                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Hart v. Kieu Le, 2013 IL App (2d) 121380




Appellate Court            LYNETTE Y. HART, Plaintiff-Appellant, v. LOAN KIEU LE,
Caption                    Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-12-1380


Filed                      August 26, 2013


Held                       Plaintiff’s refiled personal injury action was properly dismissed as
(Note: This syllabus       untimely where the record showed that plaintiff’s initial action was filed
constitutes no part of     electronically one day after the statute of limitations expired due to the
the opinion of the court   fact that the return date for the summons selected by the paralegal in the
but has been prepared      initial timely filing was unavailable and caused the entire filing to be
by the Reporter of         rejected by the electronic filing system, and the successful initial filing
Decisions for the          one day after the expiration of the limitations period precluded the
convenience of the         application of section 13-217 of the Code of Civil Procedure and the
reader.)
                           equitable tolling doctrine to rehabilitate the rejected filing, especially in
                           the absence of a showing of due diligence on plaintiff’s part.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 12-AR-384; the
Review                     Hon. James D. Orel, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Ryan J. Harrington, of Kuhn, Mitchell, Moss, Mork & Lechowicz, LLC,
Appeal                      of Naperville, for appellant.

                            Carisa J. Krieg, of Law Office of John H. Currie, of Chicago, for
                            appellee.


Panel                       JUSTICE McLAREN delivered the judgment of the court, with opinion.
                            Justices Schostok and Spence concurred in the judgment and opinion.




                                              OPINION

¶1          Plaintiff, Lynette Y. Hart, appeals from an order of the circuit court of Du Page County
        dismissing, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-
        619 (West 2010)), her personal injury lawsuit against defendant, Loan Kieu Le. As explained
        at greater length below, the disposition of this appeal depends on whether, under principles
        of “equitable tolling,” a prior lawsuit between the same parties was timely filed. On the
        record before us, we cannot conclude that it was. We therefore affirm.
¶2          For reasons that are unclear, defendant’s motion to dismiss the lawsuit does not appear
        in the record on appeal. However, plaintiff’s written response to the motion and defendant’s
        written reply to that response indicate that defendant moved for dismissal on the basis that
        the lawsuit was time-barred. Plaintiff’s complaint, which was filed on February 14, 2012,
        sought recovery for injuries sustained in a motor vehicle accident that occurred on July 29,
        2008. Plaintiff had sought recovery for the same injuries in a prior lawsuit that was dismissed
        for want of prosecution on February 24, 2011. Pursuant to section 13-217 of the Code (735
        ILCS 5/13-217 (West 2010)), an action that is dismissed for want of prosecution may be
        refiled within one year or the remaining limitations period. “Section 13-217 is termed a
        ‘saving statute’ or ‘revival statute’ because it ‘revives’ a plaintiff’s previous, timely filed
        complaint, beyond the limitations period, where no adjudication on the merits has been
        obtained and the complaint has been dismissed for procedural reasons.” (Emphasis added.)
        Mercantile Holdings, Inc. v. Feldman, 258 Ill. App. 3d 748, 751 (1994).
¶3          Although plaintiff refiled her lawsuit within one year of the dismissal of the prior lawsuit,
        defendant contended that the prior lawsuit was not filed within the applicable limitations
        period, so section 13-217 did not apply. On appeal, plaintiff does not dispute that the
        complaint in the prior lawsuit was filed one day after the expiration of the applicable
        limitations period. However, she argues that the complaint should be considered timely under
        the “equitable tolling” doctrine. Before considering that argument, a few observations about
        the procedural posture of this appeal are in order. As noted, this appeal is before us on an
        order of dismissal entered pursuant to section 2-619 of the Code. Section 2-619 provides, in

