The opinion of the court was delivered by: McGARR, Chief Judge.
MEMORANDUM OPINION AND ORDER
In 1974, an Illinois limited partnership was organized that
included plaintiff Harold G. Norman ("Norman") and defendant
Darwin P. Kal ("Kal") as limited partners, as well as two
other general partners. At all relevant times, Norman was a
Florida resident, while Kal resided in Illinois. The purpose
of the partnership was to develop a residential apartment
building. Financing for this project was provided by a
Massachusetts trust company, which demanded a letter of credit
from the partnership as a requirement for issuing the
construction loan. A $75,000 letter of credit was obtained
from a Florida bank, and it was guaranteed by all the
partners. Unfortunately for these litigants, the construction
project went into default. The Massachusetts company then drew
down on the letter of credit.
In 1975, the Florida bank sued on the guaranty of the letter
of credit in a Florida state court. In that lawsuit, Norman
crossclaimed against Kal for contribution on the amount
guaranteed to the bank. Although Kal was served with copies of
the pleadings, he never appeared or answered. Norman obtained
an order of default against Kal on the crossclaim in June,
1976. On November 15, 1976, Norman executed a promissory note
for $90,489.00 in favor of the Florida bank as a full
discharge of his obligations under the guaranty. In April,
1978, Norman obtained a final judgment against Kal in the
amount of $45,244.83.
Shortly thereafter, Norman attempted to register this
judgment in a Cook County Circuit Court. Kal admitted the
existence of the Florida judgment, but pleaded the Florida
court's lack of personal jurisdiction over him as a defense.
The circuit court rejected this argument and entered summary
judgment against Kal. However, this judgment was reversed on
appeal. Norman v. Kal, 88 Ill. App.3d 81, 43 Ill.Dec. 316,
410 N.E.2d 316 (1st Dist. 1980). The appellate court agreed that
the Florida court did not have either in personam or long arm
jurisdiction over Kal, and consequently the default judgment on
the crossclaim between Norman and Kal was invalid.
Since the court's jurisdiction in this case is premised on
the diversity of residence of the litigants, the court must
decide this controversy as though it were an Illinois state
court. Klaxon Co. v. Stentor Electric Manufacturing Co.,
313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Kal
argues that Norman's cause of action arose in Florida on
November 14, 1976, and under Illinois' "borrowing" statute,
Ill.Rev.Stat. ch. 83, § 21 (1979), it is barred by a four year
Florida statute of limitations, Fla.Stat. § 95.11(3)(k).
Section 21 provides that "[w]hen a cause of action has arisen
in a state . . . out of this state, . . . and, by the laws
thereof, an action thereon cannot be maintained by reason of
the lapse of time, an action thereon shall not be maintained in
Norman agrees that his right of action arose in Florida and
it is the type of claim controlled by Florida's four year
statute of limitations. However, Norman disputes the remainder
of Kal's allegations on several grounds. Initially, Norman
maintains that under Illinois law, the pertinent statute of
limitations for common law claims is deemed a procedural
question, and therefore Illinois law, rather than Florida law,
governs. Although the cases relied on by Norman support that
broad proposition, they are inapposite to the present cause.
Neither opinion involved section 21 because the foreign
statute of limitations in those cases was longer than the
Illinois version; section 21 is only operative where, as here,
the foreign statute is of shorter duration than Illinois'
statute. See 1962 Ill.L.F. 452.
Norman next argues that section 21 is inapplicable to this
case for two reasons. First, plaintiff states that Kal's
argument was previously rejected in Cook v. Britt, 81 Ill. App.3d 674,
290 N.E.2d 908 (1st Dist. 1972). Second, Norman
contends that section 21 only applies to cases involving
nonresidents of Illinois. Coan v. Cessna Aircraft, 53 Ill.2d 526,
293 N.E.2d 588 (1973).
In Cook, a Georgia plaintiff effected substitute service of
process on an Illinois defendant pursuant to a Georgia statute.
Subsequently, the Georgia Supreme Court declared the statute
unconstitutional, and the suit between those litigants was
dismissed. The plaintiff then sued the defendant in Illinois,
but the suit was dismissed as time-barred. On appeal, the
plaintiff asserted her right to refile the action within one
year of a dismissal, as provided in Ill.Rev.Stat. ch. 83, § 24a
(1965). The defendant countered that section 21 barred the
suit. The appellate court ruled that fundamental fairness and
basic justice required that the claim be tried and decided on
the merits rather than disposed of on a procedural
technicality. The court observed that the plaintiff bad
rightfully relied on the presumptively constitutional Georgia
statute, and that she should not be held responsible for not
knowing the statute would be declared unconstitutional.
