Appeal from the Circuit Court of Cook County No. 11 D 80706 The Honorable Martha A. Mills, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Harris
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Simon specially concurred, with opinion.
Justice Connors dissented, with opinion.
¶ 1 Plaintiff, Collett Ralda-Sanden (hereinafter is referred to as "Collett"), appeals the order of the circuit court dismissing her complaint to establish paternity against defendant, Robert Sanden (hereinafter is referred to as "Robert"), pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010). On appeal, Collett contends (1) the statute of limitations period contained in section 8(a)(1) of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/8(a)(1) (West 2010)), should be equitably tolled where she had no knowledge of a cause of action prior to the expiration of the statute of limitations period, and where Robert fraudulently concealed the cause of action by intimidating Collett's mother; (2) Robert should be estopped from asserting the statute of limitations defense where his wrongful conduct precluded Collett from discovering his identity in a timely manner; and (3) refusal to toll the statute of limitations here would violate Collett's equal protection rights by depriving her of a reasonable opportunity to make her paternity claim. For the following reasons, we reverse and remand for further proceedings.
¶ 3 The trial court granted Robert's section 2-619 motion to dismiss on March 14, 2012. Collett filed this notice of appeal on April 12, 2012. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶ 5 On October 19, 2011, Collett filed her verified complaint to establish paternity pursuant to section 7(a) of the Parentage Act (750 ILCS 45/7(a) (West 2010)). In her complaint, Collett alleged that she was born in Chicago, Illinois, to Ana Ralda (hereinafter referred to as "Ana" or "mother") on October 24, 1989. She had never met her biological father and whenever she inquired about him, Ana always told her that her father had died in a car accident. In her uncontradicted affidavit, Collett stated that she had arguments with her mother about the identity of her father because Ana refused to talk about him. When she was a teenager, Collett applied for a state identification card (ID). She obtained her birth certificate in order to get the ID and she noticed the certificate listed her last name as "Ralda-Sanden" Until then, Collett had not known her father's last name.
¶ 6 After learning of her father's name, Collett periodically looked on the computer for information about her father but she did not find anything because "there are a lot of Robert's on the internet," and her mother continued to tell her that her father was long dead from a car accident. In July, 2011, Collett and Ana had a "bad argument" about her father and Ana then first told the truth to Collett. She told Collett that her father repeatedly raped Ana and that she ran away. Ana called the police but she dropped criminal charges against him. She also told Collett for the first time that her father "was probably still alive" and she gave his middle initial and birth date. She told Collett that he used to live in Evanston, Illinois. Based on that previously secreted information, Collett's Internet searches brought positive results. She discovered Robert was alive and living in Florida. Within three months she filed her paternity complaint.
¶ 7 In her uncontradicted affidavit, Ana stated that she is Collett's mother. She worked for Robert and his wife from 1988 to April of 1989 as a live-in nanny for their two-year-old daughter. Ana stated that about four months into her employment, Robert came into her bedroom one night while his wife was out of town, put a gun to her mouth and raped her. At the time, Ana was 4 feet 11 inches tall and weighed 95 pounds. Over the next six to seven months, Robert forced himself on Ana "about 30 times."
¶ 8 Ana began to feel sick in March of 1989. Robert took her to a clinic and they discovered that Ana was pregnant. Ana stated that she was a virgin when Robert raped her and she had not had sexual relations with anyone else at that time. Robert demanded that Ana terminate the pregnancy and became violent when she refused. When Robert attempted to rape Ana in April 1989, she ran away to a store where a clerk who spoke Spanish called police for her. Ana was taken to Evanston hospital and the police arrested Robert. The State's Attorney's office brought criminal charges against him and Ana left to live with a friend.
¶ 9 After his release from jail, Robert found Ana and threatened to kill her and her family in Guatemala. He forced Ana into his car and drove her to his attorney's office where he told her to sign some papers in which she recanted her statements concerning Robert's sexual assault against her. Ana was so intimidated by and fearful of Robert that she dropped the criminal charges against him.
¶ 10 In August of 1989, Robert called Ana and asked if she had seen a doctor. He made an appointment for her and drove her to the appointment. Ana gave birth to Collett on October 24, 1989. When she received the medical bill, Ana told the hospital to send it to Robert at his Evanston address. Robert called Ana in November 1989 and asked about her and the baby. Ana stated that this communication was the last she had with Robert. Robert never paid any support for Collett. In January of 1990, Ana applied for financial assistance and she gave the caseworker Robert's name and address.
¶ 11 Ana stated that she never told Collett the truth about Robert because she was afraid of what he would do if Collett tried to find him. She also did not want Collett to know that she was the product of a rape. Whenever Collett asked about her father, Ana told her only that his name was Robert and that he was dead. When Collett was a teenager, she saw her birth certificate and discovered that her father's name was "Robert." Collett would search the name on the computer, but she continued to believe that Robert was dead. Collett never found any information about her father on the computer.
