Appeal from the Circuit Court of Winnebago County. No. 95--L--16 Honorable Galyn W. Moehring, Judge, Presiding.
The opinion of the court was delivered by: Justice Thomas
The plaintiff, Julie A. Rodgers-Orduno (the plaintiff), filed this negligence action against the defendant, Jennifer R. Cecil-Genter (Genter), on January 11, 1995, to recover for personal injuries she sustained in an automobile collision that occurred on September 19, 1990. Genter subsequently filed a third-party complaint for contribution against the third-party defendant, Timothy W. Laird (Laird). The trial court entered an order granting Genter's motion to dismiss the plaintiff's complaint on the basis that the filing of the complaint exceeded the permitted number of refilings allowed by section 13--217 of the Code of Civil Procedure (the Code) (735 ILCS 5/13--217 (West 1994)). In that same order, the trial court also granted Laird's motion to dismiss Genter's contribution claim. The trial court further found that its order disposed of all the claims in the suit and stated that there was "no just reason to delay enforcement or appeal." The plaintiff appeals the trial court's ruling dismissing her complaint, and Genter cross-appeals the dismissal of her third-party action for contribution.
The record reveals that the plaintiff was involved in an automobile accident on September 19, 1990, in which she sustained personal injuries and damage to her vehicle. On January 29, 1992, the law firm of Mateer & Associates (the Mateer firm) filed suit on behalf of the plaintiff in the arbitration division of the circuit court of Winnebago County in case No. 92--LM--234X against defendants Genter and Laird. The complaint sought recovery for personal injuries, property damage, and medical expenses resulting from the collision.
On July 29, 1992, Tuite-Shaw & Associates, a law firm retained by the plaintiff, filed a personal injury suit on behalf of the plaintiff in the law division of the circuit court of Winnebago County against Genter and Laird in case No. 92--L--370. On July 30, 1992, one day after the complaint was filed in case No. 92--L--370, the plaintiff had case No. 92--LM--234X voluntarily dismissed without prejudice. On January 19, 1994, the plaintiff had case No. 92--L--370 voluntarily dismissed without prejudice.
On January 11, 1995, the plaintiff had her suit against Genter and Laird refiled as case No. 95--L--16. Both defendants subsequently filed motions to dismiss the complaint. Laird was dismissed from No. 95--L-- 16 with prejudice by an agreed order on May 24, 1995. Genter's motion to dismiss was denied on March 20, 1996. On June 18, 1996, defendant Genter filed an answer to the complaint in No. 95--L--16. Genter then filed a third-party complaint for contribution against Laird on January 8, 1997.
Laird filed a motion to dismiss the third-party complaint on May 2, 1997. On January 22, 1998, the trial court granted that motion, finding that the underlying action was not valid because it exceeded the permissible number of refilings allowed by section 13--217 of the Code. On February 18, 1998, Genter filed a motion to dismiss the plaintiff's complaint in No. 95--L--16, arguing the same rationale that the trial court had cited in dismissing the third-party complaint. On February 19, 1998, the trial court entered an order holding its decision regarding Laird's third-party complaint in abeyance pending the resolution of Genter's motion to dismiss.
On July 1, 1998, the trial court entered an order granting Genter's motion to dismiss the plaintiff's complaint on the basis that the filing of the complaint exceeded the permitted number of refilings allowed by section 13--217 of the Code (735 ILCS 5/13--217 (West 1998)), as construed by the supreme court in Timberlake v. Illini Hospital, 175 Ill. 2d 159 (1997), and Flesner v. Youngs Development Co., 145 Ill. 2d 252 (1991). In that same order, the trial court granted Laird's motion to dismiss Genter's third-party complaint. The trial court further found that its order disposed of all the claims in the case and stated that there was "no just reason to delay enforcement or appeal."
Thereafter, the plaintiff filed a timely motion to reconsider, which was denied by the trial court on February 18, 1999. The plaintiff filed her notice of appeal on March 18, 1999, and Genter filed her cross-appeal on April 2, 1999.
