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Pellico v. Mork

Court of Appeals of Illinois, Second District

March 23, 2018

GREGORY PELLICO, Individually and as Beneficiary of the Evelyn Pellico and Peter M. Pellico Trusts, Plaintiff-Appellant,
v.
LORRAINE MORK, Executor of the Estate of Robert Mork, Individually and as Former Du Page County Public Guardian; JENNIFER MARTYN, Individually and as Former Assistant Du Page County Public Guardian; and THE OFFICE OF THE DU PAGE COUNTY PUBLIC GUARDIAN, Defendants Lorraine Mork, Executor of the Estate of Robert Mork, Individually and as Former Du Page County Public Guardian, Defendant-Appellee.

          Appeal from the Circuit Court of Du Page County. No. 16-L-445 Honorable Dorothy French Mallen, Judge, Presiding.

          JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

          OPINION

          McLAREN JUSTICE.

         ¶ 1 Plaintiff, Gregory Pellico, individually and as beneficiary of the Evelyn Pellico and Peter M. Pellico trusts, appeals the order of the circuit court of Du Page County dismissing his refiled lawsuit against defendant, Lorraine Mork, the executor of the estate of Robert Mork (Mork), now deceased, [1] the former public guardian of Du Page County. The court dismissed plaintiff's lawsuit as barred under the rule that allows only one refiling, under section 13-217 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/13-217 (West 1994)).[2] Plaintiff argues that the court erred by dismissing this case based on section 13-217, because plaintiff's previous refiling occurred while his original case was still pending. Plaintiff also argues that defendant acquiesced to the multiple refilings. For the following reasons, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 A. First Filing

         ¶ 4 On April 12, 2013, plaintiff filed a complaint against defendant in the circuit court of Du Page County, case No. 13-L-333 (Case I), alleging breach of fiduciary duty in managing a trust and intentional infliction of emotional distress. On May 20, 2015, the complaint was voluntarily dismissed upon plaintiff's motion.

         ¶ 5 B. Second Filing

         ¶ 6 On January 13, 2014, while Case I was still pending, plaintiff filed a complaint against defendant in the United States District Court for the Northern District of Illinois, case No. 14-CV-226 (Case II). Plaintiff alleged breach of fiduciary duty (failure to manage trusts), negligence (legal malpractice), denial of his civil due process rights, and intentional infliction of emotional distress. The case was stayed pending the resolution of Case I. After Case I was voluntarily dismissed on May 20, 2015, the stay was lifted in Case II. However, on January 28, 2016, the federal court dismissed Case II for lack of federal subject matter jurisdiction.

         ¶ 7 C. Third Filing

         ¶ 8 On May 17, 2016, plaintiff filed case No. 16-L-445 (Case III), the complaint at issue here, in the circuit court of Du Page County. On October 31, 2016, plaintiff filed an amended complaint alleging violation of his due process rights, breach of fiduciary duty (failure to manage trusts), intentional infliction of emotional distress, and violation of the Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 2016)).

         ¶ 9 Defendant moved for dismissal pursuant to sections 2-615, 2-619(a)(4), 2-619(a)(9), and 2-619.1 of the Code (735 ILCS 5/2-615, 2-619(a)(4), 2-619(a)(9), 2-619.1 (West 2016)). Defendant argued that, pursuant to section 13-217 of the Code (735 ILCS 2/13-217 (West 1994)), plaintiff's case was barred by the single-refiling rule and should be dismissed under sections 2-619(a)(4) and (a)(9) of the Code. Defendant also argued that Mork had absolute quasi-judicial immunity and sovereign immunity and that the case should be dismissed pursuant to section 2-619(a)(9); that, because res judicata barred all of plaintiff's counts, the complaint should be dismissed pursuant to sections 2-619(a)(4) and (a)(9); and that, because plaintiff failed to state a cause of action for a violation of his due process rights, this count should be dismissed pursuant to section 2-615.

         ¶ 10 On June 13, 2017, the trial court dismissed plaintiff's complaint with prejudice on the basis that it was barred by the single-filing rule under section 13-217 of the ...


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