¶ 12 In July of 2011, Ana finally told Collett the truth about her father. With the information, Collett discovered Robert alive and living in Florida. Ana stated that prior to that day, Collett did not know Robert was alive.
¶ 13 On October 19, 2011, Collett filed her petition to establish paternity. Robert filed a section 2-619(a)(5) motion to dismiss the petition, alleging that it was not filed within the time period specified in section 8(a)(1) of the Parentage Act. Collett responded that the two-year statute of limitations period in section 8(a)(1) should be equitably tolled until the time she discovered her father was actually alive. She further argued that Robert should be equitably estopped from asserting the statute of limitations defense due to his misconduct against Ana.
¶ 14 Although the trial court found the facts of the case, taken as true, were "reprehensible," it granted the motion to dismiss on March 14, 2012. It reasoned that the limitations period was sufficiently lengthy for a child to discover his or her parentage, and that "[t]o add an equitable tolling doctrine would open the floodgates to almost every claim of parentage made after a child reaches the age of 18." The trial court also declined to apply the equitable estoppel doctrine "when there is no appellate or other cited authority in this or any other jurisdiction supporting that extension." Collett filed this timely appeal.
¶ 15 We note that Robert did not file an appellee brief. However, this court may decide issues on appeal without the appellee brief and we choose to do so in this case. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶ 17 Collett argues that the trial court erred in granting Robert's motion to dismiss because the statute of limitations period in section 8(a)(1) should have been equitably tolled given her situation. A section 2-619 motion to dismiss admits the sufficiency of the claim but asserts affirmative matter that defeats the claim. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. Robert's assertion that Collett's petition is barred by the statute of limitations is a matter properly raised by a section 2-619 motion to dismiss. 735 ILCS 5/2-619(a)(5) (West 2010). The motion takes as true all well-pleaded facts and all reasonable inferences taken from those facts. Calloway v. Kinkelaar, 168 Ill. 2d 312, 325 (1995). Furthermore, the court views all pleadings and supporting documents in the light most favorable to the nonmoving party. DeSmet v. County of Rock Island, 219 Ill. 2d 497, 504 (2006). We review the trial court's grant of a section 2-619 motion to dismiss de novo. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).
¶ 18 Section 8(a)(1) of the Parentage Act requires that a parentage action brought by or on behalf of a child "shall be barred if brought later than 2 years after the child reaches the age of majority." 750 ILCS 45/8(a)(1) (West 2010). Collett was born on October 24, 1989. Therefore, she reached the age of majority on October 24, 2007. According to section 8(a)(1), C.R.-S. had until October 24, 2009 to file her petition. Collett filed her petition on October 19, 2011, almost two years past the period outlined in the statute. She argues, however, that the statute of limitations period should be equitably tolled because she did not discover Robert was alive until July of 2011.
¶ 19 No Illinois case law directly addresses the application of equitable tolling to the statute of limitations period in the Parentage Act. However, case law exists on the application of the doctrine to state statutes in general. In Clay v. Kuhl, 189 Ill. 2d 603 (2000), our supreme court briefly addressed the issue. It noted the following as situations where equitable tolling may be appropriate: (1) if the defendant actively misled the plaintiff; (2) if the plaintiff was prevented from asserting his or her rights in some extraordinary way; or (3) if the plaintiff mistakenly asserted his or her rights in the wrong forum. Id. at 614.
¶ 20 For further guidance, we may look to cases where the statute at issue is a federal statute. Under federal law, equitable tolling may excuse failure to file within a statute of limitations period if the failure is caused by "disability, irremediable lack of information, or other circumstances beyond [the plaintiff's] control." (Internal quotation marks omitted.) Williams v. Board of Review, 241 Ill. 2d 352, 360 (2011). Equitable tolling does not require fault on the defendant's part. Id. at 361. Furthermore, the application of equitable tolling requires due diligence on the part of the claimant. Id. at 372. Due diligence is a "fact-specific inquiry, guided by references to the hypothetical reasonable person," or similarly-situated person. (Internal quotation marks omitted.) Id. Where the limitations period is contained in a statute, "courts will consider the language establishing the statutory deadline, the underlying subject matter and purpose of the statute, and the practical effect of applying the doctrine." Id. at 365.
¶ 21 The application of equitable tolling to the statute of limitations contained in the Parentage Act is an issue of first impression. However, no Illinois case expressly prohibits the application of an equitable tolling of the statute of limitations, and our supreme court has noted situations where it may be appropriate. See Clay, 189 Ill. 2d at 614. Moreover, the public policy underlying the Parentage Act "recognize[s] the right of every child to the physical, mental, emotional, and monetary support of his or her parent." Department of Public Aid ex rel. Evans v. Lively, 246 Ill. App. 3d 216, 223 ...