On appeal, the plaintiff contends that the trial court erred in dismissing her complaint in No. 95--L--16 on the basis that its filing constituted an impermissible refiling under section 13--217 of the Code. The plaintiff claims that, since case Nos. 92--LM--234X and 92--L--370 were pending at the same time, the trial court was mistaken in deciding to dismiss case No. 95--L--16 as an impermissible second refiling in violation of section 13--217 of the Code.
The version of section 13--217 of the Code that is currently in effect (see Best v. Taylor Machine Works, 179 Ill. 2d 367, 467 (1997) (Public Act 89--7, which amended this section effective March 9, 1995, was held unconstitutional in its entirety, and therefore the pre-1995 version is in effect)) provides that, if the time to initiate an action is limited and if the plaintiff voluntarily dismisses the action, "then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is voluntarily dismissed by the plaintiff." 735 ILCS 5/13--217 (West 1994); Lydon v. Eagle Food Centers, Inc., 297 Ill. App. 3d 90, 93 (1998). It is well settled that section 13--217 expressly permits one, and only one, refiling of a claim even if the statute of limitations has not expired. Timberlake v. Illini Hospital, 175 Ill. 2d 159, 164 (1997); Flesner v. Youngs Development Co., 145 Ill. 2d 252, 253 (1991).
In the present case, the plaintiff is technically correct that she "refiled" her case only once. However, we do not need to address the issue of whether that refiling was tantamount to a second refiling for purposes of section 13--217 because we find that the refiling did not occur within the time constraints of section 13--217. That section plainly provides that, if the action is voluntarily dismissed by the plaintiff, the plaintiff "may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is voluntarily dismissed by the plaintiff." 735 ILCS 5/13--217 (West 1994). Here, the plaintiff does not dispute the fact that all three of the plaintiff's filings were brought against the same defendants and were based on the same set of facts and the same cause of action. Furthermore, the plaintiff does not dispute that the Mateer law firm appeared on her behalf and was authorized by her to file the initial cause of action in case No. 92--LM--234X on January 29, 1992. See Lydon, 297 Ill. App. 3d at 93-94 (when attorney appears of record on behalf of a party, a rebuttable presumption arises that the party authorized the attorney to do so). The record further indicates that the plaintiff voluntarily dismissed her cause of action on July 30, 1992. The two-year statute of limitations applicable in personal injury cases expired on September 19, 1992. Thus, the plaintiff had one year from the date of the voluntary dismissal, until July 30, 1993, to refile her cause of action. By her own admission she did not refile the case until January 11, 1995, which we find to be beyond the statutory one- year period.
The plaintiff claims that she had one year from the date that her second action was filed to refile her lawsuit. The plaintiff's position must be rejected. Section 13--217 plainly provides that the plaintiff has one year from the date of voluntary dismissal to refile. It does not contemplate that the plaintiff may extend the one-year period by multiple filings of the same cause of action. As Justice Miller observed in his specially concurring opinion in Flesner, "section 13-- 217 affords a single one-year extension of time, and a plaintiff may not further lengthen the time for bringing suit through subsequent refilings." Flesner, 145 Ill. 2d at 255 (Miller, C.J., specially concurring). Although Flesner involved a case with two refilings of the same cause of action instead of two filings, we believe the same rationale is equally applicable to the instant case where the plaintiff is seeking to extend the one-year period allowed by section 13--217 by multiple filings of the same cause of action. Accordingly, we hold that the trial court properly dismissed the plaintiff's untimely complaint.
The plaintiff argues that, even if her third filing in this case constituted a violation of section 13--217, Genter waived the issue by waiting until it was "three years into the litigation" to raise it. We find, however, that the plaintiff has waived her waiver argument by not adequately raising it before the trial court. See Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 539-40 (1996). Here, the plaintiff mentioned waiver for the first time in her motion to reconsider. Moreover, she did not raise the same argument she now makes. Instead, she argued only that Genter waived the issue by filing a general appearance and answer. Thus, we find that she waived the issue she now raises on appeal.
Next, we turn to Genter's cross-appeal. Ordinarily we would note that our resolution of the foregoing issue renders Genter's cross-appeal moot. However, given the procedural history of this case, we are obligated to mention ...