Jain v. Johnson

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Jain v. Johnson

State: Illinois

Court: 2nd District Appellate

Docket No: 2-09-0080 Rel

Case Date: 01/20/2010

Preview:No. 2--09--0080 Filed: 1-20-10 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ BHAGWAN DASS JAIN, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellant, ) ) v. ) No. 08--AR--1012 ) KENNETH P. JOHNSON, Individually and ) d/b/a Johnson and Associates, and ) ROBERT KIRTLAND, ) Honorable ) John T. Elsner, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE SCHOSTOK delivered the opinion of the court: This case presents the question of whether the Illinois saving statute (735 ILCS 5/13--217 (West 2008)), which permits the refiling of certain dismissed actions within one year, creates an exception to the statute of repose for legal malpractice actions (735 ILCS 5/13--214.3(c) (West 2008)). For the following reasons, we hold that it does. On May 7, 2001, the plaintiff, Bhagwan Dass Jain, filed a legal malpractice action against the defendants, his former lawyers, for malpractice allegedly accruing on May 9, 1999. (The defendants allegedly failed to file a lawsuit on the plaintiff's behalf before the statute of limitations expired.) The parties agree that the malpractice action was filed within the applicable statutes of limitations and repose contained in section 13--214.3 of the Code of Civil Procedure (Code) (735 ILCS 5/13--214.3 (West 2008)). During the pendency of the case, however, both the statute of

No. 2--09--0080 limitations and the statute of repose expired. After lengthy delays attributable to both parties, on March 10, 2008, the case was dismissed for want of prosecution. A little over two months later, on May 19, 2008, the plaintiff refiled the case under the Illinois saving statute, section 13--217 of the Code (735 ILCS 5/13--217 (West 2008)). The defendants moved to dismiss under section 2--619 of the Code (735 ILCS 5/2--619 (West 2008)), arguing that the refiled suit was barred by the six-year statute of repose for claims of legal malpractice. 735 ILCS 5/13--214.3(c) (West 2008). The plaintiff argued that the saving statute created an exception to the statute of repose, because under the saving statute, a plaintiff has an absolute right to refile (within one year) a case that was dismissed for want of prosecution. The trial court agreed with the defendants and granted the motion to dismiss, and the plaintiff filed a timely notice of appeal. "Section 2--619 motions present a question of law, and we review rulings thereon de novo." DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). Moreover, where the determination of the motion involves an issue of statutory construction, we review the judgment de novo. Lee v. John Deere Insurance Co., 208 Ill. 2d 38, 43 (2003). In any case involving the interaction of two statutes, we begin with the language of the statutes at issue. Section 13--214.3(c) of the Code contains the statute of repose for legal malpractice actions. It states, in relevant part, that an action for legal malpractice "may not be commenced in any event more than 6 years after the date on which the act or omission occurred." 735 ILCS 5/13--214.3(c) (West 2008). Section 13--217, the saving statute, states: "In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if *** the action is dismissed for want of prosecution, *** then, whether or not the time limitation for bringing such action expires

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No. 2--09--0080 during the pendency of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is dismissed for want of prosecution." 735 ILCS 5/13--217 (West 1994).1 The parties agree that the saving statute creates an exception to statutes of limitations, so that an action that was timely filed at its inception may, under the saving statute, be refiled within one year after a dismissal on one of the bases enumerated in the statute, even if the statute of limitations expired prior to the date of refiling. The primary issue on appeal is whether the saving statute creates a similar exception to a statute of repose. "[A] statute of repose differs from a statute of limitations in that a statute of limitations governs the time in which lawsuits may be commenced after a cause of action has accrued, while a statute of repose extinguishes the action itself after a fixed period of time, regardless of when the action accrued." DeLuna, 223 Ill. 2d at 61. A statute of limitations generally does not begin to run until the plaintiff discovers (or reasonably should have discovered) his injury. By contrast, a statute of repose generally begins to run at the time of the defendant's allegedly culpable act and cuts off the right to bring a claim after a certain period of time, regardless of when or even whether the plaintiff discovers that the defendant's act caused him injury. Hinkle v. Henderson, 85 F.3d 298, 301 (7th Cir. 1996).

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"This version of section 13--217 preceded the amendments of Public Act 89--7,

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