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09/08/87 Charles J. Fanaro, Jr., On v. the First National Bank of

September 8, 1987

PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES

v.

THE FIRST NATIONAL BANK OF CHICAGO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

CHARLES J. FANARO, JR., on behalf of himself and other

513 N.E.2d 1041, 160 Ill. App. 3d 1030, 112 Ill. Dec. 432 1987.IL.1302

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Defendant First National Bank of Chicago (First Chicago) filed a permissive interlocutory appeal from the denial of its motion to dismiss plaintiff's complaint, contending that the complaint should have been barred by section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-217) since it had been preceded by two similar complaints, one in State court, which had been dismissed for want of prosecution, and a second in Federal court, which was dismissed when pendent jurisdiction was terminated. Both arose from the same occurrence and were against the same defendant.

Plaintiff invested in a tax shelter operated by First Chicago. On February 4, 1982, First Chicago assessed and collected a "termination fee" when plaintiff ended the tax shelter. Plaintiff filed a three-count class action (the first State court action) in the circuit court of Cook County on October 4, 1982, alleging that First Chicago's assessment and collection of the termination fee violated the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 262), breached its contract with plaintiff, and breached its fiduciary duty to plaintiff. The action was dismissed for want of prosecution on March 21, 1984. Four months later, on July 27, 1984, plaintiff filed a petition to vacate the dismissal, which was denied on November 2, 1984. Due to plaintiff's section 13-217 right to refile his action following its dismissal for want of prosecution, no appeal could have been taken from the denial of his petition to vacate the dismissal. Flores v. Dugan (1982), 91 Ill. 2d 108, 111-12, 435 N.E.2d 480.

Plaintiff subsequently filed a complaint in the United States District Court for the Northern District of Illinois (the Federal court action) on February 8, 1985. The Federal court action also arose from First Chicago's assessment and collection of the termination fee, but alleged exclusively Federal claims arising from violations of section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. sec. 78j(b) (1982)) and of the Racketeer Influenced and Corrupt Organization Act (18 U.S.C. sec. 1961 (1982)); that complaint also alleged, under Federal pendent jurisdiction, the three claims previously dismissed by the circuit court of Cook County for want of prosecution: breach of contract, breach of fiduciary duty, and violation of the Consumer Fraud Act.

On October 31, 1985, the district court dismissed plaintiff's Federal claims for failure to state claims upon which relief could be granted and terminated the three pendent State claims when pendent jurisdiction ceased to exist.

On April 2, 1986, plaintiff, returning to the circuit court of Cook County, filed a third complaint (the second State court action), again premised upon First Chicago's assessment and collection of the termination fees. In this second State court action, plaintiff realleged the counts for breach of contract, breach of fiduciary duty, and violation of the Consumer Fraud Act, and added a count for common law fraud.

On May 9, 1986, First Chicago moved to dismiss the second State court action under section 2-619 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, pars. 2-619(a)(5), (a)(9)) contending that the action was barred by section 13-217 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13-217). The circuit court denied the motion to dismiss on October 20, 1986.

Defendant then moved the circuit court to certify an interlocutory appeal under Supreme Court Rule 308. (107 Ill. 2d R. 308.) At a hearing on the question of certifying the appeal, the circuit court elaborated upon its denial of defendant's motion to dismiss, stating that although section 13 -- 217 of the Code allowed for only a single refiling of an action following a dismissal for want of prosecution, the Federal filing, and the subsequent termination of the pendent State claims by the district court, did not constitute the single refiling permitted by section 13 -- 217 since the pendent claims had "automatically" fallen with the dismissal of the two Federal claims. On December 3, 1986, the circuit court entered an order certifying the question, finding that the October 20, 1986, order denying defendant's motion to dismiss involved a question of law on which there were substantial grounds for differences of opinion and that an immediate appeal from the order denying dismissal might materially advance the ultimate termination of the litigation. On January 6, 1987, this court granted defendant's application for leave to appeal under Supreme Court Rule 308. 107 Ill. 2d R. 308.

Defendant contends that the instant action, which is plaintiff's third assertion of claims arising from the assessment and collection of the termination fee, should have been barred by application of section ...


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