The Illinois Supreme Court's January Term begins Tuesday, January 12, 2021.  Oral arguments are scheduled for January 12, 13 and 14, 2021.  A total of 11 cases will be heard --5 civil and 6 criminal.  The following civil cases are scheduled for argument this Term:

January 13, 2021

Beaman v. Freesmeyer, No. 125617

Indeck Energy Services, Inc. v. DePodesta, No. 125733

January 14, 2021

Ciolino v. Ekl, No. 126024

Eighner v. Tiernan, No. 126101

In re Application for a Tax Deed, No. 126150

Below is a summary for one of those cases, Eighner v. Tiernan.  Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website

Eighner v. Tiernan, No. 126101

The issue in this case is whether a voluntarily-dismissed action under Section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009) can be reinstated as the original action or must be recommenced by filing a new action.

Plaintiff Stanley Eighner filed suit against Defendant Patricia J. Tiernan seeking damages arising from a motor vehicle collision. Plaintiff subsequently moved to voluntarily dismiss the complaint with leave to reinstate pursuant to Section 2-1009 of the Code of Civil Procedure.  735 ILCS 5/2-1009. Less than one year later, Plaintiff attempted to reinstate the action under the original case number by filing a “Notice of Refiling Complaint Being Reinstated Within One Year of Voluntary Dismissal” along with a copy of the complaint being refiled. When this case did not receive a case management hearing date, Plaintiff commenced a new action by filing another complaint with the clerk’s office, now more than one year after the voluntary dismissal.

Defendant moved to dismiss the new action pursuant to Section 2-619(a)(5), arguing that the complaint was refiled more than one year after the initial complaint was voluntarily dismissed, in violation of Section 13-217.  735 ILCS 5/13-217. The circuit court denied the motion to dismiss, but certified the following question for appeal pursuant to Supreme Court Rule 308: “Whether refiling a complaint in a previously dismissed lawsuit as opposed to filing a new action satisfies the language of 735 ILCS 5/13-217, which states a plaintiff may commence a new action after the case is voluntarily dismissed pursuant to 735 ILCS 5/2-1009.”

The Illinois Appellate Court, First District, answered the certified question in the negative. The appellate court, interpreting Section 13-217 which states that a plaintiff “may commence a new action” after the case is voluntarily dismissed, held that the unambiguous language requires a plaintiff to refile the complaint under a new case number. The appellate court expressly did not opine on whether reinstatement of a case upon plaintiff’s motion qualifies as a “new action” under Section 13-217 because Plaintiff did not file such a motion. The appellate court then reversed the judgment of the circuit court and remanded with directions to grant Defendant’s motion to dismiss.

In his petition for leave to appeal, Plaintiff argues that the voluntary dismissal order that provided for dismissal “without prejudice and with leave to reinstate within one year of this Order…” intended for the circuit court to retain jurisdiction, after entry of a non-final order, so the commencement of a new action was unnecessary and prohibited by Section 2-619(3). Plaintiff asks the Illinois Supreme Court to adopt appellate court decisions requiring an analysis of the circuit court’s order to determine if the court intended to retain jurisdiction. Plaintiff further argues that the language “with leave to reinstate” signifies the circuit court’s intention to retain jurisdiction to permit a plaintiff to “reinstate” the voluntarily dismissed action, rather than “refile” the complaint in a new action. Thus, Plaintiff argues that the appellate court’s decision should be reversed and he should be permitted to proceed under his reinstated complaint in the original action.

Appellate Court Decision: 2020 IL App (1st) 191369.  Reyes, J., with Gordon, P.J. and Lampkin, J., concurring.