The Illinois Supreme Court has ruled lawsuits that have been voluntarily dismissed may only be reinstated within one month or filed as new actions within one year, saying the high court had to clarify this matter because a judge issued an "unusual" dismissal order in a Cook County suit.
The Sept. 23 ruling was authored by Chief Justice Anne Burke, with concurrence from Justices Robert Carter, Rita Garman, Mary Jane Theis, P. Scott Neville Jr., Michael Burke and David Overstreet.
The ruling stems from a 2012 traffic accident between Stanley Eighner and Patricia Tiernan. In 2014, Eighner sued Teirnan in Cook County Circuit Court, claiming bodily injuries and damages to his car.
As trial neared in 2017, Eighner underwent neck and shoulder surgery, which was going to prevent him from taking part in the trial, according to court papers. As a consequence, his attorney voluntarily dismissed the case in May 2017, with Cook County Associate Judge Moira Johnson granting him leave to reinstate the case within one year. On April 23, 2018, and again the following October, Eighner's attorney tried to electronically file a motion to reinstate the suit. He said he received confirmation of the filing from the circuit clerk, but the motion never registered on the court docket.
Eighner's attorney said the clerk's office told him after the second attempt to file the suit under a new docket number, which was done in October 2018. Tiernan's attorney then argued the suit should be dismissed on grounds the Illinois Code of Civil Procedure says a plaintiff "may commence a new action," but may not reinstate an existing action, within one year of a voluntary dismissal. The new action was not filed until five months after the one-year deadline.
Judge Johnson refused to dismiss. The matter went to Illinois First District Appellate Court, where Johnson was overturned. The appeals panel said a new action with new case number, filing fee and summons — not a reinstatement — must commence within one year.
"Had the legislature intended to allow a plaintiff to file an action after a dismissal under the old case number, it would have so provided and would not have used the words ‘new action,'" said Appellate Justice Jesse Reyes.
At the state Supreme Court, Chief Justice Anne Burke agreed.
"The appellate court correctly observed, the phrase 'may commence a new action' is unambiguous. The phrase denotes a new case number, a new filing fee, and a new summons to issue. Indeed, were we to conclude otherwise and hold that a complaint with no changes whatsoever — no new case number, no new fee, no new summons — is in fact a 'new action,' we would render the word 'new' meaningless," Burke observed.
Burke pointed out a plaintiff who voluntarily dismisses their suit, may vacate the dismissal and reinstate within 30 days. The 30-day deadline may be extended another 30 days, if the extension is granted within the first 30 days. If none of this is done, plaintiff must lodge a new suit because the judge in the first suit no longer has jurisdiction.
Burke noted Eighner should have filed a motion to vacate the voluntary dismissal order and reinstate his case, but instead simply filed notice of reinstatement. Burke said this move was understandable, given the language of Johnson's dismissal order, which was "unusual."
Despite their holding, Burke said the Supreme Court justices recognized that forcing Eighner to dismiss his lawsuit at this point would be unfair.
"We believe it is unreasonable to penalize plaintiff for complying with an order of the circuit court. Accordingly, given the unique circumstances presented here and in furtherance of the goal of having the case decided on the merits, in the exercise of our supervisory authority we will treat plaintiff’s filing on April 23, 2018, as a motion to vacate the order of voluntary dismissal and reinstate," Burke said.
Burke noted Eighner did not abuse the reinstatement process and did not engage in "duplicity." Moreover, Tiernan has not suggested she would be harmed by reinstatement.
Tiernan has been represented by the Chicago firm of Ripes, Nelson, Baggot & Kalobratsos.
Eighner has been represented by John P. DeRose & Associates, of suburban Hinsdale.