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Fiorito v. Bellocchio

Court of Appeal of Illinois, First District, Fourth Division

October 24, 2013

Michael FIORITO, Plaintiff-Appellant,
v.
Joseph BELLOCCHIO, Defendant-Appellee.

Page 43

Randall F. Peters, of Randall F. Peters & Associates, of Chicago, for appellant.

Bruce Farrel Dorn & Associates, of Chicago (Ellen J. O'Rourke and Jonathan C. Suttle, of counsel), for appellee.

OPINION

HOWSE, Presiding Justice.

[376 Ill.Dec. 400] ¶ 1 This appeal arises from an order of the circuit court granting defendant Joseph Bellocchio's motion to dismiss plaintiff Michael Fiorito's personal injury action. On appeal, plaintiff contends that the trial court erred in granting defendant's motion to dismiss on grounds that refiling was beyond the one-year right to refile provided by statute. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 Plaintiff was involved in an automobile accident with defendant on October 19, 2001. Plaintiff retained attorney Olson to represent him. On or about August 25, 2003, attorney Olson filed a personal injury complaint, case No. 03 L 10225, against defendant seeking damages for injuries plaintiff sustained in the accident. However, plaintiff was not aware that attorney Olson filed the complaint. On or about September 19, 2003, plaintiff discharged attorney Olson. Plaintiff subsequently retained new counsel, attorney Peters, who unsuccessfully sought to determine whether attorney Olson had filed suit. Because he was unable to ascertain whether a suit had been filed and because under the statute of limitations the time to file the suit expired on October 19, 2003, attorney Peters filed suit for the same accident against defendant on October 16, 2003, as case number 03 L 12346. Plaintiff subsequently learned that a suit was filed by attorney Olson. On March 24, 2004, plaintiff voluntarily dismissed case number 03 L 12346, the second suit, pursuant to section 2-1009 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2004)), and proceeded with case number 03 L 10225, the first suit.

¶ 4 On May 18, 2010, plaintiff voluntarily dismissed case number 03 L 10225, the first suit. Plaintiff then refiled a complaint against defendant with respect to the same accident on May 16, 2011. Defendant filed a motion to dismiss under section 2-619 of the Code (735 ILCS 5/2-619 (West 2010)) arguing that section 13-217 of the Code (735 ILCS 5/13-217 (West 2010)) allowed for only one refiling of a case after voluntary dismissal. He further contended that the filing was untimely and violated section 13-217 because the one-year period of refiling began to run when plaintiff dismissed case number 03 L 12346 on March 24, 2004. In response, plaintiff argued that the second case was dismissed pursuant to section 2-619(a)(3) (735 ILCS 5/2-619(a)(3) (West 2004)) based on duplicative suits and that the second suit was a nullity from its inception.

¶ 5 The trial court disagreed with plaintiff's characterization of the dismissal, finding that the order entered on March 24, 2004, dismissing the suit specifically stated that it was a voluntary dismissal pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009 (West 2004)). Accordingly, plaintiff's one-year refiling limitations period under section 13-217 began to run at that point. The court found that the May 16, 2011 refiling, while within one year of the May 18, 2010 dismissal of the first suit, was beyond the one-year period provided by section 13-217. The trial court cited to

Page 44

[376 Ill.Dec. 401] Rodgers-Orduno v. Cecil-Genter, 312 Ill.App.3d 1150, 245 Ill.Dec. 331, 728 N.E.2d 62 (2000), in support of its determination that defendant's motion to dismiss should be granted.

¶ 6 Plaintiff then filed a motion to reconsider, arguing that the trial court misapplied the law. The trial court denied plaintiff's motion to reconsider, finding that plaintiff's arguments were the same as in the initial response to defendant's motion and all were considered and reviewed. This timely appeal followed.

¶ 7 ANALYSIS

¶ 8 On appeal, plaintiff contends that the trial court erred in granting defendant's motion to dismiss on grounds that refiling was beyond ...


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