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Bush v. J&J Transmissions, Inc.

Court of Appeals of Illinois, Third District

March 10, 2017

DWAYNE BUSH, Plaintiff-Appellee,
v.
J&J TRANSMISSIONS, INC., an Illinois Corporation, and JOHN GIBLIN, Defendants-Appellants.

         Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. Circuit No. 14-L-76 Honorable Adrienne W. Albrecht, Judge, Presiding.

          JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice McDade concurred in the judgment and opinion. Justice Wright dissented, with opinion.

          OPINION

          SCHMIDT JUSTICE

         ¶ 1 Defendants, J&J Transmissions, Inc., and John Giblin, filed an interlocutory appeal from the trial court's denial of their motion to dismiss the complaint of plaintiff, Dwayne Bush, presenting the certified question of whether section 13-217 of the Code of Civil Procedure (Code) (735 ILCS 5/13-217 (West 2014)) allows a third refiling of the same action. We answer the certified question in the negative. We also reverse and remand with directions.

         ¶ 2 FACTS

         ¶ 3 On October 1, 2010, plaintiff took his vehicle to defendants' business regarding problems with the transmission. Defendants replaced the transmission in plaintiff's vehicle. When plaintiff went to retrieve his vehicle around October 11, 2010, defendants insisted on payment through cash or certified check instead of credit or debit card. Plaintiff was unable to pay for his vehicle by cash or certified check, and, without payment, defendants would not release the vehicle. On November 10, 2010, plaintiff filed a complaint in the circuit court of Kankakee County against defendants, alleging claims for replevin, injunctive relief, fraud in the inducement of a contract, violation of the Automotive Repair Act (815 ILCS 306/1 et seq. (West 2014)), consumer fraud, breach of contract, violation of Title III of the Civil Rights Act of 1964 (42 U.S.C. § 1981 (1994)), and theft by conversion. Plaintiff subsequently voluntarily dismissed the complaint without prejudice.

         ¶ 4 Plaintiff then filed a complaint in the United States District Court for the Northern District of Illinois on January 14, 2011, regarding the same underlying facts and transaction. The complaint asserted claims for deprivation of civil rights, violation of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2014)), common law fraud, and declaratory and injunctive relief. On January 14, 2014, the district court granted defendants' motion for summary judgment regarding the deprivation of civil rights claim and declined to exercise supplemental jurisdiction over the remaining claims, thus dismissing the remainder of plaintiff's complaint.

         ¶ 5 Plaintiff then filed another complaint against defendants in the circuit court on July 14, 2014, which is the subject of this appeal, alleging claims for violation of the Consumer Fraud and Deceptive Business Practices Act, common law fraud, and declaratory and injunctive relief. Again, the complaint was based on the same underlying facts as the prior two complaints. Defendants filed a motion to dismiss, asserting that section 13-217 of the Code (735 ILCS 5/13-217 (West 2014)) does not allow successive refiling of the same action. The circuit court denied the motion on October 13, 2015, stating:

"I do not think the intent of the statute or the case law was to provide for when a dismissal occurs in a non-voluntary fashion such as the case being dismissed out of the federal court in an essence more or less saying get your relief from the federal court. I don't think the intent of the statute was to preclude them being able to file at this point in time." In denying defendants' motion to reconsider, the court made a finding pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016), certifying a question of law for interlocutory appeal.

         ¶ 6 ANALYSIS

         ¶ 7 The certified question before us on appeal is:

"Whether a Plaintiff can re-file an action in the State Court that was previously filed in the State Court and voluntarily dismissed without prejudice; and subsequently re-filed in the Federal District Court whereupon the Court granted Summary Judgment on the Federal Jurisdictional count and declined to exercise Supplemental Jurisdiction over Plaintiff's remaining State Law claims and dismissed the Federal Case."

         Stated another way, can plaintiff file a third complaint against defendants in the circuit court where he previously (1) filed and voluntarily dismissed a complaint in the circuit court and (2) refiled the complaint in federal court, which the court dismissed. Because Illinois courts have interpreted section 13-217 of the Code as only allowing one refiling of a complaint based on the same underlying facts, we answer the certified question in the ...


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