Finally, the court held that section 21 did not apply because
the Georgia action was filed in apt time.
It is obvious that the Cook decision is not apposite to the
case at bar. The apparent holding of Cook is that a suit
initiated in a forum with jurisdiction over the defendant tolls
the forum's statute of limitations even though the court may
lose jurisdiction due to a change in the law. That unusual
situation is not present here; the Florida court was without
jurisdiction over Kal ab initio. Norman v. Kal, 88 Ill. App.3d 81,
43 Ill.Dec. 316, 410 N.E.2d 316 (1st Dist. 1980).
Additionally, the element of good faith reliance on a
jurisdictional statute later declared unconstitutional — which
motivated the Cook court to allow the plaintiff to continue
with her lawsuit — is absent here. Thus, the Cook opinion has
no bearing on this suit.
In Coan, the plaintiff filed suit in Illinois for injuries
sustained in a Kentucky plane crash. The suit was timely filed
under Illinois law, but time-barred under Kentucky law. The
Illinois Supreme Court stated that section 21 must be read in
conjunction with section 18 of the Limitations Act, Ill.
Rev.Stat. ch. 83, § 18 (1979), which tolls Illinois statutes of
limitations if the defendant
is outside Illinois when the cause of action accrues. However,
section 18 is not applicable, by its own terms, where neither
the plaintiff nor the defendant were Illinois residents at the
time the action accrued. The court explained that if a foreign
cause of action involved Illinois residents, and the defendant
left Illinois, the time of the defendant's absence from
Illinois is subtracted by section 18 from the time permitted
for the commencement of the suit. If section 21 also applied,
it would not permit an action in Illinois where the foreign
statute of limitations had run whether or not the defendant
had been absent from Illinois, thereby denying the plaintiff
the benefit of section 18 tolling. The supreme court concluded
that section 21 was intended to be operative only in cases
involving nonresident parties.
To this, Kal responds that the court's subsequent decision
in Haughton v. Haughton, 76 Ill.2d 439, 31 Ill.Dec. 183,
394 N.E.2d 385 (1979), undercuts the rationale of Coan. The
Haughton court held that the portion of section 18 which limits
its application to Illinois residents violated the federal and
state equal protection clauses. The court stated that to be
lawful, a classification "must be reasonable, not arbitrary,
and must rest upon some ground of difference having a fair and
substantial relation to the object of the legislation, so that
all persons similarly circumstanced shall be treated alike."
Id. at 445, 31 Ill.Dec. 183, 394 N.E.2d at 388 (citations
omitted). The court was unable to discern any rational basis or
legitimate state interest served by denying the plaintiff the
benefit of the statute's tolling effects solely because both
parties were nonresidents.
The court cannot accept Kal's position that
Haughton undercuts Coan. First, Haughton never mentioned the
Coan decision, nor did it imply that Coan was being overruled,
an unlikely result in view of the short span of time between
the decisions. Second, the Haughton court struck down the
denial of section 18 tolling to nonresidents because there was
no rational basis or legitimate state interest for the
classification. The Coan opinion, however, provided ample
justification for the refusal to apply section 21 to cases
involving nonresidents, as previously detailed. The Coan
court's reconciliation of sections 18 and 21 seems to be
rational and apparently serves the legitimate state interest of
avoiding a conflict between two state statutes. Finally, the
court is reluctant to extend Illinois law into areas where it
is not unquestionably meant to extend. See McKenna v. Ortho
Pharmaceutical Corp., 622 F.2d 657, 662 (3d Cir.), cert.
denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980);
Goranson v. Kloeb, 308 F.2d 655, 656-57 (6th Cir. 1962).
Haughton considered only section 18; Coan dealt with the
relationship between sections 18 and 21. To accept Kal's
argument would be to inject the holding of Haughton into a
different setting. Since the two opinions are not
irreconcilable, it cannot be confidently said that Haughton
Since Kal resides in Illinois, this case does not solely
involve nonresident parties. Therefore, under Coan, section 21
is inapplicable, and Florida law is not relevant. Hence, the
court must turn to Illinois law to ascertain the appropriate
statute of limitations. A five year statutory period for
bringing actions on unwritten contracts, express or implied,
codified in Ill.Rev.Stat. ch. 83, § 16 (1979), has been held to
govern actions for contribution. Harris v. Buder, 326 Ill. App. 471,
62 N.E.2d 131 ...