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Mermelstein v. Rothner

June 18, 2004

[5] MARVIN MERMELSTEIN, INDIVIDUALLY AND DERIVATIVELY AS A SHAREHOLDER ON BEHALF OFPREFERRED ENTERAL SYSTEMS, INC., PLAINTIFF-APPELLEE,
v.
ERIC ROTHNER, MARC SIEBZENER, NOAH WOLFF, AND MEYER MAGENCE, DEFENDANTS PREFERRED ENTERAL SYSTEMS, INC., DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County. Honorable Sophia H. Hall Judge Presiding. No. 91 CH 5470.

[7] The opinion of the court was delivered by: Justice Tully

[8]  This appeal calls upon us to clarify the interaction of two sections of the Limitations Act (the Act) (735 ILCS 5/13--101 et seq. (West 2002)). Following protracted litigation between the parties, the trial court granted a directed verdict in favor of defendant Preferred Enteral Systems, Inc. (Preferred). At that point, Preferred voluntarily dismissed its counterclaim against plaintiff, Marvin Mermelstein. Plaintiff appealed, and this court reversed and remanded the matter to the trial court. See Mermelstein v. Rothner, No. 1-99-2657 (September 28, 2001) (unpublished order under Supreme Court Rule 23). On remand plaintiff sought leave to and did file an amended complaint. In its answer to that complaint, Preferred raised its previously dismissed counterclaim. The trial court dismissed the counterclaim, holding that Preferred failed to refile it within one year as required by section 13--217 of the Act (735 ILCS 5/13--217 (West 1994))*fn1 . Preferred appeals contending that section 13--207 of the Act controls and that it may file the otherwise time-barred claim because it is was filed as a counterclaim to plaintiff's amended complaint. We reverse and remand.

[9]  BACKGROUND

[10]   The record is voluminous, but, because the issue before us is primarily one of statutory interpretation, only a brief recitation of the facts is necessary. Plaintiff was a minority shareholder in Preferred, a close corporation. In June 1991, plaintiff sued Preferred and several others alleging, inter alia, breach of fiduciary duties. The individual defendants are not parties to this appeal. In July 1991, defendants filed an answer and counterclaim alleging, inter alia, breach of fiduciary duties. A full discussion of the business relationships among the parties and the allegedly improper conduct is contained in this court's prior Rule 23 disposition. See Mermelstein, No. 1-99-2657. The complaint and counterclaim were both amended at various times.

[11]   In June 1999, the matter proceeded to a bench trial. Following the presentation of plaintiff's proof, defendants secured a finding in their favor pursuant to section 2--1110 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--1110 (West 1998)). Preferred voluntarily dismissed its counterclaim without objection. Plaintiff appealed and this court reversed in part and remanded the matter to the trial court with directions to allow plaintiff to file an amended complaint. See Mermelstein, No. 1-99-2657, slip op. at 62.

[12]   In May 2002, following remand, plaintiff filed his fifth amended complaint. Defendants successfully moved to strike portions of that complaint and a sixth amended complaint. In May 2003, defendants filed their answer to plaintiff's sixth amended complaint. Plaintiff moved pursuant to section 2--619(a)(5) of the Code (735 ILCS 5/2--619(a)(5) (West 2004)) to dismiss the counterclaim arguing that the statute of limitations had expired and it was filed outside the one-year period allowed for refiling by section 13--217. Preferred argued that its counterclaim should be allowed as a response to plaintiff's amended complaint under section 13--207. The trial court held that section 13-- 217 controlled and dismissed Preferred's counterclaim. On Preferred's motion, the trial court subsequently found that there was no just reason to delay appeal of its ruling, and Preferred timely appeals.

[13]   DISCUSSION

[14]   Preferred contends that the trial court erred when it held that its counterclaim was time barred. We review, de novo, a trial court's dismissal under section 2--619 on the basis that a claim is barred by the statute of limitations. Bloom v. Braun, 317 Ill. App. 3d 720, 725 (2000). Because the dispute between the parties focuses primarily on a matter of statutory interpretation, we begin our analysis by setting forth the relevant statutory language. Section 13--207 provides:

[15]   "Counterclaim or set-off. A defendant may plead a set-off or counterclaim barred by the statute of limitation, while held and owned by him or her, to any action, the cause of which was owned by the plaintiff or person under whom he or she claims, before such set-off or counterclaim was so barred, and not otherwise." 735 ILCS 5/13--207 (West 2004).

[16]   The relevant language of section 13--217 provides:

[17]   "Reversal or dismissal. 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 *** the action is voluntarily dismissed by the plaintiff *** 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 *** the action is voluntarily dismissed by the plaintiff ***." 735 ILCS 5/13--217 (West 1994).

[18]   The fundamental rule of statutory interpretation is to ascertain and effectuate the legislature's intent. Hamilton v. Industrial Commn, 203 Ill. 2d 250, 255 (2003). "To ascertain the legislative intent, the court must look first to the language of the statute, examining the language of the statute as a whole, and considering each part or section in connection with every other part or section." Atunes v. Sookhakitch, 146 Ill. 2d 477, 484 (1992). When an apparent conflict exists between statutes, courts must construe the statutes in harmony if possible. Newland v. Budget Rent-A-Car Systems, Inc., 319 Ill. App. 3d 453, 456 (2001).

[19]   Here we are presented with an apparent conflict between two sections of the statute. Section 13--207 appears to preserve a defendant's right to bring an otherwise time-barred counterclaim, while section 13--217 appears to limit that right after one year if the counterclaim is voluntarily dismissed. Preferred argues that we should recognize the equitable principles underlying section 13--207 and apply that statute without reference to section 13--217. Plaintiff argues that we should resolve the conflict by applying section 13--217 because that section is more specific. We find neither approach entirely satisfying but agree with Preferred that consideration of the equitable principles underlying section 13--207 is an appropriate starting point.

[20]   Section 13--207 appears to recognize the fact that potential litigants do not necessarily promptly file every possible claim they may have. Instead, some litigants may refrain from filing until they are haled into court as a defendant. The original purpose of section 13-- 207 appears to be to prevent a plaintiff from gaining a tactical advantage by delaying his filing so that, while his pleading comes within the time period of the statute of limitations, any counterclaim would be outside the period and therefore barred. Dignan v. Midas-International Corp., 65 Ill. App. 3d 188, 192 (1978). However, regardless of the original purpose of this section, courts have long recognized that application of section 13--207 is based on the theory that a plaintiff waives application of the statute of limitations with regard to potential counterclaims. See Cameron General Corp. v. Hafnia Holdings, Inc., 289 Ill. App. 3d 495, 509 (1997), citing Connor Live Stock Co. v. Fisher, 32 Ariz. 80, 255 P. 996 (1927); see also Viland v. James E. McElvain, Inc., 103 Ill. App. 3d 318 (1982). More ...


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