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     pertinent part:
         “(a) Defendant may, within the time for pleading, file a motion for dismissal of the action
         or for other appropriate relief upon any of the following grounds. If the grounds do not
         appear on the face of the pleading attacked the motion shall be supported by affidavit:
                                                ***
             (5) That the action was not commenced within the time limited by law.
                                                ***
             (c) If, upon the hearing of the motion, the opposite party presents affidavits or other
         proof denying the facts alleged or establishing facts obviating the grounds of defect, the
         court may hear and determine the same and may grant or deny the motion. If a material
         and genuine disputed question of fact is raised the court may decide the motion upon the
         affidavits and evidence offered by the parties, or may deny the motion without prejudice
         to the right to raise the subject matter of the motion by answer and shall so deny it if the
         action is one in which a party is entitled to a trial by jury and a jury demand has been
         filed by the opposite party in apt time.” 735 ILCS 5/2-619(a)(5), (c) (West 2010).
¶4       We have noted that:
             “When a defendant moves for involuntary dismissal under section 2-619 of the Code
         and no jury demand has been made and genuine disputed questions of fact are present,
         the court has two options: it may deny the motion without prejudice to the right to raise
         the subject matter of the motion by answer or it may hear and determine the merits of the
         dispute based upon the pleadings, affidavits, counteraffidavits, and other evidence
         offered by the parties. When the latter course is taken, our duty on appeal is to review not
         only the law, but also the facts, and to reverse the circuit court’s order if it is clearly
         against the manifest weight of the evidence.” A.F.P. Enterprises, Inc. v. Crescent Pork,
         Inc., 243 Ill. App. 3d 905, 912 (1993).
¶5       Here, plaintiff did not deny that her complaint was filed outside the applicable limitations
     period. Rather she sought to establish facts obviating the limitations defense via the joint
     operation of section 13-217 and the equitable tolling doctrine. “Generally, the doctrine of
     equitable tolling permits a court to excuse a plaintiff’s failure to comply with a statute of
     limitations where ‘because of disability, irremediable lack of information, or other
     circumstances beyond his control,’ the plaintiff cannot reasonably be expected to file suit on
     time.” Williams v. Board of Review, 241 Ill. 2d 352, 360 (2011) (quoting Miller v. Runyon,
     77 F.3d 189, 191 (7th Cir. 1996)). Equitable tolling requires a showing of due diligence on
     the part of the plaintiff. Id. “Due diligence is a ‘fact-specific inquiry, guided by reference to
     the hypothetical reasonable person’ ***.” Id. at 372 (quoting Former Employees of Siemens
     Information Communication Networks, Inc. v. Herman, 24 Ct. Int’l Trade 1201, 1208
     (2000)). However, “where the evidence leaves no room for a reasonable difference of
     opinion, the court may properly resolve such issues as a matter of law.” Mackereth v. G.D.
     Searle & Co., 285 Ill. App. 3d 1070, 1077 (1996).
¶6       In support of her equitable tolling theory, plaintiff supplied the trial court with an
     affidavit from a paralegal employed by the law firm that filed the lawsuit on plaintiff’s
     behalf. The paralegal averred that her duties included “on line [sic] filing using Dupage [sic]

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     County’s Internet Case Filing System (i2File).” With reference to the present case, the
     paralegal averred as follows in paragraphs 2 through 4 of her affidavit:
               “2. On July 29, 2010, I scanned and saved the summons and complaint and entered
          the i2File.net website to file the documents. I filed the documents in the same manner as
          I had in the past. I received a confirmation notice that i2File had received the summons
          and complaint.
               3. Late in the afternoon of July 29, 2010, notice was received that the summons and
          complaint had been rejected due to the fact that the date chosen in the the [sic] summons
          was unavailable. I inserted a new date on the summons and refiled both the summons and
          the complaint prior to the close of business on July 29, 2010. I had never had a filing
          rejected because of a summons date.
               4. It wasn’t until July 30, 2010 that I received notice that the filing was denied. I
          learned that the date selected for the summons was not available so the entire filing was
          rejected.”
¶7        Local rules of the circuit court of Du Page County provide for the implementation of an
     electronic filing (i.e. “e-filing”) system using private vendors as intermediaries between
     litigants and the clerk of the court. Under the rules, when a vendor receives an electronic
     document and submits it to the clerk, the vendor shall issue confirmation of the time and date
     of receipt of the document. 18th Judicial Cir. Ct. R. 5.11(d) (Nov. 16, 2004). The
     confirmation shall “serve as proof that the document has been submitted to the Clerk.” Id.
     The rules provide that “[e]ach document reviewed and accepted for filing by the Clerk of
     Court shall receive an electronic file stamp” indicating the time and date of filing (18th
     Judicial Cir. Ct. R. 5.11(e) (Nov. 16, 2004)) and that “[a]ny document filed electronically
     shall be considered as filed with the Clerk of the Circuit Court upon review and acceptance,
     and the transmission has been completed with the Clerk’s electronic filing stamp” (18th
     Judicial Cir. Ct. R. 5.11(a) (Nov. 16, 2004)). However, “any document filed with a [v]endor
     on a day or at a time when the Clerk is not open for business, unless rejected by the Clerk,
     shall be deemed to have been accepted at the opening time of the next business day of the
     Clerk.” 18th Judicial Cir. Ct. R. 5.11(c) (Nov. 16, 2004).
¶8        Notably, in certain circumstances, the trial court may give effect to unsuccessful attempts
     to electronically file documents. Local Rule 5.14(b) provides:
          “If an electronic filing is not filed with the Clerk because of (1) an error in the
          transmission of the document to the [v]endor which was unknown to the sending party
          or (2) a failure to process the electronic filing when received by the [v]endor or (3)
          rejection by the Circuit Court Clerk or (4) other technical problems experienced by the
          filer or (5) the party was erroneously excluded from the service list, the Court may upon
          satisfactory proof enter an order permitting the document to be subsequently filed
          effective as of the date the filing was first attempted.” 18th Judicial Cir. Ct. R. 5.14(b)
          (Nov. 16, 2004).
¶9        Initially we note that, taken alone, the paralegal’s affidavit fails, as a matter of law, to
     establish due diligence. The affidavit is vague with respect to the time of day when the
     paralegal made her second attempt to file plaintiff’s complaint. The paralegal stated that she

