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03/31/88 Andrew Tuch, v. Kevin Mcmillen Et Al.

March 31, 1988

ANDREW TUCH, PLAINTIFF-APPELLEE

v.

KEVIN MCMILLEN ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 1218, 167 Ill. App. 3d 747, 118 Ill. Dec. 525 1988.IL.476

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

On September 20, 1982, plaintiff, Andrew Tuch, brought an action against defendants, Kevin McMillen and Ronald McMillen, for personal injuries resulting from a water skiing accident which occurred on September 20, 1980. Plaintiff voluntarily dismissed this action on April 10, 1984. On this same date plaintiff refiled the action pursuant to section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-217), which permits a plaintiff to commence a new action within one year after a dismissal.

On December 4, 1985, plaintiff's second suit was dismissed on the court's own motion for want of prosecution. Following a denial of plaintiff's motion to vacate the default for lack of prosecution, plaintiff filed an appeal in this court, seeking to appeal only the denial of this post-trial motion. Defendants filed a motion to dismiss the appeal, arguing that an order denying a post-trial motion is not a final and appealable order and that the appeal must be taken from the underlying order. On June 17, 1986, this court entered an order allowing defendants' motion to dismiss the appeal.

Plaintiff filed his lawsuit a third time on November 26, 1986. In response, defendants filed a motion to dismiss plaintiff's cause of action, arguing that pursuant to section 13-202 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-202) plaintiff's action for personal injury must be brought within two years of the time the action commences. Since plaintiff's cause of action accrued on September 20, 1980, plaintiff was barred by the statute of limitations from bringing his action. Additionally, defendants argued that because plaintiff had already exercised his right, on April 10, 1984, to reinstate his case, pursuant to section 13-217 (Ill. Rev. Stat. 1983, ch. 110, par. 13-217), plaintiff could not now use that right again. It was defendants' position that the right to use section 13-217 for refiling a cause of action was limited to a single use.

On April 16, 1987, the trial court denied defendants' motion to dismiss, finding that plaintiff's case was not time barred since plaintiff refiled his action within one year of the dismissal for want of prosecution. Defendants filed a motion to reconsider or to certify for appeal the issue of whether section 13-217 (Ill. Rev. Stat. 1983, ch. 110, par. 13-217) may be used more than a single time. The court denied the motion to reconsider but, pursuant to Supreme Court Rule 308(a) (107 Ill. 2d R. 308(a)), certified the foregoing issue for interlocutory appeal. We allowed the appeal.

Section 13 -- 217 provides:

"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." (Ill. Rev. Stat. 1983, ch. 110, par. 13-217.)

This section provides a plaintiff with the absolute right to refile his complaint within one year or within the remaining period of limitations, whichever is greater, for the reasons specified therein. (Gendek v. Jehangir (1987), 151 Ill. App. 3d 1028, 1031, 503 N.E.2d 1161.) The section acts as a limited extension to prevent inJustice; it should not, however, be permitted to become a harassing renewal of litigation. Smith v. Chicago Transit Authority (1978), 67 Ill. App. 3d 385, 388, 385 N.E.2d 62.

In the instant case plaintiff refiled his second complaint on the same date, April 10, 1984, that he moved to have his first complaint voluntarily dismissed. Although at the time of refiling the statute of limitations had lapsed, plaintiff had the right to refile his complaint pursuant to section 13 -- 217. Nearly 20 months after the date of this refiling the trial court dismissed plaintiff's case for want of prosecution. After an unsuccessful appeal, plaintiff again refiled his case within one year of the dismissal for want of prosecution, and the trial court permitted that refiling. It is this second refiling which is at issue here.

The question of whether a plaintiff who takes a voluntary dismissal of his original action is entitled to more than one refiling pursuant to the savings provision of section 13-217 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 13-217) has very recently been addressed by our supreme court in Gendek v. Jehangir (1988), 119 Ill. 2d 338, a case arising out of this district and ...


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