defendant's motion to dismiss should be granted.
¶ 6 Plaintiff then filed a motion to reconsider, arguing that the trial court misapplied the law.
The trial court denied plaintiff's motion to reconsider, finding that plaintiff's arguments were the
same as in the initial response to defendant's motion and all were considered and reviewed. This
timely appeal followed.
¶ 7 ANALYSIS
¶ 8 On appeal, plaintiff contends that the trial court erred in granting defendant's motion to
dismiss on grounds that refiling was beyond the one-year right provided by statute.
¶ 9 Defendant filed a motion to dismiss based on sections 2-619(a)(5) and 2-619(a)(9) of the
Code (735 ILCS 5/2-619(a)(5), (a)(9) (West 2010)). Section 2-619(a)(5) of the Code authorizes
a court to dismiss a complaint if the complaint was "not commenced within the time limited by
law." 735 ILCS 5/2-619(a)(5) (West 2010). A section 2-619(a)(9) motion to dismiss alleges the
claim asserted against the defendant is "barred by other affirmative matter avoiding the legal
effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2010). A section 2-619 motion
admits the legal sufficiency of the plaintiff's cause of action and all well-pleaded facts alleged in
the complaint are taken as true, but conclusions of law or fact unsupported by specific factual
-3-
1-12-1505
allegations may be disregarded. Johnson v. DuPage Airport Authority, 268 Ill. App. 3d 409, 414
(1994). We review a section 2-619 motion to dismiss de novo. Lydon v. Eagle Food Centers,
Inc., 297 Ill. App. 3d 90, 92 (1998).
¶ 10 The bases for defendant's motion to dismiss were sections 2-1009 and 13-217 of the
Code. Section 2-1009 gives a plaintiff the right to voluntarily dismiss an action, without
prejudice, in whole or in part any time before trial or hearing begins. 735 ILCS 5/2-1009 (West
2010); Hudson v. City of Chicago, 228 Ill. 2d 462, 483 (2008). Section 13-217 provides a
plaintiff with the right to refile the cause of action within one year of the date of the dismissal
order, regardless of the fact that the statute of limitations may have run during that time.
Mercantile Holdings, Inc. v. Feldman, 258 Ill. App. 3d 748, 751 (1994). Section 13-217 is
termed a "savings statute" or "revival statute" because it "revives" a plaintiff's previous, timely-
filed complaint, beyond the limitations period, where no adjudication on the merits has been
obtained and the complaint has been dismissed for procedural reasons. Mercantile Holdings, 258
Ill. App. 3d at 751.
¶ 11 Plaintiff cites to Lydon in support of his contention that the trial court improperly
dismissed his case. In Lydon, the plaintiff, who was injured in defendant's supermarket, hired an
attorney who filed suit in the circuit court of Lake County. The day prior, another attorney filed
suit in the circuit court of Cook County, allegedly on plaintiff's behalf. Lydon, 297 Ill. App. 3d at
92. Plaintiff averred that she did not know the Cook County attorney, had never spoken with him
or retained him to represent her. Lydon, 297 Ill. App. 3d at 92. The Cook County attorney filed
a motion to voluntarily dismiss the Cook County action, but never presented it to the court, and it
-4-
1-12-1505
was subsequently dismissed for want of prosecution. Lydon, 297 Ill. App. 3d at 92.
Approximately seven months later, plaintiff voluntarily dismissed the Lake County action.
Lydon, 297 Ill. App. 3d at 92. Exactly one year later, plaintiff refiled the Lake County action,
and defendant moved to dismiss arguing that section 13-217 allowed only one refiling and since
this was plaintiff's third filing of the same incident, her action was barred. Lydon, 297 Ill. App.
3d at 92. The trial court granted defendant's motion and plaintiff appealed. Lydon, 297 Ill. App.
3d at 92.
¶ 12 This court reversed, finding that defendant failed to prove that plaintiff should have been
held accountable for the Cook County filing. Lydon, 297 Ill. App. 3d at 93. The court also found
that plaintiff did not ratify the filing of the Cook County action. Lydon, 297 Ill. App. 3d at 96.
The court deemed the filing of the Cook County action a nullity. Lydon, 297 Ill. App. 3d at 97.
¶ 13 Lydon is distinguishable from the facts in the instant case. Here, a complaint was filed
without plaintiff’s knowledge on August 25, 2003. Plaintiff filed a second, identical case against
the same defendant arising from the same incident on October 16, 2003. That case was
admittedly filed with plaintiff’s authorization, but plaintiff voluntarily dismissed it pursuant to
section 2-1009 (735 ILCS 5/2-1009 (West 2004)) on March 24, 2004. Although plaintiff argues
here that the first case was filed without authority, unlike the plaintiff in Lydon, plaintiff adopted
and ratified the unauthorized case filed by the first attorney—plaintiff prosecuted the case for
over six years before he voluntarily dismissed it. Plaintiff then filed a third case against
defendant on May 16, 2011. Plaintiff apparently argued at separate times that the two prior
actions were void ab initio; however, that argument certainly has no merit with regard to the first
-5-
1-12-1505
action which he prosecuted for over six years before he voluntarily dismissed it. Nor can he
argue that the second case was a nullity when he gave his attorney permission to file it.
¶ 14 While plaintiff technically only refiled the case once as the first two cases were pending
simultaneously, the one-year period began to run from the first voluntary dismissal rather than
from the second one. Rodgers-Orduno v. Cecil-Genter, 312 Ill. App. 3d 1150, 1153 (2000).
Thus, in the instant case, plaintiff's one year refiling period began to run on March 24, 2004, and
his May 16, 2011, refiling was well beyond the one-year limitations period of the initial
voluntary dismissal. The trial court therefore did not err in granting defendant's motion to
dismiss.
¶ 15 CONCLUSION
¶ 16 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 17 Affirmed.
-6-