LYNETTE Y. HART, Plaintiff-Appellant,
LOAN KIEU LE, Defendant-Appellee.
Plaintiff’s refiled personal injury action was properly dismissed as untimely where the record showed that plaintiff’s initial action was filed electronically one day after the statute of limitations expired due to the fact that the return date for the summons selected by the paralegal in the initial timely filing was unavailable and caused the entire filing to be rejected by the electronic filing system, and the successful initial filing one day after the expiration of the limitations period precluded the application of section 13-217 of the Code of Civil Procedure and the equitable tolling doctrine to rehabilitate the rejected filing, especially in the absence of a showing of due diligence on plaintiff’s part.
Appeal from the Circuit Court of Du Page County, No. 12-AR-384; the Hon. James D. Orel, Judge, presiding.
Ryan J. Harrington, of Kuhn, Mitchell, Moss, Mork & Lechowicz, LLC, of Naperville, for appellant.
Carisa J. Krieg, of Law Office of John H. Currie, of Chicago, for appellee.
JUSTICE McLAREN delivered the judgment of the court, with opinion. 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:
(5) That the action was not commenced within the time limited by law.
(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 ...