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       did so “prior to the close of business” on July 29, 2010. It is unclear, however, whether she
       was referring to the business hours of the clerk’s office or those of her law firm. If the
       paralegal attempted to refile the complaint and summons after the clerk’s office closed, those
       documents, even if accepted by the clerk, would have been deemed to have been filed on July
       30, 2010 (18th Judicial Cir. Ct. R. 5.11(c) (Nov. 16, 2004)), on which date the action was
       time-barred. The paralegal’s affidavit is also vague with respect to the time of day when she
       learned that the first attempt to file the complaint had been unsuccessful. Thus, we cannot
       gauge whether the paralegal had a reasonable opportunity to refile before the clerk’s office
       closed for the day.
¶ 10        Plaintiff argues that “the computer system’s rejection of the summons and complaint”
       was beyond the paralegal’s control. According to plaintiff, those documents were rejected
       “not because of any incorrect procedure on [the paralegal’s] part, but because the selected
       date was unavailable within the system itself.” However, the paralegal’s affidavit does not
       indicate how she selected the return date for the summons, whether the vendor or the clerk’s
       office provided any method of confirming the availability of a particular return date, or
       whether the paralegal actually made any effort to confirm the availability of the return date
       she selected.
¶ 11        In addition, the clerk’s rejection of the summons and complaint submitted on July 29,
       2010, did not necessarily foreclose plaintiff from commencing the action within the two-year
       limitations period. If, as plaintiff claims, the paralegal was not at fault, the trial court would
       likely have been receptive to a request pursuant to Local Rule 5.14(b) to permit the summons
       and complaint to be filed effective as of July 29, 2010–when the paralegal first attempted to
       file those documents. Due diligence would require an attempt to obtain relief under that rule.
       Here, however, the record contains no indication that plaintiff made any such attempt.
       Rather, plaintiff let the prior lawsuit be dismissed for want of prosecution and she now seeks
       to apply the equitable tolling doctrine collaterally to the complaint in that lawsuit. Under
       these circumstances, it cannot be said that plaintiff acted with due diligence.
¶ 12        To the extent that plaintiff raised a question of fact beyond the affidavit, the lack of a
       complete record of what transpired in the trial court hinders our review of the dismissal
       order. It is well established that “an appellant has the burden to present a sufficiently
       complete record of the proceedings at trial to support a claim of error, and in the absence of
       such a record on appeal, it will be presumed that the order entered by the trial court was in
       conformity with law and had a sufficient factual basis.” Foutch v. O’Bryant, 99 Ill. 2d 389,
       391-92 (1984). “Any doubts which may arise from the incompleteness of the record will be
       resolved against the appellant.” Id. at 392. On October 31, 2012, the trial court entered an
       order stating that defendant’s motion to dismiss was “entered and continued for more
       information from the Du Page County Clerks [sic] office concerning electronic filing of the
       complaint for November 13, 2012.” The trial court granted the motion on November 13,
       2012, but the record contains neither a transcript nor a substitute (see Ill. S. Ct. R. 323 (eff.
       Dec. 13, 2005)) of the proceedings that took place on that date. Plaintiff did not file a jury
       demand. Therefore, in deciding the motion to dismiss pursuant to section 2-619, the trial
       court was entitled to resolve material questions of fact. A.F.P. Enterprises, Inc., 243 Ill. App.
       3d at 912. However, we do not know what information, if any, the court received from the

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       clerk’s office, and how any such information affected the trial court’s decision. Similarly, we
       do not know whether the parties presented additional evidence bearing on whether equitable
       tolling was appropriate. Pursuant to Foutch, we must assume that there were sufficient
       factual and legal grounds for the trial court’s determination that the doctrine of equitable
       tolling did not apply here.
¶ 13        For the foregoing reasons, the judgment of the circuit court of Du Page County is
       affirmed.

¶ 14      Affirmed.




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