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04/03/89 Rick J. Raper, v. St. Mary's Hospital Et Al.

April 3, 1989

RICK J. RAPER, PLAINTIFF-APPELLANT

v.

ST. MARY'S HOSPITAL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

536 N.E.2d 1342, 181 Ill. App. 3d 379, 130 Ill. Dec. 131 1989.IL.474

Appeal from the Circuit Court of Kankakee County; the Hon. Patrick M. Burns, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. WOMBACHER, P.J., and STOUDER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The plaintiff, who was injured while in the defendants' care, filed one Federal and two State actions against the defendants. The circuit court of Kankakee County granted the defendants' motions and dismissed the most recent complaint after finding it was not timely filed and was not authorized by the relevant statute permitting late filings. The plaintiff has appealed, and we affirm.

On December 7, 1982, Ricky Raper underwent surgery to repair head injuries at St. Mary's Hospital and was under the care of Dr. Harold Keegan. A surgical sponge was inadvertently left in the plaintiff's skull, necessitating further surgeries and resulting in permanent damage. On February 9, 1984, the plaintiff filed an amended complaint in United States District Court, adding the defendants herein to a pending civil rights action he had filed against the parties who allegedly inflicted the injuries which necessitated the surgery. On August 3, 1984, the Federal district court dismissed the malpractice claims against the defendants for lack of subject matter jurisdiction. The Federal case continued against other defendants. The plaintiff's motion to vacate the order of dismissal was denied on February 14, 1986. Thereafter, on April 16, 1986, the Federal court entered a judgment dismissing all defendants in the Federal suit.

In the meantime, on October 16, 1984, the plaintiff filed his first complaint in Kankakee County (No. 84 -- L -- 185) against the malpractice defendants and several of the other parties named in the Federal suit. On June 14, 1985, the plaintiff's motion for a voluntary nonsuit was granted. All parties agreed to the voluntary dismissal and the cause was dismissed without prejudice.

On June 2, 1986, the plaintiff refiled this action against the malpractice defendants in the circuit court of Kankakee County (No. 86 -- L -- 106). In the complaint, the plaintiff alleged that the cause had been voluntarily dismissed without prejudice on June 14, 1985, and was being refiled within one year of the nonsuit.

The defendants filed motions to dismiss this final complaint, claiming that the plaintiff had violated section 13-217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-217) by commencing a second new action following a dismissal. The trial court granted the defendants' motions and denied the plaintiff's subsequent motion to reconsider. The plaintiff initiated this appeal.

The plaintiff allegedly suffered injuries due to the defendants' negligent acts on December 7, 1982. The applicable statute of limitations expired on December 7, 1984. (Ill. Rev. Stat. 1985, ch. 110, par. 13-212.) However, section 13-217 of the Code of Civil Procedure provides:

"In the actions . . . where the time for commencing an action is limited, if . . . 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 . . . the plaintiff . . . may commence a new action within one year or within the remaining period of limitation, whichever is greater . . .." Ill. Rev. Stat. 1985, ch. 110, par. 13-217.

Thus, a plaintiff may commence a new cause of action within one year of a voluntary dismissal or Federal dismissal for lack of jurisdiction even if the statutory limitations period governing such actions has expired. This section does not permit endless refilings, however. The Illinois Supreme Court recently determined that a plaintiff is entitled to only one additional filing after the first suit is voluntarily dismissed. (Gendek v. Jehangir (1988), 119 Ill. 2d 338.) The parties agree that the rules of law set out above govern this matter, but disagree on the appropriate application of the rules to the facts before us.

The defendants contend that after the Federal claim against them was dismissed for lack of subject matter jurisdiction, the plaintiff necessarily invoked the savings provision of section 13 -- 217 in refiling the first action in Kankakee County (No. 84 -- L -- 185). They further contend that the plaintiff's filing of the second State suit (No. 86 -- L -- 106) was impermissible because he had already ...


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