LYNETTE Y. HART, Plaintiff-Appellant,
LOAN KIEU LE, Defendant-Appellee.
Appeal from the Circuit Court of Du Page County. No. 12-AR-384, Honorable James D. Orel, Judge, Presiding.
Justices Schostok and Spence concurred in the judgment and opinion.
¶ 1 Plaintiff, Lynette Y. Hart, appeals from an order of the circuit court of Du Page County dismissing, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), her personal injury lawsuit against defendant, Loan Kieu Le. As explained at greater length below, the disposition of this appeal depends on whether, under principles of "equitable tolling, " a prior lawsuit between the same parties was timely filed. On the record before us, we cannot conclude that it was. We therefore affirm.
¶ 2 For reasons that are unclear, defendant's motion to dismiss the lawsuit does not appear in the record on appeal. However, plaintiff's written response to the motion and defendant's written reply to that response indicate that defendant moved for dismissal on the basis that the lawsuit was time- barred. Plaintiff's complaint, which was filed on February 14, 2012, sought recovery for injuries sustained in a motor vehicle accident that occurred on July 29, 2008. Plaintiff had sought recovery for the same injuries in a prior lawsuit that was dismissed for want of prosecution on February 24, 2011. Pursuant to section 13-217 of the Code (735 ILCS 5/13-217 (West 2010)), an action that is dismissed for want of prosecution may be refiled within one year or the remaining limitations period. "Section 13-217 is termed a 'saving statute' or 'revival statute' because it 'revives' a plaintiff's previous, timely filed complaint, beyond the limitations period, where no adjudication on the merits has been obtained and the complaint has been dismissed for procedural reasons." (Emphasis added.) Mercantile Holdings, Inc. v. Feldman, 258 Ill.App.3d 748, 751 (1994).
¶ 3 Although plaintiff refiled her lawsuit within one year of the dismissal of the prior lawsuit, defendant contended that the prior lawsuit was not filed within the applicable limitations period, so section 13-217 did not apply. On appeal, plaintiff does not dispute that the complaint in the prior lawsuit was filed one day after the expiration of the applicable limitations period. However, she argues that the complaint should be considered timely under the "equitable tolling" doctrine. Before considering that argument, a few observations about the procedural posture of this appeal are in order. As noted, this appeal is before us on an order of dismissal entered pursuant to section 2-619 of the Code. Section 2-619 provides, in pertinent part:
"(a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
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(5) That the action was not commenced within the time limited by law.
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(c) If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time." 735 ILCS 5/2-619(a)(5), (c) (West 2010).
¶ 4 We have noted that:
"When a defendant moves for involuntary dismissal under section 2-619 of the Code and no jury demand has been made and genuine disputed questions of fact are present, the court has two options: it may deny the motion without prejudice to the right to raise the subject matter of the motion by answer or it may hear and determine the merits of the dispute based upon the pleadings, affidavits, counteraffidavits, and other evidence offered by the parties. When the latter course is taken, our duty on appeal is to review not only the law, but also the facts, and to reverse the circuit court's order if it is clearly against the manifest weight of the evidence." A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill.App.3d 905, 912 (1993).
¶ 5 Here, plaintiff did not deny that her complaint was filed outside the applicable limitations period. Rather she sought to establish facts obviating the limitations defense via the joint operation of section 13-217 and the equitable tolling doctrine. "Generally, the doctrine of equitable tolling permits a court to excuse a plaintiff's failure to comply with a statute of limitations where 'because of disability, irremediable lack of information, or other circumstances beyond his control, ' the plaintiff cannot reasonably be expected to file suit on time." Williams v. Board of Review, 241 Ill.2d 352, 360 (2011) (quoting Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)). Equitable tolling requires a showing of due diligence on the part of the plaintiff. Id. "Due diligence is a 'fact-specific inquiry, guided by reference to the hypothetical reasonable person' ***. " Id. at 372 (quoting Former Employees of Siemens Information Communication Networks, Inc. v. Herman, 24 Ct. Int'l Trade 1201, 1208 ...