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05/04/94 JOHN FLYNN AND CAROLYN FLYNN v. ALLIS

May 4, 1994

JOHN FLYNN AND CAROLYN FLYNN, PLAINTIFFS-APPELLANTS,
v.
ALLIS CHALMERS CORPORATION, D/B/A AMERICAN AIR FILTER COMPANY, INC.; JOANN TRENT-MACOZZI, AS AGENT AND EMPLOYEE OF ALLIS CHALMERS CORPORATION; AND JOHN CHAPLICKI, AS AGENT AND EMPLOYEE OF ALLIS CHALMERS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 92-L-1279. Honorable William D. Block, Judge, Presiding.

Released for Publication June 8, 1994.

Doyle, Inglis, Bowman

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiffs, John Flynn and Carolyn Flynn, appeal the circuit court's order dismissing their complaint against defendant, Allis Chalmers Corporation (Allis Chalmers). The court dismissed the complaint on the ground that it was the second refiling of a dismissed action, which is prohibited by section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1992)). Plaintiffs contend that the court should not have dismissed the complaint because they refiled the action only once, and a previous complaint filed against a different corporate defendant should not bar the present action.

Three separate complaints are involved in this case. Plaintiffs filed their first complaint, case No. 87-L-21929, on October 13, 1987, against American Air Filter Company (American Air). The complaint alleged that plaintiff John Flynn was injured while working at a warehouse owned and operated by defendant in Zion, Illinois.

Shortly after this filing, plaintiffs received a letter from RonaldHuntley of Allis Chalmers. According to Huntley, American Air was a "non-operating corporate shell." Huntley explained that the actual owner of the premises, Allis Chalmers, was the subject of bankruptcy proceedings in New York.

When plaintiff's counsel declined to dismiss the case based solely on Huntley's representations, the firm of Johnson, Cusack & Bell undertook the defense on behalf of American Air. American Air moved for summary judgment, alleging that Allis Chalmers was the party actually operating the facility where plaintiff was injured. In a letter dated April 28, 1988, defense counsel requested that, since American Air was not the real party in interest and since Allis Chalmers was in bankruptcy, that plaintiffs voluntarily dismiss the action or face the possibility of sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137).

Plaintiffs dismissed the action against American Air and participated in the Allis Chalmers' bankruptcy proceedings. Sometime later, Huntley notified plaintiffs that the bankruptcy court had modified the automatic stay, permitting plaintiff's action to go forward.

On December 30, 1988, plaintiffs filed an action in Cook County against Allis Chalmers and others. The complaint related to the same incident as that in case No. 87-L-21929. On defendant's motion, the court transferred venue to Lake County.

Defendant moved in the circuit court of Lake County for sanctions against plaintiffs for their failure to comply with discovery. On January 2, 1991, the court granted the motion and barred plaintiffs from calling any expert witnesses or introducing evidence of lost wages at trial. In response, plaintiffs voluntarily dismissed the action. See 735 ILCS 5/2-1009 (West 1992).

On February 21, 1992, plaintiffs filed another complaint in the circuit court of Cook County. The complaint named Allis Chalmers Corporation, d/b/a American Air Filter Company, Inc., and others, as defendants, and concerned the same incident as the previous two pleadings.

Allis Chalmers again had the cause transferred to Lake County and moved to dismiss the complaint under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). Allis Chalmers alleged that the complaint was an improper second refiling pursuant to section 13-217. The court granted the motion, and plaintiffs perfected this appeal.

Plaintiffs contend on appeal that the present cause of action should not be barred. They maintain that the first action, case No. 87-L-21929, does not bar the present action because Allis Chalmerswas not a party to that case. Alternatively, plaintiffs contend that the present ...


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