Flesner v. Youngs Development Co. ( 1991 )

JUSTICE HEIPLE

delivered the opinion of the court:

The issue before the court is whether plaintiffs are allowed more than one refiling of an action if the refilings fall within the applicable statute of limitations pursuant to section 13—217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13—217). We interpret the language of section 13—217 as providing for one and only one refiling regardless of whether the applicable statute of limitations has expired.

Section 13 — 217 provides as follows:

“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.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 13—217.

This suit arose out of a written option for leasing coal lands between plaintiffs Henry and Anna Flesner, now both deceased, and defendant Youngs Development Company, a partnership, and its partners C. James Youngs and Darwin Youngs. Plaintiffs initially began their lawsuit against defendants in the United States District Court for the Central District of Illinois in May 1981. That case was dismissed for lack of jurisdiction in November 1981. Plaintiffs refiled their action in the circuit court of Jefferson County, Illinois, in April 1982. On December 2, 1986, plaintiffs filed a motion for voluntary dismissal. Over defendants’ objections, an “Order of Dismissal Without Prejudice” was entered on December 17, 1986.

Plaintiffs then filed their third complaint on December 11, 1987, arising out of the same facts and claims as ■the two previous lawsuits. Defendants’ motion to dismiss the action was granted in October 1988. Plaintiffs then filed a motion to reconsider the order of dismissal with prejudice. The circuit court allowed plaintiffs’ motion to set aside the order of dismissal and to reinstate the complaint. The appellate court affirmed. We reverse.

In so ruling, we concur in the analysis and rulings announced in the appellate court opinions of Walicek v. Ciba-Geigy Corp. (1987), 155 Ill. App. 3d 667, Bernstein v. Gottlieb Memorial Hospital (1989), 185 Ill. App. 3d 709, and Howard v. Francis (1990), 204 Ill. App. 3d 722. These cases all stand for the proposition that section 13—217 expressly permits one, and only one, refiling of a claim even if the statute of limitations has not expired. Correspondingly, we reject the contrary analysis as promulgated by the appellate court in Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034.

Accordingly, we reverse the orders of the trial and appellate courts which reinstated plaintiffs’ complaint and we order dismissal of the plaintiffs’ complaint.

Reversed and dismissed.